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Planning Board’s determination on ‘change of use’ was ultra vires

By: Colm Scott Byrne BL

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Court of Appeal dismisses appeal and upholds a decision of the High Court granting an order of certiorari quashing two decisions of the respondent whereby it decided that the change of use from a nursing home development to a residential drug rehabilitation facility is not an exempted development, on the grounds that: (a) the respondent was precluded from determining a such referral in circumstances where a planning authority had previously determined the same, or substantially the same, question in respect of the same land where there was no evidence that there had been a change in the planning facts and circumstances since the planning authority’s determination; (b) the notice parties were seeking to make an impermissible attack on the 2016 declaration in their subsequent applications for declarations in circumstances where there was no change in relation to the planning facts or circumstances; (c) it was ultra vires for the respondent to consider the merits of the subsequent applications in circumstances where the question referred was the same, or substantially the same, and in respect of the same land, and that there was no evidence of any change in the planning facts or circumstances; and (d) the trial judge correctly interpreted the planning legislation and applied the provisions to the facts in this case.

Costello J (nem diss): Planning and development - judicial review - change of use - ultra vires - appeal of a decision of the High Court granting an order of certiorari quashing two decisions of the respondent whereby it decided that the change of use from a nursing home development to a residential drug rehabilitation facility is development and is not exempted development - s. 5 of the Planning and Development Act 2000 ("PDA 2000") - Meath County Council ("the Council"), pursuant to s. 5 of the PDA 2000, issued a declaration that the change of use from a nursing home to a residential drug rehabilitation facility was exempted development - no appeal was brought within the statutory time frame - two subsequent applications for a s. 5 declaration were made by the Notice Parties who were objecting to the change of use - the respondent issued a declaration that the change of use from a nursing home development to a residential drug rehabilitation facility is development and is not exempted development - there were no changes to the planning facts or circumstances -whether it was ultra vires the respondent to determine a section 5 referral in circumstances where a planning authority has previously determined the same or substantially the same question in respect of the same land where there is no evidence that there has been a change in the planning facts and circumstances since the planning authority’s determination - whether the respondent is precluded from determining a valid section 5 referral where substantially the same question has already been determined by the planning authority and where there is no evidence that there has been a change in planning facts and circumstances since the planning authority’s determination - whether a decision by the respondent on such a section 5 referral impugn the validity of any such earlier determination by the planning authority on substantially the same question - whether any such limitation on the Board’s jurisdiction pursuant to section 5 operate to preclude a person who was not a party to an earlier section 5 declaration by a planning authority from seeking a subsequent declaration from the Board - appeal dismissed

Collins J (concurring): Planning and development - Court finds that the proceedings highlight significant deficiencies in the section 5 procedure - transparency - whether s. 5 allows for public participation - appeal dismissed

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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