About this case:

• Citation:
  [2020] IEHC 25
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Mark Heslin

Finding that the board’s decision was a collateral attack on an earlier decision made by Meath County Council, Mr Justice Mark Heslin said it would be an injustice for the Board’s decision to stand in circumstances where the correct procedure and time limits were ignored.

Exempted development  

In December 2014, Meath County Council granted planning permission for the development of a nursing home at the site of a former National School in Ballivor, County Meath – however, the nursing home was not developed.

In 2016, Narconon Trust (the Director of which is Massimo Angius, the Director of the Church of Scientology in England) purchased the property for €1.3 million.

Prior to purchasing the property, Narconon sought a declaration from Meath County Council pursuant to section 5 of the Planning and Development Act 2000, confirming that change of use from a nursing home to a residential drug rehabilitation facility was an exempted development. In September 2016, the County Council issued a declaration that the development was exempt.

Referrals to An Bord Pleanála

In February 2018, Ballivor Community Group made an application to the County Council under section 5 of the 2000 Act, submitting that the use of the site as a drugs rehabilitation facility did not fall within any of the uses under Class 9 of Schedule 2 Part 4 of the Planning & Development Regulations 2001-2016. It argued that it could not therefore be deemed as an exempted development. On the same date, Trim Municipal District Council also made an application seeking determination of the same question.

Evidently, the applications were in reference to an issue which the County Council had previously considered and determined in September 2016. Furthermore, neither the Community Group or Trim District Council had appealed the declaration granted by Meath County Council in September 2016, nor had either party challenged the declaration by way of an application for judicial review within the proscribed time-limits under s.50 of the 2000 Act.

In February 2018, Meath County Council referred the applications to An Bord Pleanála, seeking a declaration as to whether the change of use constituted an exempted development. On 19 November 2018, An Bord Pleanála made decisions to the effect that the change of use from a nursing home to a residential drug rehabilitation facility was a development and not an exempted development.

Judicial review proceedings

Narconon Trust brought an application for judicial review in respect of the decisions made by An Bord Pleanála. Narconon sought, inter alia, the following orders:

1. An order of certiorari, quashing the decisions;
2. A declaration that in making the impugned decisions, An Bord Pleanála erred in law, took irrelevant considerations into account and/or misunderstood or overlooked relevant considerations and/or acted irrationally and/or unreasonably – and that the impugned decisions are therefore invalid and have no legal effect;
3. An order continuing a stay made in January 2019 on the implementation of, or reliance on the impugned decisions, including any enforcement proceedings commenced under Part VIII of the Planning and Development Act 2000 (as amended) pending the final determination of the within proceedings.

An Bord Pleanála argued that the decisions made did not constitute an impermissible collateral attack on the s.5 declaration granted by the County Council in 2016, and that the 2000 Act does not contain an express prohibition on the exercise of An Bord Pleanála’s jurisdiction where a planning authority (such as the County Council) has previously issued a s.5 declaration. An Bord Pleanála said it received a valid referral, that it would be “strange” if the 2000 Act were to be interpreted as imposing a barrier on considering further s.5 referrals, and that the 2000 Act should have expressly provided for such a barrier if this was the case.

A collateral attack

Mr Justice Heslin said he found the cases of Killross Properties Limited v ESB & Anor [2016] 1 IR 541 and Grianán an Aileach Centre v Donegal County Council [2004] IESC 43 particularly helpful in approaching the issues arising in the present case. He commented that the facts in Killross and Grianán an Aileach were different to the present case, but that the type of “confusion and uncertainty” referred to by Mr Justice Gerard Hogan in  Killross was “precisely what would arise” in the within circumstances of contradicting responses to identical questions without any change in planning facts.

Mr Justice Heslin also considered Ms Justice Iseult O’Malley’s judgment in Michael Cronin (Readymix) Limited v An Bord Pleanála [2017] IESC 36, and concluded that the 2016 declaration constituted an authoritative ruling which could have been challenged by way of judicial review proceedings within the s.50 time limits.

Commenting that the Courts “should be extremely reluctant to trespass into the exclusive domain of decision-makers” such as An Bord Pleanála, Mr Justice Heslin said that An Bord Pleanála should also be “careful not to trespass on the jurisdiction of the Council, in light of the powers conferred on the latter by s.5 of the 2000 Act and the extent of the Board’s powers under the same section”. He said that this care should be exercised by An Bord Pleanála even if Meath County Council made the reference.

Satisfied that the circumstances before him could be fairly described as a collateral attack on the County Council’s 2016 declaration by Ballivor Community Group and Trim District Council, Mr Justice Heslin said he could not permit such an attack having regard to the facts of the case.

Mr Justice Heslin added that the approximately €9 million investment in the development did not entitle Narconon to the relief sought, but that it did “bring into sharp focus the damage to individual rights which might arise if the court was to permit a challenge to the Council’s 2016 decision other than in accordance with the method which the Oireachtas has mandated” – i.e. bringing judicial review proceedings. He said the investment was relevant in the exercise of the court’s discretionary jurisdiction, and furthermore, that the court was “obliged to guard against situations whereby a party seeks to avoid complying with legislative obligations as regards the proper means of challenging a planning decision”.

Granting the order of certiorari, quashing the November 2018 decisions, Mr Justice Heslin said that to permit Ballivor Community Group and Trim District Council to ignore the procedure and time limits mandated by s.50 of the 2000 Act, would be “offensive to the concept of legal certainty and would result in an injustice”.