Court of Appeal clarifies the position in respect of conflicting Section 5 Declarations

17 January 2022

Section 5 declarations issued under the Planning and Development Act 2000 (as amended) (the “PADA”) declare whether or not a particular development is development or exempted development within the meaning of the PADA. In the recent case of Narconon Trust v An Board Pleanála [2021] IECA 307, the Court of Appeal considered the status of section 5 declarations in circumstances where conflicting section 5 declarations were issued by the planning authority and An Bord Pleanála (the “Board”). The relevant legislation, facts of the case, the High Court and Court of Appeal decisions are set out below.

Section 5 Declarations

Under Section 5 of the PADA, “any person” may apply to a planning authority for a declaration as to whether a particular development is or is not a development or exempted development, within the meaning of the PADA (a “Section 5 Declaration”). Under the PADA, an application to the Board to review a Section 5 Declaration can only be made by the person issued with the Section 5 Declaration, otherwise, no challenge can be made to the validity of a Section 5 Declaration except by way of judicial review initiated pursuant to section 50(2) of the PADA within 8 weeks of the date of the Section 5 Declaration.

Narconon Trust v An Board Pleanála: The Facts

In 2016, Narconon Trust (“Narconon”) sought to establish a new drug rehabilitation facility at a property in County Meath (the “Property”). The Property had the benefit of planning permission for a change of use and refurbishment of the existing school building to a nursing home. Before purchasing the Property, Narconon sought a Section 5 Declaration from Meath County Council (the “Council”), that the change of use from a nursing home to a residential drug rehabilitation facility was exempted development such that it did not require planning permission. On 29 September 2016, the Council granted the declaration (the “2016 Declaration”) and Narconon subsequently purchased the Property and carried out substantial construction and fit out works.

In 2018, the Ballivor Community Group and Trim Municipal District Council (together the “Notice Parties”) made two separate applications to the Council for a Section 5 Declaration as to whether the change of use of the Property was exempted development. The Council referred the applications to the Board who determined that the change of use was development and was not exempted development (the “2018 Declaration”).

Appeal to the High Court

Narconon issued judicial review proceedings in 2019 seeking to have the 2018 Declaration quashed on the basis that the Board was precluded from determining the Notice Parties applications in circumstances where the Council had previously determined the matter. In the High Court, the trial judge noted that the 2016 and 2018 applications for a Section 5 Declaration were, in substance, the same and that it was not contended that there had been a change in planning facts or circumstances in the interim. It was also established that the Notice Parties were aware of the 2016 Declaration and had explicitly objected to it. The trial judge concluded that the Notice Parties were seeking to question the validity of the 2016 Declaration by means of a Section 5 Declaration. The High Court found in Narconon’s favour holding that the Board had acted ultra vires in issuing the 2018 Declaration in circumstances where the Notice Parties’ applications constituted an “impermissible attempt” to question the validity of the 2016 Declaration, other than by way of an application for judicial review in the manner mandated by the PADA.

Appeal to the Court of Appeal

The Board appealed the High Court’s decision. In reaching its decision, the Court of Appeal held that:

a) A Section 5 Declaration declares whether a particular development is or is not development, within the meaning of the PADA, and whether it is or is not exempted development;

b) A Section 5 Declaration differs from a grant of planning permission as a grant of planning permission is a development consent whereas, a Section 5 Declaration is, at most, a decision that may mean that a development consent is not required and that the lands may be developed in accordance with the Section 5 Declaration, without requiring a grant of planning permission;

c) Whilst a Section 5 Declaration will involve the exercise of planning judgment, it does not involve evaluative consideration of proper planning and sustainable development on the basis that the question addressed is limited;

d) A Section 5 Declaration is an authoritative ruling on an issue and parties must be entitled to rely upon unchallenged authoritative decisions. In this regard, it was noted that a series of conflicting decisions is not conducive to an authoritative ruling. If parties cannot rely on a Section 5 Declaration as an authoritative ruling, it could lead to injustice – to include potential enforcement proceedings – particularly in circumstances where a person acted bona fide in reliance on its validity; and

e) Although no challenge to Section 5 of the PADA was advanced in this case, in a separate judgment, Mr Justice Collins acknowledged that “these proceedings highlight significant deficiencies in the section 5 procedure”. In this regard, it was noted that:

  • complex and difficult issues may fall to be determined by the planning authorities who are obliged to issue a Section 5 Declaration within 4 weeks of the request (which may be extended in certain circumstances);
  • the Section 5 Declaration procedure does not permit public participation; and
  • there is potentially significant cost and expense in bringing a judicial review application to challenge a Section 5 Declaration and, therefore, it would appear to be a poor substitute for an entitlement to be heard before the planning authority or the Board.

The Court concluded that whilst the Board had jurisdiction to receive the referral, once it became apparent that 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, it ought to have concluded that:

a) the referral by the Notice Parties amounted to an impermissible attack on the 2016 Declaration, which, in substance, questioned the validity of the 2016 Declaration other than by way of judicial review under section 50 of the PADA; and

b) the 2018 Declaration issued in breach of section 50(2) of the PADA and was ultra vires.
Accordingly, the Court of Appeal dismissed the Board’s appeal.

Conclusion

This case helpfully confirmed the position in respect the status of Section 5 Declarations particularly where conflicting Section 5 Declarations dealing with the same, or substantially the same, matter arise.

For further information please contact Margaret Austin (Partner), Kate Liddy-Cormican (Solicitor) kliddycormican@www.efc.ie, or another member of the Property & Construction team at Eugene F Collins.

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