By: Mark Tottenham BL, on April 26th, 2012

Rowan v. Kerry County Council [2012] IEHC 65 (High Court, Birmingham J, 27 February 2012)

High Court refuses judicial review of decision by local authority to confirm that realignment of a public road was in compliance with planning condition.

Judicial review - planning - confirmation by local authority that public road had been realigned in compliance with planning condition - application for planning permission for construction of family home - payment of financial contribution - whether road had been realigned - whether realignment satisfactory to planning authority - definition of "road" and "roadway" - Section 2(1), Roads Act 1993 - interpretation of planning documentation.

Quotation from judgment (courtesy of the Courts Service of Ireland):

“If the focus is on the narrow 'roadway', it seems to be impossible to conclude that there has been realignment. However, if the focus is on the broader 'road' a different conclusion is reached. If that is the focus, and I am of the view that is where the focus should be, then it seems to me that there has been a significant reconfiguration of the road involving the lowering of the road level and the pushing back of its boundaries. If that is the focus of attention then the conclusion has to be that there has been both horizontal and vertical realignment. In these circumstances the applicant's argument, that there has been no realignment of the public road to the south of site, fails.It is not necessarily the case that every planning authority faced with this decision would decide it in the same way, but I suspect many would. Certainly, I do not believe that it can be said that the conclusion that Kerry County Council arrived at was one that could not be reached by a reasonable planning authority. On the contrary, it seems to me that the decision arrived at, and it was a difficult decision, was one that was carefully considered by Kerry County Council and the conclusion reached was one that was entirely open to it.”

Full Text on Court Services Website>

Key Cases Cited

Grampian Regional Council v. City of Aberdeen D.C [1984] 47 P&,C.R. 633
McEvoy v. Meath County Council [2003] 1 I.R. 208
O'Keefe v. An Bord Pleanala [1993] 1 I.R. 39
Kenny v. Dublin City Council [2009] I.E.S.C. 19
Readymix (Eire) Limited v. Dublin City Council and the Minister for Local Government (Unreported, Supreme Court, 30th July 1974)
Hoare and Others v. Limerick City Council [2011] IEHC 27,
O'Connor v. Dublin Corporation (Unreported, High Court, 3rd October 2000)
Gregory v. Dunlaoghaire Rathdown County Council (Unreported, High Court, Geoghegan J, 16th July 1996)