Section 37(6) Leave Strictly Applied: Pre‑Remittal s.146 Assignments Not Fatal and “Best‑Practice” Pre‑Commencement Conditions Do Not Materially Alter Development – Morehart v An Bord Pleanála [2025] IEHC 418

Section 37(6) Leave Strictly Applied: Pre‑Remittal s.146 Assignments Not Fatal and “Best‑Practice” Pre‑Commencement Conditions Do Not Materially Alter Development – Morehart v An Bord Pleanála [2025] IEHC 418

Introduction

This High Court judgment (Farrell J., 12 August 2025) addresses the threshold for an adjoining landowner’s special right to seek leave to appeal under section 37(6) of the Planning and Development Act 2000 (as amended), and the procedural propriety of An Bord Pleanála’s use of section 146 “reports” in the context of remittal following judicial review. The applicant, Mr John Morehart, owns the adjoining Bellamont Forest Estate and Dromore Lough; the notice party is Abbott Ireland, which obtained permission from Monaghan County Council (Reg. Ref. 22/497) for an expansion at Cootehill. The applicant’s submission to the planning authority was rejected as late; An Taisce appealed; Mr Morehart then applied to the Board for leave to appeal under s.37(6), contending that conditions attached by the planning authority (especially Condition 4) materially altered the development and materially affected the enjoyment/value of his adjoining land.

The Board refused leave to appeal several times; two refusals were quashed by the High Court and remitted. The third refusal (August 2024) was challenged on multiple grounds: alleged unlawfulness in relying on a Senior Inspector’s memorandum said to have been prepared before remittal; failure to consider an earlier administrative memorandum; misapplication of the s.37(6) test by “looking behind” conditions; and reliance on an Industrial Emissions Licence (IED Licence) as an allegedly irrelevant factor. The Court ultimately refused certiorari, reaffirming a stringent, literal approach to s.37(6), clarifying the interpretation of “best‑practice” pre‑commencement conditions, and exercising remedial discretion in the face of a technical prematurity issue concerning a s.146 assignment.

Summary of the Judgment

  • The Court dismissed the judicial review and refused certiorari.
  • On the merits:
    • Condition 4 (asbestos survey; hazardous/contaminated waste soil management; water protection checklist; contingency/remedial plan; construction management plan) regulates how the already‑applied‑for development is implemented; it does not impose a new or materially different development. These are “best practice” pre‑commencement controls that an informed layperson could anticipate.
    • Condition 6 (contact Irish Water, confirm acceptability) likewise does not materially alter the development.
    • The Board could lawfully note the existence of the facility’s IED Licence (P0687‑02) as relevant context; it was not an irrelevant consideration.
  • On procedure:
    • Both the March 2023 “memorandum” (by an Executive Officer) and the July 2024 Senior Inspector’s memorandum are section 146 reports, but the March memorandum contained no reasoned analysis or recommendation to grant/refuse; the Board was not required to expressly reconcile them and adequately explained why it refused leave.
    • The Senior Inspector appears to have been assigned before the formal remittal order, when the Board was still functus officio. However, the report was signed after remittal and no prejudice arose; even if premature assignment were irregular, quashing would be disproportionate.
  • Because the “material difference” limb failed, the Board was right not to engage with the third limb (material effect on enjoyment/value); all three s.37(6) criteria must be satisfied before the Board can grant leave.

Analysis

1) Precedents Cited and Their Influence

  • Gleann Fia Homes Ltd v An Bord Pleanála [2019] IEHC 618
    • Key proposition: section 37(6) must be given a literal and strict interpretation; the Board must compare the development as applied for with the permission as conditioned, through the lens of the informed layperson; conditions that merely regulate implementation and could be objectively anticipated do not create a “material difference.”
    • Farrell J. adopted this approach. By analogy with Gleann Fia’s “Condition 35,” Condition 4 here was foreseeable and regulatory, not transformative of the “works.”
  • Re XJS Investments Ltd [1986] IR 750
    • Planning documents are construed as an intelligent, informed layperson would, not as technical legal instruments. This interpretive approach underpinned the Court’s reading of Condition 4: the phrase “representative soil samples taken from the site” is anchored to excavations necessitated by the permitted works, not a site‑wide remediation programme.
  • State (FPH S.A.) v An Bord Pleanála [1987] IR 698; Ashbourne Holdings Ltd v An Bord Pleanála [2003] 2 IR 114
    • Conditions must relate to the development; “planning gain” conditions stretching to unrelated works are ultra vires. The Court used this axis to reject the applicant’s site‑wide remediation interpretation of Condition 4: such a reading would veer into unlawful planning gain and is inconsistent with the reason given (“orderly development and environmental protection”).
  • Quinlan v An Bord Pleanála [2009] IEHC 228; Killiney & Ballybrack Development Association v Minister [1978] ILRM 78
    • If the stated reason cannot justify a condition, the condition fails. Here, the stated reason comfortably justified pre‑commencement best‑practice plans; it did not justify, and therefore did not imply, an onerous site‑wide remediation regime.
  • Connelly v An Bord Pleanála [2018] IESC 31; Flannery v An Bord Pleanála [2022] IEHC 83; Clonres CLG v An Bord Pleanála [2021] IEHC 303; Konisberry v An Bord Pleanála [2024] IEHC 194; O’Donnell v An Bord Pleanála [2023] IEHC 381
    • These decisions frame the decision‑maker’s duty to give reasons: sufficient “meaningful engagement” on the main issues is required; an enhanced duty applies when departing from an inspector’s recommendation. Farrell J. held the Board’s reasons here were adequate; the March 2023 memorandum was not an inspector’s reasoned recommendation and did not trigger an enhanced duty.
  • GK v Minister for Justice [2002] 2 IR 418; Eco Advocacy v An Bord Pleanála [2025] IEHC 15
    • There is a presumption that the decision‑maker considered the necessary material; lack of narrative discussion is not proof of lack of consideration. This anchored the rejection of the “failure to consider the March memorandum” complaint.
  • Whelan v AIB plc [2014] IESC 3; Wisniewski principles; Crofter Properties v Genport [2002] 4 IR 73; R v IRC, ex p Coombs [1991] 2 AC 283
    • Adverse inferences require a prima facie case. The applicant failed to establish a prima facie basis that the Senior Inspector’s recommendation was completed prior to remittal; no adverse inference arose from the Board’s evidence.
  • Ballyboden Tidy Towns Group v An Bord Pleanála [2024] IESC 4; Ballindooley Developments Ltd v An Bord Pleanála [2025] IEHC 109
    • No certiorari can be granted on mere consent and functus officio rules matter; nonetheless courts frequently remit. Farrell J. accepted that s.146 assignments must be “in connection with” the Board’s functions and indicated scepticism that a pre‑remittal assignment is lawful—but refused to quash as disproportionate given no prejudice and a report signed post‑remittal.
  • Lanigan v Barry [2016] 1 IR 656; Jennings v An Bord Pleanála [2023] IEHC 14; Sherwin v An Bord Pleanála [2024] IESC 13
    • Construction of permissions is per XJS; whether a difference is “material” involves planning judgment. The Board’s judgment that Conditions 4 and 6 did not create a material difference was upheld.

2) The Court’s Legal Reasoning

a) The section 37(6) test: Strict, sequential, and applicant‑led

Section 37(6) creates a narrow, exceptional route for an adjoining landowner (who did not participate before the planning authority) to seek leave to appeal. The applicant must show:

  • Adjoining land interest (accepted here),
  • A material difference between the development applied for and the permission actually granted “by reason of conditions,” and
  • That those conditions will materially affect the enjoyment/value of the adjoining land.

If any limb fails, the Board must refuse leave. There is no inquisitorial duty on the Board to scour the file for unargued points; the applicant must identify the conditions and demonstrate material difference (Gleann Fia). Here, the application focused on Conditions 4 and 6; the Board found no material difference and did not need to reach the third limb.

b) Interpreting Condition 4: XJS and the avoidance of “planning gain”

The applicant’s central thesis—that Condition 4 required a site‑wide hazardous‑waste excavation and remediation regime—was rejected. Applying Re XJS, the Court read Condition 4 as any careful, informed layperson would, in the context of the application documents, the planning authority’s Environmental and Planning Reports, the CEMP and the Resource/Waste Plans. On that reading:

  • Condition 4’s plans (asbestos, contaminated soil, water protection, contingency, construction management) are standard pre‑commencement controls, addressing the implementation of the permitted works.
  • The reference to “representative soil samples taken from the site” arises in the context of the management of waste arising from excavations required to carry out the works; it does not imply a site‑wide survey, excavation, and reinstatement.
  • Such a site‑wide requirement would verge on planning gain and would be incongruent with the stated reason for the condition and the planning authority’s environmental screening conclusions.

Condition 6 is even more plainly non‑transformative: it requires contact with Irish Water and confirmation of acceptability; it does not authorise new works or uses.

c) The IED Licence is a relevant contextual consideration

The existence of the facility’s IED Licence (P0687‑02) was apparent on the face of the planning application, the CEMP and the Council’s reports; it was not in dispute. The Board did not use the licence to “downplay” the test but legitimately noted it as context when assessing whether Conditions 4 and 6 produced a “material difference.” Moreover, the application materials indicated no increase in emissions or need to vary the licence; this reinforced the conclusion that the conditioned permission was not materially different from that applied for. It was not necessary for the Board to have the licence document itself; the uncontested fact of licensing and its scope sufficed for the s.37(6) analysis.

d) Reasons, the March 2023 memorandum, and section 146

Both the March 2023 administrative memorandum (Executive Officer) and the July 2024 memorandum (Senior Planning Inspector) qualify as s.146 reports. However, the March memorandum simply recited the s.37(6) test, summarised the applicant’s submissions (including verbatim extracts), and recommended forwarding to the Board; it did not contain a reasoned assessment or a recommendation to grant/refuse leave. The Board’s Direction/Order expressly adopted the Senior Inspector’s reasoned analysis. On the authorities (Connelly, Konisberry, O’Donnell, Eco Advocacy), the Board was not obliged to narratively reconcile or even expressly reference the earlier unreasoned administrative note; the core requirement is to provide the main reasons on the main issues, which the Board did by concurring with the Senior Inspector.

e) Pre‑remittal assignment under section 146 and remedial discretion

The Senior Inspector had been given the file and appears to have been assigned to prepare the report prior to the High Court’s remittal order (while the Board was functus officio), but she signed and dated her report on 31 July 2024, two days after the remittal order took effect (29 July 2024). Farrell J. was not persuaded that the recommendation itself had been reached pre‑remittal; nor was there a prima facie case to trigger adverse inferences.

Importantly, the Court signalled that s.146 assignment powers are confined to assignments made “in connection with the performance of” the Board’s functions; when functus officio, those functions are not engaged. Nevertheless, the Court declined to quash on this technicality:

  • No prejudice or unfairness was shown; the decisive report was made post‑remittal when jurisdiction existed.
  • Discretion would be exercised to refuse relief as disproportionate, given that the substantive challenges failed and the report itself was validly made after remittal.

3) Impact and Significance

a) The s.37(6) gateway remains narrow

  • Adjoining landowners seeking leave to appeal must pinpoint specific conditions that truly change the works authorised compared to the application, and then show how those condition‑driven changes materially affect their land. Generic or standard pre‑commencement management conditions will rarely meet that bar.
  • The Board has no roaming brief to investigate beyond the applicant’s argument; the burden rests firmly on the s.37(6) applicant.

b) Reading conditions in context curtails “material difference” claims

  • Pre‑commencement “best practice” requirements (e.g., Construction Environmental Management Plans, asbestos/waste protocols, contingency plans, traffic and access management) generally regulate how works are performed and do not convert the development into something else.
  • Courts will resist interpretations that convert such conditions into de facto site‑wide remediation obligations, especially where that would slide toward unlawful planning gain or contradict environmental screening outcomes.

c) IED licensing can legitimately inform the s.37(6) assessment

  • Where licensing is on the face of the application and Council reports, the Board may take account of it in evaluating whether conditioned permission diverges materially from the applied‑for development. This does not displace the EPA’s role, but it provides relevant context for the “material difference” inquiry.

d) Internal memoranda: weight and reasons

  • Unreasoned administrative memoranda do not trigger an enhanced reasons duty. The Board satisfies its obligation by giving clear reasons grounded in a reasoned inspector’s analysis. Lack of narrative engagement with a bare earlier note is not, without more, a justiciable deficiency.

e) Procedural discipline for s.146 assignments post‑JR

  • The judgment cautions that s.146 assignments should occur when jurisdiction exists (post‑remittal), but equally signals that courts retain remedial discretion. Absent prejudice, a prematurely initiated assignment that culminates in a post‑remittal report will not necessarily vitiate the outcome.
  • Public bodies are encouraged to correct affidavit errors candidly; doing so does not, without more, undermine credibility.

Complex Concepts Simplified

  • Section 37(6) leave to appeal:
    • An exceptional path for an adjoining landowner who did not participate before the planning authority. You must show: (1) adjoining interest; (2) conditions make the permitted scheme materially different to the application; and (3) those condition‑driven differences materially affect your land’s enjoyment/value. All three must be met; otherwise the Board must refuse leave.
  • “Material difference”:
    • It is about changes to the works authorised, not just implementation details. Ask whether an informed layperson would see the permission, because of the conditions, as authorising something substantially different from what was applied for.
  • Reading planning documents (Re XJS):
    • Interpret permissions and conditions as a careful, intelligent layperson would, in context, not as a lawyer parsing every clause in isolation.
  • “Planning gain”:
    • Conditions cannot be used to make an applicant do unrelated works or off‑site improvements that are not fairly and reasonably related to the permitted development. If a condition would have that effect, it risks being ultra vires.
  • Section 146 reports:
    • The Board (or an authorised employee) may assign someone to write a report and recommendation to aid the Board’s decision. The report must be in writing; the assignment itself need not be in writing. The Board must consider any such report before deciding.
  • Functus officio:
    • Once a body makes a valid final decision, it is “functus officio” (its job is done). After a court quashes the decision and remits the matter, jurisdiction revives. Steps taken in the “gap” (before remittal) risk being beyond power if they purport to have legal effect. However, courts may refuse to quash over such technicalities where the determinative step occurs after remittal and no prejudice is shown.
  • IED Licence relevance:
    • If the application and Council reports show the facility is EPA‑licensed, the Board can consider that fact in assessing whether conditions merely regulate or instead create a materially different scheme. This does not mean the Board applies the licence—only that the licensing context matters.
  • Duty of reasons:
    • The Board must give the main reasons on the main issues—enough to understand why the decision was made, to evaluate potential challenge, and to allow court review. An “enhanced” duty can apply when departing from a reasoned inspector’s recommendation—less so where the earlier note is unreasoned and administrative.

Practical Takeaways

  • For adjoining landowners:
    • Anchor your s.37(6) application to specific conditions; explain precisely how they alter the works compared to the application; then connect those alterations to concrete impacts on your land. Generalised concerns about the development as a whole will not suffice.
    • Do not assume that standard pre‑commencement conditions (CEMP, waste/asbestos plans, contingency plans) will cross the “material difference” threshold.
  • For developers and planning authorities:
    • Well‑drafted application materials (CEMP, waste/resource plans) showing best‑practice implementation can help demonstrate that pre‑commencement conditions are not materially altering the scheme.
    • Documenting the licensing context (e.g., IED Licence, no new emissions) can be relevant to resisting a s.37(6) claim of “material difference.”
  • For the Board:
    • Continue to apply Gleann Fia’s strict reading of s.37(6). Focus on whether the condition alters the works, as understood by an informed layperson, and whether the applicant has carried their burden.
    • Where possible, defer s.146 assignments until jurisdiction is revived post‑remittal; record authorisations clearly. If preparatory steps are necessary, ensure no prejudicial decisions are taken pre‑remittal.
    • It is prudent but not essential to narrate engagement with unreasoned administrative notes; adopting a reasoned inspector’s analysis with clear reasons will generally suffice.

Conclusion

Morehart v An Bord Pleanála crystallises three important propositions in Irish planning law. First, section 37(6) is—and remains—a narrow gateway. Pre‑commencement “best‑practice” conditions of the kind seen here usually regulate implementation; they do not, without more, create a “material difference” in the development. Second, the Board may legitimately consider the existence and context of an IED Licence when assessing whether conditions materially shift the development from what was applied for. Third, while the Court signalled that s.146 assignments should be made when jurisdiction exists (post‑remittal), it exercised remedial discretion to refuse quashing where the determinative report issued after remittal and no prejudice was shown.

On reasons and internal memoranda, the judgment sensibly calibrates the duty: the Board must give the main reasons on the main issues; it need not narratively reconcile an earlier unreasoned administrative note. The decision thus offers both doctrinal clarity and pragmatic guidance for future s.37(6) applications, Board process on remittal, and the routine use of pre‑commencement conditions that promote orderly development and environmental protection without altering the substance of what was applied for.

Case Details

  • Case: Morehart v An Bord Pleanála (Approved)
  • Neutral Citation: [2025] IEHC 418
  • Court: High Court (Planning and Environment)
  • Judge: Ms Justice Emily Farrell
  • Date: 12 August 2025

Case Details

Year: 2025
Court: High Court of Ireland

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