Barford Holdings Ltd v Fingal County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 29 March 2023
• Neutral Citation: [2023] IEHC 161
• Court: High Court
• Docket Number: [Record No. 2020/616 JR]

Between:

Barford Holdings Limited

Applicant

and

Fingal County Council

Respondent

[2023] IEHC 161

[Record No. 2020/616 JR]

THE HIGH COURT

Planning permission – Extension – Remittal – Applicant seeking to quash the respondent’s decision refusing an extension of planning permission – Whether the Court of Appeal was properly exercising its jurisdiction to remit

Facts: The High Court (Phelan J), in her judgment delivered on the 26th of April, 2022 (the Judgment), indicated that she would quash the decision of the respondent, Fingal County Council, made on the 20th of July, 2020, refusing an extension of planning permission pursuant to s. 42(1)(a)(ii) of the Planning and Development Act 2000 (as amended) (the Decision), and would remit the matter for determination in accordance with law. Following the delivery of her Judgment, Phelan J invited the parties to make proposals with regard to the form of any consequential order. The terms initially agreed by the parties and proposed for ruling purported to require a determination of the remitted application pursuant to a statutory provision which had since been repealed and in accordance with the statutory and planning framework applicable at the time of the impugned Decision.

Held by Phelan J that, in line with the overriding principle behind any remedy in civil proceedings, she proposed, in as clinical a way as possible, undoing the consequences of the wrongful acts of the respondent as found in her Judgment but in a manner that ensured that any decision made upon remittal was in accordance with law at the time it was made. In doing so, she was mindful that the respondent’s position was that it would be able to make a decision compliant with Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, and Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, on remittal, subject to additional terms being added to the agreed remittal order.

Phelan J made the following orders: (i) an order of certiorari quashing the Decision; (ii) an order that the respondent’s Planning Register be corrected to reflect that the Decision had been quashed and remitted on terms to the respondent; (iii) an order remitting to the respondent the application made by the applicant, Barford Holdings Ltd, on the 29th of May, 2020 pursuant to s. 42(1)(a)(ii) to be determined in accordance with law; (iv) a declaration that s. 27 of the Interpretation Act 2005 operated to preserve the effect of s. 42(1)(a)(ii) of the 2000 Act, as it was as of the date of the Decision, for the purposes of the remitted application; (v) a direction that the remitted application was to be determined in accordance with the plans and guidance applicable as of the date on which a decision was made on the remitted application; (vi) a direction that the respondent was required to carry out a screening for Appropriate Assessment and a screening for Environmental Impact Assessment in respect of the remitted application, in accordance with the judgment of the Court of Justice of the European Union in Case C-254/19 Friends of the Irish Environment v An Bord Pleanála and s. 42(8) of the 2000 Act; (vii) a direction that the applicant shall, within one week of the date of this order, submit to the respondent further information for the purpose of enabling the respondent to carry out the assessments provided for in (vi) above and the date on which that information is submitted is the date on which the application is duly made within the meaning of s. 42(3)(a) of the 2000 Act; (viii) a direction that the respondent shall give notice of its decision on the application, including such further information as may have been submitted, in accordance with (vii) above on or before the 10th of May, 2023; (ix) a direction that the maximum period the respondent may extend the appropriate period of the permission shall be in accordance with s. 42(1) of the 2000 Act, viz. such additional period not exceeding five years (i.e. five calendar years and forty five days) as the respondent considers requisite to enable the development to which the permission relates to be completed, with such extended period to commence from the date of the respondent’s decision on the remitted application; (x) an order that the respondent pay the applicant’s costs of the proceedings to include reserve costs (if any), such costs to be adjudicated in default of agreement by the Office of the Legal Costs Adjudicator; and (xi) liberty to apply.

Application granted.

JUDGMENT (REMITTAL) Of Ms. Justice Siobhán Phelan delivered on the 29 ^th day of March, 2023.

INTRODUCTION

1 . These proceedings arose from a refusal to extend the duration of a planning permission pursuant to s. 42(1)(a)(ii)(II) of the Planning and Development Act, 2000 (as amended) [hereinafter “the PDA”]. In my judgment delivered on the 26 ^th of April, 2022 [hereinafter “the Judgment”]. I indicated that I would quash the Decision of Fingal County Council [hereinafter “the Council”] made on the 20 ^th of July, 2020 refusing an extension of planning permission pursuant to s. 42(1)(a)(ii) of the PDA [hereinafter “the Decision”] and would remit the matter for determination in accordance with law.

2 . Following the delivery of my Judgment I invited the parties to make proposals with regard to the form of any consequential order. The terms initially agreed by the parties and proposed for ruling purported to require a determination of the remitted application pursuant to a statutory provision which has since been repealed and in accordance with the statutory and planning framework applicable at the time of the impugned Decision.

3 . This judgment is concerned solely with the proper exercise of my jurisdiction to remit.

BACKGROUND

4 . As set out in my Judgment, the Applicant [hereinafter “the Developer”], is the owner of lands at Main Street / Coast Road, Baldoyle, Dublin 13 where the Baldoyle Racecourse was formerly located (the “Lands”). By Order dated the 20 ^th of April, 2015, An Bord Pleanála granted permission to the Applicant (ABP Ref. No. PL.06F.243832) (Reg. ref. F14A/0109) [the “Permission”] for the development of a retirement village and hotel and car park at the site of the Stands, Stables and Parade Ring of the former Baldoyle Racecourse, Main Street/Coast Road, Dublin 13 [the “Development”]. As of the date of the grant of the Permission, the Fingal County Development Plan 2017 – 2023 [the “2017 Development Plan”] applied. The 2017 Development Plan contained Specific Local Objective (SLO) 469, which applied to the Lands, and which objective is to “ provide for a public park and sensitively designed retirement village subject to screening under the Habitats Directive”. In accordance with the provisions of sections 40(3), 251 and 251A of the PDA, the Permission was due to expire on the 29 ^th of July, 2020.

5 . On the 29 ^th of May, 2020, the Developer made an application to the Council pursuant to s. 42(1)(a)(ii) to extend the life of the Permission to the 11 ^th of September, 2025 [the “Application”]. The Fingal Development Plan 2017 – 23 [the “2023 Development Plan”] was made by the Elected Members on the 16 ^th of February, 2017 and came into effect 4 weeks later, on the 16 ^th March, 2017. As of the date on which the Application was made, therefore, the 2023 Development Plan applied. The Local Area Plan was due to expire in 2018. However, it was extended for a further period of 5 years to the 11 ^th of May, 2023 by a resolution of the elected members of the Council made on the 12 ^th of March 2018. The elected members of the Council did not vote to remove SLO 469 from the Local Area Plan. Accordingly, while SLO 469 was not carried into the 2023 Development Plan, it continued to be included in the 2013 Local Area Plan (as extended).

6 . On the 20 ^th of July, 2020, the Council refused to extend the duration of the Permission and it was this decision which was the subject of challenge in these proceedings. No case was made during the original hearing that the intervening repeal of s. 42(a)(a)(ii)(II) of the PDA rendered the proceedings moot. Instead, the parties proceeded on the basis that were the Applicant successful in the proceedings the matter should be remitted.

THE JUDGMENT

7 . In my Judgment delivered on the 26 ^th of April, 2022, I found that the Council, in considering whether there had been a “ significant change” to the development objectives in the Development Plan, erred in law in failing to have regard to the local area plan adopted to give effect to those objectives in a specific area (at para. 81). I also found that, in failing to have regard to the contention that special local objective (SLO) 469 was continued through the extension of the local area plan, which incorporated that objective, the Council failed to have regard to a relevant consideration (at para. 83). In view of these findings, I indicated that I proposed to grant an order of certiorari of the Decision made on the 29 ^th of May, 2020 pursuant to s. 42(1)(a)(ii) of the PDA together with an order remitting the Application made by the Developer to the Council to be determined in accordance with law (at para. 107).

PROPOSED AGREED REMITTAL ORDER

8 . Following the delivery of my Judgment it was indicated that the Council was not seeking a certificate for leave to appeal. The matter was then adjourned from time to time as the parties sought to agree the terms of consequential orders and most particularly the terms of a remittal order. When the matter was listed for mention on the 10 ^th of October, 2022 I was furnished with the text of a draft proposed order and asked by the parties to make the following order on consent:

• a. An Order of Certiorari of the Decision of the Respondent made on the...