Crofton Buildings Management CLG and Another v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 16 May 2023
• Neutral Citation: [2023] IEHC 240
• Docket Number: Record No: 2021/562JR
• Court: High Court

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

Fitzwilliam DL Limited

Notice Party

[2023] IEHC 240

Record No: 2021/562JR

THE HIGH COURT

JUDICIAL REVIEW

Judgment delivered by Mr Justice David Holland on 16 May 2023

Contents

INTRODUCTION & THE LAW ON CERTIFICATION OF APPEALS	2
THE POINTS OF LAW & GROUNDS OF APPEAL PROPOSED BY CROFTON	6
DISCUSSION AND DECISION	9
The Partly Agreed Point	9
Remaining Issues	12
Directions as to Exercise of Absolute Discretion to hold an Oral Hearing	12
The Scope Of The Remitted Decision	14
CONCLUSION	15

INTRODUCTION & THE LAW ON CERTIFICATION OF APPEALS

1 In this judgment I decide whether to certify points of law for appeal in a planning judicial review. The Respondent (“the Board”) conceded certiorari of its decision dated 28 April 2021 1 (the “Quashed Decision” 2) 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”/“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 (“the Site”) at Saint Michael's Hospital Car Park, Crofton Road, Dún Laoghaire, County Dublin.

2 The First Applicant is the owners' management company for the Harbour View residential development, located adjacent to the Site. The Second Applicant owns an apartment in Harbour View. Both objected to Fitzwilliam's application for planning permission for the Proposed Development. For convenience I will refer to both Applicants as “Crofton”.

3 The planning process to the point of the Quashed Decision was informed by the Dún Laoghaire-Rathdown Development Plan 2016–2022 (“the 2016 Development Plan”). Certiorari was conceded on the basis that the Board failed to apply s.9(6)(c) of the 2016 Act in granting permission for the Proposed Development in material contravention of the 2016 Development Plan objectives as to building height. The resultant form of order to be made by the Court was agreed by the “Parties” 3 — save for the question of remittal.

4 Fitzwilliam sought remittal of the Quashed Decision to re-decision by the Board. The Board affected general neutrality as to remittal. But the substantive thrust of its written submissions all but favoured remittal on the basis that either it could ensure fair procedures via an oral hearing or, if it couldn't, it would have to refuse permission. Crofton argued against remittal – arguing that the Quashed Decision should be quashed simpliciter. The question of remittal was disputed for three broad reasons:

• • A significant consequence of the decision whether to quash simpliciter or to remit the Quashed Decision to the Board for re-decision 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.

  • ○ certiorari simpliciter would imply that a new planning application would be required. Given the expiry of the 2016 Act any such application would not be an SHD application.

• • So Fitzwilliam consider that to quash simpliciter would be inimical to their interest – though that was not, per se, a legal basis of objection to quashing the Quashed Decision simpliciter.

• • The 2016 Development Plan has been replaced by the Dún Laoghaire-Rathdown Development Plan 2022–2028 (the “2022 Development Plan”). 4 The question which development plan should inform the Board's re-consideration of the Quashed Decision, if remitted, was disputed.

• • If remittal had to be on the basis that the 2022 Development Plan should inform the re-decision of the matter, questions arose whether remittal on a basis ensuring fair procedures in the remitted decision was possible. If not, it followed that the Quashed Decision should not be remitted to the Board.

5 By judgment delivered 20 December 2022 5 I decided that

• • on any remittal, the development plan to which the Board must have regard is the 2022 Development Plan.

• • the Quashed Decision should be remitted to re-decision by the Board as, by directions of the Court, fair procedures could be achieved in the remitted process on the basis that the Board would hold an oral hearing into the subject planning application and by way of directions as to procedures to be adopted in and about such oral hearing.

6 I held that I should assume that the application to the present decision of the 2022 Development Plan, by reason of differences between it and the 2016 Development Plan, could well make an appreciable difference to the re-decision on remittal — as to the grant or refusal of planning permission or as to the conditions on which it might be granted. With one exception, 6 I did not consider the content of the 2016 Development Plan or the 2022 Development Plan or any specific differences between them. However, the Parties agreed that such differences were likely to be material to any re-decision on remittal. That issue arose, of course, in light of

• • the general importance of the Development Plan in all planning decisions 7 and

• • its specifically enhanced importance in SHD planning applications and

• • the statutory limits on the Board's power to grant permission in material contravention of the Development Plan. 8 I need not elaborate here upon those limits.

7 As the remitted decision would be decided having regard to a different development plan to that having regard to which the Quashed Decision had been made, the issue arose of enabling the parties, prescribed bodies 9 and the public to be heard as to relevance of the 2022 Development Plan to the decision to be made on remittal. Accordingly, and generally in pursuit of fair procedures, I directed remittal on terms 10 that the Board:

• • Hold an oral hearing.

• • Notify the Parties, the planning authority, prescribed bodies and the public of the intention to hold that oral hearing.

• • Require, under S.135(2A) PDA 2000, Fitzwilliam to provide, within a stated time limit and in documentary form, its intended submissions to the oral hearing. The Board will be at liberty to be more or less specific as to its requirements in this regard so as to ensure as closely as possible that the documents before it reflect the documentary requirements of the SHD process.

  ○ I recommended that the Board consider imposing requirements which will enable a ready comparison of such documents (applying the 2022 Development Plan) with the documents already before the Board (applying the 2016 Development Plan) to enable ready identification of the differences between them.

• • Provide for the circulation of Fitzwilliam's intended submissions to the parties, the planning authority and prescribed bodies and their publication to the public.

• • Require, under S.135(2A), the parties, the planning authority, prescribed bodies and the public to respond in writing, by way of their submissions to the oral hearing to Fitzwilliam's intended submissions to the oral hearing.

• • Require that all those who make such responses be heard at the oral hearing.

8 The Parties made written submissions on the question of certification of appeal of the remittal judgment and have agreed that I should decide the issues arising having regard to those written submissions and without oral hearing. This is my judgment accordingly.

9 S.50A(7) PDA 2000 provides as follows:

“The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the [Court of Appeal] in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal].”

10 Though s.50A(7) does not explicitly say so, it is clear that not merely must the decision from which it is sought to appeal involve a point of law – that point must be the intended subject of the appeal.

11 The law on certification of appeals in planning judicial reviews is well-understood. It originated in Glancré, 11 is set out and glossed in a number of judgments since and was summarised recently in MRRA. 12 I need not repeat that detail here and note merely that the issue is governed by S.50A(7), that I am to assume my judgment as to remittal was wrong in the respects asserted by Crofton and the main principles that:

• • the High Court's decision which it is sought to appeal is to be final and not appealable in most cases — such that the jurisdiction to certify an appeal should be exercised sparingly.

• • the appeal, to be certified, must invoke a point of law of exceptional public importance.

• • for the appeal to be certified, it must be desirable in the public interest that the appeal be taken.

12 It is important to mention also s.50A(9A) PDA 2000, which came into effect on 20 October 2022 13 and by which my judgment as to remittal was “ considerably conditioned”. 14 It reads as follows:

“(9A) If, on an application for judicial review under the Order, 15 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...