Clonres CLG v An Bord Pleanala & ors; Sweetman v An Bord Pleanala & ors; Conway v An Bord Pleanala & ors

Factual and Procedural Background

By a decision dated 3rd April 2018, the Board granted permission for the development of 536 residential units on lands formerly part of a park and subsequently part of a college in The City. The developer, Company A, was a notice party in three related sets of proceedings. The application was for a strategic housing development under the Planning and Development (Housing) and Residential Tenancies Act 2016 (the "2016 Act"). Applications for leave to seek judicial review of the Board’s decision were made by the applicants in each of the three proceedings. The applications were heard under the Strategic Infrastructure Development (SID) list pursuant to the Planning and Development Act 2000 (as amended) (the "2000 Act (as amended)").

On 14th June 2018, leave was granted to the applicants to seek judicial review on various substantial grounds. The grounds raised overlapped but were not identical; for instance, one applicant argued that the State failed to properly transpose the Habitats Directive into law, while others raised issues relating to compliance with legal aid obligations under EU law and the Aarhus Convention. The court directed notices of motion to be issued for further directions to ensure a fair and expeditious hearing.

On 28th June 2018, the Board conceded there was an error on the face of the record in the formal decision regarding the test applied in the appropriate assessment under the Habitats Directive and consented to an order of certiorari quashing the decision granting planning permission. The other parties sought time to consider this development, leading to adjournments of the proceedings.

Subsequently, correspondence between the parties confirmed the Board’s consent to certiorari on the specified ground, proposed remittal of the application to the Board to be determined according to law, and suggested striking out the other proceedings with costs to be paid by the Board. Some applicants opposed the remittal proposal, contending the Board’s decision was fundamentally flawed and could not be remedied by remittal.

Oral submissions were made on 26th July 2018, addressing the scope of the Board’s concession, the appropriateness of remittal, the timing for any renewed decision, the composition of the Board for reconsideration, and the consequences of the statutory time limits under the 2016 Act.

Legal Issues Presented

1. Whether an order of certiorari should be made quashing the Board’s decision dated 3rd April 2018 on the basis of an error on the face of the record concerning the appropriate assessment under the Habitats Directive.
2. Whether the application should be remitted to the Board for reconsideration and, if so, to what point in the process the matter should be remitted.
3. Whether the court has power to give directions regarding the timing of the Board’s decision following remittal, including the applicability of statutory time limits under the 2016 Act.
4. Whether the Board’s decision on remittal should be made by a differently constituted Board.
5. The appropriate costs order in light of the Board’s concession and the proceedings.

Arguments of the Parties

Applicants’ Arguments

• Some applicants contended the Board’s decision was fundamentally flawed due to reliance on inadequate or incorrect Appropriate Assessment screening documents and Natura Impact Statement (NIS), which could not be remedied by remittal.
• They argued that under s. 8(3) of the 2016 Act, the Board could refuse to deal with an application where the NIS was inaccurate or incomplete and had no power to permit amendments or additional submissions, thus rendering the decision invalid ab initio.
• They opposed remittal on the terms proposed by the Board, submitting that if remittal were ordered, it should be to the point where the error occurred (around the Board meeting on 27th March 2018) or not at all, requiring the application to start anew.
• They submitted the court lacked power to alter statutory time limits and that any remittal would likely lead to further legal challenges.
• Some applicants requested that the Board’s reconsideration be carried out by a differently constituted Board to avoid bias or procedural unfairness.

Board’s Arguments

• The Board conceded an error on the face of the record concerning the recording of the test applied for the appropriate assessment under the Habitats Directive and consented to an order of certiorari quashing the decision on this ground only.
• The Board rejected criticisms of the manner in which the concession was communicated, distinguishing the present case from precedent involving the supplementation of decisions by affidavit, as the error had been pleaded by applicants.
• The Board submitted that the court should remit the application to the Board to be determined in accordance with law, with remittal effective from immediately after the Senior Planning Inspector’s report dated 23rd March 2018.
• It sought directions that the statutory time period for decision-making under s. 9(9)(a) of the 2016 Act be deemed to expire six weeks from the date of perfection of the court’s order, allowing for practical considerations including possible reconstitution of the Board.
• The Board argued there was no statutory impediment to the court giving directions regarding timing and rejected the notion that failure to decide within the statutory period results in automatic refusal or lapse of the application.
• The Board maintained that it was a disinterested party with no commercial stake in the development and that remittal was preferable to quashing the decision simpliciter to avoid unnecessary delay and expense.

Developer’s Arguments

• The developer supported the Board’s position and the proposed draft order, emphasizing differences from precedent where affidavits were required.
• It submitted that remittal should allow the Board to “pick the matter up again” from the point of the conceded error without requiring a differently constituted Board.
• The developer rejected claims that the Board’s correspondence infringed legal principles concerning supplementation of decisions.
• It asserted that an order of certiorari was appropriate given the Board’s concession, regardless of whether the decision was ultra vires.

Other Applicants’ Arguments

• Counsel for other applicants supported submissions opposing remittal on the Board’s terms and highlighted distinctions between error on the face of the record and ultra vires grounds.
• They emphasized that remittal should not be to a point earlier than necessary to undo the conceded error and that the applicants reserved their right to pursue other grounds in future proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court accepted the Board’s concession that the decision contained an error on the face of the record concerning the recording of the test applied in the appropriate assessment under the Habitats Directive. It found no impropriety in the manner the Board communicated this concession, distinguishing the case from precedent where supplementation of decisions was impermissible.

The court considered the principles governing certiorari and remittal, emphasizing judicial restraint by limiting the order of certiorari to the conceded ground and refraining from adjudicating on other grounds raised by the applicants. The court applied established authorities to exercise its discretion to remit the application to the Board, aiming to undo only the consequences of the conceded error and avoid unnecessary delay and expense.

In determining the point in time for remittal, the court accepted submissions that it should be immediately after the Senior Planning Inspector’s report dated 23rd March 2018, as this was the earliest point consistent with undoing the conceded invalidity. The court declined to direct that the Board be differently constituted on remittal, leaving that decision to the Board’s discretion.

Regarding timing, the court found it had power to give directions and, considering the statutory framework, directed that the time period for decision-making under s. 9(9)(a) of the 2016 Act be deemed to expire six weeks from the date of perfection of the court’s order, allowing for practical considerations including the August holiday period and potential reconstitution of the Board.

The court also addressed costs, directing the Board to pay the applicants’ costs up to the date of delivery of the judgment, recognizing the reasonableness of the applicants’ conduct in clarifying the basis of the concession and addressing remittal.

Holding and Implications

The court’s final decision was to make the following orders in all three sets of proceedings:

• An order of certiorari quashing the Board’s decision dated 3rd April 2018 on the ground that the decision contained an error on the face of the record regarding the recording of the test applied in the appropriate assessment under the Habitats Directive.
• An order remitting the application for permission to the Board to be determined in accordance with law, effective immediately after the Senior Planning Inspector’s report dated 23rd March 2018.
• An order deeming the statutory time period under s. 9(9)(a) of the 2016 Act to expire six weeks from the date of perfection of the court’s order in respect of the remitted application.
• An order for costs in favor of the applicants against the Board, including reserved costs, up to the date of delivery of the judgment, to be taxed in default of agreement.
• No further order.

The implications of this decision are that the Board’s original permission is quashed due to a legal error, but the matter is not to start completely afresh; rather, it is remitted to the Board to reconsider from the point immediately following the Inspector’s report. The court’s directions on timing provide clarity and fairness for all parties. No other grounds raised by the applicants were determined, preserving their rights to pursue those in future proceedings. The decision does not establish new precedent beyond applying established principles of judicial review and remittal in the context of planning law.