Narconon Trust v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 29 January 2020
• Neutral Citation: [2020] IEHC 25
• Docket Number: [2019/ 16 J.R.]
• Court: High Court
• Date: 29 January 2020

BETWEEN

NARCONON TRUST

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

MEATH COUNTY COUNCIL

FIRST NOTICE PARTY

AND

BALLIVOR COMMUNITY GROUP

SECOND NOTICE PARTY

AND

TRIM MUNICIPAL DISTRICT COUNCIL

THIRD NOTICE PARTY

[2020] IEHC 25

Heslin J.

[2019/ 16 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Development – Statutory provisions – Applicant seeking judicial review – Whether the respondent was precluded from determining referrals

Facts: The applicant, Narconon Trust, applied to the High Court seeking judicial review under s. 50 of the Planning and Development Act 2000 in respect of two decisions made by the respondent, An Bord Pleanála, on 19 November 2018 whereby the Board decided that the change of use from a nursing home to a residential drug rehabilitation facility at the former Old National School, Ballivor, Co. Meath was development and was not exempted development. Those decisions by the Board were made in respect of two referrals, namely those by the second and third notice parties, Ballivor Community Group and Trim Municipal District Council. The Board’s decisions were made pursuant to s. 5 of the 2000 Act. The decisions by the Board were reflected in two orders made by the Board, each of which was dated 19 November 2018. The applicant argued that the Board was precluded from determining the two referrals made to the Board pursuant to s. 5 of the 2000 Act, in circumstances where the first notice party, Meath County Council, had previously determined a s. 5 referral and, on 26 September 2016, on foot of a request from the applicant, issued a declaration pursuant to s. 5 that a change of use from a nursing home to a residential drug treatment centre is development and is exempted development.

Held by Heslin J that, given the facts in this case and the provisions of s. 50 (2) of the 2000 Act, the Board did not have the power to make decisions in respect of what was, in fact, an attempt by the notice parties to question, in 2018, the validity of the Council’s 2016 decision concerning the same matter, other than by way of an application for judicial review as mandated by s. 50 (2); as such, the Board’s 2018 decisions under s. 5 of the 2000 Act breached the legislative framework within which the Board’s powers are given. Heslin J held that the Board could not lawfully decide the 2018 s. 5 requests and acted ultra vires in furnishing determinations on foot of them in circumstances where, as a matter of fact, each constituted an impermissible attempt to circumvent the mandatory s. 50 (2) procedure to question the validity of a decision made by the Council in 2016, other than by way of an application for judicial review in the manner mandated by the 2000 Act. Heslin J was satisfied that the court has been presented with a collateral attack, by both of the second and third notice parties, on the Council’s s. 5 Declaration using, as a vehicle, their 2018 s. 5 requests, which were initially submitted to the Council and which ultimately resulted in the decisions by the Board and, in Heslin J’s view the Court could not permit such a collateral attack. In light of the facts in the case, Heslin J held that the second and third notice parties were, in reality, seeking to question the validity of the Council’s 2016 decision, to which they explicitly objected, which they regarded as incorrect and which they sought to change, and were seeking to do so two years after it had issued, on the basis of no new or changed planning facts or circumstances, whilst ignoring the procedure and time limits mandated by statute in s. 50 of the 2000 Act. In Heslin J’s view, to permit this would be to allow a breach of explicit statutory provisions, would be offensive to the concept of legal certainty and would result in an injustice.

Heslin J held that he would grant an order of certiorari, by way of judicial review, quashing the decisions made by the respondent on 19 November 2018 pursuant to s. 5 of the 2000 Act, in respect of the referrals ABP-301055-18 and ABP-31064-18, whereby the respondent purported to decide that the change of use from a nursing home development to a residential drug rehabilitation facility, permitted under planning authority reference no. TA/140621, at the former Old National School site in Ballivor, County Meath was development and was not exempted development.

Order granted.

JUDGMENT of Mr. Justice Heslin delivered on the day of, 2019

Background

1 This case concerns an application for judicial review which is brought by the Applicant under s. 50 of the Planning and Development Act 2000, as amended (the “2000 Act”). The Applicant seeks judicial review in respect of two decisions made by the Respondent, An Bord Pleanála, (the “Board”) on 19 November 2018 whereby the Board decided that the change of use from a nursing home to a residential drug rehabilitation facility at the former Old National School, Ballivor, Co. Meath is development and is not exempted development. These decisions by the Board were made in respect of two referrals, namely those by the Second and Third Notice Parties, such referrals having reference numbers ABP–301055–18 and ABP-301064–18. The Board's decisions were made pursuant to s. 5 of the 2000 Act. The decisions by the Board are reflected in two orders made by the Board, each of which is dated 19 November 2018. The Applicant argues that the Board was precluded from determining the two referrals made to the Board by the First and Second Notice Parties pursuant to s. 5 of the 2000 Act, in circumstances where the First Notice Party, Meath County Council, had previously determined a s. 5 referral and, on 26 September 2016, on foot of a request from the Applicant, issued a declaration pursuant to s. 5 that a change of use from a nursing home to a residential drug treatment centre is development and is exempted development. At the outset of the hearing I was informed that the First, Second and Third Notice Parties had decided to play no active part in the proceedings. That being so, the evidence before the court comprised the sworn affidavits on behalf of the Applicant and Respondent, respectively.

Reliefs sought by the Applicant

2 As appears from the Applicant's notice of motion dated 18 January 2019, the Applicant seeks the following reliefs: -

1. An order of certiorari, by way of judicial review, quashing the decisions made by the Respondent pursuant to section 5 of the Planning and Development Act, 2000, as amended, on 19 November 2018 in respect of the two referrals, (reg. ref. nos. ABP-301055-18 and ABP-31064-18), that the change of use of the nursing home development (permitted under planning authority reg. ref. no. TA/140621) to a residential drug rehabilitation facility, is development and is not exempted development.

2. A Declaration, by way of judicial review, that in making the impugned decisions, the Respondent erred in law, took into account irrelevant considerations and/or misunderstood or overlooked relevant considerations and/or acted irrationally and/or unreasonably and, consequently, the impugned decisions of the Respondent are invalid and have no legal effect.

3. If necessary, an Order continuing the Stay granted by the High Court (Noonan J.) by Order made on 14 January 2019, and perfected on 17 January 2019 on the implementation of, or reliance upon, the impugned decisions made by the Respondent, including in any enforcement proceedings commenced under Part VIII of the Planning and Development Act 2000, as amended, pending the final determination of these judicial review proceedings.

4. Further and other order.

5. Liberty to apply

6. The costs of these proceedings

Relevant legislation

3 Counsel, very helpfully, furnished the court with an unofficial consolidation of the 2000 Act, prepared by the Law Reform Commission and updated to 24 October 2019 as well as an unofficial consolidated version of the Planning and Development Regulations 2001-2019, prepared by the Department of the Housing, Planning and Local Government. Of particular relevance to the present case are the following provisions: -

Planning and Development Act 2000, as amended:

“Exempted development.

4.— (1) The following shall be exempted developments for the purposes of this Act—

…

(2) (a) The Minister may by regulations provide for any class of development to be exempted development for the purposes of this Act where he or she is of the opinion that—

(i) by reason of the size, nature or limited effect on its surroundings, of development belonging to that class, the carrying out of such development would not offend against principles of proper planning and sustainable development, or

(ii) the development is authorised, or is required to be authorised, by or under any enactment (whether the authorisation takes the form of the grant of a licence, consent, approval or any other type of authorisation) where the enactment concerned requires there to be consultation (howsoever described) with members of the public in relation to the proposed development prior to the granting of the authorisation (howsoever described).

(b) Regulations under paragraph (a) may be subject to conditions and be of general application or apply to such area or place as may be specified in the regulations.

(c) Regulations under this subsection may, in particular and without prejudice to the generality of paragraph (a), provide, in the case of structures or other land used for a purpose of any specified class, for the use thereof for any other purpose being exempted development for the purposes of this Act.

(3) A reference in this Act to exempted development shall be construed as a reference to development which is—

(a) any of the developments specified in subsection (1), or

(b) development which, having regard to any regulations under subsection

(2), is exempted development for the purposes of this Act.”

“Declaration and referral on development and...