The Court of Appeal has upheld the High Court’s decision to adjourn a planning enforcement application for 12 months, but set aside its findings on whether the respondents’ waste facility involved unauthorised use and whether a shed was unauthorised.
The appeal concerned an application by Jim (otherwise James) Ferry under section 160 of the Planning and Development Act 2000. He sought orders to stop John Caulderbanks, trading as D&M Services, and D&M Environmental Services Limited, trading as DM Waste, from continuing alleged unauthorised development at their site in Labbadish, County Donegal.
The High Court had found that a shed on the site was unauthorised since 2018, but also found that unauthorised use had not been established. It made no final enforcement order and adjourned the proceedings for 12 months so pending applications for substitute consent and future planning permission could proceed.
The Court of Appeal held that the adjournment was within the High Court’s discretion. The judge was not required to determine the section 160 application at its first hearing. The Court of Appeal also rejected the respondents’ argument that the High Court had finally refused the application: the proceedings remained before that court, and no final determination had been made.
However, the appeal court said the evidence supporting the High Court’s findings was inadequate. Ferry had not put the relevant planning permissions and conditions before the court, and the engineer’s opinion was unsworn. The inspector’s report relied on in relation to the alleged shed was hearsay and had little probative value. The court set aside the finding that the shed was unauthorised.
The finding that unauthorised use had not been established was also set aside. The High Court had treated the respondents as asserting an exempted use and had not adequately addressed whether the current waste operation represented a material change from the site’s former industrial uses. The Court of Appeal did not decide whether the use was unauthorised.
The court said that if the pending planning applications succeeded, the matter could end. If they were refused, the High Court would have to reconsider Ferry’s application from the beginning, based on reliable and admissible evidence. The appeal was refused, leaving the adjournment in place. The Court of Appeal invited brief submissions on appeal costs; either party could seek a short hearing within 14 days.