The High Court has refused Noel Ross and Gary Ross leave to appeal its dismissal of their judicial review challenge to a planning condition on a replacement mobile home in County Wexford.
In a judgment delivered on 21 July 2015, Mr Justice Noonan said the applicants had not identified a point of law of exceptional public importance, as required for an appeal under the Planning and Development Act 2000. The earlier judicial review application had been dismissed on 23 April 2015.
The challenge concerned condition 2 of a planning permission granted by An Bord Pleanála on 27 February 2014 for retention of the replacement mobile home. The condition confined its use to a holiday home during summer months and prohibited it from being let or sold for use at the site as a holiday home or for any other purpose.
The applicants proposed three questions for appeal. They concerned whether planning conditions could restrict an established use after a dwelling or development perished; whether permission could interfere with the right to transfer property; and whether permission was required to replace a development where an established use had not been extinguished.
Noonan said the first and third questions depended on the nature of the applicants’ alleged established use, which had not been determined in the judicial review proceedings. He also said those arguments had not been advanced at trial or covered by the leave granted for judicial review. The applicants’ claim that permission was unnecessary had, he said, been held to be barred by estoppel, and that finding was not being appealed.
On the transfer question, the judge said the condition did not prevent sale of the land or sale of the mobile home itself. It restricted letting or selling the mobile home for use at the site. He described that conclusion as specific to the unusual facts and said it did not decide any general legal rule restricting property transfers.
The judge also noted that the applicants had not challenged his earlier finding that the condition could not be severed from the permission as a whole. He said that meant an appeal would in any event be moot. He refused leave to appeal.