Ross & anor v An Bord Pleanala

Factual and Procedural Background

The applicants challenged a condition attached to a planning permission granted by the respondent board relating to the retention of a replacement mobile home in County Wexford. The condition restricted the use of the replacement mobile home to holiday use during summer months only, prohibiting letting or sale for use at the site for any other purpose. The applicants sought judicial review of this condition, which was dismissed by the High Court. They now seek a certificate to appeal that judgment, asserting that the case involves points of law of exceptional public importance.

Legal Issues Presented

1. Whether, when a dwelling or development is destroyed by fire or otherwise perishes, it is permissible for the respondent board, in granting planning permission for replacement of substantially the same development, to restrict or interfere with an existing established use.
2. Whether, having regard to section 39(1) of the Planning and Development Act 2000, which states that planning permission shall "enure for the benefit of the land and for the time being all persons interested therein," it is permissible to expressly prohibit, restrict, or interfere with the right to alienate that property in perpetuity or at all in the grant of permission.
3. Whether there is a requirement to apply for planning permission for the replacement of substantially the same development and/or dwelling destroyed by fire or otherwise perished, where an existing use of the land (in this case mobile home use) is established and has not been extinguished.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court addressed each of the applicants' three questions in turn, applying legal principles to the facts of the case as follows:

• Question 1: The applicants argued that any restriction on their existing established use was unlawful. The court noted that this argument was not pleaded or part of the leave granted for judicial review. Moreover, whether the condition restricted the applicants' use depended on facts never established or determined in the proceedings. The court concluded that the applicants effectively received what they applied for and that the alleged point of law did not transcend the facts of the case.
• Question 2: The court held that the condition did not restrict the applicants' right to sell the land itself or the mobile home but placed a valid restriction on the use of the mobile home "at the site." This restriction was upheld due to the particular and unusual personal circumstances underpinning the application. The court emphasized that the issue was fact-specific, and no general legal principle prohibiting restrictions on alienability was established.
• Question 3: The court found that the question of whether planning permission was required for replacement of substantially the same development was dependent on alleged existing use facts not established in the case. The applicants had previously accepted a s.5 referral decision against them and did not challenge it in time, resulting in an estoppel preventing them from raising the issue now. Thus, no point of law of exceptional public importance arose.

The court also reviewed the principles governing certification of points of law of exceptional public importance, emphasizing the need for sparing exercise of such jurisdiction and the requirement that the point of law must arise from the court's decision and have broader public significance beyond the individual facts.

Holding and Implications

The court REFUSED LEAVE TO APPEAL on the basis that no point of law of exceptional public importance arose from the case. The judgment clarified that the issues raised were fact-specific and did not establish any new or uncertain legal principles warranting appellate review. Consequently, there is no change to the legal position or precedent. The direct effect is that the applicants' challenge to the planning condition stands dismissed, and no appeal will proceed.