The Court of Appeal has dismissed An Bord Pleanála’s appeal in a dispute over whether a former school site in Ballivor could be used as a residential drug rehabilitation facility without planning permission.
In a judgment delivered on 17 November 2021, Mr Justice Maurice Collins agreed with Ms Justice Costello that section 50(2) of the Planning and Development Act 2000 prevented the Board from considering questions referred to it under section 5 after Meath County Council had already issued a declaration on those questions in September 2016.
The declaration concerned a change of use from a nursing home to a residential drug rehabilitation facility at the former old National School site in Ballivor, Co Meath. The Council’s declaration had not been challenged. Collins J said the Board’s November 2018 decisions effectively negated that declaration and that this was not permissible under section 50(2). The judgment records that the questions sent to the Board were precisely the same as those referred to and answered by the Council.
The appeal concerned the Board’s authority to entertain those questions. The court did not determine the merits of whether the proposed change of use fell within Class 9 of the Planning and Development Regulations or whether planning permission was required. Collins J noted that the Council and the Board had reached contrary conclusions on that issue, but said the proceedings were confined to the validity of the Board’s decisions on the references.
Collins J also raised concerns about the section 5 process. He said the process could produce decisions with significant legal effects without public notice of a request or an opportunity for affected members of the public to participate. While later legislation required relevant documents to be published online and entered in the planning register, he said those measures did not create a right to participate. The judgment said third parties could seek judicial review, but that this would be a poor substitute for being heard by the planning authority or the Board.
No challenge to section 5 itself was advanced in these proceedings, and the Council’s declaration was not under challenge. The court dismissed the appeal. Mr Justice Woulfe indicated his agreement with Collins J’s judgment.