Disrepair Is Not Abandonment: Use, Reasons, and s.37(2)(b) in Retention Permissions

Case: O Murthuile v An Bord Pleanála & Anor

Citation: [2025] IEHC 498 (High Court of Ireland, 19 September 2025)

Judge: Ms Justice Emily Farrell

Introduction

This judicial review challenged An Bord Pleanála’s grant of retention permission for renovations and alterations to an existing dwelling, septic tank and percolation area, and associated site works at Townlough Upper, Portroe, Nenagh, Co. Tipperary (ABP-315285-22). The applicant, owner of an adjacent dwelling with a distinct planning history, contended that the Board’s decision was unlawful on multiple grounds including alleged material contravention of the Tipperary County Development Plan 2022–2028; failure to consider unauthorised residential and short-term letting (Airbnb) uses; non-compliance with Article 22 of the Planning and Development Regulations 2001; failure to have regard to the Sustainable Rural Housing Development Guidelines; insufficiency of reasons; and legal error in screening for Appropriate Assessment (AA) having regard to the proximity of Lough Derg SPA.

The core factual controversy was whether the structure in question retained a pre-existing residential use or, as argued by the applicant, had become a derelict ruin such that any permission should be assessed as a new dwelling rather than as retention of works to an existing residence. The case also raised process and substantive law questions regarding the Board’s reasons and the legal thresholds for material contravention, article 22 informational requirements, and AA screening.

Summary of the Judgment

The High Court dismissed all six grounds of challenge and upheld the Board’s grant of retention permission. Key holdings include:

Material contravention and s.37(2)(b): Section 37(2)(b) Planning and Development Act 2000 applies only where the planning authority has refused permission for material contravention. Here, the authority indicated a grant; thus s.37(2)(b) was inapplicable. The Board could grant permission provided it was consistent with proper planning and sustainable development.
Use and “abandonment”: The Board was entitled to find that residential use had not been abandoned notwithstanding disrepair. The applicant failed to displace this evaluative finding. Disrepair does not equate to abandonment; the onus to prove abandonment lies on the party asserting it.
Article 22(4)(b) (material change of use particulars): Not engaged because there was no material change of use to be retained; the application concerned retention of works to an existing residential use.
Guidelines for Sustainable Rural Housing: These guidelines are directed to new housing; they were not applicable where the Board found the proposal to be refurbishment/retention.
Reasons: The Board met the legal standard by providing the main reasons on the main issues and was not required to address every submission or explain departure from historic decisions in the planning history absent special circumstances.
Appropriate Assessment screening: The applicant failed to adduce evidence of a hydrological connection or scientific doubt necessitating AA. Onus lies on the challenger to identify a material lacuna. The limited reasoning was adequate in context.

Detailed Analysis

1. Precedents Cited and Their Influence

The Court’s reasoning is heavily grounded in established principles from Irish planning law:

Reasons jurisprudence: Connelly v An Bord Pleanála (Supreme Court) articulates the decision-maker’s duty to explain decisions sufficiently to inform the affected party, enable review or appeal, and permit judicial scrutiny. Balz v ABP adds that reasons must engage with relevant submissions and issues. The Court applied these as the “main reasons on the main issues” standard (see also O’Donnell v ABP).
Administrative precedent and planning history: Grealish v ABP underscores that administrative bodies are not bound by their prior decisions as if by precedent; departure may require explanation only in particular circumstances. The Court found the current case materially different from Grealish.
Use and abandonment: Leitrim County Council v Dromaprop confirms that neglect or shuttering does not, without more, extinguish planning use; abandonment requires something unequivocal. Wicklow County Council v Jessup & Smith places the onus of proving abandonment on the party alleging it. Clonres v ABP distinguishes between cessation and formal abandonment; Murphy v ABP follows this approach. These cases informed the Court’s acceptance of the Board’s finding that residential use persisted despite disrepair.
Article 22 and unauthorised use: Harrington v ABP illustrates the refusal of applications that would facilitate unauthorised development. It was distinguished here because the prior use was not shown to be unauthorised; the applicant’s argument depended on establishing abandonment, which failed.
Appropriate Assessment (AA) and procedural onus: An Taisce v ABP (Supreme Court) sets the legal framework for AA and screening. Reid (No.1) v ABP establishes that an objector seeking to inject scientific doubt into the process must raise and support it during the process; post hoc assertions are insufficient. Eco Advocacy CLG v ABP and Carrownagowan Concern Group v ABP reiterate the evidential onus on challengers to identify a material defect or lacuna. The Court applied these to reject the AA ground.
Section 28 guidelines: Balz v ABP further clarifies the duty to have regard to applicable guidelines and to explain any departure. That duty arises only where the guideline is material to the issue, which the Court held was not the case here (refurbishment not new housing).

2. Legal Reasoning Issue-by-Issue

a) Material contravention and s.37(2)(b)

The applicant argued the Board’s decision materially contravened the County Development Plan (CDP), triggering s.37(2)(b) which would require the Board to identify statutory grounds for granting permission. The Court held s.37(2)(b) is only engaged where the planning authority has refused permission on material contravention grounds. Here, the authority indicated an intention to grant; thus, the Board was not restricted by s.37(2)(b). While the Board must still ensure consistency with proper planning and sustainable development, it need not supply s.37(2)(b)-style reasons in such circumstances. The Court also rejected the contention that the Board failed to have regard to the Rural Housing Design Guide (which the applicant invoked as if part of the CDP), noting confusion between absence of narrative discussion and failure to have regard, and that the cited material related to new houses, not refurbishment.

On alleged inconsistency with prior refusals, the Court affirmed there is no general doctrine of administrative precedent. The Board determines appeals de novo, considers planning history, but is not obliged to reconcile all earlier decisions unless a specific and material inconsistency arises warranting explanation (distinguishing Grealish). Adequate reasons were present here.

b) Use, abandonment, and short-term lettings (Airbnb)

The applicant maintained that the structure was a ruin and any residential use had been abandoned, so the application should be treated as a new house. The Board, however, accepted evidence that the house was regularly occupied between 2008 and 2019 and that the dwelling—though in poor repair—remained a house prior to the works. The Court emphasized:

Disrepair does not prove abandonment; it is a question of degree and intention. People sometimes occupy substandard buildings; temporary cessation does not equal abandonment.
Enforcement correspondence and notices referencing “the existing house” and works to that house pointed towards retention of residential use rather than abandonment.
The onus to prove abandonment rests with the party alleging it; the applicant did not discharge that onus.

As to Airbnb, the Board noted that retention for a short-term letting use was not sought; the belief in the lawfulness of such use had been corrected and discontinued. The Court held the Board need not impose a condition preventing breaches of planning law; if short-term letting requires permission, standard enforcement mechanisms suffice. Separately, Condition 5 lawfully curtailed exempted development rights within the curtilage, underscoring the Board’s discretion to tailor conditions on retention.

c) Article 22(4)(b) particulars for material change of use

The applicant invoked Article 22(4)(b), which mandates particulars where retention of a material change of use is sought. Because the Board found no material change of use—only retention of works to an existing residential use—the provision was not engaged. The Court distinguished Harrington, where there was evidence of unauthorised prior use and concern that the application would facilitate it. No such foundation existed here.

d) Sustainable Rural Housing Development Guidelines (s.28)

Section 28 requires the Board to have regard to applicable guidelines. The Court held the Sustainable Rural Housing Development Guidelines, aimed at new housing, were not applicable to the refurbishment/retention context once the Board’s factual finding on continued residential use was accepted. Balz requires engagement with applicable guidelines; it does not require addressing inapplicable guidance. Notably, no party argued at appeal stage that those Guidelines applied.

e) Reasons and engagement with submissions

Applying Connelly and Balz, the Court reiterated:

Decision-makers must provide enough reasoning to show, in general terms, why the decision was made, to permit challenge, and to enable judicial review.
They need address only relevant submissions—those that bear on the reasons for the decision—not every point raised.
The standard is “main reasons on the main issues.”

The Board’s reasons, particularly on the central issue of continued residential use, sufficed. The Board generally followed the Inspector’s report. The applicant’s disagreement with those findings did not convert a merits dispute into a legal error.

f) Appropriate Assessment (AA) screening

The applicant alleged a hydrological connection from the site via the Glashabriddane stream to Lough Derg SPA and asserted the Board’s screening was inadequate. The Court held:

The applicant bears the evidential burden to demonstrate a lacuna in screening or that scientific doubt existed on the material before the Board.
A bare assertion of hydrological linkage is insufficient. The applicant adduced no evidence of such a connection or of likely significant effects. The Board had before it a site suitability report addressing the septic tank and percolation area.
Where AA was not put in issue before the Board, limited reasoning can still be adequate, and the applicant cannot later succeed by raising new, unsupported contentions (Reid (No.1)).

The AA ground accordingly failed.

3. Impact and Implications

This judgment consolidates and clarifies several recurrent themes in planning law, with practical consequences for applicants, objectors, and the Board:

Abandonment of use: The decision fortifies the principle that physical dilapidation does not, without clear evidence of intention or a legally inconsistent new permission, extinguish an existing use. Objectors must gather and present cogent evidence of abandonment. This will influence rural refurbishment disputes where historic dwellings are derelict but not legally abandoned.
Scope of s.37(2)(b): The Court’s clear statement that s.37(2)(b) is triggered only where the planning authority refused permission for material contravention will streamline appeals. Parties should avoid miscasting grants (or indicated grants) as activating s.37(2)(b) duties.
Reasons standard: The emphasis on “main reasons on the main issues” further tempers attempts to overturn decisions for not addressing every submission. Practitioners should focus submissions on issues likely to be dispositive.
Article 22(4)(b): Where the Board finds no material change of use, article 22 particulars for “retention of change of use” simply do not arise. Challenges must engage the factual finding on use, not presuppose change.
Guidelines applicability: Section 28 engagement is calibrated to applicability; rural housing guidelines will not be forced onto refurbishment/retention cases unless the facts engage “new housing” policy.
AA screening burdens: In line with Reid and An Taisce, challengers must put forward evidence of hydrological connections and scientific doubt at the decision-making stage. Bare assertions will not carry a judicial review.
Short-term lettings: The judgment underscores that suspected unauthorised short-term letting is primarily an enforcement matter unless permission for that use is sought. Boards may, however, legitimately curtail exempted development rights by condition in retention permissions tailored to the planning context.
Procedural discipline (Statements of Case): The Court’s reminder that Statements of Case are to aid the Court—by summarising how grounds will actually be argued—signals a continued push for focused, substantive written advocacy in planning JR.

Complex Concepts Simplified

Retention Permission: A mechanism to regularise development already carried out without permission (or to retain an existing use or works). It does not “forgive” unlawful development per se, but allows the decision-maker to consider whether permission should now be granted. Conditions (including removing exempted development rights) can be attached.
Material Contravention: Development that conflicts with a development plan objective. If a planning authority refuses permission for material contravention, the Board may grant only if one of the statutory gateways in s.37(2)(b) is met. If the authority did not refuse on this ground, s.37(2)(b) is not engaged.
Use vs. Abandonment: “Use” in planning law is not just the snapshot of activity on a given day; it can persist through periods of inactivity unless abandoned. Abandonment typically requires clear, unequivocal intention or a legal change inconsistent with the prior use. Disrepair alone does not prove abandonment.
Article 22(4)(b) particulars: Extra particulars (including statements of existing and proposed use) are required for applications seeking retention of a material change of use. If no change of use is involved, this provision does not apply.
Section 28 Guidelines: Ministerial guidelines to which decision-makers must “have regard” when applicable; they must be considered and any departure explained, but only where the guideline is material to the issue at hand.
Appropriate Assessment (AA) and Screening: Screening assesses whether a project is likely to have significant effects on a European site (e.g., SPA/SAC), requiring AA. Objectors who contend that AA is required should provide evidence of pathways (e.g., hydrological connections) and a basis for “reasonable scientific doubt.”
Exempted Development Rights and Their Removal: Certain minor works are ordinarily exempt from permission. Planning authorities/Board may impose conditions removing these rights within a site’s curtilage to prevent incremental impacts and ensure oversight.

Conclusion

O Murthuile v An Bord Pleanála & Anor is a comprehensive reaffirmation of core planning-law fundamentals in the retention context. It clarifies that:

Disrepair does not equal abandonment; the onus to prove abandonment lies with the challenger, and credible evidence of continuing residential use will sustain a Board finding of no change of use.
Section 37(2)(b) is only triggered where the planning authority refused on material contravention grounds; it imposes no reasons duty in a case where the authority indicated a grant.
The duty to give reasons is satisfied by articulating the main reasons on the main issues; decision-makers are not obliged to address every submission or reconcile historic planning decisions absent a specific need.
Article 22(4)(b) change-of-use particulars and the Sustainable Rural Housing Guidelines do not apply where the case is properly approached as refurbishment/retention, not new housing.
AA screening challenges require evidence; bare assertions of hydrological connection or impacts are inadequate, especially when the issue was not squarely raised before the decision-maker.

The judgment strengthens the analytical framework for dealing with derelict or dilapidated dwellings in the countryside, centers the evidential burdens in both use/abandonment and AA screening disputes, and endorses a pragmatic, legally grounded approach to reasons and to the applicability of guidelines. It provides valuable guidance to planning authorities, the Board, practitioners, and objectors on how to structure applications, submissions, and challenges in retention cases. In practical terms, it encourages focused, evidence-based contention on core issues rather than collateral or formalistic grounds.