On What Basis Can You Remit SHD Decisions?

The respondent in this case (the Board) had conceded to the quashing of its decision of 21 April 2021 granting planning permission for a Strategic Housing Development (SHD) which consisted of the construction of 102 build-to-rent apartments in Dublin.

The Board had conceded this matter on the basis that the Board breached the Planning and Development Act (Housing) Residential Tenancies Act 2016 (the 2016 Act) in relation to building height requirements. The purpose of the judgment in this case was to decide whether this decision should be remitted to the Board, and if so, whether the 2016 Development Plan or the 2022 Development Plan would apply.

Crofton and the Board submitted that the 2022 Development plan should apply, whereas Fitzwilliam (the Developer) submitted that the 2016 Development Plan should apply.

Remittal

Mr Justice Holland, in his judgment, explored an extensive range of case law on the subject of remittal i.e. remit the matter back to the authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the court. He stated that the court has a wide discretion to remit a decision and on what terms. He referred to the strong predisposition to remit a matter where it can be justly done.

He cited the case of Barna Wind Action [1], which laid out a number of principles relating to the question of remittal, including that a court should have regard to the expense and inconvenience remittal may cause, the court may make non-binding recommendations when remitting a matter, that the court has a wide discretion to remit, and that as a matter of overriding principle the court should aim to undo the consequences of any invalid act but should not go any further.

The arguments of the parties

The Developer strongly urged remittal having regard to the 2016 Development Plan, arguing a constitutional right to fair procedures, and that they were entitled to a lawful decision as if at the date of the quashed unlawful decision.

Crofton argued against remittal on the basis that statute requires planning decisions be based on the development plan current at the date of the decision. They argued the 2016 Development Plan no longer exists, and the 2022 Development Plan is the only applicable plan, and to remit on that basis
would require the rewriting of the entire planning application.

The Board was neutral as to remittal. But in their submissions, they generally favoured it as an option. It stated that the remitted decision would be made having regard to the 2022 Development Plan and remittal on that basis was not legally impermissible. They also argued that the judge in making his decision should leave it to the Board to determine a means of ensuring fair procedures within the statutory framework.

Importance of development plans in planning decisions

Mr Justice Holland set out the importance of development plans both generally and in the SHD process. He cited a number of cases in support of this view, stating that it is an environmental promise between the planning authority and the community, which embodies a promise that the planning authority will regulate private development in a manner consistent with the objectives stated in the plan.

Mr Justice Holland then moved on to an analysis of which Development Plan should apply, the 2016 Plan or the 2022 Plan. He concluded, by reference to various cases, that the default position should be that the development plan in force at the time the decision is made applies. This means that in a remitted decision, the 2022 Development Plan would apply in this case.

Can regard lawfully be had to the 2022 Development Plan on remittal?

In considering this question, Mr Justice Holland set out that in judicial review, remittal implies a resumption and repetition, but this time in accordance with law, of an existing planning process- not the start of a new one.

Crofton submitted that because the planning application was made in accordance with the 2016 Plan, the planning application is now flawed and would have to be completely rewritten to reflect the currency of the 2022 plan.

Mr Justice Holland went on to consider the process of an SHD application. The SHD process imposes considerable requirements to address the applicable development plan’s implications for any SHD planning application and to do so from the beginning of the process. The Board is prohibited from granting an SHD permission in material contravention of the zoning provisions of a development plan. Once an SHD application has been made and the submissions and observations of the public received, the planning authority must submit to the Board a report by the chief executive of his/her views, on the effects of the proposed development on the proper planning and sustainable development of the area and the local environment, having regard to the relevant development plan and the opinions of the public.

Crofton submitted that the SHD planning application was therefore “wedded” to a particular development plan. Therefore, a new development essentially needs a rewriting of the SHD application from the start. The Board submitted that there was no means of ensuring fair procedures in a remitted process other than by a possible oral hearing.

No further information

The Developer also proposed an oral hearing as a solution which would enable a lawful remittal. Mr Justice Holland, in his analysis, went on to say that in broad terms, in an “ordinary” planning application, the development plan is replaced, statutory machinery exists to allow further information to be tendered by any relevant party, and circulated for response if needs be, to enable a decision to be properly informed and to ensure fair procedures have been observed. However under the 2016 Act, there is no mechanism for further information requests.

Mr Justice Holland concluded on this point that there was no prospect, in the current case, of lawful remittal within the statutory process on the basis of seeking or submission of further information and its circulation to Crofton and the public generally for response. He then went on to consider that an oral hearing was the only suitable solution. He went on to say that any remittal of the matter must be made having regard to the 2022 Development Plan.

He stated that a remitted process would not be fair or lawful unless it included circulation to Crofton, prescribed bodies, the public and the planning authority, in good time and for their considered response. The ultimate question therefore is whether that position can be achieved by appropriate directions and recommendations by the Court.

Directions

He asked the parties to seek to agree directions in accordance with the tenor of his judgment. Without purporting to finally settle the issues, he recommended that the Board will:

• Hold an oral hearing
• Notify the parties to the proceedings, the planning authority, prescribed bodies and the public of that oral hearing
• Require the Developer 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
• Recommend 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 the Developer’s intended submissions to the parties, the planning authority and prescribed bodies and their publication to the public
• Require the parties, the planning authority, prescribed bodies and the public to respond in writing, by way of their submissions to the oral hearing, within 5 weeks and in documentary form, to the Developer’s intended submissions
  to the oral hearing
• Require that all those who make such responses be heard at the oral hearing

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[1] [2020] IEHC 177