High Court dismisses appeal on planning permission, upholding retention decision regarding abandoned residential use.

THE HIGH COURT PLANNING AND ENVIRONMENT

[2026] IEHC 36

Record No. 2024/177 JR

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

Between:

JAMES Ó MURTHUILE

Applicant

-and-

AN COIMISIÚN PLEANÁLA

Respondent

-and-

MARTIN FLYNN

Notice Party

JUDGMENT of Ms. Justice Emily Farrell delivered the 3rd February 2026

Introduction

1. The Applicant has challenged the decision of An Bord Pleanála dated 5th December 2023, to grant retention permission to the Notice Party in respect of works at Townlough Upper, Portroe, Nenagh, Co. Tipperary. (ref. ABP- 315285-22). An Bord Pleanála has since been replaced by An Comisiún Pleanála (‘the Commission’) and, in accordance with section

495(3) of the Planning and Development Act, 2024, all references herein are to the Commission.

2. The works authorised by the retention permission include renovations and alterations to an existing house, septic tank and percolation area and the provision of a gravel parking area and other associated site work, (the ‘‘proposed development’’). A number of previous applications had been made in respect of the same property. Those applications were either refused, withdrawn or deemed withdrawn. An enforcement file was opened by Tipperary County Council and an enforcement notice was issued to the Notice Party on 4th August 2022.

3. The application which led to the grant of retention permission the subject of these proceedings was made on 28th July 2022. The Applicant objected to the application, and appealed the decision of Tipperary County Council to grant permission, subject to four conditions, to the Commission. The Commission decided to grant the permission sought subject to five conditions, the fifth being 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.

4. The Applicant contended that the impugned decision was invalid on six core grounds, which were particularised in the Statement of Grounds, filed the 7th February 2024.

5. In the principal judgment, delivered on 19th September 2025, I found that the decision of Respondent was valid and that the Applicant had not demonstrated that the finding that permission to resume residential use of the property was not required was unlawful.

6. The Applicant asks this court to certify the following questions for appeal to the Court of Appeal. He submits that these amount to points of law of exceptional public importance arising from the principal judgment, and he submits that it is desirable in the public interest that an appeal should be taken to the Court of Appeal on these points:

1. Does the resumed residential use of a derelict dwelling house require planning permission?

2. In the absence of a proven intention to abandon residential use is such use indefinite?

3. At what point can a residential use on a pre-1963 derelict/ruinous structure be said to have been definitively abandoned?

4. How is such abandonment to be established or proven?

Criteria for the grant of a certificate

7. The parties do not disagree in relation to the test which ought to be applied in an application for a certificate of leave to appeal under section 50A(7) of the Planning and Development Act, 2000, but rather there is a dispute as to whether the points the Applicant seeks to have certified satisfy the requirements of section 50A(7). The requirements that the decision of the High Court involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal are cumulative, although they may overlap.

8. In particular, the parties rely on Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 and Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231. The judgments of Holland J. in Monkstown Road Residents Association v. An Bord Pleanála (No. 2) [2023] IEHC 9 and Humphreys J. in Massey v. An Bord Pleanála (No. 4) [2025] IEHC 309 were also relied on by the Commission. At para. 9 of Monkstown Road, Holland

J. held:

“• the High Court's decision in most cases is to be final and not appealable — such that the jurisdiction to certify for an appeal should be exercised sparingly.

• the appeal, to be certified, must invoke a point of law of exceptional public importance.

• for the appeal to be certified, it must be desirable in the public interest that the appeal be taken.”

9. The Applicant accepts that “The point of law must be one which is actually determinative of the proceedings and not one which, if answered differently, would leave the result of the case unchanged.”: Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022]

IEHC 231 at §32; Monkstown Road, at §8(e); Massey v. An Bord Pleanála (No. 4) [2025] IEHC 309, at §6(i)(d).

10. The Commission submits that the point which the Applicant seeks to have certified would invite a “discursive, roving, write-an-essay” type response, but this is disputed by the Applicant, who accepts the principle that a point of that nature should not be certified:

Hellfire Massey Residents Association v. An Bord Pleanála [2021] IEHC 636 at §6(i);

Monkstown Road (No. 2) at §8(f).

11. The fact that an appellate court has not considered a particular issue does not mean that it should be considered to be a point of exceptional public importance: Maguire & Ors v. An Bord Pleanála [2023] IEHC 209, at §§16 and 19; McMonagail v. Ireland & Ors [2023] IEHC 487, at §27, Carrownagowan Concern Group v. An Bord [2024] IEHC 549, at §93(vi).

12. It is clear from the authorities, including Monkstown Road and Massey (No. 4), and agreed by the parties that the judgment in respect of which an application for a certificate is made must be read correctly, and that uncertainty cannot be imputed simply by raising a question as to a point of law. Raising an argument on the proposed point of law which the court has rejected does not mean that the law is uncertain. The uncertainty must arise over and above this, for example, in the daily operation of the law in question. (Monkstown Road (§ 8(o)).

The Applicant contends that uncertainty arises as to whether the test for abandonment of residential use is objective or subjective.

Are the criteria for the grant of a certificate met?

13. The Applicant submits that clarification by the Court of Appeal is required in respect of the test to be applied for determining whether planning use has been abandoned, particularly residential use. It is agreed that that question is a question of fact and law. The Applicant states:

“In essence these points seek clarity from the Court of Appeal as to whether or not disused and derelict dwellings may be re-roofed, renovated and reoccupied on foot of an historical residential use. This issue is of exceptional public importance as there is uncertainty arising from the Court’s judgment as to what the planning status of derelict dwellings now is and/or whether or at what stage of dereliction they might be reoccupied without planning permission for the resumed use.”

14. It is also submitted by the Applicant that the issues sought to be raised on appeal are of general importance as they relate to “the manner in which planning authorities are bound to consider the issue of use of derelict dwellings when determining an application for either prospective or retrospective consent for works.” Separately, it is submitted that the issues relate to the way in which applications for renovation of derelict/ ruinous buildings are to be considered. These are the grounds on which the Applicant contends that an appeal to the Court of Appeal is in the public interest.

15. The questions which the Applicant seeks to have certified relate primarily to Core Ground

2. The Applicant pleads, inter alia, that the Respondent failed to consider that there was unauthorised residential use and that “The Respondent has erred in law in approaching the retention planning 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 to the contrary.” The Applicant submits that the Respondent “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.”

16. The Applicant appears to be under a misapprehension that his view as to the condition of the house was required to be accepted both by the Respondent, and by this court in determining the application for a certificate. As noted in the principal judgment, whilst the submissions were made on the basis that this was a dwarf-walled house, and analogy was made with famine houses, that was not borne out by the material before the Respondent, which included correspondence between the Notice Party’s planning advisors and the Council and the planning history of the site.

17. The Inspector noted the Applicant’s contention that residential use had been abandoned and referred to the planning report dated 13th September 2022 which recommended that the Notice Party be invited to regularise all unauthorised development on the site – no reference was made to unauthorised residential use. The second planning report, dated 16th November 2022, noted, having reviewed the planning history and further information that no evidence indicated that the structure is not a dwelling. The Inspector noted that there was no evidence to suggest that the building had been used for any purpose other than residential. He concluded that the building was a house, that its use did not require a planning application to re-establish residential use and that the grant of permission was in accordance with proper planning and sustainable development of the area. The Order dated 5th December 2023 referred to the previous use of the building and considered that the proposed development would be in accordance with the proper planning and development of the area.

18. It was not in dispute at the hearing that if residential use has been abandoned, permission would be required for the resumption of residential use. This is not a question which needs to be resolved to determine the issues arising in the proceedings, nor is it a point of law arising from the judgment. However, there is a difference in law between a use not being exercised and the abandonment of use – that is clear from the authorities including Dromaprop Ltd. v. Leitrim County Council [2024] IEHC 234, Dublin County Council v.

Tallaght Block. In Tallaght Block, both Costello J. (as he then was) [1982] I.L.R.M. 534, and Hederman J. in the Supreme Court [1983] IESC 7 quoted the following statement from the headnote for Hartley v. Minister for Housing and Local Government [1970] 1 Q.B. 413:

“Where a previous use of land had been not merely suspended for a temporary and determined period, but had ceased for a considerable time, with no evinced intention of resuming it at any particular time, the Tribunal of fact was entitled to find that the previous use had been abandoned, so that when it was resumed the resumption constituted a material change of use.” (emphasis added)

19. Points 2, 3 and 4 are linked and go to the question as to how the abandonment of residential use is established. The crux of the question is contained at §12 of the Applicant’s submissions on this application. The Applicant submits that whether or not a particular use has been abandoned is a question of fact and law, and he submits that “in the case of a derelict/ruinous property the position is ambiguous, with the ruling of this Honorable Court seeming to favour a subjective test in the context of establishing the facts of any abandonment of use. There is a line of authority in relation to abandonment of use that says the test to be carried out in relation to use is an objective one.”

20. The Applicant’s submissions pose eight questions relating to the indicia and need for proof of abandonment at §§ 19 and 20, followed by the question “Absent such proof of abandonment must a planning authority receive any application for permission for a disused, derelict roofless structure and determine it on the basis that the residential use is established?” (§20). The Applicant points to specific factual matters and asks, “Is every derelict building presumed to retain a residential use unless an intention to abandon can be definitively established?”

21. The Applicant contends that the fact that an appellate court has not ruled on when residential use can be deemed abandoned demonstrates that it is appropriate to grant a certificate in this case. It is contended that the principal judgment is suggestive of a subjective test and that there is a divergence in the authorities, particularly the principal judgment, Dromaprop and Jessup on the one hand and Frank Harrington, Tallaght Block and Westmeath County Council v. Quirke on the other, as to whether the test for intention to abandon use is objective or subjective.

22. As noted above, the fact that an appellate court has not ruled on this issue does not mean that it raises a point of law of exceptional public importance, nor does it indicate that an appeal is in the public interest.

23. The questions posed are predicated on the acceptance of the Applicant’s submissions regarding the condition of the house. I accept the submission made by the Respondent, that the effect of what the Applicant seeks is a merits-based appeal from the judgment. At §28 of the principal judgment, I found that the Applicant’s complaint was essentially a meritsbased complaint, and that the Respondent had before it sufficient evidence to support the

conclusion of a pre-existing residential use. The evidence before the Respondent included material placed before it or the Planning Authority by the Applicant and Notice Party, previous correspondence with the Planning Authority and the planning file, which included the enforcement notice served in 2021 and information as to the condition of property. The material before the Respondent was not confined to evidence of a subjective intention on the part of the Notice Party.

24. The Applicant submits that the principal judgment suggests that a subjective test for abandonment applies and that a subjective test is inconsistent with a line of authorities which says that the test is objective. To suggest that there is a divergence in the authorities as to whether a subjective and objective intention is required is overly simplistic (nor had this been argued at the substantive application) – what is required is a demonstrated or evinced intention to abandon. Intention to abandon can be inferred by acts or statements on the part of the owner of lands, and by the non-exercise of the particular use. Neither Jessup,

Dromaprop, nor the principal judgment, suggest that in the absence of a subjective or explicit intention to abandon, use is not abandoned. Nor do they allow for a subjective intention which is not reasonably evident from surrounding circumstances. Whilst reference is made to the ‘reasonable man’ in Westmeath County Council v. Quirke, that referred to how the lands were being used. The difficulty for the Applicant is that he has reached a

conclusion based on the facts as he sees them and appears to regard the principal judgment as applying a subjective test because it did not accord with his own subjective view of the facts. I held, in the principal judgment, that there was sufficient material before the Respondent to support the finding that a planning application was not required for the reestablishment of residential use of the dwelling house. The suggestion that the principal judgment applied a subjective test for abandonment is not representative of the findings made. In particular, in upholding the Respondent’s decision, factors including the information regarding the condition of the premises and the planning history, which the enforcement notice and correspondence from the Planning Authority (§32) were considered.

At § 37, reliance was also placed on the fact that repeated applications for permission had been made by the Notice Party to renovate or extend the property and I considered that to be indicative of an intention to maintain rather than abandon residential use. The absence of evidence to support the Applicant’s contention that residential use had been replaced by “agricultural / abandoned derelict building” was also noted.

25. In Tallaght Block, the Supreme Court was bound by the finding of the High Court that from 1965 – 1973 no manufacturing of concrete blocks or similar activity had been carried out on the appellant’s lands. Costello J. found, in relation to Areas B and C:

“It is absolutely clear (and the significance of this finding I will develop later) that by the middle of 1965 the Firhouse Concrete Co and its liquidator had abandoned the manufacture of concrete blocks on the site. Mr Galvin [director of the Tallaght Block Company who had acquired all of its equipment from the Firhouse Concrete Co.] had no intention then of acquiring this site as he was carrying on business elsewhere and the evidence establishes that the manufacture of concrete blocks on this site ceased.

Some time later the owner of the site granted an option over it to John Sisk and Co Ltd for the purpose of erecting a large factory to manufacture pre-cast concrete units for the construction of multi-storey buildings but nothing came of this proposal ….”

(emphasis added)

26. The Applicant also relies on Frank Harrington Ltd v. An Bord Pleanála [2010] IEHC 428, in which case, Hedigan J. held that the Board can and should take account of all relevant factors known to exist within the context of an application made, including the planning history of the site. (§7.7) The issue of abandonment of use was not considered by Hedigan J.. As Hedigan J. stated, the Board “was not acting as a deciding body on whether or not the quarry was unauthorised so much as recognising an apparently evident reality i.e. the quarry was post 1964 and no planning permission existed for it.” The use of the lands as a quarry had commenced after the coming into force of the Local Government (Planning and Development) Act, 1963. (§7.6) The applicant failed in its challenge to the Board’s finding that the use was unauthorised, as there was ample evidence, including from the applicant, that the use commenced after 1st October 1964.

27. The question posed by Budd J. in Westmeath County Council v. Quirke 1998 WHSC-HC 13134, on which the Applicant relies, demonstrates an alternative use at the site of the quarry. He asked “Would a reasonable man in the early 1980's looking at the converted cattle shed or farm supply store in the disused looking quarry at Coolatoor have concluded that the quarrying and the limestone production had been abandoned?” (emphasis added).

Budd J. concluded that “While I accept that an existing user is a hardy beast, nevertheless, I think that the existing user was superseded by the implementation of the Roadstone planning permission for a ground limestone plant as this involved the use of the quarry as an entity for the extraction of rock and the process of crushing and storage. This ceased in 1971.” As Budd J. found, Roadstone had removed its machinery when it ceased to use the lands for the production of ground limestone in 1971 and the lands were then used for the storage of trailers and general farm machinery up to 1981 when the shed became a cattlefeeding shed for a number of years. The shed was used from 1985 to 1987 as a store for Coolatoor Farm Supplies. Although others, including local farmers, took an occasional load of stone from the floor of the quarry, they did not carry out any blasting. It was on that basis that he found that the use of the site for quarrying had been abandoned.

28. In Jessup, Edwards J. considered Tallaght Block and held that every case of alleged abandonment will depend on its own facts. The judgment of Edwards J. does not purport to alter the test which had been accepted in Tallaght Block. He held that for residential use, a much longer period of non-use will be required to justify the inference that the owner or owners of a dwelling house intended to abandon, as opposed to suspend, the former use, than for a business premises. He accepted that there was evidence of the suspension of residential use for a considerable period of time, as well as evidence that the owner had no personal need to use the property as a residence and that the property had fallen into some disrepair. It was held that these factors were not inconsistent with a possible continuing desire on his part to maintain residential use and that it could not be inferred that the owner intended to abandon that use.

29. I am satisfied that the authorities can, and therefore, must be read in a cohesive manner, and that what is required is “evinced intention” to abandon a particular use. That may be inferred from all known facts. The authorities relied upon by the Applicant do not support the contention that the test is purely objective and that subjective intention may not be considered in determining whether a particular use has been abandoned or retained. The finding of the Court of Appeal (England and Wales) in Hartley was approved by the High Court and Supreme Court in Tallaght Block (see §18 above). Insofar as that court indicated how abandonment is to be ascertained, it is clear therefrom, that the existence of “evinced intention of resuming it at any particular time” is a relevant matter.

30. The assessment of whether or not there was intention to abandon use requires consideration of such subjective and objective evidence as is available for the purposes of ascertaining whether intention to abandon the use has been demonstrated or evinced. That is not to say that an expressed subjective intention must be accepted in the teeth of objective information which undermines it. In Tallaght Block and Westmeath County Council v. Quirke, there was evidence of the lands being put to an alternative use after the cessation of the use of those lands as a quarry, but no such evidence existed in Jessup or the instant case. In Dromaprop, Humphreys J. held that “given that abandonment is a definitive legal act with huge consequences in planning terms, it cannot automatically be inferred merely from non-user or disrepair.” That is not inconsistent with Tallaght Block or Westmeath County Council v.

Quirke.

31. The only authority relied upon by the Applicant in relation to how abandonment of use should be assessed at the substantive hearing was Jessup, which the Applicant sought to distinguish. The Applicant now contends that Jessup is inconsistent with the authorities including Tallaght Block and Westmeath County Council v. Quirke. Frank Harrington was

relied upon by the Applicant at the substantive hearing in submitting that planning history of the site should be considered in relation to use.

32. In this case, the Inspector considered that the building was a house and that as such, despite its poor state of repair, the use of the house did not require a planning application to reestablish residential use. The planning history of the site was also considered. The Inspector had regard to the enforcement notice which had been served in 2021 in respect of works to repair the house and alleged authorised use for short-term letting. The application for permission which led to the impugned decision related only to retention of works, and the Notice Party did not seek permission to change the use to short-term letting, which use has ceased. None of the applications had sought permission for a change of use from residential (which the Applicant accepts was the original use), nor did the Planning Authority make any

decision which was indicative of residential use having been abandoned or replaced by another use. The Inspector found that the use of the house did not require a planning application to re-establish residential use, thereby accepting that residential use had continued. In following the Inspector’s recommendation, the Respondent found that, having regard to matters including the previous use of the building, the development proposed to be retained was in accordance with the proper planning and sustainable development of the area and should be permitted.

33. In support of the application for a certificate, counsel for the Applicant submitted that it is impossible to know whether planning permission would be required for a change of use to resume residential use in respect of a deserted village in Achill. Whilst this was undoubtedly a rhetorical question, it is clearly not one which requires to be answered to determine the issues raised in these proceedings and is not one which could be answered in the abstract, as is clear from the authorities which acknowledge that the facts of each particular case are pertinent.

34. I am satisfied that it is possible to read the caselaw in a coherent manner and that the divergence in the authorities which the Applicant asserts exists is not present. The authorities are clear – whether a particular use has been abandoned depends on the facts of each case:

Jessup; Hartley v. Minister for Housing, which was applied in Tallaght Block; Westmeath County Council v. Quirke).

35. The matters which may legitimately be taken into account in determining whether a particular use has been abandoned include the planning history of the site (by analogy, Frank Harrington), and whether the site has been used, as a matter of fact, for an alternative use or purpose (Tallaght Block; Westmeath County Council v. Quirke) and inferences may be drawn from disrepair (Dromaprop, Jessup). In Dromaprop Humphreys J. described the relevant question as being whether “something unequivocal happens by way of definitive abandonment in the legal sense of the use, surpassing mere neglect and non-operation”.

This includes an intention to abandon the use (Dromaprop §§30-32; Hartley p.419) and/or evidence of there being no intention to resume the use (Tallaght Block p.540, quoting with approval Hartley p.420).

36. If a reasonable man might conclude from an extended period of non-use that the previous use had been abandoned, the decisionmaker may find that use to have been abandoned (Hartley p.420, as cited with approval in Quirke pages 98-99). The length of time in respect of which there has been non-user is relevant to judging whether an inference of abandonment should be drawn (Hartley p.420, quoted with approval in Tallaght Block p.540). This does not amount to a purely objective test, but rather demonstrates that the length of time of non-user may give rise to an inference that the use has been abandoned. In considering that, regard is to be had to the view of the reasonable man: Quirke. The length of time in respect of which non-user would need to be shown to prove abandonment is longer in the case of a residential premises than in the case of a commercial premises (Jessup §6.5).

37. In effect, the Applicant’s argument strives to identify a contradiction or divergence in the authorities rather than seeking to fit them together, which is the required approach: Massey v. An Bord Pleanála (No. 4) [2025] IEHC 309 (§17 et seq). I am not satisfied that the authorities demonstrate a divergence of approach in respect of abandonment of use, or that the principal judgment is inconsistent with the judgments of the Supreme Court in Tallaght Block, or the High Court in Westmeath County Council v. Quirke or Frank Harrington Ltd..

38. The Applicant contends section 4(1)(h) of the 2000 Act would allow significant works to be carried out on derelict houses around the State without the need for planning permission, which he contends is not the intention of the Oireachtas. However, that exemption does not obviate the need to obtain planning permission for the resumption of an abandoned use or

to commence a new use. I do not consider that this provision assists the Applicant in demonstrating that a certificate should be granted in this case.

Conclusion and proposed orders

39. For the reasons set out above, I refuse the application for a certificate for leave to appeal.

40. As the Applicant has not succeeded in obtaining relief, or this application, and it has been agreed that costs protection under section 50B of the 2000 Act applies to the proceedings, I propose making no order for costs. Should either party wish to contend that a different order as to costs is appropriate, short written submissions should be filed within two weeks in support of an application for costs.

Emily Farrell