High Court dismisses certiorari appeal against An Bord Pleanála's retention permission decision for site renovations.

THE HIGH COURT PLANNING & ENVIRONMENT IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

[2025] IEHC 498 Record No. 2024/177 JR Between:

JAMES Ó MURTHUILE Applicant -and-

AN BORD PLEANÁLA Respondent -and-

MARTIN FLYNN Notice Party

JUDGMENT of Ms. Justice Emily Farrell delivered the 19th day of September 2025

Introduction

1. The Applicant seeks an Order of certiorari quashing a decision of An Bord Pleanála (“the Board”) made on 5th December 2023 to grant retention permission to the Notice Party for renovations and alterations to an existing house, septic tank and percolation area and provision of a gravel parking area and other associated site work, (the ‘‘proposed development’’) at Townlough Upper, Portroe, Nenagh, Co. Tipperary. (ref. ABP- 315285- 22)

2. As noted in the Statement of Case, the planning history of the site is set out at para. 4.0 of the Inspector’s Report and at pages 1-2 of the first Planning Report of the Council dated 13th September 2022.

3. On 28th November 2003, permission was granted by the Tipperary County Council (the “Council”) (PA. Reg Ref. 03510816) for a single storey extension to the existing dwelling house, new front entrance and boundaries, septic tank, percolation area and ancillary works.

That permission related to the house which is now owned by the Applicant which was at the time part of a larger site which included the land the subject of these proceedings. It is common case that the 2003 permission did not relate to the structure the subject of the within proceedings.

4. On 1st March 2007, permission was refused by the Council (P.A. Reg. Ref. 06/511511) for a proposed development to renovate and extend the existing house, to install a new proprietary treatment plant and percolation area, and make good/repair the existing access roadway. The application for permission was refused for the following three reasons:

‘‘1. It is the policy HSG 9 of the Council that in considering the reuse or replacement of existing dwellings in the open countryside, the Council will have to be satisfied that:-

a) The existing structure was last used and/or is suitable as a dwelling;

b) The roof, external and internal walls are substantially intact but the building is unsuitable for modern use;

c) The proposed extension/dwelling will be designed strictly in accordance with the guidelines contained in Chapter 8 and Appendix 2;

d) The proposed floor area shall accord with guidelines on plot sizes as set out in Section 8.4.1 and in any case be not greater than 200 sqm or twice the existing floor area (whichever is greater).

The Council considers that the applicant does not comply with the policies as set out in Policy HSG9 of the Plan as the proposed extension is proposed to a dwelling which is not substantially intact. Accordingly, the proposed development would materially contravene the objectives of the 2004 County Development Plan and would be contrary to the proper planning and sustainable development of the area.

2. The site is located in a Vulnerable Landscape where it is required that it be shown that proposed developments would not impinge in any significant way upon the character, uniformity and integrity of the landscape when viewed from the surrounding area. It is considered that the proposed development by virtue of its inappropriate design in an elevated and exposed location above the shores of Lough Derg would materially contravene Policy ENV2 of the Development Plan.

3. The road which would serve the proposed development is unsuitable to carry increased traffic which would be likely to result from the proposed development due to deficiencies in its width and surface treatment. The Planning Authority consider that the additional traffic movements generated by the proposed development along this narrow and substandard lane would endanger public safety by reason of traffic hazard.’’

5. On 10th July 2008, an application for a proposed development comprising the renovation and refurbishment of the existing house and installation of a new proprietary treatment plant and percolation area and all ancillary works was withdrawn. (PA. Reg. Ref. 08/510169)

6. On 25th February 2021, an application was deemed withdrawn. (P.A. Reg. Ref. 21/933) That application sought permission for a proposed development comprising renovations and alterations to the existing dwelling house, retention of a gravel parking area to the front and retention of a small shed/pumphouse to the rear of the house and retention of a new door (in place of a window to the rear gable) and all associated site works.

7. An enforcement case is open in relation to unauthorised development. (ref. TUD-20-074)

An Enforcement Notice was issued by the Council to the Notice Party on 4th August 2022.

A submission was made on behalf of the Notice Party by letter dated 20th October 2022 in response thereto. As Counsel for the Board observed, that enforcement notice related to works, and unauthorised use for short term lettings, but it did not refer to any unauthorised residential use.

8. In the meantime, the Notice Party submitted a retention planning application to the Council on 28th July 2022. A request for further information issued on 14th September 2022, in which the Notice Party was asked to submit a revised site layout plan and elevations, plans and sections of all elements for which retention permission is sought, together with supporting evidence which confirms the condition and use of the structure prior to renovation. The Notice Party responded on 22nd October 2022. The Applicant made a submission to Tipperary County Council in which he submitted that permission should be refused. He referred to the enforcement notice which had been served and the previous applications for permission. He also submitted that there was not a habitable dwelling on the site, but rather a derelict structure.

9. On 16th November 2022, the Council issued a notification of intention to grant planning permission to the Notice Party subject to four conditions. The Applicant appealed the

decision of the Council on 25th November 2022, but An Bord Pleanála granted the retention permission sought on 5th December 2023, subject to five conditions (ABP 315285-22). The Applicant contends that this decision is invalid and ought to be quashed. The Board’s

decision to grant the permission sought was made generally in accordance with the report of its Inspector, who had recommended that permission should be granted subject to four conditions. The condition added by the Board is condition 5, which provides that development described in Classes 1 or 3 of Part 1 of Schedule 2 to the Planning and Development Regulations 2001 (as amended, or replaced) shall not be carried out within the curtilage of the dwellinghouse without a prior grant of planning permission.

Summary of main issues

10. The main issues raised by the Applicant are, in summary, as follows. These are summarised in the Statement of Case along the following lines.

11. The Applicant maintains six grounds of challenge against the Board. Firstly, the Applicants argue that the impugned decision materially contravenes the Tipperary County Council Development Plan 2022-2028, and that the decision is invalid as the Board failed to provide reasons for the material contravention, failed to take into account relevant considerations and took irrelevant considerations into account.

12. The Applicant argues, at Core Ground 2, that the Board failed to consider, properly or at all, the unauthorised use of the premises for the purpose of both residential use and Airbnb short term lettings. He argues that the Board has erred in law in approaching the application on the basis that there was a pre-existing subsisting residential user of the premises in circumstances where the evidence produced by the Applicant established the contrary. It is argued that the Board ought to have approached the development as though it were a new

residential development and accordingly, subject to all of the usual development controls in respect of same. It is submitted that the Board ignored his submissions.

13. Core Ground 3 of the Applicant’s case is that the Notice Party failed to provide a statement of use and certain, minimum information required to be furnished as part of the planning application under Part 4 of the Planning and Development Regulations 2001 (as amended), inter alia, a statement of the use proposed to be retained, together with particulars of the nature and extent of the use (PDR 2001, article 22).

14. The Applicant also contends that the Board failed to have any adequate regard to the Sustainable Rural Housing Development Guidelines for Planning Authorities, in arriving at the decision to grant permission for the proposed development, at Core Ground 4.

15. The Applicant’s fifth ground of challenge is that the impugned decision failed to address public observations and/or failed to give sufficient reasons for not accepting submissions in arriving at its decision.

16. At Core Ground 6, the Applicant contends that the impugned decision “contravenes Art. 6(3) of the Habitats Directive (Council Directive 92/43/EC) and/or the Birds Directive (Directive 2009/147/EC) and Part XAB of the Planning and Development Act, 2000 in circumstances where, in purporting to carry the Screening for Appropriate Assessment:

(i) the Respondent failed to provide or subject the decision-making process to the sufficient scientific expertise required;

(ii)The Respondent failed to provide conclusions and explicit and detailed reasons in its Screening for Appropriate Assessment which were capable of dispelling all reasonable scientific doubt as to the effects of the proposed development on the conservation objectives of protected sites, including Lough Derg SPA (0004058).”

17. On the subject of the Statement of Case procedure, it may be helpful if I mention that it is not the intention that the ground-by-ground section of the Statement of Case would simply list the core grounds as set out in the Statement of Grounds without a summarised explanation as to how any of them will be argued or will be made out. I am sure that parties will be aware, but it is no harm to emphasise, that the aim of the Statement of Case is to assist the Court – not to be a box ticking exercise. No doubt it is also capable of benefitting the parties by focussing on the substance of the issues in dispute prior to the hearing. The requirement in the Practice Direction is for:

“a ground-by-ground or (in non-JR proceedings) issue-by-issue summary of the submissions of each party, giving about 1 or 2 paragraphs per ground/issue to broadly summarise each party’s case – this is intended as a general summary and does not prejudice the pleaded grounds of challenge or opposition, so omission of a point from the summary does not constitute abandonment of such a point”.

Material contravention

18. The first contention advanced in relation to material contravention is that “The Respondent erred at law and acted contrary to s.37 (2) (b) of the Planning and Development Act 2000 (“the 2000 Act”) in failing to set out whether the statutory criteria under section 37(2)(b)

had been met or indicate in its decision the “main reasons and considerations” for contravening materially the Tipperary County Development Plan 2022-2028” (sub-ground 1).

19. Section 37(2)(b) provides:

“(b) Where a planning authority has decided to refuse permission on the grounds that a proposed development materially contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to regional spatial and economic strategy for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or

(iv) permission for the proposed development should be granted having regard to the pattern of development, and permissions granted, in the area since the making of the development plan”.

20. Section 37(2)(b) applies only where the Council refuses permission on the grounds of a material contravention. Since that did not happen in this case, the provision simply has no application. The Board was not constrained in its ability to grant permission even if there is a material contravention of the County Development Plan (CDP), although it was required to be satisfied that the grant of such permission was consistent with the proper planning and sustainable development of the area.

21. Furthermore, the Applicant’s submission that the Notice Party had not demonstrated an economic or social need to live in the area is predicated on his position that the permission sought is effectively for a new house rather than retention of alterations to a pre-existing house. The Board was satisfied that it was appropriate to consider, and grant, the application for retention permission. It did not consider the application as an application for a new house.

22. The next complaint (sub-ground 5) is that “Neither the Inspector, nor the Board in adopting the Inspector’s report considered adequately or at all the Rural Housing Design Guide that formed part of the Tipperary County Development Plan 2022 – 2028.” The Applicant quotes from page 2 of the Design Guide, which also relates to new houses, as follows:

“It is a requirement of the Council that new houses proposed to be located in the countryside should be sited in a manner to ensure that they respect the landscape, environment, road traffic safety and their surroundings.”

23. To the extent that the Design Guide is something envisaged by, let alone part of, the Development Plan, the Board expressly has regard to the Plan. The Applicant’s complaint here is a confusion between a lack of narrative discussion and failure to have regard to the CDP.

24. As regards a third argument that the Board failed to provide reasons for making a different

decision to the Council’s previous refusal, this is a misunderstanding. As the Applicant himself contends, the Board is required to determine the appeal de novo, as if it had been made to the Board in the first instance, and it must take account of the planning history. The Inspector did consider the planning history of the site, including the refusal of permission to renovate and extend the existing house, dated 1st March 2007, and the reasons thereof.

The planning history had also been considered in the Planner’s Report, which concluded that there was no evidence before the Council to support that the structure was not a dwelling. The Board or any appellate body must deal with the main issues in the given application, which includes differing on a material issue from the first-instance decisionmaker, or an Inspector. The Board is not obliged to examine the planning history of the site for the purpose of providing reasons for disagreeing with any and every previous decision or finding of fact made therein. Previous decisions relate to the policy context and planning judgement exercised at that time, but such matters can change, as can the evidence before the decision maker. Reasons are not generally necessary in terms of differing implicitly from previous decisions. There may of course be particular cases where there is some necessity for an explanation as to why a decision made is inconsistent with a previous planning

decision, for example in Grealish v. ABP [2006] IEHC 310 [2007] 2 IR 536; [2006] 1 ILRM 140, where the impugned decision was in respect of the same development which had previously been permitted. However, in principle there is no general doctrine of precedent for an administrative decision-maker, because that would be unworkable and could also create a serious chilling effect to the necessary review, refinement and improvement of policy approaches. In Grealish, O’Neill J. found that the development for which permission was sought was “essentially the same” as the previous ones. Neither the relevant provisions of the development plan nor the physical environment had changed in the intervening period. O’Neill J. held that, although the Board was entitled to reach a different conclusion to the previous decisions, there was “literally nothing to explain why a different conclusion was reached”. The instant case is materially different.

25. Even if I am wrong in relation to all of those matters, there are reasons given in the Board’s

decision which are adequate here and meet the tests for reasons set out in the jurisprudence, including Mulholland v. An Bord Pleanála [2005] IEHC 306, [2006] 1 IR 453 (para. 34, pp.

464 and 465); Connelly v. An Bord Pleanála [2018] IESC 31; [2018] 2 IRLM 453 (para. 6.1 et seq.) and Balz v. An Bord Pleanála [2019] IESC 90; [2020] 1 ILRM 367.

Failure to consider Airbnb use/ incorrect conclusion of prior residential user

26. Core Ground 2 alleges that the Board failed to consider the use of the premises for the purpose of both residential use and Airbnb short term lettings. However, the factual basis for this complaint is lacking, as this was considered at paras. 3.2.1, 3.4, 6.1, and particularly at paras. 7.2 and 7.3 of the Inspector’s Report.

27. This ground also complains about the Board’s rejection of the Applicant’s case that there was no pre-existing residential use. This brings us to the core of the present case.

28. The Applicant’s complaint here is essentially a merits-based complaint. The Board had before it evidence to support the conclusion of a pre-existing residential use, so approaching the matter on the basis that this was a renovation, and not a new house, has not been shown to be unreasonable or unlawful. The ground is incorrect in claiming that the Applicant’s evidence “established” that there was no prior use – where the Board has a variety of positions represented to it, it has an evaluative judgement to find the facts within the bounds of reasonableness and legality. An Applicant has an onus to displace that, which this Applicant has not discharged. It is not sufficient for the Applicant to be “satisfied” of factual matters, as he stated in his appeal. Even if, as he states, the house was uninhabited, it does not necessarily follow that residential use had been abandoned. The Inspector, and the Board, accepted that prior to the works the subject of the application, the dwelling was in a poor state of repair and relied on the evidence provided by the Notice Party, including that the house was regularly occupied from 2008 – 2019. The Inspector concluded that “While I recognise that, before the works to be retained, the dwelling was in a poor state or repair, I consider that the building was a house, and the use of this structure does not require a planning application to re-establish residential use.” The Inspector noted that no evidence had been submitted to suggest that the building has been used for any use other than residential.

29. While counsel for the Applicant repeatedly referred in his submissions to the structure as a ‘dwarf house’, there is no evidence that anything more than the roof was missing. No evidence was identified to support the contention that that the walls were not substantially intact, although the Planning Report in respect of P.A. Reg. Ref. 06/511511 did refer to the dwelling as a ‘ruin’ and stated that the roof was missing. No finding was made in relation to use, but the Council found that “the proposed extension is proposed to a dwelling which is not substantially intact.” That application was quite different to the retention application before the court, and involved an extension of 142sq m, which would have been 5.5 m high.

In his appeal to the Board, the Applicant stated that “the structure to which that decision to refuse planning permission in 2007 was based, is the same structure which forms the basis of the current planning application the subject of this appeal and the proposed development works.”

30. The law is clear that the fact of a structure falling into disrepair does not inexorably lead to a conclusion of abandonment of the pre-existing use. That is in the first instance a factual determination for the decision-maker within the bounds of a correct legal analysis of the concepts of use and abandonment.

31. Disrepair is not proof of abandonment of use. It is a question of degree. There are of course people who live in very unsuitable dwellings. Furthermore, the fact that a person ceases to reside in a dwelling, even if it is in a significant state of disrepair, does not lead inexorably to the conclusion that residential use has been abandoned.

32. The earlier correspondence, and the terms of the enforcement notice in 2022 which envisage works to the house, (re-demolition of part of external walls and roof structure and covering, construction of new external walls, a new roof structure and slated covering) are indicative of an intention to retain, not abandon, the residential use. Prior to the service of the enforcement notice, the Council’s letter dated 21st July 2020 referred to “the existing house”.

33. As noted by Humphreys J. in Leitrim County Council v. Dromaprop [2024] IEHC 233 at para. 30:

“Shuttering a property doesn't preclude refurbishing or rebuilding it at a later stage.

Even allowing a property to fall into disrepair doesn't in itself and in the absence of an intent to abandon its use for legal purposes extinguish the use for planning purposes.

Certainly it does not establish a new use. The old use remains until something unequivocal happens by way of definitive abandonment in the legal sense of the use, surpassing mere neglect and non-operation.”

34. In that case, it was held that “the council has adduced no evidence of any intention on the part of the owners of the premises to ever abandon its use as a hotel during the years in which it was closed.” (at para. 31).

35. Reliance was also placed on Wicklow County Council v. Jessup & Smith [2011] IEHC 81, in which a house that began to fall into disrepair from 1949 onwards was held not to have been abandoned as of 2007. Edwards J. held that the onus of proof of abandonment is on the party so claiming.

36. The Applicant avers, at para. 5 of his grounding affidavit sworn the 7th February 2024 that:

“I say that the lands on which the subject site is situate were the subject of several planning applications by the Notice Party over the past two decades to renovate and extend a derelict ruin as well as install all services including, electricity, a proprietary treatment plant and percolation area and upgrade or make good/repair existing access roadway.”

37. Such an acknowledged ongoing attempt aimed at a residential use is on its face inconsistent with abandonment of that use. There is no evidence that the use had switched from the original residential use to use as “agricultural / abandoned derelict building”, as the Applicant contends.

38. Use is a term of art in the planning code. It is not just a snapshot of a current position at a particular time but includes a use that has not been abandoned even if it is not currently being operated. In Clonres v. An Bord Pleanála [2021] IEHC 303, Humphreys J. stated that “There is a fundamental distinction between cessation of a use in practice at a particular time and the formal abandonment of a use on a permanent basis, which in a situation like this would normally arise where planning permission for some inconsistent use or development was granted” (para.37). This was followed in Murphy v. An Bord Pleanála [2024] IEHC 186.

Breach of Article 22 of the 2001 Regulations

39. Core Ground 3 alleges that “the Notice Party failed to provide to the Council the information required under Article 22 of the Planning and Development Regulations (as amended).”

40. While the pleaded grounds do not refer to any particular part of the (extensive) provisions of Article 22, sub-ground 17 pleads:

“17. It is essential that the retention planning permission specify which aspects of the unauthorised development in situ may lawfully be retained. To this end, a developer seeking to retain a material change of use of land is required to state particulars of the nature and extent of the use which it is proposed to retain. ...”

41. This is a quotation from sub-article (4)(b), albeit without it having been cited, and it is referred to in the Applicant’s written submissions. Article 22 (4)(b) provides:

“(b) a planning application for any development consisting of or mainly consisting of the making of any material change in the use of any structure or other land, or for the retention of any such material change of use, shall be accompanied by-

(i) a statement of the existing use and of the use proposed together with particulars of the nature and extent of any such proposed use,

(ii) where the development to which the application relates comprises the carrying out of works on, in, over or under the structure or other land, 6 copies of such plans (including a site or layout plan and drawings of floor plans, elevations and sections which comply with the requirements of article 23), and such other particulars, as are necessary to describe the works proposed, and

(iii) such plans and such other particulars as are necessary to identify the area to which the application relates.”

42. Article 22(4)(b) only applies where there is a material change of use. The Board decided there was not a material change of use. Harrington v. An Bord Pleanála [2010] IEHC 428 is distinguishable. Hedigan J. stated that the approach of the Board in that case was consistent with Article 9(i)(viii) of the 2001 Regulations, that “unauthorized developments, even if immune, should not be extended and facilitated by the planning code. It was well within Bord Pleanála's jurisdiction to decide that this application would facilitate unauthorised development and upon that basis to refuse to authorize it.” Hedigan J. held that there was evidence before the Board which supported its decision that the previous use was unauthorised. The Applicant’s contention that previous residential use is unauthorised is dependent on acceptance of the submission that previous residential use had been abandoned. The Applicant has a merits-based disagreement with the Board’s finding, which is his entitlement, but that does not give rise to grounds for certiorari. In the absence of anything sufficient to show that the Board’s decision in that regard was unreasonable or unlawful, the provision relied on simply does not arise on the facts.

43. The Applicant also submits that the Board was either required to refuse the application, or to grant permission subject to a condition restricting the use of the property as a guesthouse.

The Notice Party accepts that the house was previously listed on Airbnb but he has stated that had been done in the belief that short term lettings did not require permission, and that it had been discontinued. Retention permission for that use was not sought. It is not necessary for the Board to impose a condition requiring a party not to breach the planning laws – if permission is required for change of use to authorise short term lettings, the 2000 Act provides remedies for such a breach. Condition 5, which was imposed by the Board is materially different, and prevents the Notice Party carrying out development which would otherwise be exempted, without permission. I am satisfied that the Board was entitled to grant the permission sought without adding the condition contended for by the Applicant.

Sustainable Housing Guidelines

44. Core Ground 4 alleges that “The Respondent’s decision is invalid and/or ultra vires its powers in that failed to have any adequate regard to the Sustainable Rural Housing Development Guidelines for Planning Authorities, in arriving at its decision to grant permission for the proposed development.”

45. While section 28(2) of the 2000 Act requires the Board to have regard to Guidelines made under that section where applicable, that obligation applies only in respect of Guidelines which are material, having regard to the facts of the specific application. The Board, having determined that this was refurbishment of an existing house, not a new house, was then entitled and indeed required not to treat the Sustainable Rural Housing Development Guidelines as applicable, because they apply in cases of development of new housing, not in cases of refurbishment. So this complaint is in essence a reformulation of the central merits-based disagreement with the decision. The Applicant’s reliance on Balz v. An Bord Pleanála is misconceived, as O’Donnell J. (as he then was) held that the Board was required to have regard to Guidelines when considering the issue covered in the Guidelines. The Board was required to give reasons for departing from applicable Guidelines, even though there was a substantial argument that they were outdated and should be replaced. I also note that neither the Applicant, nor any other party, had made a submission to the effect that the Sustainable Housing Guidelines were applicable.

Lack of reasons

46. Core Ground 5 pleads that “The impugned decision is invalid in that it has failed to address public observations and/or failed to give sufficient reasons for not accepting submissions in arriving at its decision.”.

47. The leading authority on reasons is the Supreme Court decision in Connelly v An Bord Pleanála [2021] 2 IR 752. Clarke C.J. said (paragraph 6.15):

“First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision. Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to allow a court hearing an appeal from or reviewing a decision to actually engage properly in such an appeal or review.

48. The Board can assess the relevance of submissions in the first instance, but within the bounds of what is reasonable and of course with due regard to other aspects of the process that make certain issues inherently relevant. In Friends of the Irish Environment CLG & Anor. v. Minister for Housing, Local Government and Heritage & Ors. [2025] IECA 128, Hyland J. stated:

“10. The duty to give reasons does not encompass a duty to respond to all submissions. If the submission is not relevant to the reasons why the decision has been made, then as a matter of logic, a response to the submission does not form part of the reasons and is therefore not covered by the obligation to give reasons. Following Balz v. An Bord Pleanála [2019] IESC 90, the extent of the obligation on the decision maker is to address “relevant submissions” i.e. submissions relevant to the reasons for the

decision. Doing so is sufficient to vindicate the trust that members of the public are entitled to have in decision-making institutions.”

49. In practice this amounts to providing the “main reasons on the main issues”: per Humphreys J. in O’Donnell v An Bord Pleanála [2023 IEHC 381], read in the light of the other caselaw I have referred to. The Applicant is not entitled to point-by-point discussion of his submissions and nor is he entitled to reasons for the reasons.

50. I am satisfied that reasons were given to the appropriate standard, and nobody could be in any doubt as to the Board’s decision and the reasons for it in relation to the central issue – the Board accepted the evidence that there was a pre-existing residential use that had not been abandoned. As appears from the Board Direction, the Board decided to grant permission generally in accordance with the Inspector’s Report. The Applicant disagrees with the findings of the Board and the Inspector, in particular the rejection of the argument that there had been an abandonment of residential use, which he is entitled to do, but I am satisfied that the reasons why the Board came to its decision are sufficiently clear. The Board, and the Inspector, simply preferred what was adduced by the Notice Party over the contrary submissions by third parties, particularly the Applicant.

Appropriate assessment screening

51. Core Ground 6 takes issue with the AA screening and pleads that “The Respondent's

decision is invalid and/or ultra vires in that it contravenes Art.6(3) of the Habitats Directive (Council Directive 92/43/EC) and/or the Birds Directive (Directive 2009/147/EC) and Part XAB of the 2000 Act ...”. Core Ground 6 refers to Lough Derg SPA (0004058).

52. The central plea in this regard is at sub-ground 24, which states:

“24. Lough Derg SPA (000428) is just under 2km from the subject site. The nearest watercourse is Glashabriddane stream, which is in close proximity to the south of the site (circa 300 metres) and which discharges to Lough Derg. Accordingly, there is a hydrological connection between the subject site and the Lough Derg SCI.”

53. Reference to 000428 is a typographical error, as Core Ground 6 itself, the Applicant’s submissions and the Statement of the Case refer only to Lough Derg SPA (0004058).

54. To succeed on this ground, the onus is on the Applicant to demonstrate by evidence that there is a lacuna in the AA screening (or reasons related to it) in relation to Lough Derg SPA. As the Board contends, “The Applicant has provided no evidence of this alleged hydrological connection and/or potential impacts arising from these matters on the Lough Derg SPA and this plea does not extend beyond a bare assertion.”

55. The application for retention permission included a Site Suitability Test Report dated 14th June 2022, by PJ Brett & Associates, Civil and Structural Consulting Engineers. That report concluded that the site was suitable for the development proposed i.e. the retention of the septic tank and percolation area, which had been installed in 2009. The Council’s request for further information did not require any further information to be provided in order to enable it carry out screening for Appropriate Assessment. The Council found that Appropriate Assessment was not required, having noted that the application covered the septic tank and percolation area. The adequacy of the screening was not put in issue before the Board. The fact that the Applicant had not put the question of Appropriate Assessment in issue before the Board is not fatal to him raising this issue in judicial review proceedings:

Reid (No. 1) v. An Bord Pleanála [2021] IEHC 230. However, it informs the degree of detail which the Board was required to go into in deciding whether or not Appropriate Assessment was required. The reasons given by the Board’s Inspector were very limited, but they must be read in the context of the material before it and the matters which had been put in issue.

The Applicant bears an evidential burden if he seeks to rely on facts which were not before the Board. The onus of proving, normally by evidence, or demonstrating a flaw on the material before the Board that AA, or AA screening, was defective lies on the Applicant:

Eco Advocacy CLG v. An Bord Pleanála [2025] IEHC 15; An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8, [2022] 2 IR 173, [2022] 1 ILRM 281; Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300.

56. In Reid (No. 1) Humphreys J. held:

“if the objector wants the decision-maker to take into account something positive that is additional to anything the other party is obliged to put forward (whether or not that party actually puts it forward), then the objector must positively raise that additional matter in order to have a case later. For example, if the issue is whether scientific doubt as to effect on a European site precluded the grant of permission, an objector has to bring something into the process that raises such a doubt, if doubt wouldn't otherwise arise. Failure to do so maybe doesn't preclude being allowed to go through the motions of a challenge later but it renders the challenge empty, and devoid of any prospect of success, because the issue in that challenge would be whether there was doubt by reference to the material before the decision-maker, not by reference to new matters the applicant thought of after the event.” (para. 19)

57. The fact that there is a stream 300 m to the south of the site does not in itself establish that there is a hydrological connection between the site and the stream. It is not altogether clear whether there is a contest on the connection between the stream and the SPA but on both matters the Applicant in principle bears the onus of proof, which has not been discharged.

No evidence has been provided of an alleged hydrological connection between the site and Lough Derg SPA, save that the Applicant verified the plea in the Statement of Grounds. It is no more than a bare assertion. In the absence of appropriate evidence this complaint cannot succeed.

58. The Applicant contended that the nature of the assessment carried out by the Board was “sub-optimal”. That is not a ground on which certiorari may be granted. Invalidity is required. I also note that the submissions under this heading went beyond the pleaded case.

In particular, the Applicant argued, but did not plead, that the Board had applied an incorrect test, and failed to apply the test required by section 34(12) of the 2000 Act, relying on the judgment of Simons J. in Suaimhneas Limited v. An Bord Pleanála [2021] IEHC 451. The Board submits that the fact that the Inspector (whose report was accepted by the Board)

referred to the “proposed development” rather than expressly stating that it was a retention application, is insufficient to rebut the presumption of validity. I agree, although I note that that argument is not one which is properly before the court.

Matters not Pleaded

59. It is not necessary to decide any issue which falls outside the grounds on which leave to seek judicial review were granted, i.e. any issue which is not acceptably clear from the Statement of Grounds.

60. Whilst the 2003 planning permission which is referred to in the Inspector’s Report does not relate to the house the subject of these proceedings, it was neither pleaded, nor demonstrated that the Board relied on that permission in reaching its decision to grant permission. The Board submits that that permission was not relied upon in the reasons provided for its

decision, but that its inclusion as part of the planning history of the site does not invalidate the decision. Whilst any comment I make is necessarily obiter, I agree that its inclusion in the Inspector’s Report as part of the planning history, while probably unnecessary, does not render the decision invalid.

61. At the hearing considerable time was spent on an argument that, as the roof which is currently on the house has replaced an earlier (unlawful) replacement, and that development had occurred by stealth, the Board could not lawfully grant retention permission. That argument was neither pleaded, nor made to the Board. The Applicant’s appeal to the Board was based on his contention that residential user had been lost, and whilst he relied on the disrepair of the house to support that contention, no complaint was made to the effect that the works sought to be retained had been carried out in addition to previous unauthorised works. Para. 12 of the Statement of Grounds pleads:

“The Notice Party has by stealth progressively and consistently modified the structure from a ruin with no roof and walls that were not intact – as outlined in the Council’s own site report from 2006 above – to its existing state, year on year and ignoring the Council’s previous determinations and reasons for refusal.”

62. That paragraph is a particular of Core Ground 2, which relates solely to the issue of unauthorised use.

Conclusion

63. In summary, the Applicant has not established either a material contravention or breach of the legislation in that regard nor a lack of reasons for the decision differing from prior decisions of the Council. The Council decided to grant the retention permission sought subject to conditions. Therefore, section 37(2)(b) of the 2000 Act does not apply.

64. The Applicant’s complaints regarding non-consideration of residential and Airbnb use are factually incorrect. The disagreement with the Board as to a previous non-abandoned

residential use is a merits disagreement and the Applicant has not shown any unlawfulness in the Board’s approach.

65. The contention that Article 22(4)(b) of the 2001 Regulations has been breached is misconceived, as that provision does not apply. The complaint of a lack of regard to the Sustainable Housing Guidelines is also a misunderstanding because that also does not apply in the light of the Board’s factual findings.

66. I am satisfied that the Board met its obligation to provide the main reasons for the main issues.

67. The complaint regarding defective AA Screening fails, as the onus rests of the Applicant to establish such defects by evidence or by pointing to a lacuna in the Board’s decision. The Applicant has not succeeded in discharging that onus.

Order

68. For those reasons, I shall make an order dismissing the proceedings.

69. The matter is to be listed before me on 13th October 2025 on which date application can be made for any consequential orders.

Emily Farrell