The Court of Appeal dismissed An Bord Pleanála’s appeal against a High Court order quashing the Board’s 2018 decision that a change of use from a nursing home to a residential drug rehabilitation facility was development and not exempted development.
In a judgment delivered on 17 November 2021, Ms Justice Costello held that the Board could receive and begin assessing the later referrals. But once it became apparent that they raised substantially the same question about the same land, with no evidence of a material change in planning facts or circumstances, the Board could not decide the issue again on its merits.
Meath County Council had declared the proposed change of use exempted development in September 2016. No appeal or judicial review challenge was brought against that declaration within the relevant time limits. Narconon Trust bought the property in December 2016 for €1.3 million, relying on the declaration, and later spent €7.75 million on construction and fitting out the facility, according to the judgment.
In February 2018, Ballivor Community Group and Trim Municipal District Council separately sought declarations on the change of use. The council referred the questions to An Bord Pleanála under section 5(4) of the Planning and Development Act 2000. The Board decided in November 2018 that the change was development and not exempted development.
The High Court quashed that decision. On appeal, the Board argued that a later section 5 referral did not challenge the legal validity of the earlier council declaration. The Court of Appeal rejected that position on the facts of this case. It accepted the High Court’s finding that the 2018 applications were, in substance, an attempt to reverse the 2016 decision, despite no material change in circumstances.
Costello J. said the prior, unchallenged declaration was authoritative and binding, including on the Board. The later referrals therefore amounted to an impermissible collateral challenge that bypassed the judicial review procedure in section 50(2). The court stressed that its ruling did not create an automatic bar to every later referral: a material change in planning facts, such as an intensification of use, could make a later application materially different.
The appeal was dismissed, leaving the High Court’s order quashing the Board’s November 2018 decision in place. Costello J.’s provisional view was that Narconon should receive its appeal costs; any party seeking a different order could request a short hearing within 14 days.