About this case:

• Citation:
  [2024] IEHC 633
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Nolan

Delivering judgment for the High Court, Mr Justice David Nolan observed that “the overriding principle behind any remedy in civil proceedings should be to attempt, in as clinical a way as is possible, to undo the consequences of any wrongful or invalid act but to go no further”.

Background

On 29 January 2021, the applicant lodged an application with the respondent for a strategic housing development consisting of the construction of 1,005 residential units in three to 45 storey blocks in the North Wall area of Dublin 1.

Nonetheless, the respondent refused permission on 20 May 2021 on the basis that it was precluded from doing so based on Dublin City Council v An Bord Pleanála and Spencer Place Development Company Ltd (Notice Party) [2020] IEHC 557 in which the High Court held that the respondent did not have the jurisdiction to grant permission for a development that materially contravened the North Lotts Planning Scheme. The applicant appealed that decision.

The respondent’s decision noted that at a meeting on 18 May 2021, the respondent considered its inspector’s report and it was accepted and agreed that although the proposed development materially contravened the ‘North Lotts & Grand Canal Dock SDZ Planning Scheme – 2014’ in respect of height and density, the strategic and national importance of the development for housing and national policy satisfied it that the proposed development would fulfil s.37(2)(b) of the Planning and Development Act 2000 (as amended).

The decision also recorded that the respondent’s agreement with the inspector that any outstanding issues could be addressed by way of oral hearing to ensure that adequate information was available to meet its obligations in respect of the Urban Development and Building Height, Guidelines for Planning Authorities, 2018, but that permission would be refused in light of the High Court’s judgment.

The applicant was granted leave to bring judicial review proceedings on 12 July 2021. The judicial review proceedings were adjourned to await delivery of the Court of Appeal’s judgment in Spencer Place. The Court of Appeal overturned the judgment in Spencer Place Development Company Ltd (Notice Party) & Ors [2023] IECA 155. Leave to appeal to the Supreme Court was refused on 7 February 2024.

In light of the Court of Appeal’s judgment, the parties agreed that the respondent’s decision should be quashed and remitted to the respondent for reconsideration, but could not agree as to the appropriate order.

Submissions

The applicant submitted that the matter should be remitted to the respondent at the point in the respondent’s meeting on 18 May 2021 where it accepted and agreed with its inspector’s recommendation to hold an oral hearing, in light of, inter alia, Crofton v An Bord Pleanála [2024] IESC 12, as the only aspect of the decision-making process that was invalid was the respondent’s conclusion that it could not grant permission.

The respondent acknowledged that an order of certiorari had been agreed between the parties quashing the decision to refuse planning permission simpliciter, the effect of which would remit the matter to the respondent to be determined in accordance with law.

The respondent suggested that what the applicant actually desired was an order directing an oral hearing, which would decide the process and pre-empt the substantial discussion and the decision-making functions of the respondent in a manner inconsistent with the framework established by s.50A(9) of the 2000 Act and the analysis in Crofton.

It was also submitted the court did not have jurisdiction to make the orders sought as matters had changed in that the respondent’s board was now differently composed, and the development plan and planning scheme had also changed.

The High Court

The court agreed that pursuant to s.134(1) of the 2000 Act it did not have the power to direct an oral hearing, but that it was not the court’s understanding that this was what the applicant sought. Rather, the court understood that the applicant sought to send the matter back to a point at which the respondent could still decline to direct an oral hearing.

Mr Justice Nolan noted s.50A(9) of the 2000 Act which requires the court, having quashed a decision or act to which s.50(2) applies, to remit an application to the respondent for reconsideration if requested to do so subject to such directions as the court considers appropriate, unless to do so would be unlawful.

The court considered the type of directions it had jurisdiction to make following the decision of the Supreme Court in Crofton, which quoted extensively from Barna Wind Action Group v An Bord Pleanála [2020] IEHC 177 which determined inter alia that in considering remittal, the court should aim to undo the consequences of any wrongful or invalid act but should go no further, and that where the process undertaken by the respondent has been conducted in a regular and lawful manner up to a certain point, active consideration should be given by the court as to whether there was any good reason to start the process from the outset again.

Mr Justice Nolan was persuaded by the views of former Chief Justice Frank Clarke in Tristor Limited v The Minister for the Environment, Heritage and Local Government, & Ors [2012] IEHC and Christian v Dublin City Council [2012] IEHC 309 which proposed that the overriding principle ought to be that the court should do its best to ensure that parties do not inappropriately suffer or gain by reason of invalid decision-making, and insofar as possible on the facts and within the statutory framework, the situation should be returned to where it would have been had the invalid decision not taken place.

Acknowledging that the Supreme Court in Crofton noted that it would not be appropriate to give “bespoke directions”, Mr Justice Nolan observed that the Supreme Court did acknowledge that in certain occasions such directions could be appropriate.

The court found that the matter before it was one of those occasions, and that to send the matter back to the point in time just before the respondent refused planning permission would not be in any way contrary to statute or the decision in Crofton, nor would this be micromanaging the process as contended by the respondent.

The court did not accept that it lacked jurisdiction to make the order sought, nor that the order sought would fetter the respondent’s decision-making process.

Conclusion

In light of its views, the High Court invited the parties to make submissions on the precise order to be made.

Waterside Block 9 Developments Ltd v. An Bord Pleanála [2024] IEHC 633