The High Court dismissed a judicial review application by Noel Ross and Gary Ross challenging conditions attached to permission to retain a replacement mobile home at Ballinoulart, County Wexford.
The permission, granted by An Bord Pleanála in February 2014, limited use of the mobile home to a holiday home during summer months and prohibited letting or selling it for use at the site. The applicants sought to have Condition 2 quashed, arguing, among other things, that “summer months” was uncertain and that the restrictions unlawfully interfered with their property rights.
The first applicant owned the site, which he bought in 1973 with a mobile home already there. After the home was irreparably damaged by fire in 2010, it was replaced. Wexford County Council considered planning permission necessary and referred the matter to An Bord Pleanála under section 5 of the Planning and Development Act. In January 2012, the Board determined that replacing the mobile home was development and was not exempted development. The applicants did not challenge that determination by judicial review.
They later applied for retention permission, describing the proposed use as summer holidays, as the site had been used since 1973. The Council refused permission, but the Board granted it on appeal. Its inspector considered the fire an extenuating circumstance and the development’s visual impact limited. The Board’s decision cited the similar scale of the replacement, the circumstances of its replacement and the owner’s limited summer holiday use.
In his judgment delivered on 23 April 2015, Mr Justice Noonan said the applicants could not reopen the question of whether planning permission was required after leaving the 2012 determination unchallenged. He also said they had not sought clarification of “summer months”, including through the statutory process available under section 146A.
The judge rejected the challenge to the restrictions, observing that the applicants had themselves sought permission for summer holiday use and relied on their personal circumstances to establish extenuating circumstances. He said the condition did not prevent sale of the land; a future purchaser seeking to use the mobile home would need to make a planning application.
The judge said that even if Condition 2 were invalid, it could not be severed from the permission as a whole because the Board’s decision depended on the specific circumstances presented. He dismissed the application. The judgment did not quash the planning permission or remove Condition 2.