A couple has been given the go-ahead by the High Court to challenge a planning refusal for a home in a rural area over an alleged failure to evaluate their exceptional health circumstances including that they have three children with autism.
Thomas Ali Yennusick and Sarah Yennusick, who live in Wicklow town, acquired a rural site near Enniscorthy, Co Wexford, in 2019.
Mr Yennusick, who recently successfully sat the legal bar exams, is originally from Ghana and has been in Ireland since 1991. His wife, originally from Tanzania, has been in Ireland since 1994. The couple had seven children, two of whom died.
Their three younger children, aged between nine and 19, have autism and special needs, including environmental needs. Ms Yennunsick has worked as the primary carer to their children with autism.
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They claim their home in Wicklow, which was provided by the local authority under the council rental scheme, is cramped. They also say they are in a vulnerable position if their tenancy is terminated.
In December 2020, they applied for permission to build a house on the Enniscorthy site and to retain an existing mobile home, wastewater treatment system and associated works. They said the site, with plenty of outdoor space, would be of great benefit to and was necessary for the health and welfare of their children.
They provided medical evidence to support the planning application. The three children with autism attended school in Enniscorthy, requiring their mother to make a 150km daily round trip.
Wexford County Council refused permission on grounds that they were not classified as a “local rural person”, that the house would contribute to random rural development and because of evidence of failed drainage conditions on the site, which could give rise to a health hazard.
They appealed to An Bord Pleanála citing their “exceptional health circumstances”. The board rejected the appeal generally in accordance with its own inspector’s recommendations. The inspector, as well as rejecting it on good planning grounds and failure to meet the criteria for rural housing, said the exceptional health grounds were at the heart of the appeal.
The inspector said she was “wholly unconvinced that this constitutes an actual need to live in the particular environment”.
It had not been shown that the benefits which the Yennusick family claim would come from living in a rural area “could not be achieved elsewhere away from an area under such significant development pressure or in a settlement in the locality”, she said.
The inspector also said it was clear the site would require complicated engineering and long-term maintenance of any effluent treatment system.
The couple sought to challenge the decisions of the council and the board in the High Court. The council and the board opposed granting them leave to bring the challenge including on grounds that it was brought outside time limits.
The couple claim in their challenge that the board erred on a number of grounds including its failure to consider exceptions for those who do not fall under the traditional “local needs criteria”.
Mr Justice Cian Ferritter granted the couple an extension of time to bring their challenge against the board but not against the council. He said the board’s inspector did reference in her report the exceptional health circumstances point.
However, he said, the inspector made no reference that there was medical evidence before the board seeking to substantiate that they need to live on the Wexford site to allow them properly address their children’s special medical needs.
The absence of such a reference raised a substantial ground to the effect that this highly relevant material was simply not considered, or was improperly disregarded, he said.
In arriving at his conclusion, the judge said this should not be taken as expressing any view as to the ultimate strength of those grounds given that the matter will now proceed to a full hearing.