Remittal and Directions to the Board

The extent to which the "walls" of the statutory process can be relocated “a little as fairness requires”

Paragraph references are to the Supreme Court judgment unless otherwise stated.

Crofton Buildings Management CLG and Stephanie Bourke v An Bord Pleanála [2024] IESC 12 (Donnelly J, 10 April 2024) was an appeal to the Supreme Court by the Applicants for Judicial Review from the decision of Holland J ([2022] IEHC 704) by which the Board permission (No 309098, 28 April 2021) for a 102 unit BTR SHD on Crofton Road in Dun Laoghaire was quashed by consent (see my Post of 24 November 2023). The Applicants are the management company for an adjacent residential development and an individual owner in that development.

The Facts

The Board conceded a challenge in respect of a failure to identify a material contravention of the relvant Development Plan in respect of building height.

The parties differed as to whether the planning application should be remitted and, if so, which development plan should apply on the remitted application. The Board decision had been based on the 2016 Development Plan which, by the time the case was heard in the High Court, had been replaced by the 2022 Development Plan (para 4).

The remittal issue was significant because if the application was remitted the SHD procedure would continue to apply. If merely quashed, the Developer would have been required to prepare a new application from scratch as a Large-scale Residential Development. Holland J remitted the application to the Board (against which decision the Applicants' appeal was primarily directed) for a fresh decision to be made on the basis of the 2022 Development Plan.

Holland J acknowledged that the problem with this course was that no submissions had been made in respect of the Proposed Development on the basis of the 2022 Development Plan.

In response to this difficulty (para 16), Holland J made Directions in order to ensure that all parties had opportunity to comment on the application in the light of the new Development Plan. As Holland J put it, the “walls” of the statutory process “can be relocated a little as fairness requires” ([2022] IEHC 704, para 193).

Leave was granted to the Applicants to appeal to the Court of Appeal ([2023] IEHC 240) and, upon their further application, to the Supreme Court ([2023] IESCDET 106).

The Issues

The Supreme Court described the issues before it as follows;

“(a) Can and should the matter be remitted to the Board (an issue necessitating consideration of the meaning and scope of s50A(9A)); and

(b) if so remitted, whether any directions should be given to the Board as to the manner in which the remitted application is to be determined.” (para 24).

Section 50A(9A) PDA 2000 provides that where a Court has quashed a decision, and upon the application of the Developer, it “shall...remit the matter...unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so.”

There was no appeal against the decision that the Development Plan effective at the time of the Board's decision should be the relevant Plan but this issue was raised by the Supreme Court in its grant of leave and in respect of which it received submissions (para 25).

Which Development Plan?

“There has been no real contest in the appeal as to the correct legal position being that the development plan applicable to the planning decision is the development plan that is in effect on the day that the decision is made.” (para 30)

All parties agreed that in non-SHD applications and in the absence of Irish authority, the general practice has always been that the relevant Development Plan is that effective at the time of a decision (para 26). There was no real dispute between parties that on remittal of a SHD decision the position is the same.

“The real dispute at the hearing was about the effect of such a requirement and whether there was a jurisdiction to remit where the matter would be decided under the new development plan.” (para 29)

A Discretion to Remit?

Section 50A(9A) is the first statutory provision requiring remittal upon certain conditions being met. Previously remittal was dealt with under the Rules of the Superior Courts (“RSC”) and/or within the inherent jurisdiction of the High Court (paras 31/2).

The parties were broadly agreed that s50A(9A) reflected existing case law (para 34).

By contrast, Donnelly J said that;

• the parties' reasoning on this point was “not entirely clear”

• the “statutory imperative to remit” was “highly significant”

• the parties' position should be “interrogated further” and the wording of s50A(9A) should be examined “in more detail”

(paras 34 - 36)

“It cannot be said that the statute [s50A(9A)] was a continuation of the principles apparent from the case law...[which, in the planning context] is [now] not relevant” (para 43).

Where a decision is quashed and upon the application of the Developer, “the court must remit unless there is a positive finding that it would not be lawful to remit.” (para 47). “The only restriction on [remittal] 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 occasions on which the High Court will refuse remittal under s50A(9A) will therefore be rare and exceptional.” (para 52/3 and see para 64)

Directions