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O'Murthuile v ABP and Ors (Approved)
Smart Summary
Factual and Procedural Background
The Plaintiff challenged the Defendant's decision dated 5 December 2023 granting retention permission to the Notice Party in respect of works to a dwelling at The City (ref. ABP-315285-22). The works authorised by the retention permission included renovations and alterations to an existing house, septic tank and percolation area, a gravel parking area and associated site works. Previous planning applications for the property had been refused, withdrawn or deemed withdrawn. An enforcement file had been opened by Company A and an enforcement notice was issued to the Notice Party on 4 August 2022. The application giving rise to the impugned grant of retention permission was lodged on 28 July 2022; the Plaintiff objected and appealed the planning authority's decision. The Defendant granted retention permission subject to conditions. The Plaintiff filed a Statement of Grounds (7 February 2024) alleging six core grounds of invalidity. In the principal judgment (19 September 2025) Judge Farrell found the Defendant's decision valid. The Plaintiff sought a certificate under section 50A(7) to appeal to the Court of Appeal and posed four questions of law for certification.
Legal Issues Presented
- Does the resumed residential use of a derelict dwelling house require planning permission?
- In the absence of a proven intention to abandon residential use, is such use indefinite?
- At what point can a residential use on a pre‑1963 derelict/ruinous structure be said to have been definitively abandoned?
- How is such abandonment to be established or proven?
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff alleged the Defendant's decision was invalid on six core grounds (particularised in the Statement of Grounds).
- The Plaintiff contended that resumption of residential use of a derelict/ruinous dwelling should require planning permission unless abandonment is definitively proven, and that the principal judgment suggested a subjective test for abandonment.
- The Plaintiff argued the issues raised are of exceptional public importance and in the public interest for the Court of Appeal to address, particularly regarding the test (objective v subjective) and the application of s.4(1)(h) of the 2000 Act to works on derelict houses.
Defendant's and Commission's Arguments
- The Defendant submitted the certification request failed the statutory criteria: the point sought would invite a discursive response and was not a point of law of exceptional public importance necessitating appeal.
- The Defendant and Inspector relied on the planning history, correspondence, and site material, concluding there was evidence of pre‑existing residential use; the resumption did not require a fresh planning application.
- The Defendant argued the Plaintiff's challenge amounted to a merits‑based attack rather than demonstrating legal uncertainty in the law of abandonment.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 |
Authorities on certification/application for leave to appeal (referenced on test to be applied). |
Relied upon with other authorities to outline the certification test; no distinct departure from those authorities. |
| Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231 |
Principles on the certification test and that the point of law must be determinative. |
Cited to confirm the statutory test and determinative requirement for certification. |
| Monkstown Road Residents Association v. An Bord Pleanála (No. 2) [2023] IEHC 9 |
Guidance that certification should be exercised sparingly and requirements for exceptional public importance. |
Applied to stress that the certification jurisdiction is limited and the Court should read judgments correctly before inferring uncertainty. |
| Massey v. An Bord Pleanála (No. 4) [2025] IEHC 309 |
Approach to reading caselaw coherently and the certification criteria. |
Used to support the view that the authorities must be read together and that the Plaintiff had not shown divergence warranting certification. |
| Hellfire Massey Residents Association v. An Bord Pleanála [2021] IEHC 636 |
That discursive or essay‑type points should not be certified. |
Relied on by the Defendant to characterise the Plaintiff's proposed point as unsuitable for certification. |
| Maguire & Ors v. An Bord Pleanála [2023] IEHC 209 |
Authority that absence of appellate consideration does not automatically make an issue of exceptional public importance. |
Cited to reject the Plaintiff's submission that novelty alone justifies certification. |
| McMonagail v. Ireland & Ors [2023] IEHC 487 |
Similar principle to Maguire on novelty not equating to exceptional public importance. |
Referred to in support of the same proposition. |
| Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 549 |
Further authority on certification standards. |
Used to reinforce limits on certifying points of law. |
| Dromaprop Ltd. v. Leitrim County Council [2024] IEHC 234 |
Abandonment: cannot automatically infer abandonment merely from non‑use or disrepair; need for more definitive evidence. |
Applied to confirm that abandonment requires definitive legal acts or evidence beyond neglect. |
| Dublin County Council v. Tallaght Block [1982] I.L.R.M. 534; (Supreme Court [1983] IESC 7) |
Principles on abandonment: length of non‑use and reasonable inference by a tribunal of fact; cited Hartley with approval. |
Accepted as authority that extended non‑use may justify an inference of abandonment; applied to distinguish commercial v residential uses. |
| Hartley v. Minister for Housing and Local Government [1970] 1 Q.B. 413 |
Statement that long cessation with no evinced intention to resume permits finding of abandonment. |
Quotations relied upon and applied as foundational for the abandonment analysis. |
| Frank Harrington Ltd v. An Bord Pleanála [2010] IEHC 428 |
That planning history and all relevant factors known to exist may be taken into account. |
Used to support consideration of planning history in assessing use/abandonment. |
| Jessup (authorities cited in judgment) |
That residential use may require a much longer period of non‑use to infer abandonment. |
Applied to show that facts are determinative and that residential premises attract a higher threshold for inferring abandonment. |
| Westmeath County Council v. Quirke |
Use of reasonable man standard to assess whether lands were put to alternative use. |
Referred to when discussing inference from how lands were actually used. |
Court's Reasoning and Analysis
Judge Farrell analysed the statutory test for certification under s.50A(7): the High Court's decision must involve a point of law of exceptional public importance and it must be desirable in the public interest for the appeal to be heard by the Court of Appeal. The Court read the principal judgment and authorities together and rejected any asserted divergence in the caselaw. The Court held that abandonment of use requires an "evinced intention" to abandon and that both objective and subjective evidence may be considered; an expressed subjective intention cannot prevail where objective evidence contradicts it. The Court reviewed the Inspector's findings and the material before the Defendant (planning history, correspondence, enforcement notice, prior applications) and concluded there was sufficient evidence to support the finding that the building retained residential use and that re‑establishment of residential use did not require a planning application. The Court characterised the Plaintiff's proposed points as effectively merits‑based or as inviting a discursive response and found no novel point of law of exceptional public importance.
Holding and Implications
REFUSED — The application for a certificate for leave to appeal to the Court of Appeal was refused.
Implications: The direct effect is that no certificate to appeal was granted and the principal judgment upholding the Defendant's decision remains final in this case. The Court found no new legal principle was established and thus no broader precedent was created beyond applying existing authorities cohesively. The Court proposed no order for costs, noting costs protection under s.50B applied; parties may file short submissions on costs within two weeks if they seek a different order.
Judge Farrell
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