Crofton Buildings and Another v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Donnelly J
• Judgment Date: 10 April 2024
• Neutral Citation: [2024] IESC 12
• Court: Supreme Court
• Docket Number: Supreme Court Record No: S:AP:IE:2023:000072

Between/

Crofton Buildings Management CLG and Stephanie Bourke

Appellants

and

An Bord Pleanála

Respondent

and

Fitzwilliam DL Limited

Notice Party

[2024] IESC 12

O'Donnell CJ Charleton J O'Malley J Woulfe J Donnelly J

Supreme Court Record No: S:AP:IE:2023:000072

High Court Record No: 2021 562 JR

AN CHÚIRT UACHTARACH THE SUPREME COURT

Judgment of Donnelly J delivered on this 10 ^th day of April, 2024

Introduction

1 . The planning code, uniquely in judicial review, contains a specific statutory provision dealing with remittal by the High Court following an order quashing a planning decision or act. This judgment deals with the meaning and application of the relevant statutory phrase “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”. The extent to which, if at all, the High Court when making the remittal ought to give directions to the relevant planning decision-maker for the purpose of carrying out its lawful functions is also addressed.

Background

2 . The notice party, developer Fitzwilliam DL Ltd. (“the developer”), was granted planning permission by An Bord Pleanála (“the Board”) on 28 April 2021 for the demolition of a two-storey building and the construction of 102 build-to-rent apartments in two buildings, together with ancillary residential amenities and a publicly accessible café on a 0.42 hectare site at St. Michael's Hospital Car Park, Crofton Road, Dún Laoghaire. The developer's 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 “2016 Act”).

3 . The first appellant, Crofton Buildings Management CLG, is the management company for an adjacent residential development and the second appellant, Ms. Bourke, is the owner of one of the apartments within that development. The appellants, having objected to the application, sought an order of certiorari of the decision to grant planning permission to the developer on the basis, inter alia, that the Board breached s. 9(6)(c) of the 2016 Act in granting the permission in material contravention of the Dún Laoghaire-Rathdown Development Plan 2016–2022 (“the 2016 development plan”) objectives, specifically those regarding building height. The Board conceded on that specific ground and the developer agreed that the Board's decision must be quashed for that reason. The developer sought remittal to the Board for reconsideration, but the appellants argued against remittal and instead sought that the decision be quashed simpliciter. The trial judge noted that the Board was affecting general neutrality on remittal, but their submissions “all but favour remittal” and that the Board argued that it would be for them to ensure procedural fairness.

4 . By the time of the application for remittal by the High Court, the 2016 development plan had been replaced with the Dún Laoghaire-Rathdown Development Plan 2022–2028 (“the 2022 development plan”). The 2022 development plan became effective on the 21 April 2022. Although it was contended by the appellants that there were material differences between the two development plans which could affect the application for planning permission, these differences were not, save for one matter, identified to the High Court or to this Court on appeal.

5 . The SHD procedure has since been replaced by the Large-scale Residential Development procedure through the Planning and Development (Amendment) (Large-scale Residential Development) Act, 2021 (“the 2021 Act”) which commenced in December 2021. The 2021 Act restores the traditional two-stage planning process: a first instance decision by a planning authority with the subsequent right of appeal to the Board. The trial judge noted that this would extend the planning process by about eight weeks.

6 . Following the making of an order of certiorari with the consent of all parties, the High Court ordered that the matter be remitted to the Board on specific terms (directions) as to the conduct of their reconsideration of the planning application (see Crofton Buildings Management CLG v An Bord Pleanála[2022] IEHC 704 (“the primary judgment”)). The High Court subsequently granted a certificate of leave to appeal to the Court of Appeal ( Crofton Buildings Management CLG v An Bord Pleanála[2023] IEHC 450). On 31 July 2023, this Court determined ( [2023] IESCDET 106) that the case raised issues of general public importance and that it was in the interests of justice for leave to be granted, regarding, inter alia, the scope of the remittal power under O. 84, r. 20(7) RSC and s. 50A(9A) of Planning and Development Act, 2000 (“the 2000 Act”). Arising from its determination, the Court requested that the parties address “the question of which development plan should govern any remitted decision”.

Remittal Provisions

7 . Order 84, rule 27(4) of the Rules of the Superior Courts provides:

“Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.” ( Emphasis added).

8 .Section 50A(9A) of the 2000 Act, commenced in October 2022, provides for remittal in the context of planning decisions:

“If, on an application for judicial review under the Order, the Court decides to quash a decision or other act to which section 50(2) applies, made or done on an application for permission or approval, the Court shall, if requested by the applicant for permission or approval, remit the matter to the planning authority, the local authority or the Board, as may be appropriate, for reconsideration, subject to such directions as the Court considers appropriate, unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so”. ( Emphasis added).

Relevant Procedural Powers of the Board

9 .Section 134(1) of the 2000 Act as amended by s. 18 of the 2016 Act provides that in relation to an application, inter alia, for an SHD permission:

“(a) The Board may in its absolute discretion, hold an oral hearing of … an application under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016.

(b) Before deciding if an oral hearing for an application under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 should be held, the Board –

(i) shall have regard to the exceptional circumstances requiring the urgent delivery of housing as set out in the Action Plan for Housing and Homelessness, and

(ii) shall only hold an oral hearing if it decides, having regard to the particular circumstances of the application, that there is a compelling case for such a hearing.”

10 .Section 135(2A) of the 2000 Act provides:

“The Board may give a direction to the person conducting an oral hearing that he or she shall require persons intending to appear at the hearing to submit to him or her, in writing and in advance of the hearing, the points or a summary of the arguments they propose to make at the hearing; where such a direction is given that person shall comply with it (and, accordingly, is enabled to make such a requirement).”

11 .Section 135(2AB) provides:

“The Board may in its absolute discretion, following a recommendation in relation to the matter from a person assigned to make a written report under section 146, give a direction to a person assigned to conduct an oral hearing that he or she shall allow points or arguments in relation to specified matters only during the oral hearing.”

Judgments of the High Court

12 . In his judgment on the substantive issue of remittal, the trial judge identified three broad reasons for the dispute over whether the quashed planning decision should be remitted to the Board and, if so, the directions to be given:

• a) The consequences of quashing the decision simpliciter versus remitting the matter for re-decision were very different. Remittal would allow for the planning application to be preserved for decision as a SHD application pursuant to s. 4 of the 2016 Act. In contrast, quashing the decision simpliciter would result in the notice party having to bring a new planning application. If that were the case, any new application would not be a SHD application given that the 2016 Act has now expired and such applications no longer exist.

• b) An issue with the replacement of the 2016 development plan with the 2022 development plan. The plan applicable to a reconsideration of the application in the case of a remittal was disputed at the High Court and after considerable analysis the trial judge concluded that on any remittal the matter had to be considered under the 2022 plan (that finding was not appealed to this Court but see further below as to the request by this Court for submissions of the parties on that issue).

• c) Due to concerns about fair procedures, it was alleged that remitting the decision to the Board for reconsideration under the 2022 plan would prevent that re-decision from being arrived at in accordance with fair procedures. It followed from that argument that the court should refuse to remit the matter if it could not be guaranteed that fair procedures would be upheld. It was canvassed by the Board and the developer that the concerns regarding fair procedures could be addressed through the Board exercising its discretion to hold an oral hearing (pursuant to s. 134 of the 2000 Act) in relation to the SHD application.

13 . The trial judge reviewed the existing law on remittal including the court's discretion in choosing to remit and the principles governing a decision to order...