Court of Appeal rejects “collateral challenge” to Section 5 declaration

The Court of Appeal has clarified the status of conflicting declarations issued under Section 5 of the Planning and Development Act 2000 (the PDA). Section 5 is a process by which any party can check (with the planning authority or An Bord Pleanála (the Board)) whether or not works or a change of use amount to "development" and if so, whether or not that development is exempt. In Narconon Trust v An Bord Pleanála,[1] the Court of Appeal in effect confirmed that Section 5 declarations, once issued and not challenged, are conclusive (judgments here and here). In this case, it was determined to be unlawful for the Board to have made a conflicting decision in 2018, to that made by the planning authority in 2016, on the same facts.

The proceedings related to Narconon Trust's drug rehabilitation facility at a former school building in County Meath. The building was subject to an existing planning permission, which authorised refurbishment and use of the building as a nursing home. Before acquiring the property in 2016, Narconon sought a declaration from the relevant planning authority, Meath County Council (the Council) under Section 5 of the PDA, to the effect that a change of use from a nursing home to a residential drug rehabilitation facility, while amounting to development, was nevertheless "exempted development" (such that it would not require planning permission) under the terms of the Planning and Development Regulations 2001 as amended.

The Council granted the declaration as sought by Narconon in September 2016 (the 2016 Declaration). Importantly, on the facts it is apparent that certain objectors were aware of the 2016 Declaration, and had "explicitly objected" to it at the time. However, it was not appealed to the Board, and was not challenged in the High Court via judicial review proceedings. Narconon proceeded to develop the site and fit out the new facility at a cost in excess of €7 million, on the basis that no further planning permission was required.

In 2018, a community group (some of whom had objected to the 2016 Declaration) and a local Municipal District Council (the Objectors) sought further, separate Section 5 declarations as to whether the change of use was in fact "exempted development". There was no assertion that there had been any change in the facts or circumstances of the relevant property in the interim. The Council referred these requests to the Board, and in November 2018 the Board issued a declaration that the change in use was development, and was not exempted development (the 2018 Declaration).

High Court

Narconon issued judicial review proceedings against the Board to challenge the conflicting 2018 Declaration. In particular, Narconon argued that the Board was precluded from issuing that declaration, in circumstances where the Council had previously determined a Section 5 referral on the same matter. The High Court found in favour of Narconon and quashed the 2018 Declaration.[2] The Board appealed this decision to the Court of Appeal. The question for appeal was whether it was within the Board's powers to determine a Section 5 referral, where: (i) a planning authority had previously determined the same question in relation to the same land, and (ii) there was no evidence of any change in the planning facts and circumstances since the planning authority's decision.

Court of Appeal

The Court of Appeal essentially upheld the High Court's findings. It noted that:

• A Section 5 declaration is not a development consent – instead, it is a declaration of an existing right (or the absence of such a right)
• The question addressed in a Section 5 request is simply whether something is or is not development or exempted development. This question does not involve evaluative consideration of "proper planning and sustainable development".
• There was no basis for arguing that a Section 5 declaration could be reviewed on the merits at any time in a further Section 5 application
• Section 50(2) of the PDA clearly intends that the validity of all decisions by a planning authority, including under Section 5, can only be challenged by way of judicial review
• The High Court had found as a matter of fact that the Objectors were in substance challenging the validity of the 2016 Declaration. The Board had not challenged that finding in the Court of Appeal.
• Permitting the 2018 Declaration would mean in practical terms that Narconon would be deprived of the benefit of the 2016 Declaration, which it had relied on in good faith. The 2018 Declaration could also expose Narconon to enforcement proceedings under the PDA, which would be unjust in the circumstances.
• The Board was not free to disagree with the 2016 Declaration and reach a different conclusion, because the 2016 Declaration was presumed valid and the time for challenging it had long since expired
• The Board's position was contrary to the objective of the Section 5 process, which was to provide an "authoritative ruling" of whether a particular development is or is not development, or exempted development.
• Once it was clear that the same question in substance that had been decided in the 2016 Declaration was again being referred on the same facts, the Board should have dismissed the referral and decided that it was precluded from determining the application on its merits.
• While the Board had highlighted the lack of scope for public participation in the Section 5 process, the Court of Appeal noted that the Section 5 process itself was not being challenged in these proceedings. On this point, Judge Collins issued a separate judgment that concurred with the overall outcome, but noted that the proceedings highlighted "deficiencies" in the Section 5 process.  
• The High Court was correct in finding that the Board would not be precluded from considering a Section 5 application in all circumstances where there was a pre-existing Section 5 declaration. The Court of Appeal agreed that there could be changes on the facts that alter the situation from a planning perspective, such as an intensification of an existing use.

For the above reasons, the Court of Appeal concluded that the Board was precluded from determining this Section 5 referral, in circumstances where the planning authority had previously determined the same, or substantially the same, question in respect of the same land, and where there was no evidence that there had been a change in the planning facts and circumstances since the earlier Section 5 declaration.

Once that position had become apparent to the Board, the Board should have concluded that the request for the 2018 Declaration was an impermissible attempt to "question the validity" of the 2016 Declaration, which was precluded by Section 50(2). The Board had therefore acted outside its powers by issuing the 2018 Declaration.

For more information on this topic, please contact Alison Fanagan, Consultant, Alan Roberts, Partner, Brendan Abley, Associate, or any other member of ALG's Environmental & Planning team.

Date published: 23 November 2021