By Gordon Deegan

A Co. Kildare farmer has failed in her long-running battle to secure planning permission for a ‘modest farmhouse’ on her own lands due to much tighter council rules aimed at reducing 'one-off' housing in the countryside.

This follows High Court judge, Justice David Nolan refusing Eithne (Eithna) Herbert’s application to quash a decision by An Coimisiún Pleanála (ACP) to refuse her planning permission for a home at Lowtown, Robertstown, Naas, Co. Kildare last year.

Herbert had earlier secured planning permission for a home at family-owned lands in 2001 but arising from an order made in legal proceedings, she had to sell her family home.

This is why she was seeking planning permission for a “a modest farmhouse” on an alternative site, given that she runs her farm business from the home and her children are closely connected to the local community.

Court judgement

In his written judgement, Justice Nolan stated that for the last three years, Eithne Herbert has sought planning permission for the new home, which has been refused on more than one occasion, notwithstanding a successful High Court judicial review in 2023.

Herbert first sought planning permission in April 2022 and was subsequently refused planning by Kildare County Council and by what was then called An Bord Pleanála (ABP) in February 2023.

She was successful in challenging the ABP decision in the High Court judicial review in 2023 and the case was remitted back to the then appeals board for a fresh adjudication.

However, in April 2024, ACP refused planning permission to Herbert due to a new policy in the Kildare County Development Plan which require applicants to demonstrate that they do not own or have not been previously granted permission for a one-off rural dwelling in Co. Kildare.

Herbert was granted planning permission in 2001 and his ruling, Justice Nolan stated that she “was most unfortunate” that by the time she came to make her second application, the planning rules in the Kildare County Development Plan concerning 'one-off' housing had changed.

The judge pointed that now applicants are required to demonstrate that they do not own or have not been previously granted permission for a 'one-off' rural dwelling in Kildare. 

Justice Nolan stated: “Due to no fault of hers, she fell foul of the new objective since she had already been granted permission.

“While she argues that this approach is unduly rigid and fails to consider the unique and involuntary nature of her circumstances, in truth ACP did consider them," he added.

He said that the inspector in his report specifically acknowledged her rationale for a new dwelling as being her matrimonial break-up but noted that “the exceptional circumstances” as afforded under the old Development Plan no longer applied under the provisions of the new plan.

Justice Nolan stated that the ACP inspector and ACP were simply reflecting the changed Development Plan.

Policy

The judge said that while the court’s empathy is clearly with Eithne Herbert, the difficulty she faces is the Kildare County Development Plan has changed its policy objectives in relation to 'one-off' rural dwelling as the general exemption of exceptional circumstances has been removed.

He said in the circumstances, the court is left in the position where it cannot make the order sought.

Making a general comment, Justice Nolan stated that it seems clear that national planning guidelines and development plans are increasingly seeking to move away from 'one-off' rural housing to avoid the piecemeal and haphazard development of Ireland’s rural landscape. 

He said: “That is a policy decision which those tasked with developing the planning of housing construction within the state are perfectly entitled and, indeed, are mandated to make if, they believe it is appropriate.

"However, in order to avoid unduly restrictive laws, there should always be exceptions, subject to the planning objectives.”