Quinn v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 16 December 2022
• Neutral Citation: [2022] IEHC 699
• Court: High Court
• Docket Number: [2020 No. 810 JR]

In the Matter of an Application Pursuant to Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of an Application

Between

Lorraine Quinn

Eco Advocacy CLG

Applicants

and

An Bord Pleanála

Respondent

and

North Kildare Wind Farm Limited

Notice Party

[2022] IEHC 699

[2020 No. 810 JR]

[2021 No. 15 COM]

THE HIGH COURT

COMMERCIAL

Certiorari – Planning permission – Remittal – Applicants seeking certiorari of the respondent’s decision to grant planning permission to the notice party – Whether remittal to the respondent was appropriate

Facts: The notice party, North Kildare Wind Farm Limited, on 14th December, 2018, applied to Kildare County Council for permission to construct twelve wind turbines with a tip height of 169 metres, together with associated works including an electricity substation (application No. 181534). The works were to be carried out at a number of locations in County Kildare. On 19th December, 2019, the council refused permission, primarily on the ground of inadequate road capacity. The council also had a second reason for refusal, which was the absence of the necessary consent for road improvement works. The developer then appealed to the respondent, An Bord Pleanála (the board). The first applicant, Ms Quinn, also appealed, raising a number of objections to the development going beyond the grounds articulated by the planning authority. Ultimately, the board decided to grant permission on 7th September, 2020 (ABP-306500-20). The applicants applied to the High Court seeking certiorari of the board’s decision. The statement of grounds was filed on 2nd November, 2020. An amended statement was filed dated 29th November, 2021. By 7th February, 2022, issues had broken out about costs protection, but those were overtaken by developments in relation to the case overall. On 17th June, 2022, the board wrote to the applicants consenting to an order of certiorari. This was expressed to be on a basis of ground E30 in the amended statement of grounds which related to inadequate particulars of the design. The notice party then sought an order for remittal of the matter back to the board. That was contested, and a hearing on that issue took place on 25th July, 2022. Arising from that hearing, certain matters required to be clarified, and resumed hearings took place on 24th October and 7th November, 2022.

Held by Humphreys J that the conceded infirmity must be construed as meaning non-compliance with art. 23 of the Planning and Development Regulations 2001 (S.I. No. 600 of 2011), albeit not necessarily sub-para. (1)(d) in particular. Having regard to the terms of the application form itself, which stated that the application would be invalid if it did not include plans that comply with art. 23, it seemed to Humphreys J that this was confirmation, if such were needed, that the conceded infirmity was one that went to the validity of the application from the outset, and therefore that remittal was not appropriate. In the light of the foregoing, Humphreys J did not need to deal with the question of whether, if the conceded ground and that ground alone did not present any irremediable invalidity, the court could or should go on to consider any other grounds that were not conceded but that would have the effect, if established, that remittal would not be lawful.

Humphreys J ordered that there be an order of certiorari removing, for the purpose of being quashed, the decision of the board, and that remittal of the application to the board be refused.

Remittal refused.

JUDGMENT of Humphreys J. delivered on the 16 ^th day of December, 2022.

1 . On 14 ^th December, 2018, the notice party applied to Kildare County Council for permission to construct twelve wind turbines with a tip height of 169 metres, together with associated works including an electricity substation (application No. 181534). The works were to be carried out at a number of locations in County Kildare.

2 . On 19 ^th December, 2019, the council refused permission, primarily on the ground of inadequate road capacity. The council also had a second reason for refusal, which was the absence of the necessary consent for road improvement works. The developer then appealed to the board. The first named applicant also appealed, raising a number of objections to the development going beyond the grounds articulated by the planning authority.

3 . Ultimately, the board decided to grant permission on 7 ^th September, 2020 (ABP-306500-20).

Procedural history

4 . The present proceedings were then instituted seeking certiorari of the board's decision. The statement of grounds was filed on 2 ^nd November, 2020. An amended statement was filed dated 29 ^th November, 2021.

5 . By 7 ^th February, 2022, issues had broken out about costs protection, but these were overtaken by developments in relation to the case overall.

6 . On 17 ^th June, 2022, the board wrote to the applicants consenting to an order of certiorari. This was expressed to be on a basis of ground E30 in the amended statement of grounds which related to inadequate particulars of the design.

7 . The notice party then sought an order for remittal of the matter back to the board. That was contested, and a hearing on that issue took place on 25 ^th July, 2022. Arising from that hearing, certain matters required to be clarified, and resumed hearings took place on 24 ^th October and 7 ^th November, 2022.

Materials before the court

8 . Materials placed before the court by being uploaded to the ShareFile platform for this case included submissions, authorities, a core book, pleadings and exhibits running to a total of 5,175 pages.

The 2022 Act

9 . On 24 ^th July, 2022, after the commencement of the present application for remittal, the Planning and Development, Maritime and Valuation (Amendment) Act 2022 was enacted. A commencement order was made on 19 ^th October, 2022, which brought the Act into operation from 20 ^th October, 2022. The effect of s. 50A(3)(c) of the Planning and Development Act 2000 as inserted by the 2022 Act is to provide that if a developer requests remittal, the court shall make such an order unless it would not be lawful to do so. It is a matter of public record that the stated rationale for the amendment was to address alleged judicial reluctance that was said to have manifested itself recently to remit matters to planning authorities, in that it was suggested that at present, some judges refer matters back to the planning authority to make a new decision while other judges are allegedly reluctant to do so.

10 . While the merits of political debate are of course a matter for other branches of government, insofar as the stated rationale for the amendment involved factual assertions regarding the activities of the judiciary, I think it is probably for the best if I can be forgiven for seeking to clarify matters in that regard. That is an attempt to exercise the educational function of the court, and not in any way to be critical or to seek to make anyone amenable for political utterances.

11 . A table was helpfully prepared by the parties, with the notice party taking the lead, for which I am grateful, giving the following information relating to remittal orders in planning cases over the last five years:

Case	Judge	Order	Outcome	If remittal refused, reasons for refusal
DCC v. An Bord Pleanála [2022] IEHC 83	Humphreys J.	An order remitting the application for approval of the amendments to the planning scheme back to the board for consideration and decision, such process to re-commence at the point in time immediately prior to the Board's Direction.	Remittal ordered
C.H.A.S.E v. An Bord Pleanála [2021] IEHC 203	Barniville J.	An order remitting the application to a point in time immediately prior to the decision not to allow the public to make submissions on the further information received from the developer.	Remittal ordered
Atlantic Diamond Limited v. An Bord Pleanála [2021] IEHC 322	Humphreys J.	The developer's application was invalid with an order of certiorari and an order that remittal would not be appropriate.	Remittal refused	The Court held that the developer's planning application was invalid, certiorari must issue and remittal would not be appropriate in those circumstances.
Joyce-Kemper v. An Bord Pleanála & Ors [2020] IEHC 477	Allen J.	The applicant succeeded on one ground of challenge – a failure on the part of the Board to consult with the EPA. There was an order of certiorari quashing the decision of the Board and an order remitting the developer's application for reconsideration from the point at which the Inspector's report was submitted to the Board.	Remittal ordered
Barna Wind Action Group v. An Bord Pleanála [2020] IEHC 177	McDonald J.	In addition to an order of certiorari quashing the two decisions of the Board in suit, the Court also made an order that the subject matter of both decisions be remitted to the Board, to be determined in accordance with law.	Remittal ordered.
Redmond v. An Bord Pleanála [2020] IEHC 322	Simons J.	An order of certiorari was granted quashing a decision to grant planning permission. The court refused to order remittal and set aside the planning permission simpliciter.	Remittal refused	It was held that the principal objective of remittal is to remedy the error in the earlier decision-making process. On the facts of the case, the planning application was fatally flawed from the outset and could not be remedied on remittal.
Fitzgerald v. Dun Laoghaire Rathdown County Council [2019] IEHC 890	Barniville J.	The Council indicated that it was prepared to consent to an order of certiorari quashing the decision on a particular basis and to a remittal order on certain terms. An order was made quashing the Council's decision and remitting the planning...