Woman with mental health issue loses challenge to planning permission refusal

A woman with a mental health condition has lost her High Court challenge over being refused planning permission to build a house on a site owned by a sibling in a rural area of Co Wicklow.

The woman wanted to build a house close to her sibling’s home

and said she would comply with any condition that her proposed dwelling would only be sold as part of the overall landholding.

Wicklow County Council refused permission in 2018 on grounds the proposed development was contrary to the county development plan, including restrictions on one-off rural housing, and would constitute a second dwelling on the site.

After that refusal was upheld by An Bord Pleanála, the woman, aged in her 30s, who by court order cannot be identified, challenged the board’s decision in judicial review proceedings. She was deemed to have sufficient capacity to instruct lawyers directly.

In a judgment published this week, Mr Justice Richard Humphreys gave his reasons for rejecting her challenge.

He said national guidelines provide new one-off rural housing is to be considered only in particular circumstances, reflecting the planning policy view such “one-off” housing is not sustainable in the environmental sense, subject to clearly defined social or economic need.

“Planning obligations, like legal obligations, should be applied in an objective fashion, and not set aside at the mere discretion of statutory decisions-makers, still less that of the High Court on judicial review, just because a sympathetic applicant comes forward.”

He said while fully acknowledging the difficulties experienced by the woman, she could only be facilitated in meeting her housing needs in a way that the law in general, and environmental and planning considerations in particular, will permit.

Mr Justice Humphreys said her lawyers had submitted the board’s decision should have been informed by the UN Convention on the Rights of Persons with Disabilities but that claim falls outside the pleaded claim.

In any event the convention is not part of Irish law, so the decision is not invalid for failure to consider it, he added.

National guidelines

Rejecting arguments the board’s inspector had treated the woman’s planning application as made by her parents, he said the inspector was writing in the context of the development plan and the national guidelines, which specifically refer to intergenerational situations.

A reference to the parents having spent three years in the area was “not determinative” but raised a question whether the criteria for being an intrinsic part of the local community were satisfied. The reference to the parents’ residence was “a perfectly valid point to consider”.

A claim that the board wrongly failed to have “due regard” to the “exceptional” nature of the woman’s case, including her mental illness and need for family support, came down to arguing one could make a “humanitarian” case for her.

The board, he held, had not failed to have “due regard” to anything and considered all the circumstances. To challenge its conclusion that the woman’s illness and need for family support were not determinative was an “impermissible merits-based complaint”.

The fact that the board, having considered the 16 specific situations for one-off housing set out in the development plan, had not made an exception for the woman did not make its decision unlawful.

He said the issue of whether the woman’s need was sufficiently pressing to outweigh the policy against one-off rural housing was a matter of planning judgment.