Sections 160 PDA 2000/351 PDA 2024

A Declaratory Jurisdiction?

This is the second and last post (so far as I know!) which will draw from the recent decision of the High Court in Malone and McAvoy v Laois CC and An Bord Pleanála [2025] IEHC 345 (23 June). The first, published on 9 July, looked at s160 of the Planning and Development Act 2000 (“PDA 2000”) and the rule against collateral challenge.

The judgment in Malone refers to the question as to whether or not there is a declaratory jurisdiction under s160 PDA 2000. This post looks at that question, reviews the relevant caselaw (in part for paid subscribers only) and offers a conclusion. The issues discussed will remain relevant when s351 of the Planning and Development Act 2024 (“PDA 2024”) is commenced, replacing s160 PDA 2000, expected towards the end of this year or early next. Paragraph references below (§) are to Malone unless otherwise stated.

The Facts

Two lay litigants sought injunctions pursuant to s160 PDA 2000 restraining what they alleged to be unauthorised quarry development on lands at Ballymullen, Abbeyleix in the south of Co Laois between Portlaoise and Kilkenny towns (§1). Declaratory relief and reference to the CJEU was also sought in respect of various alleged breaches of EU law (mostly relating to EIA) by the Planning Authority and what is now An Coimisiún Pleanála (§2 and see §§6 and 12). Permissions were alleged to be defective because of the breaches. The applicants alleged that the development was thereby unauthorised and within the purview of s160 (§2). The time limits for Judicial Review had long since expired and it was not sought (§3). The Respondents sought orders striking out the proceedings as bound to fail (§4 and §8 - 10).

Section 160

In so far as is relevant for this post, s160 PDA 2000 provides that;

“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court...may, on the application of a planning authority or any other person...by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary ad specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued

(b) …that any land is restored

The equivalent terms of s351 PDA 2024 are substantially the same.

The Declaratory Jurisdiction

A Declaration is a remedy which the Court may grant in an appropriate case, like damages or an injunction. A Declaration is a statement by the Court of the legal position relevant to a particular case. It is sometimes sought by a party or can be made of the Court's own motion. Of itself, it does not compel or prevent any action by a party. A Declaration is often made where the Court and/or a party (perhaps all parties) know, or at least believe, that a declaration by the Court as to the legal position will be sufficient to resolve the issues before it.

Holland J Denies Section 160 Declaratory Jurisdiction

Having reviewed the cases of Wicklow CC v Fortune (No4) [2014] IEHC 267, Wicklow CC v Kinsella [2015] IEHC 229 and Meath CC v Murray [2017] IESC 25, Holland J stated that;

“In my view, whether one views it as implied in s160 or as deriving from the more general original jurisdiction of the High Court, and as the caselaw stands, there is jurisdiction in s160 proceedings to grant declarations. However, it appears to me that Fortune#4 compels only, and I would find only, a jurisdiction to declare whether a particular development is unauthorised – as that is the issue of legal status on which the exercise of a s160 jurisdiction is premised. It may be, but I need not decide, that there is a jurisdiction to make a declaration as to the applicability or otherwise of the 7-year time limit on the grant of s160 relief. But any wider declaratory jurisdiction is unnecessary to the purpose of s160 and would subvert what I consider to be the focussed nature of what [is] a special statutory original jurisdiction firmly based on what the Court is required by statute to address...” (§90, emphasis added)

“...a major objective of s160 is that planning control issues be dealt with as effectively, efficiently and expeditiously as possible [see McKechnie J in Meath CC v Murray [2018] 1 IR 189] That objective would be significantly jeopardised by recognition of any declaratory jurisdiction in s160 proceedings beyond declarations closely related to [the] focus and purpose of s160. It is not a Trojan horse for deployment in attack on wider strategic issues of planning or environmental law. Nor...is it an outflanking path around Thermopylae [a battle between the Persians and Greek city states in 480BC in which, famously, the Persians found a route around a contested strategic pass] for those legitimately shut out, by time limits or otherwise, from directly attacking the validity of planning decisions in judicial review.” (§91)

“s160 PDA 2000 provides a specific, focussed, circumscribed and (generally) summary procedure for the grant of what are colloquially but accurately called planning injunctions to restrain and/or remediate unauthorised development...[A]ny declaratory relief granted in s160 proceedings must be ancillary to that purpose...” (§177)

The Uncertain Position in Caselaw

Despite the clarity with which Holland J so severely limits any declaratory jurisdiction under s160, it is interesting that he caveats his conclusion “as the caselaw stands” (§90).

The Fortune litigation concerned application for an order under s160 requiring the demolition of a dwelling constructed without planning permission. In effect, the case pitted the integrity of the planning code against the inviolability of a home under the Constitution. Hogan J refused the application. After dealing with further matters and noting that the parties had reached a large measure of agreement, the only issue remaining in Fortune#4 was whether a formal declaration should be granted to the effect that the dwelling had been illegally constructed. The planning authority sought such a declaration. It was submitted on behalf of the homeowner that the court had no jurisdiction under s160 to grant same (Fortune#4 §§1 – 6).

Hogan J noted that s160 does not expressly refer to any declaratory jurisdiction in lieu of an injunction but said that “it has never been doubted but that the courts could make such a declaration in such circumstances.” He referred to injunctions and declarations as independent remedies developed by the Court of Chancery prior to the unification of the High Court in England and Wales in 1873 and in Ireland in 1877 (Fortune#4 §§8 – 9).

“In any event”, Hogan J held that “the declaration is simply an essential aspect of this Court's general and full original jurisdiction. After all, Article 34.3.1 of the Constitution provides that this Court shall have “a full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.” If this Court [can]not grant a declaration of right in an appropriate case, it is hard to see how this constitutional mandate...could properly be fulfilled...” (Fortune#4 §11).

Although the declaratory jurisdiction asserted by Hogan J was “free standing and independent” of s160 (§15) that fact is of limited practical consequence as, if it exists, the Court can exercise same of its own motion within s160 proceedings.

In short, the declaratory jurisdiction asserted by Hogan J as an adjunct to s160 proceedings in Fortune#4was without any of the limit described by Holland J in Malone.