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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Redmond v An Bord Pleanala. (Approved) [2020] IEHC 322 (01 July 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC322.html
Cite as: [2020] IEHC 322, [2020] 7 JIC 0103
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APPROVED
THE HIGH COURT
JUDICIAL REVIEW
2019 No. 709 J.R.
IN THE MATTER OF SECTION 50 AND 50A OF THE PLANNING AND
DEVELOPMENT ACT 2000 (AS AMENDED)
BETWEEN
MICHAEL REDMOND
AND
AN BORD PLEANÁLA
APPLICANT
RESPONDENT
DURKAN ESTATES CLONSKEAGH LIMITED
DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL
NOTICE PARTIES
JUDGMENT of Mr. Justice Garrett Simons delivered electronically on 1 July 2020
INTRODUCTION
1. The issue for determination in this judgment is whether the High Court, having found a
particular decision to grant planning permission to be invalid in its principal judgment,
should now remit the underlying planning application to An Bord Pleanála for
reconsideration. The alternative approach would be to set aside the planning permission
simpliciter. It would then be necessary for the developer to make a fresh application for
planning permission to An Bord Pleanála.
2. The dispute between the parties on this issue centres on whether—given the grounds
upon which the planning permission was found to be invalid—the planning application
process can be said to have been conducted in a regular and lawful way up to a certain
NO REDACTION REQUIRED
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point in time. If so, then it would be open to the High Court to unwind the process to
that point, and to direct that the process should be resumed thence and be completed in
accordance with law. If, alternatively, the planning application process had been
irregular from the very outset, then the planning permission should be set aside
simpliciter, i.e. without any order for remittal.
3. The resolution of this issue turns largely on the legal significance to be attached to public
participation rights in the planning process. The principal judgment had found that the
proposed development project represents a material contravention of the development
plan. The legislation envisages that where a planning application involves a material
contravention, express public notice of this fact must be given at the time of the making
of the application. This did not happen on the facts of the present case where the
developer and the board—mistakenly—considered that there was no material
contravention. The question now arises as to whether this absence of public notice, and
of a statement of the justification for seeking a material contravention, is fatal to the
remittal of the planning application.
ABBREVIATIONS
“PDA 2000”
“PD(H)A 2016”
Planning and Development Act 2000
Planning and Development (Housing) and Residential Tenancies
Act 2016
PROCEDURAL HISTORY
4. Insofar as relevant to the net issue which now arises for determination, the procedural
history can be summarised as follows. This court delivered its principal judgment in
(“the principal judgment”). As explained in the principal judgment, the first issue to be
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determined in the proceedings had been whether the lands, the subject-matter of the
planning application, are designated as “institutional lands” under the development plan.
This issue was resolved in favour of Mr Redmond, and both the developer and An Bord
Pleanála were found to have been in error in thinking that the designation did not apply.
The same error had been made by the board’s planning inspector in her report.
5. The principal judgment went on then to find that the proposed development involves a
material contravention of the development plan policies and objectives applicable to
institutional lands in respect of (i) housing density, and (ii) public open space. The
decision to grant planning permission was held to be invalid in circumstances where An
Bord Pleanála did not seek to invoke its statutory power to grant planning permission in
material contravention of the development plan (section 9(6)(c) of the PD(H)A 2016).
6. The proceedings had then been adjourned for a number of weeks to allow the parties to
consider the principal judgment. The court directed that if any party intended to apply
for leave to appeal to the Court of Appeal pursuant to section 50A(7) of the PDA 2000,
then the draft points of law in respect of which leave was being sought were to be filed
in the Central Office of the High Court and circulated to the other parties within twenty-
eight days of the date of the principal judgment. The proceedings were to have been
listed before the court on 24 March 2020 to address the issue of costs and any application
to remit the matter to An Bord Pleanála pursuant to Order 84, rule 27 of the Rules of the
Superior Courts.
7. In consequence of the restrictions on court sittings introduced in response to the
coronavirus pandemic, the hearing did not go ahead on 24 March 2020. Instead, the
proceedings were adjourned generally. The parties put the time to good use, and were in
a position to indicate to the Registrar on 18 May 2020 that substantial progress had been
reached as to the form of the final orders. The only outstanding issue between the parties
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is as to whether there should be an order for remittal. (There is to be no application for
leave to appeal, and it is agreed that Mr Redmond is to recover costs from An Bord
Pleanála in the sum of €3,959.69).
8. It was also agreed that the question of whether the planning application should be
remitted to An Bord Pleanála would be dealt with by the court “on the papers”,
i.e. without the necessity for an oral hearing. The parties exchanged written submissions
as follows.
25 May 2020
First set of submissions on behalf of developer
1 June 2020
Mr Redmond’s submissions
4 June 2020
An Bord Pleanála’s submissions
17 June 2020
Replying submissions on behalf of developer
9. These written submissions have been carefully considered in preparing this judgment.
The relevant arguments of the parties will be referred to, in context, in the discussion
below.
HIGH COURT’S DISCRETION TO REMIT
10. Order 84, rule 27(4) of the Rules of the Superior Courts (as amended in 2011) provides
as follows.
(4) 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.
11. The principles governing the exercise of this discretion have been set out authoritatively
in two judgments of the now Chief Justice when sitting in the High Court. In Tristor
Ltd. v An Bord Pleanála (No. 2) [2010] IEHC 454, Clarke J. (as he then was) emphasised
that the overriding principle behind any remedy in civil proceedings should be to attempt,
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in as clinical a way as is possible, to undo the consequences of any wrongful or invalid
act. The court should not seek to do more than that, but equally the court should not seek
to do less than that. Clarke J. went on to say that the extent to which it may be possible
to do so will depend on the facts and the legal framework within which any invalid
decision may have taken place. On the facts of Tristor Ltd., the court ruled that the
development plan process should be taken up from the point immediately prior to the
invalid Ministerial direction.
12. Clarke J. returned to discuss the remittal jurisdiction in Christian v. Dublin City Council
(No. 2) [2012] IEHC 309.
“It is not necessary for a court which quashes an order or measure
made or taken at the end of a lengthy process to necessarily require
that the process go back to the beginning. Where the process is
conducted in a regular and lawful way up to a certain point in time,
then the court should give consideration as to whether there is any
good reason to start the process again. Active consideration should
be given to the possibility of remitting the matter back to the decision-
maker or decision-makers to continue the process from the point in
time where it can be said to have gone wrong. […]”
13. Clarke J. also indicated that the court’s inherent jurisdiction allows it to give directions
as to the process to be followed by that decision-maker in reconsidering the matter.
“It seems to me that where a matter is referred back to a decision-
maker, the inherent jurisdiction of the court entitles the court to give
directions as to the process to be followed by that decision-maker in
reconsidering the matter. However, the court should, in giving such
directions, attempt to replicate, insofar as it may be practicable, the
legal requirements that would apply, whether under statute, rules or
the like, to the making of decisions of that type. It will not always be
possible to ensure exact compliance with the relevant regime, for it is
in the nature of a decision having already been made and having been
subsequently quashed, that some variation on the normal procedure
may be necessitated.”
14. These two judgments were concerned with planning decisions of a type other than a
decision to grant planning permission, i.e. a decision by a local planning authority to
adopt a new development plan (Christian), and a decision by the Minister for
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Environment Heritage and Local Government to issue a direction pursuant to section 28
of the PDA 2000 (Tristor Ltd.). The principles in these two judgments have, however,
since been applied to decisions to grant planning permission in a series of judgments
Laoghaire Rathdown County Council [2019] IEHC 890, and Barna Wind Action Group v
An Bord Pleanála [2020] IEHC 177.
15. These judgments emphasise that, in considering whether to remit a planning application
to An Bord Pleanála, the court should treat the board as a disinterested party which has
no stake in the commercial venture being pursued by the developer. Further, where the
board, as the statutory decision-maker, has taken the view that it can carry out its statutory
function in light of the findings of the court if the matter is remitted to it for a fresh
decision, the court should not lightly reject such an application to remit in favour of
simply quashing the decision simpliciter with the result that the application goes back to
square one.
AN BORD PLEANÁLA’S POSITION
16. On the facts of the present case, An Bord Pleanála opposes the making of an order for
remittal. In particular, the board submits that it would be inappropriate to remit the
planning application in circumstances where it says that the consequence of the error
which led to the planning permission being invalidated is that public participation had
been frustrated. The public were not notified that a planning application was being made
for a development that would materially contravene the development plan. Nor were
they given an opportunity to make submissions or observations on the developer’s case
as to why planning permission should be granted notwithstanding that material
contravention.
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RELEVANT LEGISLATIVE PROVISIONS
17. The planning application has been made pursuant to the Planning and Development
(Housing) and Residential Tenancies Act 2016 (“PD(H)A 2016”). Under that legislation,
the fact that a proposed development represents a material contravention of the
development plan has implications for the processing of the relevant planning
application.
18. Section 8(1)(a)(iv)(II) of the PD(H)A 2016 provides as follows.
“8.(1)Before an applicant makes an application under section 4(1) for permission,
he or she shall—
(a) have caused to be published, in one or more newspapers circulating
in the area or areas in which it is proposed to carry out the strategic
housing development, a notice—
(iv) stating that the application contains a statement—
[…]
(II) where the proposed development materially contravenes the
said plan other than in relation to the zoning of the land,
indicating why permission should, nonetheless, be granted,
having regard to a consideration specified in section 37(2)(b)
of the Act of 2000,”
19. As appears, the public notice must indicate that the proposed development is in material
contravention of the development plan, and that the planning application contains a
statement indicating why permission should, nonetheless, be granted, having regard to
one or more of the statutory considerations specified in section 37(2)(b) of the PDA 2000.
The planning application must be accompanied by such a statement (“statement of
justification”).
20. All of this is intended to ensure that members of the public are, in the first instance, put
on notice that An Bord Pleanála is being invited to grant planning permission in material
contravention of the development plan; and, secondly, informed of the basis on which
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the developer says that such a contravention is justified by reference to section 37(2)(b).
This will then allow members of the public to make meaningful submissions to An Bord
Pleanála and to engage with the justification advanced on behalf of the developer.
21. This ensures effective public participation. Moreover, it reflects the especial importance
attached to the development plan under the PD(H)A 2016. There are statutory
restrictions on the board’s jurisdiction to grant planning permission for proposed
development in material contravention of the development plan. These statutory
restrictions are stricter in the case of a “strategic housing development” application under
the PD(H)A 2016 than they are in the case of a conventional planning application. The
board cannot grant planning permission under the PD(H)A 2016 where the proposed
development, or a part of it, contravenes materially the development plan in relation to
the zoning of the land. This difference in treatment between a “strategic housing
development” application and a conventional application is, presumably, intended to
reflect the fact that an application of the former type is made directly to An Bord Pleanála
without there being any first-instance application to the local planning authority. The
enhanced status afforded to the zoning objectives ensures that the planning authority’s
role, as author of the development plan, in setting planning policy, is respected.
22. Insofar as non-zoning objectives are concerned, An Bord Pleanála may only grant
planning permission in material contravention of a development plan by reference to the
statutory criteria under section 37(2)(b) of the PDA 2000. (See section 9(6)(c) of the
PD(H)A 2016). These criteria read as follows:
(i) the proposed development is of strategic or national importance;
(ii) there are conflicting objectives in the development plan or the objectives are not
clearly stated, insofar as the proposed development is concerned;
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(iii) permission for the proposed development should be granted having regard to
regional spatial and economic strategy for the area, guidelines under section 28,
policy directives under section 29, the statutory obligations of any local authority
in the area, and any relevant policy of the Government, the Minister or any
Minister of the Government;
(iv) permission for the proposed development should be granted having regard to the
pattern of development, and permissions granted, in the area since the making of
the development plan.
DETAILED DISCUSSION
23. In determining whether or not to make an order for remittal, the High Court must first
identify the point in time at which the earlier decision-making process went awry. This
is because the objective of remittal is to reset the clock, and to allow the decision-making
process to resume from a point in time prior to the happening of the error of law which
ultimately led to the setting aside of the original decision. Of course, it will not be
possible to do this in all cases. In some instances, the decision-making process may have
been flawed from the very outset or the error of law may be subsisting.
24. On the facts of the present case, the principal judgment has found that the proposed
development represented a material contravention of the development plan. The decision
to grant planning permission has been held to be invalid on the grounds inter alia that
An Bord Pleanála did not seek to invoke its statutory power to grant planning permission
in material contravention of the development plan (section 9(6)(c) of the PD(H)A 2016).
25. As discussed at paragraphs 17 to 22 above, the fact that a proposed development
represents a material contravention of the development plan triggers the following special
procedural requirements. The public notice must indicate that the proposed development
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is in material contravention of the development plan, and the planning application itself
must be accompanied by a statement setting out the justification for saying that
permission should, nonetheless, be granted.
26. In the present case, the fact that the developer—mistakenly—advanced the planning
application on the basis that it did not involve a material contravention of the
development plan had the consequence that these procedural requirements were not
complied with. Notwithstanding this non-compliance, the developer submits that the
planning application should nevertheless be remitted to An Bord Pleanála for
reconsideration. The developer seeks to argue that the point in time at which the
processing of the planning application can be said to have first fallen into error was at
the time of the preparation of the inspector’s report. It is acknowledged that the inspector
erred in her interpretation of the development plan, and, in particular, in her conclusion
that the “institutional lands” designation did not extend to the application site. This had
the consequence that the inspector failed to appreciate that the proposed development
represented a material contravention of the development plan.
27. The developer insists that this is the point in time to which the planning application
process should be returned (by way of an order for remittal). It is submitted that An Bord
Pleanála might be directed to arrange for a new inspector’s report to be prepared. It is
not envisaged by the developer that there should be any further public participation. This
is because, on the developer’s argument, it is sufficient that the original planning
application and accompanying reports had contained relevant information to enable An
Bord Pleanála now to assess the application by reference to the requirements of the
“institutional lands” designation in relation to, for example, residential density and open
space provision. The developer concedes, as it must, that the documentation submitted
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with the planning application had wrongly concluded that the proposed development
complied with the key requirements of the “institutional lands” designation.
28. With respect, the developer’s analysis is incorrect. In truth, the planning application was
fatally flawed from the outset. The planning application failed to recognise that the
proposed development represented a material contravention of the development plan.
This resulted in non-compliance with the procedure prescribed for such applications. As
correctly observed by An Bord Pleanála in its written submissions, the public were not
notified that a planning application was being made for a development that would
materially contravene the development plan. Nor were they given an opportunity to make
submissions or observations on the developer’s case as to why planning permission
should be granted notwithstanding that material contravention.
29. It is no answer to these deficits to imply, as the developer appears to do, that the
requirement for public participation should be assessed solely by reference to
Mr Redmond’s perspective. The developer submits that, in circumstances where
Mr Redmond’s objection to the initial planning application had been premised on the
basis that the “institutional use” designation extended to the application site, he has
already had the opportunity to make submissions to An Bord Pleanála on whether the
proposed development complied with the requirements of the designation.
30. This argument overlooks the fact that the purpose of giving public notice of a proposed
material contravention is to allow all members of the public concerned an opportunity to
make submissions or observations on the planning application. The fact that one member
of the public, namely, Mr Redmond, correctly identified that the development involved
a material contravention does not absolve the breach of the statutory requirements. In
any event, the principal issue which would now arise in the event of a remittal to An Bord
Pleanála is different from that addressed in the planning application. The issue would be
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whether any of the specific statutory criteria which allow An Bord Pleanála to grant
planning permission in material contravention of the development plan have been
fulfilled. These criteria have been set out in full at paragraph 22 above. Mr Redmond
did not have a proper opportunity to address these matters in the context of the original
planning application in circumstances where the developer had not put forward grounds
for saying that any of the statutory criteria had been met.
31. The simple fact of the matter is that the planning application, as submitted to An Bord
Pleanála in May 2019, did not comply with the requirements prescribed for development
which represents a material contravention of the development plan. An Bord Pleanála is
correct in saying that it does not have jurisdiction to grant planning permission on foot
of this non-compliant application, and that were the application to be remitted to it, then
the board would have to dismiss the planning application as invalid.
32. The developer has sought to get around this jurisdictional difficulty by arguing that the
non-compliant nature of the planning application had not been expressly pleaded and that
these issues are accordingly not “in” the case. The developer seeks to rely in this regard
on the judgment of the High Court (McDonald J.) in Barna Wind Action Group v An
Bord Pleanála [2020] IEHC 177.
33. The facts of the present case are entirely distinguishable from those at issue in Barna
Wind Action Group. There, An Bord Pleanála had conceded that its decision to grant
planning permission should be quashed on a specific narrow ground. The applicant for
judicial review had sought to resist the making of an order for remittal, by reference to
the lapse of time between (i) the date upon which the planning application had first been
submitted in 2014, and (ii) the date of the determination of the proceedings in 2020. It
was said that the Environmental Impact Assessment Directive (2011/92/EU) (“EIA
Directive”) had been amended in the interim. McDonald J. observed that no complaint
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had previously been made in the proceedings as to the adequacy of the environmental
impact statement submitted nor as to its being out of date.
34. By contrast, on the facts of the present case, Mr Redmond has consistently objected that
the proposed development would involve a breach of the development plan. This
objection had been made to An Bord Pleanála in the course of the planning application,
and made, again, in these judicial review proceedings. Mr Redmond was successful in
this argument. The point is not a “new” point. Mr Redmond cannot be criticised for not
having brought his proceedings earlier, i.e. by seeking to challenge An Bord Pleanála’s
acceptance of the planning application in May 2019 in the absence of the requisite public
notice of a proposed material contravention. Any such proceedings would have been
dismissed as premature on the basis that a complaint that a proposed development
represents a material contravention is one which should, in the first instance, be raised as
an objection in the planning process rather than in legal proceedings. Put otherwise, an
earlier application for judicial review based on the absence of proper public notice would
have been refused leave.
35. The judgment in Barna Wind Action Group is distinguishable in two other respects. First,
the form of remittal in that case envisaged that there might be further public consultation
(see paragraph 43 of the judgment), and that the issue in respect of the intervening
legislative amendment of the EIA Directive could be raised before An Bord Pleanála.
Here, the developer’s application to the court is that there should be no further public
consultation.
36. Secondly, the planning application was a conventional planning application (as opposed
to an application for strategic infrastructural development or strategic housing
development). The consequence of refusing to remit the matter would have been that the
developer would have to recommence the process by making a first-instance application
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to the local planning authority, with an appeal thereafter to An Bord Pleanála. The
prejudice in refusing an order for remittal is less in the case of a strategic housing
development given that the “delay” caused is far shorter.
37. Finally, the developer has sought to argue that public notice and a statement of
justification are only required where the developer is of the “opinion” that the proposed
development would represent a material contravention. It is further argued that if the
developer “gets it wrong”, and (mistakenly) advances an application on the basis that no
material contravention is involved, then the only party who is at a disadvantage is the
developer because it will not have addressed the requirements of section 37(2)(b) of the
PDA 2000. It is suggested that it would potentially turn the strategic housing process
into an “extraordinarily hazardous obstacle course” if an error on the part of the developer
as to the interpretation of the development plan would mean that An Bord Pleanála would
have to decline jurisdiction.
38. With respect, the requirements of the legislation are unequivocal. Section 8(1)(a)(iv)(II)
of the PD(H)A 2016 indicates that the requirement to give public notice is triggered
“where the proposed development materially contravenes” the relevant development
plan. The test is objective: it is not qualified by reference to the subjective “opinion” of
the developer, nor, indeed, of An Bord Pleanála. This is entirely consistent with the
general principle of planning law that the interpretation of the development plan is
objective not subjective, and is ultimately a question of law. This issue is discussed in
detail in the principal judgment at paragraphs 22 to 28.
39. The developer’s argument seeks to discount the importance of public participation. The
development plan has an enhanced status under the PD(H)A 2016. One of the
consequences of this is that members of the public must be notified at the time of the
making of the planning application that it involves a material contravention of the plan.
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On the facts of the present case, the question of whether the proposed development
represented a “material contravention” was a live issue from the very outset of the
process, with the local planning authority indicating that it considered that the application
did indeed involve a material contravention. The developer cannot be said to have been
taken by surprise by the issue.
40. It behoves an applicant for strategic housing development to address their mind properly
to the question of material contravention in advance of the making of a planning
application. If, as will happen occasionally, the developer and its advisors misinterpret
the plan and fail to recognise that a material contravention is involved, then the legal
consequence is that the planning application is invalid. The legislation does not allow
the developer’s error to be visited upon the public by undermining their rights of public
participation.
CONCLUSION
41. This is not a suitable case in which to make an order for remittal. This is because one of
the principal objectives underlying the court’s jurisdiction to remit a matter to a decision-
maker for reconsideration cannot be achieved. The principal objective is to remedy the
error in the earlier decision-making, in as clinical a manner as possible, by allowing the
decision-making process to resume from a point in time before the error first occurred.
On the facts of the present case, the planning application was fatally flawed from the
outset. The planning application failed to recognise that the proposed development
represented a material contravention of the development plan. This resulted in non-
compliance with the procedure prescribed for such applications.
42. These deficiencies are not capable of being remedied by the form of remittal sought by
the developer. In particular, the absence of any allowance for further public participation
would mean that the making of an order for remittal would result in a risk that planning
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permission would be granted in material contravention in circumstances where the public
were not properly notified nor given an opportunity to make submissions or observations
on the developer’s case as to why planning permission should be granted notwithstanding
the material contravention.
43. This conclusion on its own is sufficient to dispose of the developer’s application for an
order for remittal. For the sake of completeness, I should record that I would have
exercised my discretion against remittal in any event, by reference to the following two
considerations. First, in accordance with the case law cited at paragraph 15 above,
I attach weight to the fact that the decision-maker, An Bord Pleanála, is opposed to the
making of an order for remittal. Secondly, the prejudice to the developer caused by the
refusal of an order for remittal in the case of strategic housing development is less
profound than in the case of conventional planning applications. The former procedure
is more streamlined—the necessity for a first-instance application to the local planning
authority is omitted—and An Bord Pleanála is obliged, under pain of financial penalty,
to make its decision within a period of 16 weeks (in applications not entailing an oral
hearing). The benefit to the developer in terms of a saving of time is greatly outweighed
by the prejudice to the public participation rights.
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FORM OF ORDER
44. It is proposed now to make an order as follows. An order of certiorari will be made
setting aside An Bord Pleanála’s decision of 15 August 2019 (Case reference:
PL06D.304420). The developer’s application to have the matter remitted to An Bord
Pleanála is refused. The order will also note that it is agreed between the parties that
Mr Redmond is to recover costs from An Bord Pleanála in the sum of €3,959.69
Appearances
Michael Redmond, the applicant for judicial review, represented himself
Nuala Butler, SC and Fintan Valentine for An Bord Pleanála instructed by Fieldfisher Solicitors
Eamon Galligan, SC and Suzanne Murray for the notice party developer instructed by Cannon
Solicitors