Farm Ireland

Saturday 20 October 2018

Brothers win legal challenge over being refused planning permission to build homes on family lands

 Stock photo
 Stock photo

Tim Healy

Two brothers have won their legal challenge over being refused planning permission to build homes on lands in Co Wicklow gifted to them by their father.

Their sister previously secured permission for a house on the lands.

The applications by Paul and Tony Porter must be reconsidered by An Bord Pleanála in line with her High Court findings, Ms Justice Miriam O'Regan directed.

Those findings included that the Board's refusals were irrational when it had, on appeal, granted permission to their sister Stephanie for a house on the lands at Ballylug. 

In her judgment published this week, the judge also held the Board failed to properly consider, in accordance with objectives of the Wicklow Council Development n Plan 2010-2016, whether the brothers had demonstrated a "need" to live in the immediate vicinity of the family business Porters Christmas Tree Farms. 

The lands are part of a 350 acre holding used for forestry, the judge noted. Some of the holding is in Ballylug and two more parcels of the holding are situated in counties outside Wicklow.

The judge noted the brothers and their sister were born in Laragh village and later moved with their paents to Trooperstown, Co Wicklow. After selling their Trooperstown property in 2008, the family moved to their existing home in Ballylug where a family business, Porters Christmas Tree Farms, was operated

The Ballylug property was in the name of their father, who had applied for planning permission but was refused because he had an alternate dwelling, she said. However, an application for retention permission was made by the applicants’ sister, Stephanie Power, following an earlier unsuccessful application by her.

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Wicklow County Council had in January 2016 refused permission to the brothers to build their own homes on the lands for reasons including the development would be a traffic hazard, had intrusive features and no housing need was demonstrated in line with the Rural Housing Guidelines.

After An Bord Pleanala also rejected the brothers application in June 2016, they appealed to the High Court. 

While the traffic issue had fallen away by the time of the Board's hearing, it refused permission on grounds of intrusive features and no housing need was demonstrated, the judge noted.

She allowed the appeal on grounds of irrationality arising from permission having been granted to Ms Power and the Board's failure to properly consider the relevant objectives of the county development plan.

The judge has returned the cases to the Board for reconsideration based on those findings.

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