“Evinced Intention” as the Unifying Test for Abandonment of Residential Use (and the Limits of s.50A(7) Certification)

Case: O'Murthuile v ABP and Ors (Approved)  |  Citation: [2026] IEHC 36  |  Court: High Court (Planning and Environment)  |  Date: 3 February 2026  |  Judge: Ms Justice Emily Farrell

1. Introduction

This judgment concerns an application for a certificate of leave to appeal under section 50A(7) of the Planning and Development Act 2000 (as amended) following the High Court’s earlier substantive decision (19 September 2025) upholding the validity of a decision to grant retention permission for works to a dwelling at Townlough Upper, Portroe, Nenagh, Co. Tipperary (ABP-315285-22).

The Applicant (James Ó Murthuile) challenged the planning authority’s and then An Bord Pleanála’s (now An Coimisiún Pleanála, “the Commission”) acceptance that the building retained a subsisting residential use such that planning permission was not required merely to “resume” residential use. After losing the substantive judicial review, the Applicant sought certification of four proposed questions focused on: (i) whether resumed residential use of a derelict dwelling requires permission, and (ii) how “abandonment” of residential use is to be identified/proved, including whether the test is “objective” or “subjective”.

2. Summary of the Judgment

The Court refused to certify any question for appeal. It held that the proposed questions either: (a) did not arise from, or were not determinative of, the substantive judgment, and/or (b) sought an impermissible merits-based re-run of factual conclusions about the condition and planning status of the house, and/or (c) invited overly discursive (“write-an-essay”) appellate answers rather than discrete points of law.

On the alleged uncertainty about abandonment, the Court rejected the premise that Irish authority is in divergence. It emphasised a coherent, fact-sensitive approach: abandonment turns on “evinced” (demonstrated) intention, which may be inferred from all the circumstances (including non-user, disrepair, planning history, and any alternative use), and residential uses generally require a longer period of non-use before an inference of abandonment is justified.

On costs, given section 50B cost protection applied and the Applicant obtained no relief, the Court indicated it would make no order as to costs (subject to short written submissions if either party contended otherwise).

3. Analysis

3.1 Precedents Cited

A. Certification under s.50A(7): finality, sparing certification, determinative points

• Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250: cited as foundational authority on the restrictive and cumulative nature of the s.50A(7) test: (i) exceptional public importance, and (ii) desirability in the public interest.
• Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231: reaffirmed that a proposed point must be determinative—a differently-answered question must be capable of changing the outcome. Farrell J. adopted that framing in assessing the Applicant’s questions.
• Monkstown Road Residents Association v. An Bord Pleanála (No. 2) [2023] IEHC 9: quoted for the core propositions that High Court planning decisions are generally intended to be final, certification is to be exercised sparingly, and both limbs of the statutory test must be met. Also relied upon for the warning against imputing “uncertainty” by merely re-raising rejected arguments.
• Massey v. An Bord Pleanála (No. 4) [2025] IEHC 309: used both for the determinative-point requirement and for the methodological instruction to read authorities cohesively rather than to hunt for contradiction.
• Hellfire Massey Residents Association v. An Bord Pleanála [2021] IEHC 636: cited for the principle that questions requiring a “discursive, roving” response should not be certified.
• Maguire & Ors v. An Bord Pleanála [2023] IEHC 209, McMonagail v. Ireland & Ors [2023] IEHC 487, Carrownagowan Concern Group v. An Bord [2024] IEHC 549: relied on for the proposition that the mere absence of appellate authority on an issue does not, of itself, establish exceptional public importance or public-interest desirability.

B. Abandonment of use: “evinced intention”, inference from facts, and residential sensitivity

• Dromaprop Ltd. v. Leitrim County Council [2024] IEHC 234: relied upon to underline that abandonment has “huge consequences” and is not to be inferred automatically from non-user or disrepair; something “unequivocal” surpassing mere neglect may be required. Farrell J. treated this as consistent with older authority.
• Dublin County Council v. Tallaght Block. (including Costello J. [1982] I.L.R.M. 534 and Supreme Court [1983] IESC 7): treated as central Irish authority approving the Hartley formulation and illustrating abandonment by reference to cessation of the prior activity and subsequent circumstances (including evidence of different intended uses).
• Hartley v. Minister for Housing and Local Government [1970] 1 Q.B. 413: the Court extracted and re-emphasised the key statement (approved in Tallaght Block) that a tribunal of fact may find abandonment where a use ceased for a considerable time with “no evinced intention of resuming it at any particular time”; resumption then constitutes a material change of use.
• Westmeath County Council v. Quirke 1998 WHSC-HC 13134: cited for its “reasonable man” framing (in context: how the land was being used) and for the role of alternative uses and surrounding facts in supporting a finding of abandonment.
• Jessup: treated as confirming that abandonment is case-specific and, importantly, that residential use may require a longer period of non-use before an inference of abandonment is justified than would apply to commercial use.
• Frank Harrington Ltd v. An Bord Pleanála [2010] IEHC 428: although not an abandonment case, it was used (by analogy) to support the general proposition that a decision-maker can and should consider relevant factors such as planning history and “apparently evident reality” within an application’s context.

3.2 Legal Reasoning

1. Cumulative statutory test; sparing jurisdiction: Applying the settled approach from Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 and later authorities, the Court reiterated that both limbs of s.50A(7) are cumulative (exceptional public importance + public-interest desirability), in a context where planning judicial review is intended to be largely final.
2. Determinative requirement defeats Question 1 (and part of the framing): Although the parties agreed that if residential use had been abandoned, permission would be required to resume it, Farrell J. held that this was not a point requiring resolution to decide the proceedings and was not a “point of law arising from the judgment”. The real issue in the substantive case was whether the Commission had sufficient material to conclude the residential use had not been abandoned.
3. No “uncertainty” shown; authorities are coherent: The Applicant contended the law was ambiguous—suggesting the principal judgment “favoured a subjective test” while other cases were “objective”. Farrell J. rejected this as an over-simplified binary. The correct inquiry is whether intention to abandon has been demonstrated/evinced, which is assessed by reference to all available subjective and objective evidence.
4. Intention may be inferred; subjective assertion not decisive: The Court clarified that considering “intention” does not mean accepting a purely internal or asserted subjective state. Intention can be inferred from acts, statements, planning history, alternative use, and prolonged non-use. Conversely, an expressed intention cannot stand “in the teeth of objective information” undermining it.
5. Residential use is treated as “hardier”: Drawing from Jessup, the Court emphasised that a longer period of non-user is typically required to infer abandonment of a dwelling’s residential use compared with a commercial use.
6. Merits-based appeal impermissible via certification: A central reason for refusal was that the proposed questions were “predicated” on adopting the Applicant’s contested narrative about the building being effectively ruinous (e.g., “dwarf-walled”). The substantive judgment had already found the Commission had sufficient material (planning history, enforcement and correspondence, absence of alternative use evidence, repeated renovation applications) to support its conclusion.
7. “Write-an-essay” questions and abstract hypotheticals rejected: The Court noted the Applicant’s submission included multiple sub-questions about indicia of abandonment and rhetorical hypotheticals (e.g., “a deserted village in Achill”). These did not translate into focused, determinative legal questions suitable for certification, consistent with Hellfire Massey Residents Association v. An Bord Pleanála [2021] IEHC 636.

3.3 Impact

• Planning litigation (procedure): The judgment reinforces a stringent approach to s.50A(7) certification. Applicants must articulate a tightly-defined point of law arising from the judgment and capable of affecting the result, not a general appeal for appellate “clarity” or a repackaged factual dispute.
• Planning substance (abandonment of residential use): While not deciding a new substantive rule on “resumption” per se, the judgment usefully consolidates the approach that abandonment is assessed via an “evinced intention” standard, inferred from the totality of evidence (planning history, alternative use, non-user, disrepair), and that residential use is comparatively resilient.
• Decision-making practice: Planning authorities and the Commission can take from this decision a structured evidential checklist: (i) prior permissions and enforcement history; (ii) what the site/building has actually been used for; (iii) the duration and explanation for non-use; (iv) whether owners pursued refurbishment/permissions consistent with maintaining the use.
• Derelict dwellings policy debate kept in its lane: The Court rejected an attempt to leverage section 4(1)(h) (exempted development) into an argument that the Oireachtas could not have intended renovation of derelict houses without permission. The Court’s response preserves the distinction between (a) works potentially exempt as development and (b) whether a resumed use constitutes a material change due to prior abandonment.

4. Complex Concepts Simplified

• Retention permission: Planning permission sought after works have already been carried out, to regularise them. It does not automatically validate every other aspect of planning compliance (e.g., a separate unauthorised change of use).
• Abandonment vs suspension (non-use): A use can stop temporarily without being abandoned. “Abandonment” implies a definitive cessation, assessed by whether there is an evinced intention not to continue (or no evinced intention to resume).
• “Objective” vs “subjective” intention: The judgment rejects a false choice. Decision-makers may consider both external facts (objective) and what can be inferred about intention (often called subjective), but intention must be evidenced—by conduct, statements, planning steps, and surrounding circumstances.
• Section 50A(7) certificate: A “gatekeeping” mechanism in planning judicial review. Appeals are not automatic; only exceptional, genuinely public-interest points of law arising from the High Court decision can be certified.
• “Write-an-essay” questions: Broad or multi-part questions inviting general commentary are not certifiable. The point must be precise and necessary to the outcome.

5. Conclusion

O'Murthuile v ABP and Ors (Approved) [2026] IEHC 36 is primarily a procedural decision, reaffirming the strict and cumulative nature of certification under s.50A(7) and rejecting attempts to transform factual disagreement into a “point of law”. Substantively, it consolidates the abandonment jurisprudence: the touchstone is evinced intention, assessed case-by-case from the whole evidential picture, with residential use generally less readily inferred to have been abandoned than commercial use.