The Supreme Court has dismissed an appeal concerning the High Court’s power to send quashed planning applications back to An Bord Pleanála for reconsideration.
The appeal has important implications for the work of the planning authority, and the court heard its decision could affect the outcomes of 53 first-time planning applications made under the now-expired strategic housing development (SHD) process that are yet to be determined.
Some 10 other court cases were also awaiting Wednesday’s judgment.
The five-judge court unanimously agreed to dismiss the appeal against the High Court’s decision to allow the board to reconsider an SHD planning application for 102 rental homes in Dún Laoghaire, Co Dublin.
However, the judges varied the High Court’s order by deleting directions setting out how An Bord Pleanála should deal with the application. The court said it is not necessary or appropriate for the court to make very specific directions to the board aimed at rendering the reconsideration process “fair”, as it “must be presumed that the board will act fairly”.
The proposed development by Noel Smyth’s Fitzwilliam Ltd is for apartments up to 13 storeys high on the grounds of St Michael’s Hospital, Crofton Road.
An Bord Pleanála’s April 2021 approval of the project was challenged in the High Court by Crofton Buildings Management CLG, manager of a neighbouring apartment complex, and neighbour Stephanie Bourke.
The board conceded in the proceedings, accepting its permission must be quashed because it had failed to apply a required provision to the extent the decision materially contravened height objectives in the 2016 Dún Laoghaire-Rathdown development plan.
After the concession, the parties argued over whether the court should simply overturn the permission (meaning the developer would have to restart the planning process) or remit, or return, the application to the board for fresh consideration.
By the time the application for remittal was heard, the 2016 Dún Laoghaire-Rathdown development plan had been replaced with a 2022 version, while a new regime for large-scale residential development (LRD) had superseded the fast-track SHD procedure.
Remittal, as preferred by Fitzwilliam and the board, would allow the application to be preserved for decision under the SHD scheme. If quashed simpliciter, as the challengers sought, the developer would have to make a new application, under the LRD process, which would be decided first by the local council.
In remitting the application, the High Court’s Mr Justice David Holland directed the board to have regard to the 2022 development plan and to hold an oral hearing to achieve fair procedures.
In a decision for the court, Ms Justice Aileen Donnelly said the planning code contains a specific statutory provision for High Court remittal following an order quashing a planning decision or act. The provision provides that the court “shall” remit the matter unless it considers it would be unlawful to do so.
The appellants submitted that remittal here was unlawful because the development plan had changed and there were limitations to the board’s powers for dealing with SHD applications.
This means the High Court will only refuse remittal in rare and exceptional cases, she said. Here, the court had to accede to the developer’s request for remittal because doing so was not unlawful, she said.
When agreeing to hear the appeal, the Supreme Court noted the question of which development plan should govern a remitted decision was of considerable importance, as the development plans of several local authorities have changed.
However, Ms Justice Donnelly said there was no real dispute during the hearing that the board is required to refer to the development plan that is in force at the time it makes its decision.
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