The present proceedings related to (Narconon) Trust’s drug rehabilitation facility at a former school building in County Meath which was subject to an existing planning permission permitting the building to be used as a nursing home. Prior to the acquisition of the property in 2016, Narconon sought a Section 5 declaration from Meath County Council that the change of use from a nursing home to a drug rehabilitation facility constituted “exempted development” under the terms of the Planning and Development Regulations 2001 and thus would not require planning permission.
Meath County Council granted the declaration despite extensive objections at the time. However, no appeal was ever lodged with the Board and no judicial review proceedings were issued in the High Court in relation to this decision. The development of the facility proceeded on the basis that no planning permission was required at a cost in excess of €7 million for the works and fit-out.
A community group which included some of the initial objectors and the local Municipal District Council sought further Section 5 declarations in 2018 as to whether the change of use was in fact “exempted development”. No claims were made that the facts or circumstances had changed in anyway during the relevant time since the declaration was granted. Meath County Council sent the requests to the Board who issued a declaration confirming that the change in use constituted development for which planning permission was required in November 2018.
High Court and Court of Appeal
Judicial review proceedings were then issued by Narconon against the Board challenging their declaration that the change of use constituted development requiring planning permission. The High Court quashed the Board’s 2018 decision which was subsequently appealed to the Court of Appeal by the Board who questioned whether they had the power to determine a Section 5 referral, in cases where (a) a planning authority had previously determined the same question in relation to the same land, and (b) there was no evidence of any change in the planning facts and circumstances since the decision of the planning authority.
The decision of the High Court was upheld in the Court of Appeal in deciding that the Board was precluded from determining the Section 5 referral, where in effect the same question arose in relation to the same land without any change in circumstances.
In arriving at its decision, the Court of Appeal noted the following:
- There was no basis for reviewing the Section 5 declaration with a further Section 5 application
- A Section 5 declaration does not constitute a development consent, rather it is a declaration of an existing right
- Section 5 requests are not a process for evaluation of what is “proper planning and sustainable development”. Rather it is designed to deal with whether or not something is or is not development or exempted development
- Broadly, Section 50(2) of the Planning and Development Act, 2000 (the PDA) prohibits a challenge of the “validity” of any decision made or other act done by the Board or a planning authority when performing its functions under the PDA except by way of judicial review. This includes challenging the validity a Section 5 declaration
- The objectors intended that the Board’s later decision should supersede that of the Council, and that Narconon no longer would be able to rely upon the decision of 2016. It is not permitted to use the administrative process as a collateral attack on the earlier decision
- By permitting the 2018 Declaration, Narconon would be deprived of the earlier declaration in 2016 which it had relied on in good faith, such could also unjustly expose Narconon to enforcement proceedings under the Planning and Development Acts
- The Court of Appeal said the Board could not simply disregard the 2016 Declaration and that the time for challenging to this had long expired and had been presumed valid. The position of the Board was contrary to the Section 5 process to provide an “authoritative ruling” of whether a particular development is or is not development, or exempted development. The correct approach was that the Board should have dismissed the referral once it was clear the same question decided in the 2016 Declaration was being referred
- Dealing with the Board’s argument of lack of public participation, the Court of Appeal pointed out that the Section 5 process was not being challenged in these proceedings. In addition, there are good reasons to make the distinction between the public being afforded participation in other planning processes and not in the Section 5 process. For example, the Section 5 process does not involve evaluative consideration of proper planning and sustainable development
- Finally, the Court of Appeal agreed with the High Court in finding that the Board would not always be precluded from considering a Section 5 application where there was a pre-existing Section 5 declaration but there must be changes in facts and circumstances to alter the situation in terms of planning
Conclusion
This case confirms that a Section 5 declaration can be relied upon if it is not appealed or challenged by judicial review and the facts and circumstances have not altered the planning context. The “validity” of a Section 5 declaration must be challenged by way of judicial review within the requisite time. If the same question is referred to the Board in circumstances where there is a prior declaration and the circumstances have not changed, the Board should use its discretionary power to decline to determine the referral.
