Mandatory Remittal to An Coimisiún Pleanála and Application of the Current Development Plan on Appeal

Commentary on Millbourne Residents Association v An Coimisiún Pleanála & Rybo Partnership [2025] IESC 50

1. Introduction

The Supreme Court’s decision in Millbourne Residents Association v An Coimisiún Pleanála [2025] IESC 50 is a significant development in Irish planning and judicial review law. Delivered by Woulfe J. (with Charleton, Hogan, Murray and Donnelly JJ. concurring), the judgment clarifies:

How the new statutory presumption of remittal in s. 50A(9A) of the Planning and Development Act 2000 (“the 2000 Act”) operates when a decision of An Coimisiún Pleanála (“the Commission”) has been quashed; and
Whether the Commission can lawfully determine an appeal – including on remittal – by reference to a development plan different from that applied by the planning authority at first instance.

The case arose from a residents’ association challenge to a Commission decision granting planning permission for apartments in Ashbourne, Co. Meath. The Commission conceded the judicial review on Habitats Directive grounds, leaving the High Court to decide to whom the quashed decision should be remitted. The central controversy was whether, after a Commission decision has been quashed, the court can remit “the matter” back to the planning authority (Meath County Council) rather than to the Commission itself.

In resolving that question, the Supreme Court:

Reaffirmed and extended its earlier reasoning in Crofton Buildings Management CLG v An Bord Pleanála [2024] IESC 12 on the meaning of “lawful” remittal under s. 50A(9A);
Clarified the interpretation of “the matter” and “as may be appropriate” in s. 50A(9A);
Re‑emphasised the de novo and appellate nature of the Commission’s jurisdiction under s. 37 of the 2000 Act; and
Confirmed that the Commission’s decisions must always be made by reference to the development plan in force at the time of its decision – even where that differs from the plan applied by the planning authority.

The decision has substantial practical implications for:

Objectors and developers engaged in planning litigation;
The Commission and planning authorities in managing appeals and remitted cases; and
The interpretation of the remittal regime in s. 50A of the 2000 Act, particularly in the context of changing development plans.

2. Factual and Procedural Background

2.1 The development and initial decisions

2019 application: The notice party, Rybo Partnership, applied to Meath County Council (the “planning authority”) under s. 34 of the 2000 Act for permission for three apartment blocks containing thirty apartments in Ashbourne, Co. Meath.
Applicable plan at first instance: Both the planning authority and, initially, the Commission assessed the proposal under the Meath County Development Plan 2013–2019 (“the 2013 Development Plan”).
Refusal by planning authority (2 June 2020): Meath County Council refused permission on a single ground. Importantly:
- It did not find a material contravention of the 2013 Development Plan under the special material contravention procedure; it merely found a contravention.
Appeal to the Commission (29 June 2020): The developer appealed to the Commission under s. 37 of the 2000 Act.
Commission’s decision (11 September 2020): The Commission granted permission subject to thirteen conditions. Again, it made no finding of material contravention of the 2013 Development Plan.

2.2 Judicial review and the change in development plan

Judicial review proceedings (28 October 2020): The Millbourne Residents Association commenced judicial review under ss. 50 and 50A of the 2000 Act challenging the Commission’s decision. One ground (ground 1) alleged a failure to carry out an appropriate assessment under the Habitats Directive (Directive 92/43/EEC).
New development plan (22 September 2021): During the life of the proceedings, the Meath County Development Plan 2021–2027 (“the 2021 Development Plan”) was adopted. Crucially:
- The zoning of the application site changed from residential to open space.
- This change made the development apparently inconsistent, and arguably in material contravention, of the new plan.
Commission concedes (24 June 2022): The Commission conceded the judicial review on the Habitats ground. The real dispute then shifted from the validity of the decision to the question: what should happen next?

2.3 The remittal dispute in the High Court

Once the Commission agreed that its decision should be quashed, the parties argued about remittal under s. 50A(9A) of the 2000 Act, inserted by the Planning and Development, Maritime and Valuation (Amendment) Act 2022. That subsection provides:

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

Positions of the parties:

Developer (notice party): Sought remittal to the Commission for reconsideration of the appeal.
Residents (appellant): Argued for remittal to the planning authority, on the basis that:
- Because the development plan had changed and the site was now zoned open space, the planning authority should have the opportunity to decide whether the proposal materially contravenes the 2021 plan; and
- They contended that the Commission would have no ascertainable jurisdiction under s. 37(2) to grant permission in these circumstances.
The Commission: Formally neutral on “who” should receive the remittal, but firmly rejected the suggestion that remittal to it would be unlawful or that it lacked jurisdiction to determine the appeal by reference to the new plan.

2.4 High Court rulings

Bolger J. delivered two judgments:

First judgment ([2024] IEHC 31, 24 January 2024):
- Quashed the Commission’s decision on consent of the parties;
- Applied s. 50A(9A) and held that the statutory “bar” on remittal is set high: the Court must remit unless positively satisfied that remittal would be unlawful;
- Held that:
  - There was no specific legal preclusion on remittal to the Commission;
  - The “matter” to be reconsidered was the appeal, not the original planning application as decided by the planning authority;
  - The introduction of the 2021 Development Plan did not remove the Commission’s jurisdiction; and
  - There was nothing in the legislation requiring both the planning authority and the Commission to apply the same development plan.
- Remitted the matter to the Commission.
Second judgment ([2024] IEHC 580, 9 October 2024):
- Refused to certify a point of law of exceptional public importance under s. 50A(7);
- Noted the strong endorsement by the Supreme Court in Crofton of the presumption in favour of remittal;
- Refused leave to appeal to the Court of Appeal.

The residents then sought, and were granted, leave to appeal directly to the Supreme Court on the basis that the case raised issues of general importance as to:

The scope and operation of s. 50A(9A); and
Whether the Commission can decide an appeal by reference to a development plan different from that considered by the planning authority.

3. Summary of the Supreme Court Judgment

The Supreme Court dismissed the appeal and upheld the High Court’s order remitting the matter to the Commission. The Court’s principal holdings can be summarised as follows:

Interpretation of s. 50A(9A):
- The “matter” to be remitted is the subject of the decision actually quashed – here, the appeal before the Commission.
- The phrase “as may be appropriate” refers to the appropriate one of the listed bodies (planning authority, local authority, Commission) which took the decision being quashed, not to a free-standing discretion to redirect the matter to some other decision-maker.
- Therefore, where the quashed decision is that of the Commission on an appeal, the “appropriate” body is the Commission itself; remittal to the planning authority is not contemplated by the subsection.
Functus officio of the planning authority:
- Under s. 37(1)(b), a Commission decision on appeal operates to annul the planning authority’s decision.
- Relying on McCallig v An Bord Pleanála [2013] IEHC 60, the Court held that this is so even where the Commission’s decision is subsequently found invalid in judicial review.
- Once the Commission has given its decision, the planning authority is functus officio; there is no extant decision capable of being remitted back to it for reconsideration.
“Lawful” remittal under s. 50A(9A):
- Drawing on Crofton, the Court reaffirmed that the concept of “lawful” remittal concerns the lawfulness of the court’s order to remit, not whether the Commission can or will lawfully grant permission on remittal.
- The High Court is not required to predict whether the Commission will ultimately be able to lawfully grant or refuse permission; it need only ensure that remittal itself does not breach any legal constraint.
Commission’s jurisdiction under s. 37(2):
- The Commission has a general power under s. 37(2)(a) to grant permission on appeal even where this would materially contravene the development plan.
- Section 37(2)(b) imposes restrictions on the exercise of that power only where:
  - The planning authority has refused permission expressly on the ground that the proposal materially contravenes the development plan; and
  - The Commission on appeal forms the same view.
- In the present case, the planning authority did not refuse on the basis of material contravention, so s. 37(2)(b) simply does not apply.
- Accordingly, there is no jurisdictional void: the Commission’s power under s. 37(2)(a) remains intact, and is not rendered “indeterminate” by the change in the development plan.
Use of a different development plan on appeal:
- The Court reiterated the position stated in Crofton that the Commission must decide any appeal by reference to the development plan in force on the date of its decision.
- That is true:
  - For the appeal’s first determination; and
  - For any subsequent determination following remittal.
- There is no requirement that the Commission apply the same development plan as that applied by the planning authority at first instance.

On that basis, Woulfe J. concluded that:

The High Court was correct to remit the matter to the Commission;
There was no legal basis to remit to the planning authority; and
Remittal to the Commission was not “unlawful” within the meaning of s. 50A(9A).

4. Analysis

4.1 Precedents and Authorities Cited

4.1.1 Heather Hill Management Company CLG v An Bord Pleanála [2022] 2 ILRM 313 and DPP v Brown [2019] 2 IR 1 – Statutory interpretation

The Court’s interpretative method is framed by Heather Hill, where Murray J., relying on McKechnie J.’s judgment in DPP v Brown, set out a now-standard approach to statutory interpretation:

First, start with the ordinary and natural meaning of the words used;
Second, read these words in their context:
- Immediate textual context (the sentence/subsection);
- Related subsections and provisions;
- The Act as a whole and its legislative history; and
- The mischief to be remedied.
Third, apply recognised interpretative canons and principles;
Fourth, if ambiguity remains, seek to discern the legislative purpose and object.

Woulfe J. explicitly applies this framework to s. 50A(9A), emphasising that:

The key phrases – “the matter” and “as may be appropriate” – must be read in light of:
- The concept of “reconsideration”; and
- The separate statutory scheme governing appeals (s. 37) and judicial review (ss. 50 and 50A).

This methodology underpins the conclusion that “the matter” is the appeal as it stood before the Commission, and that “as may be appropriate” points to the body that actually made the impugned decision.

4.1.2 Crofton Buildings Management CLG v An Bord Pleanála [2024] IESC 12 / [2022] IEHC 704 – The presumption of remittal and the meaning of “lawful”

Crofton is central to understanding Millbourne. Two related strands of authority are relevant:

Holland J. in the High Court ([2022] IEHC 704):
- Described s. 50A(9A) as a “statutory expression and reinforcement” of a pre‑existing judicial presumption in favour of remittal.
- Held that remittal should only be refused where the court is positively satisfied that it would be unlawful.
Donnelly J. for the Supreme Court ([2024] IESC 12):
- Affirmed the strong presumption of remittal where requested by the applicant for permission;
- Clarified that “lawful” refers to the lawfulness of the remittal order itself, not to whether the Board could lawfully grant permission on remittal:
  
  The consideration … does not mean that the High Court has to analyse whether the Board could lawfully grant a permission … The word “lawful” must relate to the High Court’s decision to remit. There is nothing unlawful about a remittal which would end up with the Board being in a position to take a valid decision.
- Stated that nothing in the relevant sections required the Board to have regard to anything other than the development plan in effect on the date of its decision.

Millbourne builds directly on this foundation. While Crofton concerned a strategic housing development made directly to the Board (no planning authority decision), Millbourne extends the principles to the ordinary two‑tier system where an appeal lies from the planning authority to the Commission.

4.1.3 McCallig v An Bord Pleanála [2013] IEHC 60 – Effect of a Board decision on the planning authority’s decision

McCallig is crucial to the Court’s reasoning on functus officio. Herbert J. held that:

Once an appeal is determined by the Board, its decision “shall operate to annul the decision of the planning authority” under s. 37(1)(b).
This is true even if the Board’s decision is itself invalidated in judicial review.
The Oireachtas used the term “annul” deliberately to indicate conclusively that:
- The planning authority’s decision is no longer a decision at all; it “became as nothing”;
- There can be no recourse back to the planning authority nor any reactivation of its decision.

Woulfe J. expressly endorses this reasoning, deploying it to show that:

There is no extant planning authority decision capable of being remitted; and
The planning authority is not in a position to “reconsider” the appeal, because it never considered the appeal in the first place.

4.1.4 Balz and Heubach v An Bord Pleanála [2016] IEHC 134 and South Western Regional Shopping Centre Ltd v An Bord Pleanála [2016] IEHC 84 – Interpretation of s. 37(2)

These High Court decisions, cited by the Commission and the notice party, illuminate the structure of s. 37(2):

Balz:
- Rejected an interpretation of s. 37(2)(b) which would unduly limit the Commission’s jurisdiction.
- Held that the restrictions in s. 37(2)(b)–(c) apply only where:
  - The planning authority has refused permission on grounds of material contravention; and
  - The Commission shares that view.
- Outside that specific scenario, s. 37(2)(a) confers a broad discretionary power to grant permission even in material contravention of the development plan.
South Western Regional Shopping Centre:
- Confirmed the de novo nature of appeals.
- Held that s. 37(2)(b) does not limit the Commission’s jurisdiction to hear and determine an appeal; it only constrains the circumstances in which the Commission may grant permission where there is a finding of material contravention and the s. 34 material contravention procedure has not been followed.

These cases are consistent with the Supreme Court’s approach in Millbourne: they treat s. 37(2)(b) not as a jurisdictional “gate” but as a set of conditions on the exercise of a jurisdiction that otherwise exists under s. 37(2)(a).

4.1.5 Salmon Watch v Aquaculture Licences Appeals Board [2024] IEHC 608

Although not central to the Supreme Court’s ratio, Salmon Watch was cited by the Commission to show an analogous approach in a different statutory context. Holland J. held that where an appellant body’s decision (there, ALAB) is quashed, the appeal should be remitted to that appellate body, not to the first‑instance decision‑maker. This supports the general principle that the “matter” to be remitted is the appeal, to be reconsidered by the body that originally determined it.

4.2 The Court’s Legal Reasoning

4.2.1 The meaning of “the matter” and “as may be appropriate” in s. 50A(9A)

The key interpretative move concerns the phrase in s. 50A(9A):

… remit the matter to the planning authority, the local authority or the Board, as may be appropriate, for reconsideration…

The appellant argued that:

This gives the court a broad discretion to select whichever of the three bodies is “appropriate” in the circumstances, regardless of which made the quashed decision.
In a case where the development plan has changed, it would be “appropriate” to remit to the planning authority so that it can make a fresh decision under the new plan, especially on material contravention issues.

The Supreme Court rejects this reading for several reasons.

(a) Identification of “the matter”

Woulfe J. emphasises that “the matter” must be understood in the context of:

The decision that has been quashed; and
The requirement that the matter be remitted for “reconsideration”.

He concludes that:

In this case, “the matter” is the appeal as it stood before the Commission – that is, the planning application plus all appeal documentation, responses to the planning authority’s reasons, and submissions or observations made in the appeal process.
This is a distinct matter from the earlier s. 34 decision at first instance; indeed, the appeal often includes additional material not before the planning authority.

(b) Who can “reconsider” that matter?

Once the “matter” is identified as the appeal, only the Commission can “reconsider” it:

The planning authority never considered the appeal in the first place; it only considered the original application at first instance.

(c) The role of “as may be appropriate”

Against this backdrop, “as may be appropriate” is read as a selector between the possible decision-makers identified earlier in the subsection, depending on the type of decision that was quashed:

If the quashed decision was made by a planning authority (e.g. a s. 34 decision), “the appropriate” body is the planning authority;
If by a local authority acting in another planning capacity, the appropriate body is that local authority;
If by the Commission (as here, on appeal), the appropriate body is the Commission.

On this view, s. 50A(9A):

Does not grant the court a roving discretion to redirect a Commission appeal back to a planning authority; and
Simply reflects that different types of impugned decision under s. 50(2) may emanate from different public bodies.

4.2.2 Functus officio and the effect of s. 37(1)(b)

Section 37(1)(b) provides that where an appeal is brought and not withdrawn:

… the Board shall determine the application as if it had been made to the Board in the first instance, and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given.

The Court draws two key consequences:

De novo appeal: The Commission determines the application afresh, as if it had been made to it directly. The planning authority’s decision is not a continuing reference point for jurisdiction; it is superseded.
Annulment of the planning authority’s decision: Once the Commission decides the appeal, the planning authority’s decision ceases to have legal effect. Even if the Commission’s decision is later quashed, the planning authority does not regain jurisdiction over the same application.
- This is where McCallig is deployed: the legislative choice of the word “annul” was intended to foreclose administrative confusion by ensuring that only one operative decision exists at the end of the appeal process.

Accordingly:

There is no surviving planning authority decision which could be “reconsidered” under s. 50A(9A); and
Remitting a Commission appeal to the planning authority would not be a remittal of “the matter” that was the subject of the quashed decision; it would be an attempt to create a new first‑instance process, contrary to the scheme of the Act.

4.2.3 The “lawful” test under s. 50A(9A)

The appellant sought to invoke the “unless … not lawful” proviso of s. 50A(9A) by arguing that:

The Commission’s jurisdiction to grant permission in material contravention is dependent on a prior decision of the planning authority on material contravention under the same development plan;
Because the 2021 Development Plan had never been considered by the planning authority in relation to this proposal, the Commission’s jurisdiction under s. 37(2) was “indeterminate” or “unascertainable”; and
Therefore remittal to the Commission would be “unlawful”.

Woulfe J. treats this as misconceived for two related reasons.

(a) Correct focus of the “lawful” inquiry

Applying Crofton, the Court stresses that:

The High Court’s task is to decide whether there is any legal bar to remitting the matter at all; it is not to undertake a hypothetical merits‑style analysis of whether the Commission could lawfully grant permission on remittal.
There is nothing unlawful about a remittal to the Commission which leaves the Commission free to:
- Grant permission;
- Refuse permission; or
- Apply whatever statutory restrictions arise in the circumstances.

In other words, s. 50A(9A) presupposes that the Commission will act lawfully once the matter is remitted; what must be unlawful is the remittal order itself.

(b) No jurisdictional vacuum under s. 37(2)

The Court then turns to the structure of s. 37(2), making the following points:

General power (s. 37(2)(a)):
- The Commission may grant permission on appeal even where this would materially contravene the development plan.
- This is a general jurisdiction which applies to all appeals.
Restricted power (s. 37(2)(b)):
- This subsection applies only where:
  - The planning authority has refused permission on the specific ground that the proposed development materially contravenes the development plan; and
  - The Commission on appeal also considers that the development would materially contravene the plan.
- In that situation, the Commission may grant permission only if certain criteria (set out in s. 37(2)(b)) are met, and must give special reasons under s. 37(2)(c).

On the facts of Millbourne:

Meath County Council did not refuse permission on material contravention grounds under the 2013 Development Plan; and
There is no legislative requirement that the planning authority must now consider whether the development materially contravenes the 2021 plan – nor could it, being functus officio.

It follows that:

Section 37(2)(b) is simply inapplicable; there is no statutory trigger for its restrictive regime.
The Commission’s general jurisdiction under s. 37(2)(a) is unaffected and remains fully ascertainable.

Thus, far from being “indeterminate”, the Commission’s power is clear: it must determine the appeal de novo, by reference to the development plan in force at the time of its (remitted) decision, subject to the usual constraints of proper planning and sustainable development, and to whatever provisions of s. 37(2) are actually engaged.

4.2.4 Can the Commission decide an appeal by reference to a different development plan than the planning authority?

The Court’s Determination granting leave had identified as a novel underlying question:

… whether the decision of the Commission can be made by reference to a different development plan than that considered at first instance by the relevant planning authority.

By the end of the judgment, Woulfe J. states that this question “has already been answered”:

In Crofton, the Supreme Court held that the Commission must have regard to the development plan in force at the time of its decision; and
Nothing in the 2000 Act requires the Commission to apply the same plan as was applied at first instance.

Accordingly:

A change in the development plan between the planning authority’s decision and the Commission’s (initial or remitted) decision does not deprive the Commission of jurisdiction.
The Commission is obliged to apply the current development plan, even if:
- That plan was adopted after the planning authority’s decision; and
- The planning authority never had an opportunity to consider the application under the new plan.

The appellant’s public participation concerns (i.e. that the public may not have been consulted on the application under the new plan at first instance, and that there is no equivalent procedure at appeal stage) do not alter this statutory position. The Court endorses a coherent, workable interpretation of the Act over one that would effectively freeze or unwind the appeal process every time a development plan changes.

4.3 Impact and Significance

4.3.1 Reinforcement of a strong presumption of remittal to the original decision‑maker

Millbourne consolidates the post‑2022 regime of s. 50A(9A):

Where a planning decision is quashed under s. 50(2) and the applicant for permission requests remittal, the court must remit “the matter” back to the body that made the quashed decision unless remittal would itself be unlawful.
For Commission decisions on appeal, remittal is therefore:
- Mandatory in practice, subject to a narrow “unlawful” exception; and
- Directed to the Commission itself, not to the planning authority.

This considerably limits the scope for objectors to seek a “reset” of the process back to first instance after a successful judicial review of a Commission decision. The appeal remains the central vehicle; the planning authority remains outside the process once its decision has been annulled by an appeal decision.

4.3.2 Certainty about the Commission’s jurisdiction despite changing development plans

The judgment also brings clarity to a frequent real‑world problem: changes or variations to development plans during the often lengthy life of appeals and judicial review proceedings.

The Commission’s jurisdiction does not depend on the planning authority having applied the same development plan.
Nor is the Commission’s power to grant in material contravention under s. 37(2)(a) contingent on a prior material contravention decision by the planning authority on that same plan.
Appeals – including remitted appeals – can thus proceed to determination on the basis of the development plan in force at the time of the Commission’s decision, without jurisdictional paralysis.

This avoids what the Commission described as a potentially “circular and unworkable” outcome in which every change to a development plan would force either:

A de facto restart of the application with the planning authority; or
A jurisdictional impasse for the Commission, unable to decide the appeal because the planning authority had never considered the new development plan.

4.3.3 Implications for public participation and environmental litigation

The appellant had advanced concerns relating to public participation and environmental governance:

Members of the public might not have had an opportunity to comment on the application’s consistency with a new development plan at first instance;
Appeal procedures (including under s. 131) largely involve written notifications to identified parties and do not replicate the full public notification regime (site notices, newspaper notices) seen at first instance; and
Thus, deciding an appeal by reference to a new plan at Commission level might reduce public participation and bypass the planning authority’s detailed role in implementing the plan.

While these arguments are recorded in the judgment, the Supreme Court does not treat them as determinative of the interpretation of the statutory text. The implicit message is:

Concerns about the adequacy of public participation mechanisms in the face of changing development plans are policy matters for the Oireachtas, or potentially for future challenges framed squarely as fair procedures or EU law claims; they do not override the clear wording and structure of the 2000 Act as it stands.

In practice, the Commission retains tools – notably s. 131 (requests for further submissions) and the power under s. 142(4) for public notice where regulations so provide – to address fairness concerns where development plans change. Millbourne confirms that the absence of a full first‑instance style re‑notification procedure does not render remittal or appeal determination unlawful.

4.3.4 Strategic considerations for litigants

The decision has important strategic consequences:

For objectors/residents:
- A successful judicial review of a Commission decision will usually result in the appeal being reheard by the Commission, not a new first‑instance process.
- Arguments that a change in the development plan creates a jurisdictional barrier to the Commission’s reconsideration are unlikely to succeed.
- If public participation or environmental assessment under the new plan is challenged, those issues will have to be targeted directly (e.g. in how the Commission conducts the remitted appeal), rather than indirectly through remittal arguments.
For developers:
- Section 50A(9A) offers real protection against planning limbo; quashing a permission does not automatically mean going back to square one with the planning authority.
- However, developers must also recognise that on remittal, the Commission will be bound to apply whatever development plan (or varied plan) is in force at the time of its new decision, which may be less favourable than the earlier plan.

4.3.5 Systemic planning law implications

Finally, the judgment:

Re‑affirms the two‑stage planning system:
- First instance decision by the planning authority;
- Appeal to the Commission, which produces the sole operative decision.
Emphasises that judicial review is a collateral challenge to legality, not a mechanism to re‑engineer the institutional roles of planning authorities and the Commission.
Confirms that the Planning and Development Act 2000 is to be read as a coherent whole, with a premium on workable administrative outcomes and on avoiding radical implied changes to jurisdiction absent clear legislative words.

5. Complex Concepts Simplified

5.1 Remittal

“Remittal” is when a court, after quashing an administrative decision (here, a planning or appeal decision), sends the case back to a public body for a fresh decision. Under s. 50A(9A):

If the applicant for permission asks for remittal, the court must remit the matter back to the decision‑maker, unless doing so would itself be unlawful.

5.2 Certiorari

Certiorari is the order by which a court quashes or sets aside an unlawful administrative decision. In this case, the High Court granted certiorari to quash the Commission’s planning permission.

5.3 De novo appeal

A de novo appeal means the appeal body reconsiders the application afresh, as if it were the original decision-maker. Under s. 37(1)(b):

The Commission must determine the application “as if it had been made to the Board in the first instance”.
It is not confined to reviewing alleged errors by the planning authority; it makes its own decision on the merits.

5.4 Development plan

A development plan is a statutory land‑use plan prepared by a planning authority (e.g. a county council) under Part II of the 2000 Act. It:

Sets out zoning (e.g. residential, open space, industrial) and planning policies for a six‑year period;
Must be reviewed and may be varied; and
Is a key reference point in determining planning applications and appeals.

The rule, reaffirmed in Millbourne, is that the Commission must apply the plan in force at the date of its decision, even if this differs from the plan previously applied by the planning authority.

5.5 Material contravention

A “material contravention” occurs when a proposed development significantly departs from the development plan – for example, building housing on land zoned open space. Special procedures apply:

At first instance, a planning authority may grant permission in material contravention only after public notice and a special resolution process (s. 34).
On appeal, the Commission has a general power under s. 37(2)(a) to grant permission even in material contravention, but this is restricted in certain cases by s. 37(2)(b)–(c).

5.6 Functus officio

A decision-maker is functus officio when it has exhausted its legal powers in respect of a matter and cannot revisit the decision. Because:

The Commission’s decision on appeal annuls the planning authority’s decision (s. 37(1)(b));
Even if the Commission’s decision is later quashed, the planning authority does not regain jurisdiction over that application.

5.7 Presumption against radical amendment

This is a principle of statutory interpretation whereby courts presume that the Oireachtas does not intend to make radical changes to established legal structures (such as jurisdictional frameworks) without saying so clearly. In Millbourne, this underpins the rejection of arguments that would:

Strip the Commission of jurisdiction whenever a development plan changes; or
Convert the remittal power into a mechanism to send appeals back to first‑instance authorities.

6. Conclusion

Millbourne Residents Association v An Coimisiún Pleanála [2025] IESC 50 is a pivotal decision on the operation of the planning judicial review and appeal systems after the 2022 amendments to the 2000 Act. Its key takeaways are:

Remittal under s. 50A(9A) is strongly presumptive and tightly channelled:
- When a Commission decision is quashed and remittal is requested, “the matter” – the appeal – must ordinarily be remitted to the Commission itself.
- The phrase “as may be appropriate” merely identifies the correct decision‑maker among planning authorities, local authorities and the Commission, depending on who made the impugned decision.
Planning authorities are functus officio once a Commission decision is given:
- Under s. 37(1)(b) the Commission’s decision annuls the planning authority’s decision, even if the Commission’s decision is later invalidated.
- There is no surviving planning authority decision that can be remitted for reconsideration.
The “lawfulness” of remittal is about the remittal order, not the outcome:
- Courts need not and should not predict whether the Commission could lawfully grant permission on remittal.
- They must simply ensure that remittal itself does not breach any statutory or constitutional constraint.
The Commission’s jurisdiction under s. 37(2) remains robust:
- It has a general power to grant permission even in material contravention, subject only to the specific restrictions in s. 37(2)(b)–(c) where a planning authority has refused permission on material contravention grounds and the Commission agrees.
- Changes to development plans do not render its jurisdiction “indeterminate”.
Appeals are determined by reference to the development plan in force at the time of the Commission’s decision:
- There is no requirement that the Commission apply the same plan considered at first instance.
- This applies equally to first‑time and remitted appeals.

By integrating and extending the principles in Crofton, McCallig, and earlier interpretations of s. 37, the Supreme Court has provided a clear and workable framework for how quashed planning decisions – particularly at appeal level – are to be handled. The judgment offers certainty to decision‑makers and litigants alike, while signalling that any further recalibration of public participation or institutional competences in light of changing development plans is a matter for the legislature rather than for creative use of remittal orders.

Mandatory Remittal to An Coimisiún Pleanála and Application of the Current Development Plan on Appeal: Commentary on Millbourne Residents Association v An Coimisiún Pleanála [2025] IESC 50