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Cite as: [2020] IEHC 25

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THE HIGH COURT

JUDICIAL REVIEW

[2020] IEHC 25

[2019/ 16 J.R.]

BETWEEN

NARCONON TRUST

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

MEATH COUNTY COUNCIL

FIRST NOTICE PARTY

AND

BALLIVOR COMMUNITY GROUP

SECOND NOTICE PARTY

AND

TRIM MUNICIPAL DISTRICT COUNCIL

THIRD NOTICE PARTY

JUDGMENT of Mr.Justice Heslin delivered on the day of, 2019

Background

1. This case concerns an application for judicial review which is brought by the Applicant

under s. 50 of the Planning and Development Act 2000, as amended (the “2000 Act”).

The Applicant seeks judicial review in respect of two decisions made by the Respondent,

An Bord Pleanála, (the “Board”) on 19 November 2018 whereby the Board decided that

the change of use from a nursing home to a residential drug rehabilitation facility at the

former Old National School, Ballivor, Co. Meath is development and is not exempted

development. These decisions by the Board were made in respect of two referrals, namely

those by the Second and Third Notice Parties, such referrals having reference numbers

ABP–301055–18 and ABP–301064-18. The Board’s decisions were made pursuant to s. 5

of the 2000 Act. The decisions by the Board are reflected in two orders made by the

Board, each of which is dated 19 November 2018. The Applicant argues that the Board

was precluded from determining the two referrals made to the Board by the First and

Second Notice Parties pursuant to s. 5 of the 2000 Act, in circumstances where the First

Notice Party, Meath County Council, had previously determined a s. 5 referral and, on 26

September 2016, on foot of a request from the Applicant, issued a declaration pursuant to

s. 5 that a change of use from a nursing home to a residential drug treatment centre is

development and is exempted development. At the outset of the hearing I was informed

that the First, Second and Third Notice Parties had decided to play no active part in the

proceedings. That being so, the evidence before the court comprised the sworn affidavits

on behalf of the Applicant and Respondent, respectively.

Reliefs sought by the Applicant

2. As appears from the Applicant’s notice of motion dated 18 January 2019, the Applicant

seeks the following reliefs: -

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1. An order of certiorari, by way of judicial review, quashing the decisions made by

the Respondent pursuant to section 5 of the Planning and Development Act, 2000,

as amended, on 19 November 2018 in respect of the two referrals, (reg. ref. nos.

ABP-301055-18 and ABP-31064-18), that the change of use of the nursing home

development (permitted under planning authority reg. ref. no. TA/140621) to a

residential drug rehabilitation facility, is development and is not exempted

development.

2. A Declaration, by way of judicial review, that in making the impugned decisions, the

Respondent erred in law, took into account irrelevant considerations and/or

misunderstood or overlooked relevant considerations and/or acted irrationally

and/or unreasonably and, consequently, the impugned decisions of the Respondent

are invalid and have no legal effect.

3. If necessary, an Order continuing the Stay granted by the High Court (Noonan J.)

by Order made on 14 January 2019, and perfected on 17 January 2019 on the

implementation of, or reliance upon, the impugned decisions made by the

Respondent, including in any enforcement proceedings commenced under Part VIII

of the Planning and Development Act 2000, as amended, pending the final

determination of these judicial review proceedings.

4. Further and other order.

5. Liberty to apply

6. The costs of these proceedings

Relevant legislation

3. Counsel, very helpfully, furnished the court with an unofficial consolidation of the 2000

Act, prepared by the Law Reform Commission and updated to 24 October 2019 as well as

an unofficial consolidated version of the Planning and Development Regulations 2001-

2019, prepared by the Department of the Housing, Planning and Local Government. Of

particular relevance to the present case are the following provisions: -

Planning and Development Act 2000, as amended:

“Exempted development.

4.— (1) The following shall be exempted developments for the purposes of this

Act—

…

(2) (a) The Minister may by regulations provide for any class of development to be

exempted development for the purposes of this Act where he or she is of the

opinion that—

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(i) by reason of the size, nature or limited effect on its surroundings, of

development belonging to that class, the carrying out of such development

would not offend against principles of proper planning and sustainable

development, or

(ii) the development is authorised, or is required to be authorised, by or under

any enactment (whether the authorisation takes the form of the grant of a

licence, consent, approval or any other type of authorisation) where the

enactment concerned requires there to be consultation (howsoever

described) with members of the public in relation to the proposed

development prior to the granting of the authorisation (howsoever

described).

(b) Regulations under paragraph (a) may be subject to conditions and be

of general application or apply to such area or place as may be

specified in the regulations.

prejudice to the generality of paragraph (a), provide, in the case of

structures or other land used for a purpose of any specified class, for

the use thereof for any other purpose being exempted development for

the purposes of this Act.

(3) A reference in this Act to exempted development shall be construed as a reference

to development which is—

(a) any of the developments specified in subsection (1), or

(b) development which, having regard to any regulations under subsection

(2), is exempted development for the purposes of this Act.”

“Declaration and referral on development and exempted development.

5.—(1) If any question arises as to what, in any particular case, is or is not development

or is or is not exempted development within the meaning of this Act, any person

may, on payment of the prescribed fee, request in writing from the relevant

planning authority a declaration on that question, and that person shall provide to

the planning authority any information necessary to enable the authority to make

its decision on the matter.

(2) (a) Subject to paragraphs (b) and (be), a planning authority shall issue the

declaration on the question that has arisen and the main reasons and

considerations on which its decision is based to the person who made the request

under subsection (1), and, where appropriate, the owner and occupier of the land

in question, within 4 weeks of the receipt of the request.

(b) A planning authority may require any person who made a request under subsection

(1) to submit further information with regard to the request in order to enable the

authority to issue the declaration on the question and, where further information is

received under this paragraph, the planning authority shall issue the declaration

within 3 weeks of the date of the receipt of the further information.

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(ba)(i) Subject to subparagraph (ii), a planning authority shall not be required to

comply with paragraph (a) within the period referred to in that paragraph

where it appears to the planning authority that it would not be possible or

appropriate, because of the exceptional circumstances of the development or

proposed development (including in relation to the nature, complexity,

location or size of such development) identified in the request under

subsection (1) to do so.

(ii) Where subparagraph (i) applies, the planning authority shall, by notice in

writing served on —

(I) the person who made the request under subsection (1), and

(II) each person to whom a request has been made under paragraph (c),

before the expiration of the period referred to in paragraph (a), inform him or her

of the reasons why it would not be possible or appropriate to comply with that

paragraph within that period and shall specify the date before which the authority

intends that the declaration concerned shall be made.

in paragraph (b) to submit information in order to enable the authority to

issue the declaration on the question.

(3) (a) Where a declaration is issued under this section, any person issued with a

declaration under subsection (2)(a) may, on payment to the Board of such fee as

may be prescribed, refer a declaration for review by the Board within 4 weeks of

the date of the issuing of the declaration.

(b) Without prejudice to subsection (2), in the event that no declaration is issued

by the planning authority, any person who made a request under subsection

(1) may, on payment to the Board of such fee as may be prescribed, refer

the question for decision to the Board within 4 weeks of the date that a

declaration was due to be issued under subsection (2).

(4) Notwithstanding subsection (1), a planning authority may, on payment to the Board

of such fee as may be prescribed, refer any question as to what, in any particular

case, is or is not development or is or is not exempted development to be decided

by the Board.

(5) The details of any declaration issued by a planning authority or of a decision by the

Board on a referral under this section shall be entered in the register.

(6) (a) The Board shall keep a record of any decision made by it on a referral under this

section and the main reasons and considerations on which its decision is based and

shall make it available for purchase and inspection.

(b) The Board may charge a specified fee, not exceeding the cost of making the

copy, for the purchase of a copy of the record referred to in paragraph (a).

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planning authority a copy of the record referred to in paragraph (a).

(d) A copy of the said record shall, at the request of a member of a planning

authority, be given to that member by the chief executive of the planning

authority concerned.

(7) A planning authority, before making a declaration under this section, shall consider

the record forwarded to it in accordance with subsection (6)(c).

(7A) A planning authority or the Board, as the case may be, shall, in respect of a

development or proposed development specified in Part 2 of Schedule 5 to the

Planning and Development Regulations 2001, specify in its declaration or decision,

as the case may be, whether the development or proposed development identified

in the request under subsection (1) or in the referral under subsection (3) or (4) ,

as the case may be, would be likely to have significant effects on the environment

by virtue, at the least, of the nature, size or location of such development and

require an environmental impact assessment.

(7B) (a) Where the planning authority issues its declaration on a request under

subsection (1) or the Board makes its decision on a referral under subsection (3) or

(4), as the case may be, the following documents shall, within 3 working days, be

placed on the planning authority’s or Board’s, as the case may be, website for

inspection and be made available for inspection and purchase by members of the

public during office hours at the offices of the authority or Board, as the case may

be, for at least the minimum period referred to in paragraph (b):

(i) a copy of the question arising as to what is or is not development or is

or is not exempted development within the meaning of this Act and

any information, particulars, evidence, written study or further

information received or obtained from any of the following:

(I) the person making the request or referral, as the case may be;

(II) the owner or occupier of the land in question;

(III) any other person;

(ii) a copy of any submissions or observations in relation to the question

arising as to what is or is not development or is or is not exempted

development within the meaning of this Act;

(iii) a copy of any report prepared by or for the authority or the Board, as

the case may be, in relation to the request or referral;

(iv) a copy of the declaration of the authority or the decision of the Board,

as the case may be, in respect of the question identified in the request

under subsection (1) or in the referral under subsection (3) or (4), as

the case may be.

(b) The minimum period for the purposes of paragraph (a) is 8 weeks from the

date of the issue of the declaration by the planning authority or the date of

the decision of the Board, as the case may be.”

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…

“Planning register.

7.— (1) A planning authority shall keep a register for the purposes of this Act in respect

of all land within its functional area, and shall make all such entries and corrections

therein as may be appropriate in accordance with subsection (2), and the other

provisions of this Act and the regulations made under this Act.

(2) A planning authority shall enter in the register—

…

(h) particulars of any declaration made by a planning authority under section 5

or any decision made by the Board on a referral under that section,

…

(3) The planning authority shall make the entries and corrections as soon as may be

after the receipt of any application, the making of any decision or agreement or the

issue of any letter, notice or statement, as appropriate.

(4) The register shall incorporate a map for enabling a person to trace any entry in the

(5) The planning authority may keep the information on the register, including the map

incorporated under subsection (4), in a form in which it is capable of being used to

make a legible copy or reproduction of any entry in the register.

(6) (a) The register shall be kept at the offices of the planning authority and shall be

available for inspection during office hours.”

…”

“Appeal to Board.

37. — (1) (a) An Applicant for permission and any person who made submissions or

observations in writing in relation to the planning application to the planning

authority in accordance with the permission regulations and on payment of the

appropriate fee, may, at any time before the expiration of the appropriate period,

appeal to the Board against a decision of a planning authority under section 34 .

(b) Subject to paragraphs (c) and (d) , where an appeal is brought against a

decision of a planning authority and is not withdrawn, the Board shall

determine the application as if it had been made to the Board in the first

instance and the decision of the Board shall operate to annul the decision of

the planning authority as from the time when it was given; and subsections

(1), (2), (3) and (4) of section 34 shall apply, subject to any necessary

modifications, in relation to the determination of an application by the Board

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on appeal under this subsection as they apply in relation to the determination

under that section of an application by a planning authority.

and 139.

(d) In paragraph (a) and subsection (6), “the appropriate period” means the

period of four weeks beginning on the day of the decision of the planning

authority.

(5) (a) No application for permission for the same development or for development of the

same description as an application for permission for development which is the

subject of an appeal to the Board under this section shall be made before —

(i) the Board has made its decision on the appeal,

(ii) the appeal is withdrawn, or

(iii) the appeal is dismissed by the Board pursuant to section 133 or 138 .

(b) Where an application for permission referred to in paragraph (a) is made to a

planning authority, the planning authority shall notify the Applicant that the

application cannot be considered by the planning authority and return the

application and any other information submitted with the application in accordance

with the permission regulations, and any fee paid.”

…

“Judicial review of applications, appeals, referrals and other matters.

50.— (1) Where a question of law arises on any matter with which the Board is

concerned, the Board may refer the question to the High Court for decision.

(2) A person shall not question the validity of any decision made or other act done by—

(a) a planning authority, a local authority or the Board in the performance or

purported performance of a function under this Act…

otherwise than by way of an application for judicial review under Order 84 of the Rules of

the Superior Courts (S.I. No. 15 of 1986) (the ‘Order’).

…

(6) Subject to subsection (8), an application for leave to apply for judicial review under

the Order in respect of a decision or other act to which subsection (2)(a) applies

shall be made within the period of 8 weeks beginning on the date of the decision or,

as the case may be, the date of the doing of the act by the planning authority, the

local authority or the Board, as appropriate.

…

(8) The High Court may extend the period provided for in subsection (6) or (7) within

which an application for leave referred to in that subsection may be made but shall

only do so if it is satisfied that—

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(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for

leave within the period so provided were outside the control of the Applicant

for the extension.

…”

“Provisions as to making of appeals and referrals.

127. — (1) An appeal or referral shall —

(a) be made in writing,

(b) state the name and address of the appellant or person making the referral

and of the person, if any, acting on his or her behalf,

(d) state in full the grounds of appeal or referral and the reasons, considerations

and arguments on which they are based,

(e) in the case of an appeal under section 37 by a person who made submissions

or observations in accordance with the permission regulations, be

accompanied by the acknowledgement by the planning authority of receipt of

the submissions or observations,

(f) be accompanied by such fee (if any) as may be payable in respect of such

appeal or referral in accordance with section 144 , and

(g) be made within the period specified for making the appeal or referral.

(2) (a) An appeal or referral which does not comply with the requirements of subsection

(1) shall be invalid.

(b) The requirement of subsection (1)(d) shall apply whether or not the appellant

or person making the referral requests, or proposes to request, in accordance

with section 134 , an oral hearing of the appeal or referral.”

…

“Submission of documents, etc. to Board by planning authorities.

128.— (1) Where an appeal or referral is made to the Board the planning authority

concerned shall, within a period of 2 weeks beginning on the day on which a copy of the

appeal or referral is sent to it by the Board, submit to the Board—

(a) in the case of an appeal under section 37—

(i) a copy of the planning application concerned and of any drawings,

maps, particulars, evidence, environmental impact assessment report,

other written study or further information received or obtained by it

from the Applicant in accordance with regulations under this Act,

(ii) a copy of any submission or observation made in accordance with

regulations under this Act in respect of the planning application,

(iii) a copy of any report prepared by or for the planning authority in

relation to the planning application, and

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(iv) a copy of the decision of the planning authority in respect of the

planning application and a copy of the notification of the decision given

to the Applicant,

(b) in the case of any other appeal or referral, any information or documents in

its possession which is or are relevant to that matter.

(2) The Board, in determining an appeal or referral, may take into account any fact,

submission or observation mentioned, made or comprised in any document or other

information submitted under subsection (1)."

…

“Board may dismiss appeals or referrals if vexatious, etc.

138. — (1) The Board shall have an absolute discretion to dismiss an appeal or referral —

(a) where, having considered the grounds of appeal or referral or any other

matter to which, by virtue of this Act, the Board may have regard in dealing

with or determining the appeal or referral, the Board is of the opinion that

the appeal or referral—

(i) is vexatious, frivolous or without substance or foundation, or

(ii) is made with the sole intention of delaying the development or the

intention of securing the payment of money, gifts, consideration or

other inducement by any person,

(b) where, the Board is satisfied that, in the particular circumstances, the appeal

or referral should not be further considered by it having regard to —

(i) the nature of the appeal (including any question which in the Board’ s

opinion is raised by the appeal or referral), or

(ii) any previous permission which in its opinion is relevant.

(2) A decision made under this section shall state the main reasons and considerations

on which the decision is based.”

…

Planning and Development Regulations 2001 - 2019

Changes of Use ¬—

10. (1) Development which consists of a change of use within any one of the classes of

use specified in Part 4 of Schedule 2, shall be exempted development for the

purposes of the Act, provided that the development, if carried out would not—

(a) involve the carrying out of any works other Commented [i48]: Inserted by

article 3 of S.I. No. 256/2008 – Planning and Development (Amendment)

Regulations 2008 36 than works which are exempted development,

(b) contravene a condition attached to a permission under the Act,

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(d) be a development where the existing use is an unauthorised use, save where

such change of use consists of the resumption of a use which is not

unauthorised and which has not been abandoned.

(2) (a) A use which is ordinarily incidental to any use specified in Part 4 of Schedule 2 is

not excluded from that use as an incident thereto merely by reason of its being

specified in the said Part of the said Schedule as a separate use.

(b) Nothing in any class in Part 4 of the Schedule 2 shall include any use—

(i) as an amusement arcade,

(ii) as a motor service station,

(iii) for the sale or leasing, or display for sale or leasing, of motor vehicles,

(iv) for a taxi or hackney business or for the hire of motor vehicles,

(v) as a scrap yard, or a yard for the breaking of motor vehicles,

(vi) for the storage or distribution of minerals,

(vii) as a supermarket, the total net retail sales space of which exceeds

3,500 square metres in the greater Dublin Area and 3,000 square

metres in the remainder of the State,

(viii) as a retail warehouse, the total gross retail sales space of which

exceeds 6,000 square metres (including any ancillary garden centre),

(ix) as a shop, associated with a petrol station, the total net retail sales

space of which exceeds 100 square metres”

“CLASS 9

Use—

(a) for the provision of residential accommodation and care to people in need of

care (but not the use of a house for that purpose),

(b) as a hospital or nursing home,

The Applicant’s case

4. The Applicant argues that the Respondent Board was precluded from determining the s. 5

referrals submitted in 2018, in circumstances where the Council had previously

determined, in September 2016, a s. 5 referral which asked the same question in respect

of the same lands and where there had been no change in the factual or planning

circumstances. The Applicant argues that the Board’s s. 5 decisions are invalid for three

reasons, which can be summarised as follows: -

1) The Board erred in law in considering and purporting to determine the s. 5 referrals

as they amounted, in effect, to a collateral challenge to the earlier valid s. 5

declaration issued by the planning authority in respect of the same matter;

2) The Board’s Inspector concluded that the Board did not have the power to decline

to consider the s. 5 referrals which conclusion was accepted by the Board.

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However, the Inspector and the Board failed to consider the provisions of s.

138(1)(b) of the 2000 Act and, accordingly, the conclusion of the Inspector and the

Board in this regard was wrong in law; and

3) In making the impugned decisions, the Board took into account irrelevant

considerations in determining that the use of the lands as a residential drug

rehabilitation facility would be inconsistent with the use specified in the planning

permission granted in respect of those lands.

5. The Applicant makes arguments based on what they regard as the binding and conclusive

nature of section 5 declarations. The Applicant submits that the declaration issued by

Meath County Council, dated 29 September 2016 determined that the change of use of

the permitted nursing home to a residential drug rehabilitation facility at the former old

national school site, Ballivor, constituted exempted development, as both the nursing

home use and the residential drug rehabilitation facility fell within Class 9, Part 4 of

Schedule 2 of the 2001 Regulations and points out that this decision by the Council was

not referred to the Board, nor was it subject to challenge by way of judicial review. The

Applicant submits that, where a planning authority has issued a section 5 determination

that has not been referred to the Board under the 2000 Act and which has not been

challenged by way of judicial review is binding and conclusive. Consequently, the

Applicant contends that the two declarations sought by the Second and Third Notice

Parties were a collateral attack on, and in effect sought a review of, the earlier decision

made by the Council on 29 September 2016. The Applicant also contends that, in

determining the section 5 referrals, the Board permitted a collateral attack to be made to

the Council’s declaration.

6. The Applicant relies on the High Court decision of Baker J. in Daly v. Kilronan Windfarm

Ltd. [2017] IEHC 308 as authority for the proposition that a section 5 determination is

binding where it relates to substantially the same development as the subject-matter of

subsequent enforcement proceedings. The Applicant maintains that the binding and

conclusive nature of the Council’s determination under section 5 is of particular

significance given that the Applicant expended €9,050,000 in reliance upon said

declaration. The Applicant further relies on Michael Cronin (Readymix) Ltd. v. An Bord

Pleanála [2017] IESC 36, wherein the Supreme Court held that a section 5 declaration

was determinative of whether development was exempted or not. They further rely on the

decision of Baker J. in Cleary Composting and Shredding Ltd. v. An Bord Pleanála

[2017] IEHC 458, in which the Judge considered the interplay between three section 5

declarations made by Kildare County Council between 2009 and 2011 and three later

section 5 declarations made by the Board between 2013 and 2014 and held that the

Board's declarations were made in light of the evidenced before it and the extent of the

activity had changed from the subject matter of the earlier declarations made by the

Council in that case. The Applicant argues that, unlike the situation in Cleary Composting,

there was no change in planning or factual circumstances between the Council's

declaration, in September 2016, and the Board's decisions, in November 2018 which, the

Applicant argue related to the same question.

Page 12 ⇓

7. The Applicant relies on the fact that the Council declaration of 2016 was not challenged by

way of an application for judicial review. Instead, they argue, the Second and Third Notice

Parties sought, in February 2018, to circumvent the procedural exclusivity of judicial

review proceedings by seeking instead two new separate section 5 declarations, which

were then referred by the Council to the Board. The Applicant places reliance on the

Supreme Court's decision in K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2. IR

128, wherein Finlay C.J. explained the rationale behind prohibiting challenges against

decisions where the relevant time limit for challenging the decision had elapsed and

relies, in particular, on a passage from that judgment in which the then Chief Justice held

that: -

"...the intention of the legislature was greatly to confine the opportunity of persons

to impugn by way of judicial review decisions made by planning authorities and in

particular one must assume that it was intended that a person who has obtained

planning permission should, in the absence of judicial review, be entirely legally

protected against subsequent challenge to the decision that was made and

therefore presumably left in a position to act with safety upon the basis of that

decision.”

8. The Applicant further relies on Kilross Properties Ltd. v. Electricity Supply Board [2016] 1.

IR 541 in which Hogan J. held that it was not open to the High Court to go behind an

otherwise valid section 5 determination as to the planning status of the development, in

the context of proceedings under section 160 of the 2000 Act, seeking a planning

injunction to restrain unauthorised development. Furthermore, the Applicant relies on the

Supreme Court's decision in Sweetman v. An Bord Pleanála [2018] IESC 1 in which

Clarke, CJ, considered the rationale for the jurisprudence on collateral attack and stated,

inter alia: -

"The requirements of legal certainty make clear that a person who has the benefit

of a decision which is not challenged within whatever time limit may be appropriate

is entitled to act on the assurance that the decision concerned is now immune from

challenge subject to very limited exceptions such as fraud and the like".

9. The Applicant also relies on the application of the principles of res judicata principles to

give finality to the Council's 2016 declaration, in circumstances where it says there has

been no change in planning facts or circumstances and relies on the decision in

Ashbourne Holdings v. An Bord Pleanála [2003] 2 IR 114 wherein the Supreme Court

stated, inter alia, that "a decision of a planning authority is capable of giving rise to a res

judicata, but that not every decision will do so".

10. The Applicant also argues that the Board, in adopting its Inspector’s assessment and

recommendation, erred in law in concluding that the Board was required to determine the

referral made by the planning authority. The Applicant submits that it was not “incumbent

on the Board to determine the section 5(4) referrals before it”, as the Inspector states in

her report. Rather, it was open to the Board to make use of its express power under

section 138 of the 2000 Act to dismiss an appeal or a referral. The Applicant argues that

Page 13 ⇓

the Board erred in not considering its discretionary power under s. 138(1), which confers

on the Board an absolute discretion to dismiss an appeal or referral where the Board is

satisfied that the appeal or referral should not be considered by it having regard to its

nature or any previous permission which, in the Board's opinion, is relevant. The

Applicant also relies on Stovin v. Wise [1996] AC 923 as authority for the proposition

that, prior to exercising any discretionary power lawfully, there is a duty upon an

administrative body to consider whether it should exercise its power in the first place. The

Applicant submits that the Board failed to consider exercising its powers under section

138.

11. The Applicant further submits that the Inspector, and thereafter, the Board, took into

account irrelevant considerations, including the provisions of subsection 4(2) of the 2000

Act. The Applicant argues that the manner in which the Board interpreted the provisions

of Article 10(1)(c) of the 2001 Regulations meant that, notwithstanding the fact that the

Board accepted that both of the uses are within the same use class (being Class 9 of Part

4 of Schedule 2), the Board applied an unduly narrow construction of Article 10 (1) (c)

which would effectively preclude change from one type of use to another type of use

within the same class. According to the Applicant, the construction applied by the Board

would defeat the entire purpose of the exemptions contained in Part 4 of Schedule 2 of

the 2001 Regulations and is wrong in law.

The Respondent’s case

12. The position of the Respondent Board is that its decision was made in accordance with the

terms of the 2000 Act and that the Respondent’s decision did not constitute an

impermissible collateral attack on the 2016 s. 5 declaration. The Respondent argues that

there is no express prohibition on the exercise of the board’s jurisdiction under s. 5(4) of

the 2000 Act, where a planning authority has previously issued a declaration under s.

5(2). The Respondent argues that there is nothing within s. 5 itself, or anywhere else

within the 2000 Act, which precluded or prohibited the notice parties from submitting the

s. 5 applications to the council or which precluded or prohibited the council from making

the relevant s. 5 referral to the board or which precluded or prohibited the board from

making a determination on the said referral. The Respondent submits that any referral

made to the board must comply with the provisions of s. 127 (1) of the 2000 Act and

submits that the Applicant does not make any case that the relevant referral submitted by

the council to the board did not comply with the requirements of that section. The

Respondent argues that, in essence, the board received a valid referral which fell to be

determined by it in accordance with the provisions of the 2000 Act. The Respondent

argues that it would be strange if, despite the absence of any express provision to this

effect, the 2000 Act should be interpreted as imposing an absolute barrier on the

consideration of further s. 5 referrals and submits that, if such were the case, it would

and should have been expressly provided for in the Act. The Respondent also argues that

the Applicant’s contention that the board should have exercised its discretion, pursuant to

s. 138(1)(b), and refused to determine a referral validly made, is misconceived.

Page 14 ⇓

13. The Respondent argues that the collateral attack jurisprudence has no application in the

present case. The Respondent argues that neither the referral by the council, pursuant to

s. 5(4), nor the decisions of the board in respect of the referral, involved a challenge to

the s. 5 declaration of 2016. Nor, the Respondent argues, did they involve a challenge to

the validity of that earlier determination. The Respondent argues that the board’s

decisions, which are the subject of the present proceedings, do not have the consequence

that the 2016, s. 5 declaration was unlawful and do not cast doubt over the lawfulness of

the council’s declaration. The Respondent submits that whatever consequences flow from

the making of the 2016 declaration by the council, subsist.

14. The Respondent argues that, simply because the board reached a different conclusion to

that reached by the council, does not amount to a collateral attack on the earlier decision

and that such an argument is inconsistent with the terms of the 2000 Act itself. The

Respondent submits that the 2000 Act envisages the board exercising, in effect, an

appellate function with respect to decisions of planning authorities on s. 5 referrals,

pursuant to which the board can consider the merits of a referral. The Respondent argues

that it is obvious that the board is free to disagree with the planning authority’s

declaration and to reach a different conclusion on the question referred and argues that

there can be no question of the board being bound by a planning authority’s decision on a

s. 5 referral.

15. The Respondent argues that it is implicit in the Applicant’s submission that there is no bar

in principle to subsequent s. 5 referrals being made where it can be argued that there has

been a change in factual or planning circumstances. On that basis, the Respondent

submits, it would clearly be necessary for the board to consider the factual scenario and

the submissions made in any referral, whether or not there has been a prior declaration

by a planning authority. The Respondent submits that there has been no prior

consideration by the board of the question posed or the decision made in the 2016 s. 5

declaration. The Respondent relies on the fact that no submissions were made by the

notice parties or by any third parties to the Council and points out that there had been no

opportunity to make such submissions prior to the s. 5 declaration of 2016 being made by

the local authority. In light of the foregoing, the Respondent submits that the Applicant is

forced to argue, in effect, that because the council had reached a view on the matter on

the basis of information provided by the Applicant on an earlier occasion, the board was

required not merely to have regard to that earlier determination but to exercise its

discretion and to dismiss the referral which, according to the Respondent, would be to

refuse to make a decision on a valid application. The Respondent submits that there is

nothing in the 2000 Act or in the relevant jurisprudence which would suggest that the

board, in exercising its functions pursuant to s. 5 of the 2000 Act, is so constrained.

16. The Respondent submits that, contrary to the position adopted by the Applicant, a third

party could not have “challenged” the council’s decision by means of a referral to the

board pursuant to s. 5(3), even if it had known of the determination and submits that

only a party to whom the declaration is issued can refer the matter to the board. The

Respondent submits that third parties have no entitlement to be notified of a request for a

Page 15 ⇓

declaration, have no entitled to make submissions on such a request and have no

entitlement to refer a declaration made by the council to the board. The Respondent

argues that in light of the Applicant’s decision not to engage the board’s review

jurisdiction, there has never been any engagement of the board’s jurisdiction to

determine the questions entrusted to it by the Oireachtas, prior to the s. 5 applications

which are the subject of the present proceedings. The Respondent rejects what it

characterises as the Applicant’s proposition that the board’s jurisdiction was ousted or

exhausted without it ever having been engaged, because only the party in a position to

engage it, namely the Applicant, elected not to do so.

17. The Respondent further argues that the case law relied upon by the Applicant does not

support the contention that a s. 5 determination by a planning authority operates to

preclude the consideration of any subsequent referrals under s. 5. The Applicant submits

that in Michael Cronin (Readymix) Limited v. An Bord Pleanála [2017] 2 IR 658, the court

was concerned with how it should treat a s. 5 determination in the context of enforcement

proceedings and it is in that context that the courts have concluded that a court cannot

go behind an unchallenged s. 5 determination in subsequent enforcement proceedings.

The Respondent argues that, insofar as the court determined, in Sweetman v. An Bord

Pleanála [2017] IEHC 46, that the Applicant was required to challenge the lawfulness of a

s. 5 determination by way of judicial review, it was because its lawfulness could not be

revisited by the board in a subsequent planning application. The Respondent also submits

that it is apparent from the decision in Cleary Composting v. An Bord Pleanála

[2017] IEHC 458, that there is no absolute preclusion on the board revisiting the merits of an

earlier s. 5 declaration, even in the context of the board’s assessment of a planning

application.

18. The Respondent submits that the Applicant’s argument concerning the board’s alleged

failure to consider its jurisdiction to dismiss pursuant to s. 138 of the 2000 Act is based

on the Applicant’s contention that the board was required to exercise that jurisdiction in

the particular circumstances of this case. According to the Respondent, the Applicant has

presented no evidence that the board erred in understanding the scope of its jurisdiction

and is asking the court to infer from the board’s failure to exercise a jurisdiction which,

according to the Applicant, the board was required to exercise, the Respondent must have

erred. According to the Respondent, if there was no such requirement to exercise the

jurisdiction, no such inference can be drawn. The Respondent relies, inter alia, on the

decision of Hedigan J. in Dunnes Stores v. An Bord Pleanála [2016] IEHC 226, wherein

the court held that: -

“Once there is any reasonable basis upon which the planning authority or the Board

can make a decision in favour of or against a planning application or appeal, or can

attach a condition thereto, the Court has no jurisdiction to interfere”

19. Reliance is also placed on authorities including Weston Ltd. v. An Bord Pleanála & Anor

[2010] IEHC 255 regarding the proposition that courts have consistently deferred to the

planning expertise of expert decision makers such as the board. The Respondent also

Page 16 ⇓

submits that the board’s power under s. 138(1)(b) of the 2000 Act is a power which the

board may exercise at its absolute discretion, which is subject to review on limited

grounds only. The Respondent submits that the discretion afforded to the board under s.

138 is wide and arises both as to whether the board thought it appropriate to invoke s.

138 and/or how it should be applied. The Respondent submits that the Inspector gave

express consideration to the question of jurisdiction to determine the referrals under s.

5(4) of the 2000 Act and correctly concluded that there was no provision in the said Act

which specifically dealt with the particular circumstances of the case. The Respondent

characterises the height of the Applicant’s case as being that the Inspector did not

expressly record that she had considered s. 138(1) but submits that the Inspector did

consider whether there was any statutory power which precluded her from considering

the referral under s. 5(4) and concluded that there was not. The Respondent makes

submissions in relation to the power of the board to dismiss an appeal or referral, in

accordance with its absolute discretion, having regard to decided authorities including the

Cleary Compost case and the decision in Friends of the Irish Environment Limited v. An

Bord Pleanála [2018] IEHC 136, which cases, say the Respondent, concerned the

jurisdiction of the board when in fact it had invoked its powers under s. 138, in contrast

to the present case where the Applicant contends that the board erred in law for not

exercising its power under s. 138 to dismiss the referral.

20. Relying on the principles in State (Lynch) v. Cooney [1982] 1 IR 337, the Respondent

submits that the Inspector’s analysis was clearly bona fide, factually sustainable and was

not unreasonable, given that she expressly considered the previous 2016 s. 5 declaration

and the request by the Applicant to dismiss the referral. The Respondent submits that the

power under s. 138(1) does not create a mandatory obligation and that the board was

entitled to conclude that the s. 5 referral made by the council both could and should be

further considered by the board. The Respondent argues that it is only where the board

has concluded that an appeal or referral should not be further considered by it that the

jurisdiction under s. 138 arises. The Respondent also relies on the fact that the board

order clearly states that: -

“In making its decision, the board had regard to those matters to which, by virtue

of the Planning and Development Acts and Regulations made thereunder, it was

required to have regard. Such matters included any submissions and observations

received by it in accordance with statutory provisions”. The Respondent argues that

the onus is on the Applicant to prove otherwise. The Respondent submits that the

board acted lawfully in exercising its power to determine the s. 5 referral and was

under no obligation, in the present case, to use or to consider using its power under

s. 138 to refuse to determine the reference.

21. The Respondent rejects the claim that the Board took into account irrelevant

considerations and argues that the board exercised its planning jurisdiction in a lawful

manner and was entitled to conclude that the drug rehabilitation facility use would be

inconsistent with the permitted nursing home use. The Respondent submits that the

Inspector expressly referred to Article 10 of the planning and development regulations

Page 17 ⇓

2001. The Respondent argues that Article 10(1)(c) contemplates that a change of use

within a particular class can result in a change to a use which is not consistent with the

permitted use and, therefore, not exempt. The Respondent submits that it is a matter for

planning judgment as to whether a new proposed use could be regarded as being

inconsistent with a permitted use and that the board was entitled to have regard to the

factors referred to in the Inspector’s report in exercising that judgment. The Respondent

argues that the inspector and the board were lawfully entitled to consider the wider

context in s. 4(2) of the 2000 Act in construing the exempted development provisions in

Part 4 of Schedule 2 to the Regulations, having regard to the nature of the proposed drug

rehabilitation facility and permitted nursing home. The board concluded that, while the

permitted nursing home use is a class of use coming within the scope of Class 9(b) of Part

4 of Schedule 2 to the Regulations, the use as a residential drug rehabilitation facility

would be a factual change of use simpliciter which would raise material planning

considerations. In that context, the board concluded that, in the first instance, there

would be a change of use which ordinarily would be exempted under Part 4 of Schedule 2

to the Regulations, subject to the restrictions in Article 10 of the Regulations and, the

Respondent submits, that was a planning judgment which the inspector was entitled to

reach. The Respondent submits that the board was entitled to consider the relative

planning considerations of both the permitted nursing home use and the drug

rehabilitation facility before coming to a determination as to whether the change in use

from nursing home use to drug rehabilitation facility would be consistent with the

permitted use in Planning Registry Reference Number TA/140621.

22. The Respondent submits that the board lawfully exercised its powers under s. 5 of the

2000 Act and that the Applicant is under an obligation to prove otherwise and has failed

to discharge that obligation and is not entitled to any of the reliefs sought.

Evidence before the court and findings of fact

23. Mr. Massimo Angius is a director of the Applicant and swore an affidavit on 10 January

2019. Mr. Richard Hamilton, a chartered town planner, swore an affidavit on behalf of the

Applicant, also on 10 January 2019. A replying affidavit was sworn by Mr. Chris Clarke,

secretary of the Respondent, on 15 March 2019. Mr. Angius swore a further affidavit on 7

May 2019. Other than affidavits of service, the foregoing comprises the sworn evidence

before the court. Having carefully considered the contents of all affidavits in these

proceedings and the exhibits thereto, I am satisfied that the following is the factual

position and, for the sake of clarity, I propose to examine the relevant documents, in

chronological order, and to set out my findings of fact, as follows.

11 December 2014

24. On 11 December 2014, the First Notice Party, Meath County Council (“the Council”)

issued a notification of a decision to grant planning permission. The notification of

decision was in the following terms: -

“In pursuance of the powers conferred upon them by the above-mentioned Act,

Meath County Council has by Order dated 11.12.14 decided to grant permission to

the above named for development of land, in accordance with the documents

Page 18 ⇓

submitted namely: - proposed change of use and refurbishment of the existing Old

National School building to a proposed new nursing home and with the provision of

additional extensions over two phases. The proposed change of use to a nursing

home development is to provide for adequate day, dining, office, staff, spiritual and

support space requirements. A Phase 1, 512.5m2 single storey extension is

proposed to the rear of the existing and will consist of 13 no. single and 1 no.

double accessible ensuite bedrooms with sanitary support spaces around a single

garden courtyard arrangement and will require the demolition of the existing

23.5m2 bicycle shed in combination with a new landscaping arrangement to include

for a horticulture area, the provision of solar/PV panels on the existing roof,

together with the provision of 11 no. on-site parking spaces and all ancillary

development works. An additional Phase 2 1795m2 single storey extension is

proposed to the rear and will consist of 31 no. single and 5 no. double accessible

ensuite bedrooms, additional day, staff, and sanitary spaces around a second

garden courtyard arrangement and will require monitor alteration to the internal

layout of the existing structure, created for the Phase 1 development. A 36m2,

double height foyer space to the front of the elevation of the existing facade is also

proposed under Phase 2 of the development, 27 no. additional parking spaces are

to be provided to the rear of the proposed, together with all associated site and

ancillary development works. Significant further information/revised plans

submitted on this application At Old National School, Ballivor, Co. Meath, subject to

the 25 conditions set out in the schedule attached.

Provided there is no appeal against this DECISION a grant of planning permission

will issue at the end of four weeks.”

No appeal was brought within the relevant four-week period.

25. Uncontroverted evidence is given in the affidavit of Massimo Angius that the Applicant

was unwilling to spend millions of Euro to develop the relevant property without first

ascertaining whether the property, which had the benefit of permission authorising works

and use as a nursing home, could be used as a residential drug rehabilitation centre. The

uncontroverted evidence by Mr Angius is that, prior to acquiring the property and lands,

Narconon Trust sought confirmation from the Respondent that the property could be used

as a residential drug rehabilitation centre, specifically by seeking a declaration pursuant

to the provisions of s. 5 of the 2000 Act as to whether the change of use to a nursing

home, previously permitted under planning permission reference EA 140621, to a

residential drug rehabilitation facility is exempted development.

31 August 2016

26. On 31 August 2016, the Applicant sought a declaration from the Council pursuant to s. 5

of the 2000 Act. A three – page form was completed by the Applicant which form is

entitled “Application form – Declaration on Development & Exempted Development – Part

1 Section 5 of the Planning and Development Act 2000 – 2015, as amended.”. This seems

to be a standard form, containing pre-printed questions, 1 – 12, which the Applicant

Page 19 ⇓

completed. The question put to the Council, in the context of the Applicant’s request for a

declaration, can be seen from section number 4 of the application and was as follows: -

“4. Description of development:

The planning authority is asked to determine whether the change of use of the

permitted nursing home at the subject site to a “residential drug rehabilitation

facility” is exempted development.

Schedule 2 Part 4 of the Planning & Development Regulations 2001-2016 lists 11

classes of uses, under which the change from one use to another use within each

class may be considered exempted development.

We refer to Class 9 of Schedule 2 Part 4 of the Regulations:

Class 9

Use-

(a) for the provision of residential accommodation and care to people in

need of care (but not the use of a house for that purpose),

(b) as a hospital or nursing home,

We refer the attached letter from the Narconon Trust which details the proposed use. This

clearly corresponds with Class 9(a) – “the provision of residential accommodation and

care to people in need of care.”

The planning authority is therefore requested to issue a formal declaration confirming that

the change of use from “nursing home” to “residential drug rehabilitation facility” is

therefore exempted development”.

27. When submitting this application, the Applicant’s interest in the site was stated, in

response to question 10, to be that of “Potential Purchaser”. The application was

accompanied by a number of items including a letter of consent from the then owner of

the property, certain architectural drawings and a letter from the Applicant, dated 30

August 2016, signed by Mr Angius, which stated the following: -

“As discussed Narconon provides a drug-free residential drug-rehabilitation

programme which typically lasts 3 months per client.

Narconon (as the name suggests) has zero tolerance with drugs and alcohol. The

centre does not distribute medicines or methadone to its clients. It does not accept

day-type clients but operates only by prior appointment. Therefore there would not

be traffic of clients in and out of the facility on a daily basis.

Page 20 ⇓

While participating in the programme, clients are not allowed to leave the facility

except towards the end of the programme, they may take a walk accompanied by a

member of staff. Unauthorised permission from the building results in immediate

expulsion from the programme. The programme consists of three phases:

(a) Withdrawal. This is done without drugs, but intake of vitamins and minerals which

tend to alleviate withdrawal symptoms. This is a 24-7 supervised phase and must

be supervised by a doctor. Once a person can sleep 7 hours a night and eat well,

they go to the next phase. This may last 7-10 days.

(b) Detox/Sauna. The next phase consists of going into a sauna daily for 2-3 weeks or

more and sweating out of the body all of the drug residues still in the body. Due to

the hours in the sauna and the physical stress involved, this phase must also be

authorised by the doctor after a thorough physical examination. The doctor is

typically an independent outside professional.

friends, how to improve conditions and how to begin his life afresh.

I am available to meet with planning officials to discuss in more detail if required to

do so.”

28 September 2016

28. In the context of considering the application for a declaration, a “Planning Report” was

provided by a Ms. Brenda O’Neill, executive planner, dated 28 September 2016 which was

addressed to a Mr. Pádraig McGuire, senior executive planner. This 4 – page report began

as follows: -

“The Applicant is seeking a declaration as to whether the change of use from

permitted nursing home to a residential drug rehabilitation facility at the old

National School Site in Ballivor is or is not exempted development, in accordance

with s. 5 of the Planning and Development Act 2000 – 2015”.

The report went on to set out information under the following headings: -

“Site location”, “Site history”, “Relevant legislation”, “Assessment”, and “Conclusion

and Recommendation”.

The Conclusion and Recommendation section stated the following: -

“In considering this application, regard has been had to ;

•

Section 3(1) of the Planning and Development Acts 2000-2015;

•

Section 4(1)(h) of the Planning and Development Acts 2000-2015;

•

Article 6(1) of the Planning and Development Regulations 2001-2015;

•

Article 9(1) of the Planning and Development Regulations 2001-2015;

•

Schedule 2, Part 4, Exempted development – Classes of Use, Class 6 of the

Planning and Development Regulations 2001-2015.

Page 21 ⇓

The proposed development is considered to be development and is exempted

development within the meaning of the Planning and Development Acts 2000-2015.

It is recommended that an exemption certificate be granted as the proposed development

constitutes development that is exempted development according to Schedule 2, Part 4,

Exempted development – Classes of Use, Class 6 of the Planning and Development

Regulations 2001-2015.

29 September 2016

29. On 29 September 2016, Meath County Council issue a “DECLARATION” to the Applicant

(hereinafter “the declaration”). This one – page document has “Planning Reference

Number: TA/S51639” and records the “Application Receipt Date: 05/09/2016”. The

Declaration states as follows: -

“In pursuance of the powers conferred upon them by the Planning and

Development Acts 2000 – 2015, Meath County Council have by order dated

29.9.2016 decided to DECLARE the proposed development is EXEMPT, in

accordance with the documents submitted namely: change of use of the permitted

nursing home to a residential drug rehabilitation facility at former old National

School Site, Ballivor, Co. Meath”.

The declaration contained two notes as follows: -

1) “Any appeal against a Declaration of a Planning Authority under s. 5, subs. 3(a) of

the Planning and Development Act 2000 may be made to

An Bord Pleanala by the Applicant WITHIN FOUR WEEK beginning on the date of

issue of the Declaration.

2) Appeals to be addressed to An Bord Pleanala, 64 Marlborough Street, Dublin 1. An

appeal by the Applicant should be accompanied by this form. The fee for an appeal

against a declaration of the planning authority is €220”.

There was no appeal made in respect of the declaration.

30. Having regard to the provisions of s. 50 (2) (a) of the 2000 Act and the evidence in this

case, I am satisfied that the Council’s Declaration dated 29 September 2016 was a

“decision made” by the Council “in the performance…of a function” under the 2000 Act.

31. There is no evidence that the Council failed to publish for inspection on its website or

failed to make available for inspection and purchase the relevant information required by

Section 5(7B) (a) of the 2000 Act. There is no evidence that the particulars of the

Council’s section 5 Declaration were not entered in the appropriate register, in accordance

with the mandatory requirements imposed by Section 7 (2) (h) of the 2000 Act. Nor is

there any evidence that the relevant register was not kept at the offices of the planning

authority and available for inspection during office hours, as also provided for under

section 7.

Page 22 ⇓

32. It is also a fact that no party sought to challenge the Council’s 2016 Declaration by way of

an application for Judicial Review under section 50 of the 2000 Act. Nor did any party

seek an extension of time with regard to the bringing of an application for Judicial Review.

6 December 2016

33. The Applicant has exhibited a copy of a contract, dated 6 December 2016, in respect of

the purchase, for €1.3 million, of property described as “All that and those the entire Folio

MH 69873 F comprising substantially completed yet unoccupied nursing home known as

Raspberry Wood Nursing Home and located at Ballivor, Co. Meath” and this is not

disputed by the Respondent. The date of this contract post-dates the Council’s s. 5

Declaration.

34. I accept the uncontroverted evidence by Mr. Angius that the Applicant proceeded with the

purchase of the relevant property on the basis that the Council had issued a s. 5

declaration that the proposed use of the property as a residential drug rehabilitation

centre was exempted development. I accept the uncontroverted evidence that the

Applicant has carried out significant construction works at the property, pursuant to

planning permission reference TA 140621 in reliance upon the decision made by the

Council in 2016 that the use of the property as a residential drug rehabilitation centre is

exempted development. I accept, also, the uncontroverted evidence given by Mr. Angius

in his second affidavit that, as of 10 January 2019, the Applicant has raised and expended

approximately €9,050,000 on the facility at Ballivor, including €1.3 million for the

purchase price of the relevant property, with the remainder, some €7,750,000.00, having

been expended on construction works and fit-out of the facility.

16 February 2018

35. On 16 February 2018, an application was made to the Council by the Second Notice Party,

Ballivor Community Group, in a form entitled “Application form – Declaration on

Development & Exempted Development – Part 1 Section 5 of the Planning and

Development Act 2000 – 2015, as amended.”. The address given for Ballivor Community

Group is “c/o Mr. Noel French, 10 Kells Road, Trim, Co. Meath”. The format of the

application is standard, in that the pre-printed questions, 1 – 12, are identical to those

questions in the application form which was completed by the Applicant on 31 August

2016. Section 4 of the 16 February 2016 application form contains standard wording, in

bold, followed by the Second Notice Party’s input, as follows:

“4. Description of development: Use of the existing permitted “nursing home” building

by Narconon Trust for the purpose of providing a residential drug rehabilitation

facility”.

36. The 2-page form does not refer to any change in planning facts, such as the height, area,

design or location of the relevant development. In response to questions 7, 8 and 9 on

the form, which seek information as to the “height of structure”, “the floor area of the

proposed development” and the “List of plans/drawings etc submitted”, the Second Notice

Party has stated “n/a”.

Page 23 ⇓

Section 12 of the form asks the applicant “Are you aware of any previous planning

application/s on this site?” in response to which the second named Respondent has placed

a “tick” after the word “YES”. Question 12 (b) of the form states “If “YES” please supply

details”, to which the second named Respondent has said “reference Cover Letter”. The

application was accompanied by a 6-page letter, dated 14 February 2018, from HRA

Planning, chartered town planning consultants, addressed to the Council. The title of the

said letter contains a question which is put in the following terms: -

“Section 5 Request for Declaration on Development

Whether the change of use and activity of “Narconon Trust” as a residential drug

rehabilitation facility at the Old National School, Ballivor Village, Co. Meath is

‘development’ and is not ‘exempted development’”.

The letter makes it clear that Ballivor Community Group is comprised of a number of

individuals who are listed in the letter as being Mr. Noel French, Karen Traynor, Sinead

McGrath, Ann Corrigan, Linda Wilson, Melanie Drake, Sue Davis and Claire O’Meara. The

letter goes on to set out information under the headings of “INTRODUCTION”, “THE

QUERY”, “BACKGROUND”, “MATERIAL CONSIDERATION UPON WHICH THE QUERIES ARE

BASED”, and “CONCLUSION”. The query in the body of the letter is stated in the following

terms: -

“2.0 THE QUERY:

Whether the use of the existing permitted “nursing home” building by Narconon

Trust for the purpose of providing a residential drug rehabilitation facility

constitutes a material change of use which is not exempted development and for

which planning permission would be required.”

37. I am satisfied that, as a matter of fact, the question put to the Council in the s. 5

application by Ballivor Community Group, dated 16 February 2018, is the same, in

substance, as the question put to the Council by the Applicant in its s. 5 application dated

31 August 2016, which question the Council previously answered by way of the Council’s

declaration, dated 29 September 2016, wherein the Council declared the relevant

development to be “EXEMPT”.

38. I am satisfied, as a matter of fact, that when asking the Council the same question, in

2018, as had been decided in 2016, the Second Notice Party was aware of the Council’s

29 September 2016 Declaration. This is apparent from paragraph 1.0 on the second page

of the HRA Planning letter which explicitly requests the Council to consider the matter “. .

. irrespective of the decision made previously by the Council under TA/S51639”.

TA/S51639 is the planning reference number for the Council’s declaration dated 29

September 2016. In fact, the 14 February 2018 letter from HRA Planning contains no less

than three references to “TA/S 51639”, being the planning reference number for the

Council’s 29 September 2016 declaration.

Page 24 ⇓

39. I am also satisfied that the HRA planning letter, dated 14 February 2018, which

accompanied the s. 5 application form submitted by Ballivor Community group contains,

inter alia, specific references to information and documentation which was previously

submitted to the Council, in 2016, in the context of the Applicant’s s. 5 request and the

Council’s Declaration under planning reference number TA/S 51639. I am satisfied that,

as a matter of fact, HRA Planning put forward arguments on behalf of the Second Notice

Party, in their 14 February 2018 letter, which are based at least in part on the very same

information which was submitted to the Council by the Applicant in 2016 and that this

was done in an effort to persuade the Council to reach a different decision, in 2018, than

the Council had come to in the Council’s Declaration dated 29 September 2016, under

planning reference TA/S 51639. By way of example, internal para. 3.3 of the HRA

planning letter states the following: -

“3.3 Proposed Use of the Property

It is proposed to operate a drug rehabilitation facility from the premises. As stated

in previous correspondence submitted to the Council under TA/S 56139, Narconon

provides a drug – free residential rehabilitation programme which typically lasts

three months per client. It is stated that the facility does not distribute medicines or

Methadone to its clients and that the programme is run in three phases including

withdrawal, detox/sauna and study. Phase 1 & 2 of the programme including

withdrawal and detox/sauna must be authorised by a qualified doctor. However, it

would appear that there are no doctors on site, as documentation on file TA/S

51639 states that, a doctor is typically an independent, outside professional”.

The foregoing is not new information. It is the same information which was put to the

Council by the Applicant as part of its 2016 s. 5 application, but it is put to the Council

again in 2018 in the context of the Second Notice Party’s s. 5 application which seeks a

different answer to the same question.

40. I am satisfied that the 2018 application by the Ballivor Community Group includes

submissions in respect of matters which the Council had regard to, prior to issuing its

2016 declaration and I am also satisfied that, as a matter of fact, these submissions were

made in 2018 in an effort to bring about a different result than confirmed in the Council’s

2016 declaration. By way of example, the following is a verbatim extract from internal

page 5 of the HRA Planning letter which accompanied the Second Notice Party’s

application form:

“4.2 Whether Development is Exempted Development

Consideration as to whether development is exempted or not as a consequence of

the proposed use and activity is based on an interpretation of the provision of

Schedule 2, Part 4, Exempted Development – Classes of Use and in particular Class

9. Article 10(1) of the Planning and Development Regulations 2001 – 2018 states

that “development which consists of a change of use within any of the classes of

use specified in Part 4 of Schedule 2, shall be exempted development for the

purposes of the Act” subject to certain limitations and restrictions.

Page 25 ⇓

Class 9 use includes: -

(a) Use for the provision of residential accommodation and care to people

in need of care (but not the use of a house for that purpose).

(b) As a hospital or nursing home.

centre.

It is submitted that the use of the subject site and building by Narconon Trust as a drugs

rehabilitation facility does not fall within any of the uses detailed under Class 9 and

therefore the change of use cannot be deemed to be exempted development”.

41. The foregoing submission which was made in 2018, to the effect that the use of the

relevant site and buildings by the Applicant as a drugs rehabilitation facility does not fall

within any of the uses detailed under Class 9 is made regarding an issue which, as a

matter of fact, the Council considered and determined in September 2016. Indeed, p. 3 of

the Planning Report by Ms. Brenda O’Neill, Executive Planner, dated 26 September 2016,

explicitly refers to the foregoing classes of use (a), (b) and (c) before going on to make

an assessment of the issue, on p. 4 of the Planning Report, as follows: -

“A nursing home use is within the same class as a use for the provision of

residential accommodation and care to people in need of care (but not the use of a

house for that purpose). A residential drug rehabilitation facility is considered to be

a use consistent with a use for the provision of residential accommodation and care

to people in need of care”.

42. The Second Notice Party was, as a matter of fact, making a submission, in 2018, on an

issue which the Council had previously considered and determined in 2016. I am also

satisfied that, as a matter of fact, the Second Notice Party was arguing, in 2018, that the

Council’s 2016 decision was wrong. The same issue was being raised again, in 2018, to

try and obtain a different result than the one given by the Council in 2016. Another

instance of matters being raising, in 2018, which the Council must have considered and

determined in 2016, in an effort by the Second Notice Party to obtain a different – i.e.

what they regarded as the correct - answer, can be seen from the final paragraph of

clause 4.1 of the HRA planning letter, which states: -

“It is submitted that by reason of its client base serving a narrow and restricted

section of society, its unregulated operation, and its non – interactive, secluded and

secure environment, the proposed use of the building as a drugs rehabilitation

facility by Narconon Trust would result in a material change of use and would,

therefore, constitute development within the meaning of s. 3 of the Planning and

Development Act 2000.”

43. The foregoing submission is not based any new or changed planning facts or

circumstances which arose or were alleged to have arisen since the Council issued its

2016 Declaration, and there is no evidence before the court of any such change. Rather,

it is an argument, made in 2018, on the basis of unchanged facts, in circumstances where

Page 26 ⇓

the Council previously decided the same issue in 2016. Having regard to the evidence, I

am also satisfied that, as a matter of fact, the Second Notice Party was not operating on a

belief, even a mistaken belief, that there had been any change in planning facts or

circumstances between the Council’s declaration in 2016 and the submission of their s. 5

application in 2018. I am equally satisfied that, as a matter of fact, the Ballivor

Community Group did not purport to rely, for the purposes of their 2018 s. 5 application

to the Council, on any change in any planning facts or circumstances alleged to have

occurred since the Council issued its declaration in 2016.

44. I also find, as a matter of fact, that at the time of submitting their 2018 s. 5 application to

the Council, the Ballivor Community Group explicitly objected to the 2016 Declaration.

This is evident from the first sentence on the second page of the HRA planning letter

dated 14 February 2018 which states: -

“Attached to this submission is a copy of a petition objecting to this proposal signed

by more than 600 residents of Ballivor.”

It is clear that “this proposal” is a reference to the operation of a drug rehabilitation

facility by the Applicant which, according to the Council’s 2016 declaration, constituted

exempted development. There is no evidence before the court that all or any of those 600

residents referred to on the second page of the HRA Planning letter or that all or any of

the members of the Ballivor Community Group named on the first page of the letter were

unaware of the making of the Council’s 2016 at the time it was made. No evidence is

before the court that the members of the Ballivor Community Group did not have access

to the register maintained by the Council under section 7 of the 2000 Act. No evidence is

before the court as to when the Second Notice Party became aware of the Council’s 2016

Declaration but it is clear from the contents of the Second Notice Party’s 2018 s.5

application that they regarded the Council’s 2016 Declaration as wrong.

45. It is not disputed that the Second Notice Party did not challenge the 2016 Declaration by

way of an application for judicial review, in accordance with s. 50 of the 2000 Act. It is

also a matter of fact that the Second Notice Party did not bring any application, pursuant

to s. 50 (8) of the 2000 Act, to seek an extension of time to bring judicial review

proceedings.

16 February 2016

46. A second s. 5 application was made to the Council which is also dated 16 February 2018.

This was made by the Third Notice Party, Trim Municipal District Council. There is plainly a

commonality between the two s. 5 applications dated 16 February 2018. The Third Notice

Party’s application was signed by Mr. Noel French whom, I note, is also a member of the

Second Notice Party and was named as such in the HRA Planning letter, dated 14

February 2018, referred to above. The same address, namely “c/o Mr Noel French 10

Kells Rd, Trim, Co. Meath” is given on both of the s. 5 application, made by the Second

and Third Notice Parties, respectively, dated 16 February 2018.

Page 27 ⇓

47. The application form is, again, a standard one and the question put to the Council is

described in the following terms at section 4 of the Third Notice Party’s application form: -

“4. Description of Development:

The planning authority is asked to determine whether the change of use of the

permitted nursing home under TA 140621 to a residential drug rehabilitation facility

is exempted development”.

48. I am satisfied that, as a matter of fact, there is no material difference between any of the

three questions put to the Council in the three s.5 applications i.e. the application dated

31 August 2016 by the Applicant herein and both applications dated 16 February 2018.

This is evident when one compares the wording of each question and, for ease of

reference, I now set out the three questions, verbatim, as follows: -

The question asked, in 2016, in the s. 5 application by Narconon Trust: -

“The planning authority is asked to determine whether the change of use of the

permitted nursing home at the subject site to a “residential drug rehabilitation

facility” is exempted development”.

The question asked, in 2018, in the s. 5 application by Ballivor Community Group

(paragraph 2.0 of HRA Planning letter): -

“Whether the use of the existing permitted “nursing home” building by Narconon

Trust for the purpose of providing a residential drug rehabilitation facility

constitutes a material change of use which is not exempted development and for

which planning permission would be required.”

The question asked, in 2018, in the s. 5 application by Trim Municipal District

Council: -

“The planning authority is asked to determine whether the change of use of the

permitted nursing home under TA 140621 to a residential drug rehabilitation facility

is exempted development”.

I am satisfied that, as a matter of fact, these three questions are, in substance, the same.

Each is the same question which was put to the Council by the Applicant on 31 August

2016 and which the Council answered by way of its 29 September 2016 Declaration.

49. Section 12 of the Third Notice Party’s application form contains the following standard

question: “Are you aware of any previous planning application/s on this site?”, to which

the Applicant has placed a “tick” opposite the “YES” option. At section 12(b) of the

application form, in response to “If “YES” please supply details” the Third Notice Party has

stated “TA 140621”, which is the planning reference number for the Council’s decision to

grant permission, by Order dated 11 December 2014, for the change of use from a

National School building to a proposed new Nursing Home.

50. The Third Notice Party’s application form was accompanied by a 16 February 2018 letter

on the headed paper of “Trim Municipal District Council”. This letter was signed by

Page 28 ⇓

Councillor Noel French on behalf of the Third Notice Party and was addressed to the

Council. Among other things, the 16 February 2018 letter evidences the fact that the

Third Notice Party was aware, at that point, of the existence and effect of the s. 5

Declaration granted by the Council on 29 September 2016 under planning reference

number TA/S 51639. This is clear from the following statement in the letter: -

“The Councillors for the area were shocked to find out that a new owner of the

property is able to continue to develop this site using the existing exception (sic)

despite a material change to the use of the development. The exemption granted

for a drugs rehabilitation care facility, in our opinion falls outside of the boundary of

the permission granted”.

51. I am satisfied that the reference in this letter to “the exemption granted” is a reference to

the 29 September 2016 declaration issued by the Council. I also find, as a matter of fact,

that the Third Notice Party was explicitly making an objection, in 2018, to the declaration

which the Council had issued in 2016. This is clear from the first sentences in the 16

February 2018 letter, in which the Third Notice Party stated the following: -

“The Councillors of the Trim Municipal District are writing this letter to accompany

our section 5 form to object to the exemption granted under the existing planning

reference File Number TA 140621. We have several concerns about this application

and would like to briefly outline them . . .”

Reference number TA 140621 concerns the 2014 grant of change of use, but I am

satisfied that the words “…to object to the exemption granted…” states an objection to the

2016 declaration. This is also plain from the first extract of the 16 February 2018 letter

which I have quoted above in which Mr. French states: “The exemption granted for a

drugs rehabilitation care facility, in our opinion falls outside of the boundary of the

permission granted” By making the foregoing assertion, the Third Notice was, in fact,

saying that the Council had made an incorrect decision when it issued it’s 29 September

2016 Declaration and the Third Notice Party was asking the Council to change its answer

to the one which accorded with the Third Notice Party’s view.

52. The fact that, in 2018, the Third Notice Party regarded, as wrong, the Council’s 2016

Declaration is also clear from other statements in the 16 February 2016 letter which

contains, inter alia, the following: -

“Care for the elderly involves clear care giving but where medical interventions are

required, the residents fall under the care of the HSE. Indeed, residents requiring

medical care beyond a GP visit would be transported to hospital. The standards in

this type of facility would be set down by the HSE and a number of support services

would be in place.

However, a drug rehabilitation facility does not have any regulatory controls

imposed on it. Most drug rehabilitation facilities are run by the HSE and medical

care of those with addictions are planned and agreed with medical practitioners.

Page 29 ⇓

The proposed facility does not operate on this basis, in fact quite the opposite,

there is secrecy, no inter-agency working and no approved medical programme. As

Councillors in the area we have a duty of care to both the community and the

potential users of this service. Based on our knowledge of this programme we feel

that Meath County Council will be lacking in its care for the users of this service by

granting an exemption when the use is so materially different from that originally

granted”.

53. None of the foregoing could be said to be new material or information arising since 29

September 2016. Despite the fact that Trim Municipal District Council was aware, on 16

February 2018, of the existence of the 2016 s.5 declaration, the foregoing statements

were clearly made by the Third Notice Party in an effort to persuade the Council to give a

different answer, in 2018, to the same question it had considered and answered, in 2016,

in circumstances where the Third Notice Party clearly regarded the Council’s 2016 answer

as wrong.

54. Mr. French, on behalf of the Third Notice Party, offered a number of other views in the 16

February 2018 letter and in the document which accompanied it, entitled “Narconon

Ballivor”, which document ended with the statement “Information complied by Noel

French”, but I am satisfied that none of the material which comprised the Third Notice

Party’s s. 5 application could fairly be said to comprise evidence of any new or changed

planning facts or circumstances regarding the property, since the date of the Council’s 29

September 2016 s. 5 declaration. I am satisfied that, as a matter of fact, the Third Notice

Party did not purport to rely, for the purposes of their 2018 s. 5 application to the

Council, on any change in planning facts or circumstances alleged to have occurred since

the Council issued its declaration in 2016. Having regard to the evidence, I am also

satisfied that, as a matter of fact, Trim Municipal District Council was not operating on a

belief, even a mistaken one, that there had been any change in planning facts or

circumstances between the Council’s declaration of 2016 and the submission of their s. 5

application in 2018.

55. There is no evidence before the court that the members of the Third Notice Party were

unaware of the making of the Council’s 2016 declaration at the time it was made. There is

no evidence that the Third Notice Party did not have access to the particulars on the

relevant register maintained pursuant to section 7 of the 2000 Act. There is no evidence

before the Court as to when the Third Notice Party learned of the making of the

Declaration. It is not in dispute that the Third Notice Party did not challenge the 2016

Declaration by way of an application for judicial review, in accordance with s. 50 of the

2000 Act. Nor did the Third Notice Party bring any application, pursuant to s. 50 (8) of

the 2000 Act, to seek an extension of time to bring judicial review proceedings.

26 February 2018

56. On 26 February 2018, Meath County Council wrote a letter, to an Bord Pleanála in relation

to “Planning and Development Act s. 5(4) referral TAS 51806 & TAS 51807 – Ballivor

Community Group/Trim Municipal District”. The letter stated as follows: -

Page 30 ⇓

“Dear Sir,

I refer to the attached s. 5 applications lodged with Meath County Council on 19th

February 2018.

The subject development consists of change of use of the permitted Nursing Home

under planning reference TA 140621 to a residential drug rehabilitation facility at

Ballivor Co. Meath.

Meath County Council issued a Declaration reference TA/S51639 on 29/09/2016

stating that “the change of use of the permitted nursing home to a residential drug

rehabilitation facility” at the former Old National School site at Ballivor, was

Exempt. Copy of declaration, Planners Report & application form attached.

Given the fact that Meath County Council have already issued a determination on

this matter and two subsequent requests for a declaration have been received,

Meath County Council refers this application to An Bord Pleanala pursuant to s. 5(4)

of the Planning and Development Acts 2000 – 2017 and seeks a declaration as to

whether change of use of the permitted nursing home under planning reference TA

140621 to a residential drug rehabilitation facility constitutes exempted

development.

I enclose the requisite fee.

Yours faithfully”.

57. The said 26 February 2018 letter from the Council did not refer the Board’s attention to

any change in planning facts or circumstances which might have occurred between the

Council’s s. 5 Declaration dated 29 September 2016 and the two requests made to the

Council by the Second and Third Notice Parties, dated 16 February 2019. The Council’s

letter did not suggest that there had been any change in planning facts or circumstances

whatsoever since the Council issued its declaration. Nor did the letter refer to any alleged

change in planning facts or circumstances between 16 February 2018, when the s.5

applications were submitted to the Council by the Second and Third Notice Parties, and

the date of the Council’s letter to the Board, being 26 February 2018.

12 March 2018

58. The Respondent Board wrote to the Applicant by letter dated 12 March 2018, in

accordance with s. 129 of the 2000 Act, inviting the Applicant to make “. . . submissions

or observations in writing to the Board in relation to the referral within a period of 4

weeks . . .” The Respondent’s letter described the relevant question in the heading of the

letter in the following terms: -

“Re: Whether the change of use of the permitted nursing home under register reference

number TA/140621 to a residential drug rehabilitation facility is or is not

development or is or is not exempted development”.

Page 31 ⇓

59. A second letter, also dated 12 March 2018 was sent to the Applicant, reflecting the fact

that two separate s. 5 requests had been submitted by the Second and Third Notice

Parties, respectively. In the second letter, the relevant question was stated in the heading

to be as follows: -

“Re: Whether the change of use of a permitted nursing home (permitted under

TA/140621) to a residential drug rehabilitation facility is or is not development or is

or is not exempted development”.

I am satisfied that there is no material difference whatsoever between the two questions

in the letters dated 12 March 2018. I am also satisfied that this is the same question

which was asked by the Applicant in 2016, answered by the Council by way of its 29

September 2016 declaration, put to the Council, again, by the Second and Third Notice

Parties, on 16 February 2018 and referred by the Council to the Board, on 26 February

2018.

15 March 2018

60. On 15 March 2018, a submission was made to the Respondent Board on behalf of the

Applicant by Noel Smyth & Partners, solicitors, in a letter which made clear that a single

response was being made in respect of the two letters dated 12 March 2018. Extracts

from the 15 March 2018 submission include the following: -

“The purpose of this letter is to request An Bord Pleanála to dismiss the above

entitled s. 5 referrals as invalid in circumstances where the precise question raised

by the referrals is the subject of an earlier s. 5 declaration issued by Meath County

Council. This earlier declaration is dated 29 September 2016 and bears the planning

“The 2016 declaration was subject neither to review by An Bord Pleanála under s.

5(3) of the PDA 2000, nor to judicial review by the High Court under s. 50 of the

PDA 2000. The relevant statutory time – limits have long since expired.

Accordingly, the 2016 declaration is now conclusive and is binding upon An Bord

Pleanála. An Bord Pleanála does not have jurisdiction to question the validity of the

2016 declaration, and the board must therefore dismiss the above entitled referrals

as invalid”.

25 June 2018

61. A submission was made on behalf of the Second Notice Party, by way of a letter dated 25

June 2018 from Clarke Jeffers & Co., solicitors, paragraph number 1 on the second page

of which began as follows: -

“1. This is a Response to the submission of Noel Smyth, solicitors on behalf of

Narconon Trust dated the 15th March 2018. There is no basis for the request that

the appeal be dismissed as invalid. The submission is based on a misunderstanding

of the case law cited in particular the judgment in Killross and also the Sweetman

case. The submission purports to advancing the entirely novel proposition that An

Bord Pleanála is some way bound by a prior determination of the planning authority

Page 32 ⇓

– a proposition which has no basis in either the text of the Planning and

Development Act, case law and/or practice. It is also worth observing that insofar

as it is contended that An Bord Pleanála has no jurisdiction because of the earlier

Meath County Council declaration, Meath County Council does not itself share such

a view, as it was Meath County Council which referred the matter to An Bord

Pleanála due to its earlier declaration. If it was of the view that An Bord Pleanála

had no jurisdiction in such circumstances, it would not have referred the matter on

to An Bord Pleanála”.

12 September 2018

62. An Inspector’s report was prepared by Ms. Deirdre McGabhann, senior planning inspector

with An Bord Pleanála. As is clear from the first page of the Report, it was prepared to

address the following question: -

“Whether the change of use of a permitted nursing home (permitted under

TA/140621) to a residential drug rehabilitation facility is or is not development or is

or is not exempted development”.

I am satisfied that this is the same question which the Applicant raised in 2016, which the

Council answered by way of the 2016 Declaration, which the Second and Third Notice

Parties put to the Council again in 2018 and which the Council referred to the Board. I am

satisfied that the Inspector’s report does not identify any change in planning facts or

circumstances between 29 September 2016, when the Council issued its s. 5 declaration,

and 19 February 2018, when the Council received the s. 5 applications from Trim

Municipal District Council and Ballivor Community Group, respectively. Section 7.0 of the

Inspector’s report is entitled “The Referral”. Section 7.1.1 begins as follows:-

“In their s. 5 application form for a declaration on the change of use of the

permitted nursing home to a drug rehabilitation facility, Trim Municipal District

Council set out the following arguments:”

63. This is followed by a summary of the arguments put forward by the Third Notice Party,

none of which are based on any change in planning facts or circumstances alleged to have

occurred since the 2016 Declaration. This is then followed by section 7.1.2, which begins:

“The following arguments are set out by Ballivor Community Group. Their

submission includes a petition signed by over 600 residents”.

A summary is then given of the arguments advanced by the Second Notice Party, none of

which are based on any change in planning facts or circumstances occurring since the

2016 s. 5 declaration.

64. It is clear from the contents of the Inspector’s report that a site inspection took place.

Clause 1.1 of the Inspector’s report states: -

Page 33 ⇓

“At the time of site inspection, the redevelopment and extension of the buildings

was underway”.

The senior planning inspector does not make reference in her report, to any change in

planning facts or circumstances, as a result of the site inspection or otherwise, which

would constitute additional matters to be considered in 2018, which were not considered,

in 2016.

In section 9.0 under the heading “Assessment”, the Inspector summarises the task in the

following terms: -

“9.1 This assessment concerns three matters; (i) Does the Board have jurisdiction to

determine the referrals made? (ii) Is the proposed change of use development, and

(iii) If it is development, is the proposed change of use exempted development. I

examine the matters in turn”.

65. The Inspector then examined what she considered to be the board’s jurisdiction to

determine the referrals and, after commenting on both the Killross and Sweetman

decisions, came to the following conclusions: -

“9.2.6Those cases highlight the status of a s. 5 declaration, in its own right, the inability

of any party to challenge this after the expiry of statutory time limits and its status

in the context of enforcement action for the same development.

`9.2.7 However, in this instance, the planning authority has referred the s. 5 applications

by Ballivor Community Group and Trim Municipal District Council to the Board

under s. 5(4) of the Act, i.e. there is no review sought of the planning authority’s

previous declaration. Further, and importantly, there are no provisions in the Act

(or case law) which specifically cater for the circumstances before the Board or

legal constructs which prevented adjudicating on the referral cases before it,

despite the previous earlier determination by the planning authorities in respect of

the same development. I am of the opinion therefore that it is incumbent on the

Board to determine the s. 5(4) referrals before it”.

Section 11.0 of the Inspector’s report contains her Recommendation in the form of a draft

order, which draft concludes with the following words:

“NOW THEREFORE An Board Pleanala, in exercise of the powers conferred on it by

section 5(4) of the 2000 Act, hereby decides that the change of use from nursing

home to drug rehabilitation facility is development and s [sic] not exempted

development.”

19 November 2018

66. On 19 November 2018 the Board issued an Order under reference ABP-301055-18. The

final paragraph of the second page states as follows:

Page 34 ⇓

“NOW THEREFORE An Board Pleanala, in exercise of the powers conferred on it by

section 5(4) of the Planning and Development Act, 2000, as amended, hereby

decides that the change of use of the permitted nursing home under planning

permission register reference TA/140621 to a residential drug rehabilitation facility,

at the old National School, Ballivor Village, County Meath, is development and is not

exempted development.”

In addition to being satisfied that there is no evidence of any change in planning facts or

circumstances between the Council’s 29 September 2016 declaration and the submission

by both Notice Parties of their s. 5 applications on 16 February 2018, I am also satisfied

that there is no evidence of any change in planning facts or circumstances between the

submission, on 16 February 2018, of the Second and Third Notice Parties’ s. 5

applications, and 19 November 2018, when the Board made its orders.

Discussion and Decision

67. Counsel for the parties have very helpfully furnished the court with an agreed book of

authorities and I find the following of particular assistance in approaching the issues

which arise in this case.

68. In Killross Properties Limited v. ESB & Anor [2016] 1 IR 541, at p.551, Mr Justice Hogan,

who was then in the Court of Appeal, analysed the Supreme Court’s decision in Grianán

an Aileach Centre v. Donegal County Council [2004] IESC 43, [2004] 2 IR 625. At para.

25 of his judgment, Hogan J. stated: -

“[25] This question was, however, considered by me as a judge of the High Court in

Wicklow C.C. v. Fortune (No.3) [2013] IEHC 397 (Unreported, High Court, Hogan

J., 5 September 2013). In that case one of the issues was whether in s. 160

proceedings the High Court had a jurisdiction to determine whether a particular

development constituted exempted development where the relevant local authority

had already determined following a s. 5 reference that the development in question

was not exempted development. I nevertheless expressed the view at p. 9 that the

effect of Grianán an Aileach v. Donegal County Council (No.2) [2004] IESC 43,

[2004] 2 IR 625 was that:

’12 . . .This decision must be taken impliedly to preclude the High Court from

dealing with this matter in enforcement proceedings in these precise

circumstances where a s. 5 application for a certificate of exemption has been

refused and has not been quashed in judicial review proceedings.

13. Here it must be recalled that a s. 5 refusal forms part of the formal planning

history and the details of the refusal are entered on a public register: see s.

5(3) of the 2000 Act. If this Court could grant a form of declaration in

enforcement proceedings that the development was exempt, there would be

in existence two contradictory official determinations of this question, with

the real potential for confusion and uncertainty of the very kind which so

exercised the Supreme Court in Grianán an Aileach Centre v. Donegal County

Council (No.2) [2004] IESC 43, [2004] 2 IR 625.’” (emphasis added).

Page 35 ⇓

69. The facts in the present case are different to those in the Kilross and in the Grianan an

Ailieach cases, but if it is permissible for the Board to issue a different decision, in 2018,

despite the existence of a valid and lawful declaration, in 2016, which was made in

response to the same question in respect of the same property, notwithstanding the

absence of any change in planning facts or circumstances during the intervening period,

the type of “confusion and uncertainty” referred to by Mr Justice Hogan is precisely what

would arise.

70. In Michael Cronin (Readymix) Limited v. An Bord Pleanala [2017] IESC 36, O’Malley J.

commented on the procedure provided under s. 5 of the 2000 Act, at para [41] as

follows: -

“That provision sets out a scheme whereby, in the first instance, any person may

apply to the relevant planning authority for a declaration as to whether what has

occurred in a particular development is or is not development, or whether it is

exempted development. A planning authority may, on its own initiative, make a

similar application to the Board. The procedure is an expedient method of

determining the status, within the regulatory regime, of a particular development

about which some doubt may exist.

[42] In Grianán an Aileach Centre v. Donegal County Council (No. 2) [2004] IESC 43,

[2004] 2 IR 625 the Supreme Court held that, having regard to the availability of

the s. 5 procedure, the High Court had no jurisdiction to grant a declaration that

certain proposed activities at a venue were covered by the terms of its planning

permission. While such a question might legitimately come before the courts in, for

example, enforcement proceedings, the jurisdiction to determine the issue in the

first place had been conferred on the planning authority and on the Board. In

Wicklow County Council v. Fortune [2013] IEHC 397, Hogan J. held at para. 12, p.

9, that this reasoning must be taken as impliedly precluding the High Court from

finding that a development was exempted where there was an unchallenged

decision by the Board that it was not. I agreed with his conclusion in my judgment

in Wicklow County Council v. O'Reilly [2015] IEHC 667.

[43] It follows that the primary role in determining whether a development is exempted

or not is given to (depending on the circumstances) either the planning authority or

the Board. A decision by one of those bodies is an authoritative ruling on the issue,

subject to the potential for judicial review.” [emphasis added]

71. On the evidence before me, it is clear that the Applicant made its s. 5 application in order

to have the planning status of its then proposed development determined and to obtain

an authoritative ruling on the question posed in the 2016 application. The Declaration

which the Respondent issued in 2016 could have been challenged by way of judicial

review proceedings brought pursuant to s. 50 of the 2000 Act. No such proceedings were

brought within the relevant time limit. That being so, I am satisfied that the 2016

declaration constituted an authoritative ruling of the question which had been put.

Page 36 ⇓

72. In his judgment delivered on 2 February 2017, in the case of Sweetman v. An Bord

Pleanála [2017] IEHC 46, Mr. Justice Haughton stated the following at para. 11.1 of his

decision: -

“Section 5 does not require that there be any public notification of a referral, and

there are no statutory consultees, and no right of the public to participate. The

evidence that the Applicant was unaware of the s. 5 referrals, or the declarations of

exemption made on 1st April, 2015 and 6th May, 2015, until some date in

September 2015, was not contested. The absence of notification or publication in

the circumstances meant that the Applicant could not have, and could not

reasonably be expected to have, known about these declarations.

11.2 On these facts it is clear that the Applicant satisfied the test at s. 50(8)(b) namely

that the circumstances that resulted in his failure to make an application for leave

to seek judicial review of the s. 5 declarations within the period of eight weeks from

the date of those declarations 'were outside the control of the Applicant for the

extension'”.

73. The present case has a number of distinguishing features. Firstly, Haughton J.’s findings

were in the context of an application for an extension of time to seek judicial review. This

is not being sought in the present case. Nor has any evidence been put before this Court

to the effect that the Second or Third Notice Parties were unaware of the making, by the

First Notice Party, of the s. 5 Declaration in 2016. This is so, despite the provisions in the

2000 Act by which the Oireachtas has provided a means for members of the public to

access both the facts and contents of a section 5 declaration. I have previously referred to

and have quoted the provisions in section 5 (7b) and in section 7 of the 2000 Act. In

particular, section 7 of the Act requires the planning authority to keep a register in

respect of all lands within its functional area and to enter in the register, pursuant to

section 7 (2) (h): “particulars of any declaration made by a planning authority under

section 5 or any decisions made by the Board on a referral under that section”.

74. Between paras. 57 and 95 of his recent judgment in Krikke v. Barranafaddock

Sustainability Electricity Limited [2019] IEHC 825, Mr Justice Simons provides a very

detailed and helpful analysis of the nature of a s.5 declaration, which I adopt. At para. 79

of his judgment, Simons J. states the following in relation to the status of a s. 5

declaration and identifies a question which is of relevance in the present case: -

“The current legal position is, therefore, that enormous significance now attaches to

a s. 5 declaration. The existence of an (unchallenged) declaration will, in certain

circumstances be dispositive of many of the issues which arise in enforcement

proceedings. The precise implications of all of this have not been fully teased out.

In particular, questions remain as to whether, for example, An Bord Pleanála would

be precluded from entertaining a reference by virtue of the existence of an earlier

unappealed declaration made by a local planning authority pursuant to a separate

reference.” [emphasis added]

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75. As a result of an examination of the evidence in this case, a number of facts emerge in

relation to the Second Notice Party and their section 5 application, including the following.

The Second Notice Party was aware, in 2018, of the Council’s 2016 section 5 Declaration,

dated 29 September 2016. The Second Notice Party had an explicit objection to it and

voiced this objection in their section 5 application, in 2018. The Second Notice Party was

requesting the Council to consider, in 2018, the same question which the Council had

previously answered in 2016 by way of the 2016 Declaration, which the Second Notice

Party regarded as wrong. The Second Notice Party wanted that same question answered a

different way in 2018 than it had been answered in 2016, i.e. “…irrespective of the

decision made previously by the Council under TA/S51639”, to quote from the HRA

Planning letter dated 14 February which accompanied the Second Notice Party’s

application. There is no evidence that planning facts or circumstances had changed

between the 2016 declaration by the Council and the submission, in 2018, of the Second

Notice Party’s s. 5 application. There is no evidence that the Second Notice Party was

operating under a genuine, even if mistaken, belief that there had been any such change,

between 2016 and 2018, of relevant planning facts or circumstances. The Second Notice

Party did not purport to rely, for the purposes of their section 5 application, on any

change in planning facts or circumstances alleged to have occurred between the 2016

declaration and the submission, in 2018, of their s. 5 application. Rather, against the

background of unchanged planning facts and circumstances during the intervening period,

arguments were put forward by the Second Notice Party, and by HRA Planning on their

behalf, in an attempt to persuade the Council to give a different answer, in 2018, than the

answer given in 2016 in respect of the same question, including arguments based on

identical material which the Council had already considered and determined in 2016. In

reality, the Second Notice Party was not looking for an answer to their question. There

already was an answer to the self-same question, which answer they objected to. They

regarded the Council’s 2016 answer as wrong and wanted the Council, in 2018, to give

them a different answer to the same question. In light of the facts which emerge from my

examination of the evidence as detailed in this judgment, I am satisfied that, as a matter

of fact, Ballivor Community Group was questioning the validity of the decision made by

the Council on 29 September 2016, by means of a s.5 application dated 16 February

2018.

76. With regard to the Third Notice Party, an analysis of the evidence reveals a number of

facts, including the following. The Third Notice Party was aware, in 2018, of the Council’s

2016 Declaration. In 2018, the Third Notice Party was objecting to the Council’s 2016

declaration, which they regarded as wrong. The Third Notice Party’s section 5 application

was an explicit request that the same question which the Council answered in 2016 be

considered again in 2018, notwithstanding the 2016 Declaration. The Third Notice Party

sought, in 2018, to persuade the Council to give a different answer than the answer given

in 2016 in respect of the very same question. There is no evidence of a change in

planning facts or circumstances, since the Council’s 29 September 2016 Declaration, and

the Third Notice Party did not advert to or purport to rely on any alleged change in

planning facts or circumstances when making its s. 5 application, on 16 February 2018.

There is no evidence that the Third Notice Party was operating under a genuine belief,

Page 38 ⇓

even a mistaken one, that there had been a change in planning facts or circumstances

between 2016 and 2018. Rather, the Third Notice Party was knowingly asking the same

question in 2018 which the Council had answered in 2016 but hoped to persuade the

Council to give a different answer, despite the fact that the relevant facts and

circumstances had not changed. The Third Notice Party knew that the Council had

answered the self-same question as theirs, by means of its 2016 Declaration. They did

not like that answer. In 2018, the Third Notice Party was not seeking an answer from the

Council but, rather, was arguing for a different answer than the one the Concil had given.

The Third Notice Party was, as a matter of fact, in 2018, adopting the stance that the

correct answer was the one they argued for and that the Council’s 2016 decision was

wrong. Based on the evidence, I am satisfied that Trim Municipal District Council was, as

a matter of fact, questioning the validity of the decision made by the Council on 29

September 2016, by means of a s.5 application dated 16 February 2018.

77. At para. 9.2.7 of the senior planning Inspector’s report dated 12 September 2018, the

Inspector came to the following conclusion: -

“ . . . in this instance the planning authority had referred the s. 5 applications by

Ballivor Community Group and Trim Municipal District Council to the board under s.

5(4) of the Act, i.e. there is no review sought of the planning authority’s

previous declaration”.

If the foregoing is true in form, I am satisfied it is not true in substance, in circumstances

where the following can be said in relation to both the Second and Third Notice Parties

and their s.5 applications. The Second and Third Notice Parties were explicit about their

objections to the planning authority’s previous Declaration. They sought to change it. It is

clear from their s. 5 applications that they regarded the Council’s 2016 answer as wrong.

Each of the Second and Third Notice Parties raised the self-same question in 2018 as the

local authority had answered in 2016, by way of the Council’s Declaration. They advanced

no new evidence by way of changed planning facts or circumstances and I am satisfied

that they were not operating in a belief, even if incorrectly held, that relevant planning

facts or circumstances had changed. In reality, neither notice party was looking for an

answer to their question. There was already an answer to their question, namely the 2016

declaration. What the Notice Parties wanted was not an answer to a question, but a

different answer to the answer which had been given in 2016 in respect of the same

question. To that end, and against the background of no relevant change in the factual

position, the Notice Parties put forward arguments as to why the previous answer was

wrong and should be set aside and why they should be given a different answer. In form,

the 2018 s. 5 applications by the Second and Third Notice parties sought answers as to

planning status but in substance they were objections to the Council’s 2016 answer of the

self-same question, comprised in the Council’s Declaration, dated 29 September 2016. I

am also satisfied that all of the foregoing facts were available to the Respondent’s Senior

Planning Inspector, as of 12 September 2018, and to the Respondent Board when it made

its decisions, on 19 November 2018, because all of these facts are disclosed by the

contents of the relevant documentation which was, by those dates, in their respective

Page 39 ⇓

possession and which has been exhibited in these proceedings and examined in this

judgment.

78. In Cleary Compost and Shredding Limited v. An Board Pleanála [2017] IEHC 458, Ms.

Justice Baker referred to the decision of Mr. Justice McKechnie in Kiely v. Kerry County

Council [2015] IESC 97 and commented on the principles regarding the exercise of a

statutory function by an administrative body, as developed since the seminal decision in

The State (Lynch) v. Cooney [1982] 1 I.R. 337. At para. 62 of her judgment in Cleary

Compost Baker J. gave the following description:

“The principle is that, even when a person or body is entitled as a matter of statute

to make a decision in its absolute discretion, the exercise of the statutory power

must comply with certain basic requirements of fairness and ‘accord with the

statutory parameters within which the underlying power is conferred’. McKechnie J.

identified this as a fourth requirement viz. ‘that the decision does not breach the

legislative framework within which the power is given’. (para. 71)”

79. Section 5 of the 2000 Act, and the power which that section confers on the Board, do not

exist and cannot be properly understood in isolation. Section 5 is part of a legislative

framework and must be interpreted in the context of the 2000 Act, as a whole, including,

in particular, the provisions of Section 50 of the same Act. The provisions of section 50

are clear, sub section (2) of which states:

“(2) A person shall not question the validity of any decision made or other act done by—

(a) a planning authority, a local authority or the Board in the performance or purported

performance of a function under this Act,

…otherwise than by way of an application for judicial review under Order 84 of the

Rules of the Superior Courts (S.I. No. 15 of 1986) (the ‘Order’).”

80. The intention of the Oireachtas, as expressed in section 50, is unambiguous. By enacting

Section 50, the Oireachtas made it clear that only one route was available to those who

wished to question the validity of any decision made by a local authority in the

performance of a function under the 2000 Act. In my view, this necessarily means that,

when performing its functions in accordance with Section 5, the Board lacks the power to

decide a question if that question is, in fact, an attempt to question the validity of a prior

decision by a local authority made by same in the performance of a function under the

2000 Act, other than in accordance with the mandatory requirements of s. 50 of the same

Act, including s. 50 (2). By making the 19 November 2018 decisions, the Board permitted

the Second and Third Notice Parties to question the validity of the Council’s 29 September

2016 decision, regarding the same question, in respect of the same property, in the

absence of any change in relevant facts or planning circumstances, between the 2016 and

2018 decision, notwithstanding the provisions of section 50(2) of the 2000 Act and the

Notice Parties’ failure to comply with the statutory regime mandated under s. 50 for a

challenge by way of judicial review.

Page 40 ⇓

81. Given the facts in this case and the provisions of Section 50 (2) of the 2000 Act, I am

satisfied that the Board did not have the power to make decisions in respect of what was,

in fact, an attempt by the Notice Parties to question, in 2018, the validity of the Council’s

2016 decision concerning the same matter, other than by way of an application for

Judicial review as mandated by section 50 (2). As such, the Board’s 2018 decisions under

section 5 of the 2000 Act breached the legislative framework within which the Board’s

powers are given. The Board could not lawfully decide the 2018 s. 5 requests and acted

ultra vires in furnishing determinations on foot of them in circumstances where, as a

matter of fact, each constituted an impermissible attempt to circumvent the mandatory s.

50 (2) procedure to question the validity of a decision made by the Council in 2016, other

than by way of an application for Judicial Review in the manner mandated by the 2000

Act.

82. In the Inspector’s report to the Board, the opinion expressed was that “…it is incumbent

on the Board to determine the s. 5(4) referrals before it”. Doubtless, this was a genuinely

held view offered in good faith but, having regard to the statutory framework in which the

Board’s powers arise, it is not correct. The Oireachtas, by enacting section 138(1)(b) of

the 2000 Act, granted an absolute discretion to the Board to dismiss a referral where the

Board is satisfied that it should not be further considered by it, having regard to the

nature of it or any previous permission which in the Board’s opinion is relevant. The

evidence, all of which was available to the Respondent, demonstrates that the Second

and Third Notice parties were, as a matter of fact, questioning of the validity of a decision

made by the Council, in 2016, in the performance of a function under the 2000 Act, and

were doing so, in 2018, by means of their s. 5 applications, despite the provisions of

section 50 (2) of the same Act and the failure of the Second and Third Notice Parties to

comply with same. Given the facts identified in this judgment, which were available to

the Board, the Board was not obliged to determine the s. 5(4) referrals and lacked the

power to do so, lawfully, in light of the limitations on the Board’s s. 5 powers necessarily

imposed by s. 50 (2) of the 2000 Act, but undoubtedly had the express power not to

determine the referrals, in light of section 138(1)(b) of the same Act.

83. At para. 24 of his judgment, in Killross Properties Limited v. ESB & Anor [2016] 1 IR 541,

at p.551. Mr Justice. Hogan J. stated the following: -

“[23] It is true that the underlying issues in Grianán an Aileach v. Donegal County Council

(No. 2) [2004] IESC 43, [2004] 2 IR 625. were slightly different than those

presented in the present appeal. It seems clear, nevertheless, from this statement

of principle that the Supreme Court envisaged that the courts should be careful not

to trespass into the exclusive domain of the planning authorities as envisaged by

the s. 5 jurisdiction”. [emphasis added].

84. I am very conscious that the court should be extremely reluctant to trespass into the

exclusive domain of decision-makers. However, it seems to me that the Board should be

careful not to trespass on the jurisdiction of the Council, in light of the powers conferred

on the latter by s. 5 of the 2000 Act and the extent of the Board’s powers under the same

Page 41 ⇓

section, having regard to the statutory framework in which the Board’s powers arise,

which framework includes section 50(2) of the same Act. The foregoing care, it seems to

me, must be exercised by the Board even if, as in the present case, the Council made the

reference to the Board, in 2018, of the question it had, itself, determined in 2016.

85. Section 5 of the 2000 Act envisages a declaration issuing in a number of ways, each of

which are specified in the wording of that section. Firstly, a declaration may be issued by

a planning authority on a request under s. 5(1), which section makes reference to “a

declaration on that question” and refers to the local authority making “its decision on the

matter”. Secondly, where any person is issued with a declaration from a planning

authority (under subsection (2) (a)), they may refer a declaration for review by the Board

under s. 5(3). Thirdly, if a planning authority fails to issue a declaration, any person who

made a section 5 (1) request may refer the question for decision to the Board within 4

weeks of the date that a declaration was due to be issued. The fourth manner in which a

declaration may issue is following a referral to the Board under s. 5(4) of “…any question

as to what, in any particular case, is or is not development or is or is not exempted

development to be decided by the Board”. Despite the use of the word “any” in s. 5(4),

the Respondent’s powers under under s. 5(4) are not without limit, having regard to other

provisions in the 2000 Act. For example, s.127 of the 2000 Act cannot be ignored, as the

Respondent lacks the power to consider a referral which does not comply with the

provisions of s. 127. In my view, the absence of an express prohibition in s. 5 (4) on the

exercise of the Respondent’s jurisdiction under s. 5 (4) where a planning authority has

previously issued a Declaration under s. 5 (2) does not mean that s. 5 (4) can be properly

interpreted to mean that the Respondent is entitled to ignore the requirements of s. 50 of

the 2000 Act and has the power to decide on a referral which, as a matter of fact,

questions the validity of a decision made by the local authority in the performance of a

function under the same Act, other than in accordance with the method mandated by s.

50. In my view, such an interpretation of s. 5 would render meaningless the ability of a

person to have planning status determined by employing the clause 5 (1) procedure and

is an interpretation which is impermissible, having regard to the limitation on the Board’s

section 5 powers which necessarily flow from the explicit provisions of section 50 (2),

both of which sections are part of the framework in respect of which both a local authority

and the Board exercise their functions under the 2000 Act.

86. In para. 12.4 of his judgment in Sweetman, Haughton J. commented on the decision by

the Court of Appeal in Killross v. ESB [2016] IECA 207 in which Hogan J. considered the

nature and status of a s. 5 declaration. At para. 12.5 of his judgment Haughton J. stated

the following:

“While it might have been thought, before Killross, that a s. 5 declaration was no

more than a declaration that a particular development was exempt from the

requirement of planning permission or approval, it clearly does have a status in

itself. It establishes that a particular development is not 'unauthorised', and the

High Court cannot go behind that, and cannot permit a collateral attack. As the

Court of Appeal found, a s.160 application in respect of an 'exempted' development

Page 42 ⇓

is bound to fail. Although not adverted to in Killross, because it did not arise, it

must logically follow from s. 4(4) of the 2000 Act (which provides that a

development cannot be an exempted development if an EIA or AA is required) that

the High Court cannot entertain a collateral challenge to a s. 5 declaration on the

basis that an EIA or AA is required. The s.5 declaration is a matter that can only be

reviewed by appeal to the Board, or by judicial review brought in time in the High

Court, and after that it is beyond attack”. [emphasis added]

87. I am also satisfied that the court has been presented with what can be fairly described as

a collateral attack, by both of the Second and Third Notice Parties, on the Council’s 29

September 2016 s. 5 Declaration using, as a vehicle, their 2018 s. 5 requests, which were

initially submitted to the Council and which ultimately resulted in the decisions by the

Board and, in my view the Court cannot permit such a collateral attack, having regard to

the facts in the present case which I now summarise, as follows:

1. The Council provided an answer, on 29 September 2016, in the form of a s. 5

Declaration, in response to a question as to planning status and this was a decision

made by the local authority in the performance of a function under the 2000 Act;

2. The 2016 Declaration was neither referred to the Board, nor challenged by way of

judicial review in accordance with s. 50 (2) of the 2000 Act and the Applicant relied

on the Declaration;

3. There is no evidence before the court that the second or third notice parties were

unaware of the making of the 2016 Declaration at the time it issued;

4. There is no evidence that the provisions of section 5(7B) (a) and or 7(2)(h) of the

2000 Act were not complied with in respect of public access to information

concerning the fact or content of the 2016 Declaration;

5. There is no evidence before the court as to when the notice parties became aware

of the 2016 s. 5 Declaration, but they were certainly aware, when making their s.

5 applications in 2018, of the Declaration issued by the Council in 2016;

6. The questions posed by the Second and Third Notice Parties in 2018 are the very

same in substance as the question which was put by the Applicant in 2016 and

answered by the Council in the form of its Declaration dated 29 September 2016;

7. Each of the Second and Third Notice Parties’ 2018 s. 5 applications contained an

explicit objection to the Council’s 2016 Declaration;

8. It is clear from the contents of their respective s. 5 applications, dated 16 February

2018, that both of the Second and Third Notice Parties regarded the Council’s 2016

decision, in the form of the 29 September 2016 Declaration, as incorrect;

9. Each of the Second and Third Notice Parties’ s. 5 applications amounted to a

request that the same question which the Council answered in 2016 be answered in

Page 43 ⇓

a different manner in 2018, regardless of the 2016 Declaration, namely in a

manner which the Notice Parties regarded as correct;

10. There is no evidence before the court of any material change in planning facts or

circumstances between the 2016 Declaration and the 2018 s. 5 applications made

by the Second and Third Notice Parties;

11. There is no evidence that the Second or Third Notice Parties believed, even

mistakenly, that there had been a change in planning facts or circumstances

between the Council’s Declaration, dated 29 September 2016, and the submission

of their s. 5 applications, dated 16 February 2018;

12. Neither of the Second or Third Notice Parties purported to rely on any change in

planning facts or circumstances alleged to have occurred between the Council’s

2016 Declaration and the submission of their s. 5 applications in 2018;

13. Matters which the Council had previously considered in 2016 were raised again by

the notice parties in 2018 in an attempt to secure a different answer to the same

question which the Council decided in 2016;

14. There is no evidence of any change in planning facts or circumstances between 16

February 2018, when the notice parties submitted their s. 5 applications, and 19

November 2018, when the Board made its Orders;

15. Against the foregoing background, the Second and Third Notice Parties’ s.5

applications were, in fact, attempts to question the validity of a prior decision made

by the local authority in the performance of a function under the 2000 Act, other

than in accordance with the explicit provisions of section 50(2) of the 2000 Act;

16. All of the foregoing facts were available to the Board, prior to the Board purporting

to make the decisions, dated 19 November 2018, which are the challenged in the

present proceedings.

88. By way of observation, s. 5(4) of the 2000 Act confers wide powers on a planning

authority to refer any question as to what, in any particular case, is or is not

development, or is or is not exempted development to be decided by the Board. It may

be that the Board is not automatically precluded, in all circumstances, from entertained a

s. 5 reference by virtue of the existence of a prior, extant unappealed declaration made

by a local planning authority pursuant to a separate reference. If, for example, relevant

planning facts or circumstances had changed between the issuing of the local authority’s

Declaration and the subsequent referral, the factual position would be materially different

than in the present case. Importantly, however, this is not the factual situation in the

present case and it is not necessary to decide wider questions in order to resolve the

issues which arise in the present case but insofar as Mr. Justice Simons, in Krikke v.

Barranafaddock Sustainability Limited [2019] IEHC 825, observed that: “…questions

remain as to whether…An Bord Pleanála would be precluded from entertaining a reference

Page 44 ⇓

by virtue of the existence of an earlier unappealed declaration made by a local planning

authority pursuant to a separate reference”, the answer in the present case is in the

negative, having regard to the facts identified and for the reasons set out in this

judgment.

89. Uncontroverted evidence is before the court that the Applicant has spent approximately

€9,050,000.00 on the facility at Ballivor, inclusive of the €1.3 million purchase price in

reliance on the 2016 Council Declaration. Such expenditure does not, of itself, entitle the

Applicant to the relief sought. It does, however, bring into sharp focus the damage to

individual rights which might arise if the court was to permit a challenge to the Council’s

2016 decision other than in accordance with the method which the Oireachtas has

mandated pursuant to section 50(2) of the 2000 Act and I consider the reliance placed by

the Applicant on the 2016 Declaration and the very significant sums of money expended

by the Applicant on the facility at Ballivor to be relevant in the context of the exercise by

the court of what is a discretionary jurisdiction.

90. In my view, the court is obliged to guard against situations whereby a party seeks to

avoid complying with legislative obligations as regards the proper means of challenging a

planning decision. If, in light of the particular facts of this case, the court was to permit a

challenge to the 2016 s. 5 Declaration via the route of questions, identical in substance,

raised in 2018, despite no change in planning facts or circumstances since 2016, it would

set at naught the requirements of s. 50 (2). It also seems to me that it would wholly

undermine the concept of legal certainty and result in a patent unfairness if, despite

having the benefit of a decision which was neither reviewed nor challenged in accordance

with the mandatory route, including time limits, laid down by statute, a party could

question the validity of the original decision, which they regarded as wrong, by asking the

self-same question at some later point, ignoring the mandated route for a challenge to

that decision, and in the context of unchanged facts, have that question answered

differently. If that were permissible the holder of a decision could have no confidence in it

and I believe that the following observations by the Chief Justice in Sweetman v. An Bord

Pleanála [2018] IESC 1 are particularly relevant, having regard to the facts in the present

case: "The requirements of legal certainty make clear that a person who has the benefit

of a decision which is not challenged within whatever time limit may be appropriate is

entitled to act on the assurance that the decision concerned is now immune from

challenge subject to very limited exceptions such as fraud and the like". In light of the

facts in the present case, the Second and Third Notice Parties were, in reality, seeking to

question the validity of the Council’s 2016 decision, to which they explicitly objected,

which they regarded as incorrect and which they sought to change, and were seeking to

do so two years after it had issued, on the basis of no new or changed planning facts or

circumstances, whilst ignoring the procedure and time limits mandated by statute in s. 50

of the 2000 Act. In my view, to permit this would be to allow a breach of explicit statutory

provisions, would be offensive to the concept of legal certainty and would result in an

injustice.

Page 45 ⇓

91. Having regard to the facts in this case and my findings as detailed above, it is not

necessary for this court to consider the question of whether it could be said that the

Respondent Board made decisions which were "unreasonable" in the sense in which that

term is used in administrative law. The foregoing involves an analysis of whether a

decision-maker considered all materials required to be considered and excluded from

consideration any matters not properly to be taken into account. That question does not

arise, in circumstances where the Board lacked the power to make the decisions

complained of and which are reflected in the Respondent Board’s Orders dated 19

November 2018 and, hence, it is not necessary to consider the manner in which those

decisions were approached by the Respondent.

Conclusion

92. For the reasons detailed in this judgment, I consider it necessary to grant an Order of

certiorari, by way of judicial review quashing the decisions made by the Respondent on 19

November 2018 pursuant to section 5 of the 2000 Act, in respect of referrals ABP-

301055-18 and ABP-31064-18, whereby the Respondent purported to decide that the

change of use from a nursing home development to a residential drug rehabilitation

facility, permitted under planning authority reference no. TA/140621, at the former Old

National School site in Ballivor, County Meath is development and is not exempted

development.

Result: Order of certiorari,by way of judicial review quashing the decisions made by An Bord Pleanála on 19 November 2018 granted.