The High Court has refused Brendan Stanley’s application for a certificate for leave to appeal a judgment dismissing his judicial review challenge to An Bord Pleanála’s decision on a change of use.
In a ruling delivered on 28 November 2022, Ms Justice Siobhán Phelan said the proposed questions did not meet the statutory threshold under section 50A(7) of the Planning and Development Act 2000. The provision allows an appeal only where the High Court certifies that its decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest.
The underlying judicial review concerned the Board’s refusal to declare that a development was exempt from planning permission because it did not involve a material change of use. The applicant had accepted there was a change of use but argued it was not material. The court’s 28 March 2022 judgment rejected the challenge, finding that the reasons for the Board’s decision could be identified through a reasonable inquiry into the decision, the inspector’s report and the planning file.
That file included earlier planning history concerning a 2012 refusal of retention permission for a change of use to car sales. The judge said the inspector’s references to traffic, servicing, parking and residential amenity echoed concerns recorded in that history. Although she said the Board’s reasons could have been better articulated, she had found them sufficiently clear to a reasonable observer with access to the file.
Stanley proposed four questions about when a court may identify reasons from material before a decision-maker, what criteria apply, the duty to state reasons expressly, and whether a court may infer that material was considered. Justice Phelan said the questions did not arise from her judgment as framed. She said she had not concluded that all material before the Board formed part of its reasoning; rather, she had found the reasons ascertainable from the material on a reasonable inquiry, applying the Supreme Court’s decision in Connelly v An Bord Pleanála.
The judge said the law on reasons was settled and that applying it depended on the particular facts and material in each case. She concluded that no point of exceptional public importance arose and refused the certificate. The ruling addressed only whether to certify an appeal; it did not determine the merits of any further appeal.