The Remittal of Quashed Planning Permissions

In a significant judgment clarifying the law on remittal[1], the Supreme Court considered, on the facts, the High Court’s remittal of a quashed planning permission for a strategic housing infrastructure (SHD) development. The appeal of Crofton Buildings & Anor v An Bord Pleanála from the High Court to the Supreme Court centred on two main issues:

1. Whether and in what circumstances the High Court, in quashing a decision to grant planning permission, must remit the decision to the relevant decision-making body, and
2. The extent to which, if at all, the High Court when making the remittal ought to give directions to the relevant decision-maker for the purposes of carrying out its lawful functions

In a departure from the decision of the High Court, the Supreme Court determined that, in the context of planning decisions, there is a statutory imperative to remit unless it would not be lawful to do so.

In addition, the Court’s decision significantly limits the circumstances in which directions detailing how the decision-making authority must reconsider the remittal would be appropriate, and at what stage to which the decision might be remitted.

High Court

As discussed in our previous article, Mr Justice Holland in the High Court, in granting remittal, gave directions to An Bord Pleanála (the Board) to follow when reconsidering the application, including, among other things, the holding of an oral hearing.

A ‘leapfrog’ appeal of the High Court Order was subsequently granted, directly from the High Court to the Supreme Court.

Supreme Court

Issue 1: Remittal

The Supreme Court decision discusses at length the interpretation of the statutory provisions on remittal. The Court pointed to the general power of remittal in certiorari cases laid out in the Rules of the Superior Courts (Order 84), emphasising its discretionary nature.

In contrast, section 50A(9A) of the Planning and Development Act 2000 (as amended) (PDA), which commenced in October 2022, provides for remittal in the context of planning decisions as follows:

“If, on an application for judicial review under the Order, 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 the Court considers appropriate, unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so”.

The Supreme Court interpreted this section as imposing a mandatory requirement on the High Court, if requested by the applicant for permission, to remit a quashed planning decision to the relevant planning authority unless it is unlawful to do so. In other words, prior to the enactment of section 50A(9A), remittal in planning cases was discretionary but now it is mandatory. This is unless, however, doing so would be unlawful.

In light of the presumption that the Board will act lawfully in the exercise of its powers, the Court noted that the restriction of “unlawfulness” is a “very high threshold” to reach. Therefore, the circumstances in which the High Court will refuse remittal will be “rare and exceptional”, when it is not lawful for the planning authority/Board to reconsider the application. Importantly, the Court noted that this position does not exclude the SHD scheme.

In reaching this conclusion, the Court gave the legislation its plain and ordinary meaning. The Court also emphasised the context in which section 50A(9A) was enacted. It noted that the provision reflects a clear intention of the legislature to reduce complexity and delay in judicial review cases involving challenges to planning permissions. This mandatory requirement to remit, unless it would not be lawful to do so, marks a highly significant departure from the discretionary position for general certiorari cases under Order 84, in addition to previous caselaw in the area.

Issue 2: Directions

The developer and notice party to this case, Fitzwilliam DL Limited, submitted that section 50A(9A) of the PDA allows the High Court to make directions on remittal which can be factored into the determination of whether remittal is lawful.

In an examination of the meaning of “appropriate”, the Supreme Court disagreed with this interpretation of the legislation and emphasised the importance of the statutory functions of the planning authorities and the Board, saying that “nothing in the subsection would support the view that the power of the court to give appropriate directions confers on the court a power to change the statutory duties or limitations imposed by law on the planning authorities or the Board”. Instead, the Supreme Court held that the phrase “subject to such directions as the Court considers appropriate” in section 50A(9A) of the PDA preserves the jurisdiction of the Court to give appropriate directions, but this jurisdiction now operates in an entirely different landscape where remittal is mandatory, save for in the very limited circumstances in which it would not be lawful to do so. The Board is presumed to act fairly in the exercise of its powers, and therefore “it is not necessary or indeed appropriate” for a Court to “give very specific directions detailing how the Board is to operate its own procedures”.

However, the Supreme Court held that there may still be limited circumstances where directions are appropriate. Whether these directions are appropriate will depend on the facts of each case. In its judgment, the Supreme Court gave the example that it may be appropriate, given the grounds on which the order of certiorari was made, to direct that a particular member of the Board must not be involved in the reconsideration of the remitted decision. However, as the Board is presumed to act lawfully in the exercise of its powers, significant legal submissions will not be required when making directions.

Therefore, the Supreme Court directed that the directions made by the High Court as to how the Board must deal with the matter being remitted be deleted.

Issue 3: Remittal to what stage?

The Supreme Court also briefly addressed the issue as to whether a direction ought to be given as to the stage to which the decision might be remitted. It referenced that the findings as to when and how this remittal is lawful are also relevant to the point in the process to which the process is remitted. The Supreme Court held that where the order quashing the decision relates to a particular stage of the process, for example, a statutory pre-application stage, then the matter for reconsideration must be the process commencing at that stage. The Supreme Court remitted the decision back to determination of the application by the Board, as there was no challenge to the pre-application stage.

Conclusion

In dismissing the appeal and varying the High Court order to delete the directions given to the Board, the Supreme Court has issued a clear statement on the law of remittal in planning decisions, including decisions made in the SHD context. Those involved in planning litigation should be aware that it is mandatory for the High Court to remit quashed planning decisions to a planning authority or the Board when requested by the applicant for permission or approval, unless to do so would meet the particularly high threshold of unlawfulness discussed in detail by the Court.

In addition, it should be noted that the scope for the High Court to issue directions to the Board on how to determine an application on remittal is significantly limited. The Board is presumed to be able to operate its own procedures fairly and in accordance with the law.

For more information, please contact a member of our Planning & Environment team.

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[1] Crofton Buildings & Anor v An Bord Pleanála, Supreme Court, Donnelly J, 10 April 2024, [2024] IESC 12