Herbert v An Coimisiun Pleanala (Approved)

Factual and Procedural Background

The Appellant is a farmer who has lived all her life at her home in The City. As a consequence of an order in other legal proceedings she must sell that family home. Because she runs her farming business from the home and her children remain tied to the local community, she sought planning permission to build a single-storey farmhouse on her own land. She applied for planning permission over a period of years and was refused on more than one occasion, although she obtained a successful judicial review of an earlier refusal.

At the time of the second application the Appellant met all statutory planning requirements except that the new local development plan (the Kildare County Development Plan 2023–2029, hereafter "the New Plan") contained an objective that prevented approval in her circumstances. She seeks an order of certiorari quashing a decision of Company A dated 16 April 2024 which refused her application for planning permission.

Procedural history, in summary:

• 2001: the Appellant was granted permission for a one‑off rural house which became the family home.
• April 2022: the Appellant submitted a planning application to Company B which was refused; she appealed to Company A. The inspector's first report was prepared under the prior County Development Plan (the "Old Plan").
• 9 February 2023: Company A issued a decision refusing permission; that decision was the subject of judicial review and was quashed because the reasons given were found inadequate for the purposes of s.34(10) of the Planning and Development Act 2000 (as amended).
• Following the quashing, the Appellant re-applied, Company A sought further submissions and instructed the same inspector to prepare an addendum report. By then the New Plan had come into effect (28 January 2023) and the relevant policy framework had changed.
• 15 April 2024: Company A refused the second application. The Appellant seeks judicial review of that refusal.

Legal Issues Presented

1. Whether Company A's April 2024 decision refusing planning permission should be quashed for failure to give adequate reasons in compliance with s.34(10) of the Planning and Development Act 2000 (as amended).
2. Whether Company A (and the inspector) misinterpreted or applied the New Plan improperly, in particular Objective HO O43 and the status of the Table 3.5 "high-level checklist" and the phrase "save in demonstrable exceptional circumstances".
3. Whether Company A acted irrationally or unlawfully by changing position between the first inspector's report and the addendum report, given the change in the development plan.

Arguments of the Parties

Appellant's Arguments (presented by Attorney Kennedy)

• The April 2024 decision did not give adequate reasons as required by s.34(10) PDA; the Commission’s reasoning turned on rural housing eligibility and her being part‑time in farming without sufficient explanation.
• The Commission adopted an unduly rigid interpretation of the New Plan (Objective HO O43 and Table 3.5), failing to account for her unique and involuntary circumstances (including matrimonial breakdown), which should amount to "exceptional circumstances".
• The addendum report is inconsistent with the earlier inspector's report; because the inspector had previously found exceptional circumstances, the addendum is contradictory and any decision based on it is invalid.
• Reliance was placed on authorities said to require adequate reasons (Balz, Connolly, Walsh) and on principles of reasonableness and common sense (O'Keeffe, State (Keegan)).

Company A's Arguments (presented by Attorney Carroll)

• Objective HO O43 of the New Plan requires that applicants demonstrate they do not own or have not previously been granted permission for a one‑off rural dwelling; the Appellant had previously been granted permission and therefore fell foul of HO O43.
• The Appellant cannot be permitted to carve out a bespoke exception to Objective HO O43; to do so would be to depart from the Plan’s objectives impermissibly.
• The reliefs sought by the Appellant should be refused because the decision adhered to the New Plan and to proper planning law and practice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Balz v An Bord Pleanála [2019] IESC 90	Cited by the Appellant in support of the proposition that planning decisions must give adequate reasons (s.34(10) PDA).	The court noted the Appellant relied on it but analysed whether the reasons in the present decision were adequate in the context of the New Plan; the court concluded the decision did not fail for want of reasons in the way alleged.
Connolly v An Bord Pleanála [2018] IESC 31	Also relied on by the Appellant concerning adequacy of reasons for planning decisions.	The court acknowledged reliance but treated adequacy of reasons issue in light of the changed policy context and the inspector's addendum; it was not persuaded that a s.34(10) defect arose here.
Walsh v An Bord Pleanála [2025] IEHC 533	Relied on by the Appellant for the proposition that a decision may be invalid where it departs from or contradicts its inspector's report without adequate reasons.	The court distinguished Walsh: in the present case the decision followed the inspector (addendum) and the change in outcome was explained by a change in the development plan, so the Walsh reasoning did not require quashing the decision.
O'Keeffe v An Bord Pleanála [1993] 1 IR 39	Cited by the Appellant as authority for the relevance of rationality and common sense in planning decisions.	The court noted the citation but found that the Commission's approach reflected the changed plan and was not irrational.
State (Keegan) v Stardust Compensation Tribunal [1986] IR 642	Cited by the Appellant to support arguments about fundamental reasonableness.	The court recorded the reliance but found the Commission's decision was a lawful application of the New Plan rather than an irrational outcome.
C. O'C v An Bord Pleanála [2021] IEHC 70	Quoted for the general planning principle that new one‑off rural housing is permissible only in particular (social or economic) circumstances in national guidelines.	The court used this authority to frame the broader policy context: planning policy generally disfavors one‑off rural housing except in defined circumstances, a point consistent with the New Plan.
Sherwin v An Bord Pleanála [2024] IESC 32	Cited for the proposition that plan objectives take precedence over guidance tables if conflict arises.	The court applied that principle to hold that Table 3.5 (a checklist) does not override the Plan's objectives (HO O43); objectives prevail.
Moran v An Bord Pleanála [2025] IEHC 510	Cited for the proposition that sympathetic personal circumstances do not automatically override planning considerations; courts cannot substitute their evaluative judgment for that of the planning authority.	The court relied on this principle to emphasise limits of judicial review: while sympathetic, the court cannot overturn a lawful planning evaluation merely because of the Appellant’s personal circumstances.

Court's Reasoning and Analysis

The court began by setting out the factual matrix: the Appellant previously had permission for a one‑off dwelling (2001), applied in 2022 (refused by Company B), appealed to Company A, and obtained a successful judicial review of the first Company A decision because of inadequate reasons. Before the second decision the New Plan took effect, changing the relevant policy framework.

The court analysed the key change in the New Plan: Objective HO O43 requires applicants to demonstrate they do not own or have not been previously granted permission for a one‑off rural dwelling in Kildare. The previous exemptions under the Old Plan (policies RH2 and RH3, including an undefined "exceptional circumstances" exception) were removed or altered. Table 3.5 in the New Plan contains a "high‑level checklist" and uses the phrase "save in demonstrable exceptional circumstances", but the court concluded that this wording must be read in context and that the only demonstrable exception in the New Plan is HO O47 (exceptional health circumstances supported by medical documentation).

The court addressed the Appellant's complaint about inconsistency between the inspector's first report and the addendum report. It held that the difference in the reports stemmed from the intervening change in the development plan rather than from irrationality or caprice: the first report was prepared under the Old Plan; the addendum and the decision were necessarily assessed under the New Plan. The court found no unlawful change of position by Company A.

On the adequacy of reasons, the court distinguished prior authorities relied upon by the Appellant (notably Walsh) because, unlike Walsh, the Company A decision here followed the inspector's addendum report and did not override its inspector without explanation. The court concluded the reasons given were sufficient in the context of the changed plan and the nature of the decision (agreement with the inspector and application of the New Plan objectives).

Regarding Table 3.5 and the "high‑level checklist" language, the court accepted that the wording is confusing and likely difficult for lay readers, but concluded that the table provides guidance only and does not supplant or override the Plan's objectives. Relying on Sherwin, the court held objectives prevail over the Table where there is any tension. The phrase "save in demonstrable exceptional circumstances" was read as referring to HO O47 (exceptional health circumstances requiring evidentiary support), not to an open-ended exceptionalism that would revive the Old Plan's broader exemption.

Finally, the court emphasised the limited role of judicial review in planning matters: courts cannot substitute their evaluative judgment for that of the planning authority where the authority has lawfully applied the Plan's objectives, even where the applicant's circumstances are sympathetic (citing Moran).

Holding and Implications

HOLDING: The court refused the Appellant's application for certiorari and therefore declined to quash Company A's decision of 15 April 2024 refusing planning permission.

Implications:

• Direct effect: The Company A refusal of planning permission remains in force; the Appellant's challenge is unsuccessful.
• Reasoning: The decision was upheld because Company A applied the New Plan (Objective HO O43) legitimately and the inspector's addendum report reflected the changed policy framework. Table 3.5 was held to be guidance only and not to override the Plan's objectives.
• Precedential effect: The court did not purport to establish a new legal principle beyond applying existing authorities to the facts; it emphasised the ordinary limits of judicial review of planning decisions rather than creating novel law.