Court of Appeal upholds High Court decision on An Bord Pleanála’s refusal to grant persmission
The Irish Times has reported that Narconon “acquired the former old Ballivor National School to turn into a drug rehabilitation facility. The Court of Appeal has upheld a decision which means a €9 million residential drug rehabilitation center linked to the Church of Scientology can go ahead”.
The article explains that the court upheld a decision last year of the High Court that An Bord Pleanála was incorrect in deciding that the facility at Ballivor, Co Meath, requires planning permission.
The Narconon Trust, which is behind the plan, sought judicial review after the board decided in November 2018 that a change of use from a permitted nursing home to a residential drug rehabilitation facility was not exempt from development, the Irish Times published.
Planning permission had been granted in 2014 for a nursing home at the site of the former old Ballivor National School but the nursing home was not built.
The site was acquired in 2016 by Narconon Trust, registered in Sussex, England, which is linked to the Church of Scientology and supports drug rehabilitation charities as part of its mission.
The trust was founded by Massimo Angius, a trustee and director of the Church of Scientology in England for more than 20 years. It has about 40 drug rehab facilities around the world and has spent some €9 million to date on purchasing and constructing the Ballivor facility.
It bought the site after getting a declaration from Meath County Council in 2016 that the proposed change of use from a nursing home to a residential drug rehabilitation facility is exempt development.
In February 2018, Ballivor Community Group (BCG) and Trim Municipal District Council (TMDC) sought declarations from the Meath Council concerning whether the proposed facility was exempted from development.
The council then referred the matter to An Bord Pleanála, which in November 2018 made the disputed decision that permission was required.
In the High Court, the trust argued the board was precluded from deciding the referrals in circumstances where, under planning law, the county council had already made such a determination and where there had been no change in the situation when the matter came before the board.
The board, against which the case was brought, denied those claims. BCG and TMDC were notice parties.
The High Court upheld the trust’s arguments.
The High Court also certified a question for an appeal to the CoA of whether it was outside the power of the board to determine a referral to it in circumstances where a council had previously determined the same or substantially the same question and where there had been no change in the planning facts.
The three-judge Court of Appeal on Wednesday found the board was precluded from determining a referral in those circumstances.
Ms. Justice Caroline Costello, in the main judgment, said the board had the jurisdiction to receive the referral and to commence its determination.
However, once it became apparent that the question referred was the same or substantially the same without a change in circumstances, the board ought to have concluded that the referral by the BCG and TMDC amounted to an impermissible attack on the decision of the council in 2016.
This, in substance, amounted to questioning the validity of the council declaration other than by the way provided for under the Planning and Development Act 2000.
For the board to proceed further to determine the referral on the merits amounted to facilitating a breach of section 50(2) of that Act and was, accordingly, outside its power, she said.
The High Court correctly interpreted the provisions of the 2000 Act and applied the provisions to the facts in this case.
In a concurring judgment, Mr. Justice Maurice Collins agreed that under the Act the board was precluded from entertaining the questions referred to it. Doing so necessarily involved questioning the validity and effectiveness of the council’s decision that it was exempt, he said.
Mr. Justice Seamus Woulfe agreed with his colleagues.