Crofton Buildings Management CLG v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 20 December 2022
• Neutral Citation: [2022] IEHC 704
• Court: High Court
• Docket Number: Record No: 2021/562JR

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000, as Amended

Between:

Crofton Buildings Management CLG

and

Stephanie Bourke

Applicants

and

An Bord Pleanála

Respondent

and

Fitzwilliam DL Limited

Notice Party

2022 IEHC 704

Record No: 2021/562JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Remittal – Respondent conceding certiorari of its decision to grant planning permission to the notice party – Whether the impugned decision should be remitted to decision again by the respondent

Facts: The respondent, An Bord Pleanála (the Board), conceded certiorari of its decision (the Impugned Decision) dated 28 April 2021 to grant planning permission pursuant to the Planning and Development (Housing) Residential Tenancies Act 2016 to the notice party, Fitzwilliam DL Ltd (Fitzwilliam), for a strategic housing development (the Proposed Development) comprising the demolition of a two-storey dwelling and the construction of 102 build-to-rent apartments in two buildings, ancillary residential amenities and a publicly accessible café on a 0.42 hectare site at Saint Michael’s Hospital Car Park, Crofton Road, Dun Laoghaire, County Dublin. The first applicant, Crofton Buildings Management CLG, was the owners’ management company for the Harbour View residential development, located adjacent to the site of the Proposed Development. The second applicant, Ms Bourke, was owner of an apartment in Harbour View. Both participated in the planning process as objectors. Fitzwilliam’s mandatory pre-application consultation with the Planning Authority and the Board pursuant to the 2016 Act, and its SHD planning application (including its Statement of Consistency, Material Contravention Statement and technical reports) which resulted in the Impugned Decision, and all consequent public and other participation in the planning process, and the Impugned Decision were all informed by and proceeded on the basis of the Dun Laoghaire-Rathdown Development Plan 2016-2022 (the 2016 Development Plan). Certiorari was conceded on the basis that the Board breached s. 9(6)(c) of the 2016 Act in granting permission for the Proposed Development in material contravention of the objectives of the 2016 Development Plan as to building height. The resultant form of order was agreed by the parties save for the question of remittal. All parties made lengthy written and oral submissions on whether, and if so on what terms, the Impugned Decision should be remitted to decision again by the Board.

Held by the High Court (Holland J) that any remittal of the matter must be on the basis that the decision on remittal would be made having regard to the Dún Laoghaire-Rathdown Development Plan 2022-2028 (the 2022 Development Plan). In Holland J’s view a remitted process would not be fair or lawful unless it included circulation to the applicants, prescribed bodies, the public and the planning authority, in good time and for their considered response, of Fitzwilliam’s articulation of the bearing of the 2022 Development Plan on its strategic housing development planning application. He noted that Christian v Dublin City Council [2012] IEHC 309 makes apparent, and State (Genport Ltd) v An Bord Pleanála [1983] I.L.R.M. 12 supports the view, that the court can, in directions and to a certain degree, flexibly adapt and shape, statutory procedures to the circumstances of remittal and even supplement them – even where those statutory procedures do not neatly apply to those circumstances. On the information available to him, he held that the only way that could be achieved in this case was by an oral hearing. Even then, for that to suffice required additional directions and to underlie such directions it seemed to him that he should direct an oral hearing rather than leaving to the Board’s discretion a decision whether one should be held; those additional directions would seek to ensure procedures fair to all concerned as to the adaptation of the strategic housing development process to the 2022 Development Plan.

Holland J asked the parties to seek to agree directions in accordance with the tenor of this judgment.

Judgment approved.

Judgment delivered by Mr Justice Holland on 20 December 2022

Contents

INTRODUCTION	3
REMITTAL — ORDER 84, RULE 27(4) & S.50A(9A) PDA 2000	6
Order 84, Rule 27(4)	7
S.50A(9A) PDA 2000	7
THE CASES ON REMITTAL & SOME COMMENT ON THEIR APPLICATION TO THE PRESENT CASE	8
Usk — 2007 & Kells Quarry Products — 2010	8
Tristor — 2010	9
Christian #2 — 2012	9
Prendiville — 2017	11
Clonres — 2018	12
Fitzgerald — 2019	13
Barna Wind Action – April 2020	14
Protect East Meath – June 2020	15
Redmond – 1 July 2020	16
Crekav – 31 July 2020	19
Kemper — 2021	20
CHASE — 2022	21
A BRIEF ACCOUNT OF THE ARGUMENTS	23
IMPORTANCE OF DEVELOPMENT PLANS IN PLANNING DECISIONS	26
WHICH DEVELOPMENT PLAN APPLIES? – THE GENERAL RULE IN PLANNING APPLICATIONS	28
Jefferson, Bickenhall Parish Council & Price Bros	29
Clifford #3	32
WHICH DEVELOPMENT PLAN APPLIES ON REMITTAL?	33
Price Bros & Material Considerations	34
Constitutional Rights	36
De-Zoning	41
Effective Remedy & Fair Procedures	43
Restoration of the Position Immediately Prior to the Quashed Decision.	46
Kenny #1 or Clifford #3? – Ebonwood & Element Power	48
Conclusion – Which Development Plan Applies on Remittal?	50
Fairness & Chronology of Proceedings	51
CAN REGARD LAWFULLY BE HAD TO THE 2022 DEVELOPMENT PLAN ON REMITTAL?	51
Introduction	51
Some Factual Matters	53
Part V	55
SHD Process & Development Plan	56
Pre-Application	57
SHD Application, Submissions & Observations, Local Authority Report & The Board's Decision	59
Significance of the 2022 Development Plan and Prospects of Lawful Remittal – Positions of the Parties & Role of the Court.	62
Remittal – Further Information	64
Remittal – Oral Hearing	71
Time-Limits Expired	77
CONCLUSION – LAWFULNESS of REMITTAL & Directions	78
Proposed Directions	79

INTRODUCTION

1 The Respondent (“the Board”) has conceded certiorari of its decision 1 (the “Impugned Decision” or the “Quashed Decision” 2) dated 28 April 2021 to grant planning permission pursuant to the Planning and Development (Housing) Residential Tenancies Act 2016 (“the 2016 Act”) to the Notice Party (“Fitzwilliam”) for a strategic housing development (“SHD” and “the Proposed Development”) comprising the demolition of a 2-storey dwelling and the construction of 102 build-to-rent apartments in 2 buildings, ancillary residential amenities and a publicly accessible café on a 0.42 hectare site at Saint Michael's Hospital Car Park, Crofton Road, Dun Laoghaire, County Dublin.

2 The First Applicant is the owners' management company for the Harbour View residential development, located adjacent to the site of the Proposed Development. The Second Applicant is owner of an apartment in Harbour View. Both participated in the planning process as objectors. For convenience I will refer to both Applicants as “Crofton”.

3 Fitzwilliam's mandatory 3 pre-application consultation with the Planning Authority 4 and the Board pursuant to the 2016 Act, and its SHD planning application 5 (including its Statement of Consistency, Material Contravention Statement and technical reports) which resulted in the Impugned Decision, and all consequent public and other participation in the planning process, and the Quashed Decision were all informed by and proceeded on the basis of the Dun Laoghaire-Rathdown Development Plan 2016–2022 (“the 2016 Development Plan”).

4 Certiorari is conceded on the basis that the Board breached s.9(6)(c) of the 2016 Act in granting permission for the Proposed Development in material contravention of the objectives of the 2016 Development Plan as to building height 6. The resultant form of order is agreed by the parties save for the question of remittal. This judgment concerns the questions whether, and if so on what terms, the Impugned Decision should be remitted to decision again by the Board. All parties have made lengthy written and oral submissions on the issue

5 A significant consequence of the decision whether to quash simpliciter or to remit is that remittal would preserve the planning application for decision — and for decision as an SHD planning application made pursuant to S.4 of the 2016 Act. Given the expiry of that Act, certiorari simpliciter would imply that a new planning application would be required and that any such application would not be an SHD application.

6 It is clear that the SHD process was lawful until the making of the Quashed Decision. It proceeded, correctly, on the basis that the 2016 Development Plan applied 7. Its erroneous failure to identify the material contravention as to building height was informed by its inspector's erroneous view that the proposed development would not constitute a material contravention of the 2016 Development Plan as to building height. It is clear that remittal to a decision having regard to the 2016 Development Plan would be to the point of requiring a replacement inspector's report premised on the existence of a material contravention as to building height and the necessity of considering whether, despite that material contravention, permission could and should be justified by reference to the relevant statutory criteria 8. As Fitzwilliam's SHD planning application proposed a justification for the grant of permission despite material contravention of the 2016 Development Plan as to height, and as public participation, including by Crofton, has already occurred on that basis, the precise difficulty which prevented remission in Redmond 9 would not arise if the 2016...