Judge overturns refusal of permission for 81-bed hotel in Co Galway

Judge says he proposed to return planning application to board for reconsideration

A High Court judge has overturned An Bord Pleanála's refusal of permission for an 81-bedroom hotel and artisan food hub in Spiddal, Co Galway.

Mr Justice Anthony Barr said he proposed to return the planning application to the board for reconsideration in line with his judgment but would defer final orders until the sides have considered the judgment.

Baile Eamoinn Teoranta (BET) took the judicial review proceedings over the board’s dismissal on October 2018 of its appeal against Galway County Council’s refusal of permission for the development on a site near the Ceardlann in Spiddal.

The developer sought permission for an 81-bedroom hotel, two self-catering cottages, a business and food innovation centre, six detached houses and associated car parking.

The board refused permission on grounds that, due to deficiency in the public waste water system in the area, the development was premature until a proper municipal waste water treatment plant (MWWTP) was in place to service the development, notwithstanding the developer’s proposal to install its own private waste water treatment plant (PWWTP) in the interim.

It also considered that discharge from a PWWTP into an inadequate public sewerage network would be prejudicial to public health.

In his judgment on Friday, Mr Justice Barr upheld two grounds of BET’s challenge.

He found the refusal of permission was irrational because the board and its inspector had proceeded on the basis of a material mistake of fact concerning the status of Irish Water’s application for permission for the MWWTP.

The inspector, after consulting Irish Water’s apparently out of date website, told the board, as of September 17th, 2018, while Irish Water intended to construct a MWWTP for the Spiddal area, no application for planning permission for such a plant had been submitted to the council.

The inspector’s conclusion that Irish Water was still at the planning stage and therefore the construction period and the intended completion date for the public scheme remained unknown was “materially incorrect”, the judge said.

Irish Water had in fact submitted a planning application on June 6th, 2018. It obtained permission in October 2018, between the time of the inspector’s report and the board’s decision. Thus, when the board reached its decision on October 23rd, 2018, the board proceeded on “a totally mistaken view of the material facts”.

This was significant because the board’s decision that it would be premature to allow the development had regard to the deficient situation concerning the public waste water system. The board proceeded on the incorrect assumption Irish Water had not submitted a planning application for the MWTTP, leading to its decision there was no certainty the PWWTP would only be needed in the short to medium term.

The refusal of permission must be set aside on the ground the board reached its decision on the basis of a material error of fact, which was due to the fault of its own agent and not due to any fault or omission by the applicant, the judge held.

He also set aside the refusal on the ground there was insufficient evidence for the board’s finding the development may be adverse to public health.

The judge said technical evidence put before the board inspector from a team of consulting engineers for the applicant was that the proposed PWWTP, a tertiary treatment plant, would provide a discharge of liquid of a very high quality. There was sworn evidence it would be of a higher quality than that to be ultimately discharged by the proposed MWWTP.

While the volume of waste water from the proposed development, involving a relatively large hotel, would be greatly in excess of that produced by ordinary domestic use, the quality of the waste water discharge would not necessarily mean the degree of pollution, or the effect on public health, would be materially adversely affected, he said.

The inspector had concluded the proposed development did not pose any adverse risks from an environmental point of view but “somewhat paradoxically” considered it would pose a risk to the health of bathers at two blue flag beaches. The inspector had not included any evidence in his report to substantiate his concerns about the impact on bathing water quality, the judge said.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times