About this case:

• Citation:
  [2024] IESC 12
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Aileen Donnelly

Delivering judgment for the Supreme Court, Ms Justice Aileen Donnelly opined that “the Oireachtas sought to bring about a change which would place these matters back in the planning arena as soon as possible after the quashing of a planning decision/act if requested by the applicant for permission/approval. The only restriction on doing so is where it would not be possible for the Board to come to a lawful decision; that is a very high threshold to reach.”

Background

On 28 April 2021, the notice party developer was granted planning permission by the respondent for the demolition of a two-storey building and the construction of 102 build-to-rent apartments in two buildings, certain residential amenities and a café on a site in Dun Laoghaire. The application was made under the strategic housing development (SHD) procedure pursuant to s.4 of the Planning and Development (Housing) and Residential Tenancies Act 2016.

The appellants, a management company for an adjacent residential development and an owner of an apartment in that development, objected to the application and sought to quash the grant of permission on the basis that same was granted in material contravention of the objectives of the Dún Laoghaire-Rathdown Development Plan 2016-2022 relating to building height.

The respondent conceded on that ground and the developer agreed that the decision should be quashed for that reason. By that stage, the 2016 plan had been replaced with a 2022–2028 development plan, with the SHD procedure also having been replaced with the large-scale residential development procedure pursuant to the Planning and Development (Amendment) (Large-scale Residential Development) Act 2021. The 2021 Act restored the two-stage planning process whereby a first instance decision would be made by the planning authority with a subsequent right of appeal to the respondent.

The developer sought the remittal of the matter to the respondent for reconsideration, allowing the planning application to be preserved as a SHD application, whilst the appellants argued that the matter should not be remitted, which would result in the developer having to make a fresh planning application which would not be a SHD application.

The High Court

Following the making of an order of certiorari on consent, the High Court ordered that the matter be remitted to the respondent with specific directions as to the conduct of their reconsideration.

Leave to appeal to the Supreme Court was subsequently granted on the basis that the case raised issues of general public importance on the scope of the court’s remittal power under O.84, r.20(7) of the Rules of the Superior Courts which gives the court discretion as to whether to remit a matter, and s.50A(9A) of the Planning and Development Act 2000 which obliges the court to remit a matter to planning authority, local authority or the respondent for reconsideration if requested, unless it would not be lawful to do so.

The court also asked the parties to consider the question of which development plan should govern any remitted decision.

The Supreme Court

Ms Justice Donnelly recognised at the outset that there had been “no real contest” as to the correct legal position, being that the development plan applicable to the planning decision is the plan that was in effect on the day that the decision was made: “This certainly accords with a general principle of administrative law, that in terms of administrative decisions the decision must give effect to the law at the date of the administrative decision.”

Considering the principles of statutory interpretation enshrined in Heather Hill Management Company v An Bord Pleanála [2022] 2 ILRM 313, the judge noted that “the starting point is the words of the statute which must be given their ordinary and natural meaning, but the words must also be viewed in context”.

Recognising that, prior to the enactment of s.50A(9A), “remittal was discretionary but now it is mandatory”, the judge found that this accorded with the legislative intention that this is an entirely new statutory scheme in an area that was previously covered by the Rules, inherent jurisdiction and case law. The court pointed out: “Central to interpreting the extent of the change is the interpretation of what is meant by lawful or more properly, not lawful as set out in the subsection.”

Ms Justice Donnelly observed that “the Oireachtas sought to bring about a change which would place these matters back in the planning arena as soon as possible after the quashing of a planning decision/act if requested by the applicant for permission/approval. The only restriction on doing so is where it would not be possible for the Board to come to a lawful decision; that is a very high threshold to reach.”

The court highlighted that the “occasions on which the High Court will refuse remittal under s. 50A(9A) will therefore be rare and exceptional; when it is not lawful for the planning authority/Board to reconsider the application”, referring to an example of such a situation as that in Redmond v An Bord Pleanála (No. 2) [2020] IEHC 322, in which Mr Justice Garrett Simons refused to remit an SHD application to the respondent where the planning application was fatally flawed from the outset and those deficiencies were not capable of being remedied by the form of remittal sought by the developer.

The judge also note: “The High Court may give appropriate directions on remittal but the appropriateness of giving directions may not arise in most cases bearing in mind the Board’s powers and duties under the planning code to act within vires and fairly in reaching its decisions.”

Conclusion

Finding that remittal “is now the default position in planning cases; refusal to remit is now limited to the situation where the Court is satisfied that it would not be lawful to do so”, the Supreme Court dismissed the appeal but varied the High Court’s order to remove the directions upon which the remittal was ordered, with the matter being remitted to the respondent for reconsideration simpliciter.

Crofton Buildings Management CLG & Anor v. An Bord Pleanála [2024] IESC 12