Waterside Block 9 Developments Ltd v An Bord Pleanala (Approved)

Factual and Procedural Background

This judgment concerns the appropriate directions a court should give when remitting a matter to the Respondent following an order of certiorari under Section 50A(9) of the Planning and Development Act 2000 ("PDA 2000"), as amended.

The Applicant and the Respondent engaged in pre-application consultations in early 2020 pursuant to Section 5 of the Planning and Development (Housing) and Residential Tenancies Act 2016 ("PDA 2016"). The Respondent issued a notification in July 2020 indicating that the submitted documents required further consideration before constituting a reasonable basis for a strategic housing development application.

On 29 January 2021, the Applicant lodged an application for a strategic housing development comprising 1,005 residential units at a site in Dublin 1.

On 20 May 2021, the Respondent refused permission based on a High Court judgment that it lacked jurisdiction to grant permission for developments materially contravening the North Lotts Planning Scheme.

The Applicant initiated judicial review proceedings in July 2021, with leave granted promptly. The proceedings were adjourned pending appellate judgments, including a Court of Appeal decision in June 2023 overturning the earlier High Court ruling, and a Supreme Court refusal of leave to appeal in February 2024.

The parties agree that the refusal decision should be quashed and the application remitted to the Respondent for reconsideration, but disagree on the appropriate stage in the process to which the matter should be remitted.

Legal Issues Presented

1. What directions, if any, should the court give when remitting a planning application to the Respondent following an order of certiorari under Section 50A(9) of the Planning and Development Act 2000?
2. To what point in the decision-making process should the matter be remitted for reconsideration?
3. Whether the court has jurisdiction to remit the matter to a particular stage in the process without fettering the Respondent's statutory discretion.

Arguments of the Parties

Applicant's Arguments

• The matter should be remitted to the point in the Respondent's meeting on 18 May 2021, where the Inspector's recommendation to hold an oral hearing was accepted in principle, but before the decision to refuse permission was made following the earlier High Court judgment.
• Section 50A(9) of the PDA 2000 mandates remittal to the Respondent when requested by the Applicant, unless unlawful, and permits the court to give directions regarding remittal.
• The Applicant relies on the Supreme Court decision in Crofton v An Bord Pleanála [2024] IESC 12, which confirms the court’s power to give directions on remittal, provided these do not expand the Respondent's statutory powers.
• The only invalid aspect of the prior decision was the conclusion that permission could not be granted due to material contravention of the planning scheme; the planning assessment itself was not challenged.
• The Applicant seeks legal certainty and wishes to avoid re-litigating settled issues, not to ensure a "fairer" process.
• Relies on earlier High Court decisions (Tristor Limited v The Minister for the Environment, Heritage and Local Government and Christian v Dublin City Council) supporting remittal to a specific stage to undo invalid decisions without further disruption.

Respondent's Arguments

• The agreed order of certiorari quashes the refusal decision and remits the matter to the Respondent to be determined lawfully, without court directions prescribing procedural steps.
• The Applicant effectively seeks a court order directing an oral hearing, which would improperly pre-empt the Respondent's statutory decision-making discretion, contrary to Section 50A(9) and Crofton.
• The "matter" remitted includes all aspects of the planning application, including whether an oral hearing is necessary under Section 18 of the 2016 Act, to be decided afresh by the Respondent based on current facts.
• The court’s power to give directions on remittal must be exercised with caution and should not interfere with the Respondent’s statutory functions or pre-determine substantive issues.
• Changes since the original decision, including a differently composed board and amendments to the development plan and planning scheme, mean the court lacks jurisdiction to remit to the exact prior stage as sought by the Applicant.
• The only invalid decision was the refusal to grant permission; the court should not micromanage the process or the Respondent’s discretion.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified that the parties agree on quashing the refusal decision and remitting the application to the Respondent, but dispute the appropriate point in the process for remittal.

The court examined the statutory framework under Section 50A(9) of the PDA 2000, which mandates remittal of the matter to the Respondent when requested, unless unlawful, and permits the court to give directions as appropriate.

Drawing on the Supreme Court’s decision in Crofton and prior case law, the court emphasized that the overriding principle is to undo the consequences of invalid decision-making without exceeding the court’s remedial role or interfering with the Respondent’s statutory discretion.

The court acknowledged that the Respondent’s consideration up to the point where it felt bound by the earlier High Court judgment was lawful and valid. Since the Court of Appeal overturned that judgment, the Respondent is no longer obliged to refuse permission on those grounds.

The court rejected the Respondent’s argument that remittal to the stage just before refusal is unlawful or micromanages the process. Rather, it is consistent with the principle of returning parties to the position before the invalid decision.

The court accepted that it cannot direct the Respondent to hold an oral hearing but can remit to the stage where the Respondent accepted the Inspector’s assessment and recommendation, including that outstanding issues could be addressed by oral hearing if deemed appropriate.

Accordingly, the court concluded it has jurisdiction to remit the matter to that stage with directions that do not fetter the Respondent’s discretion or prescribe the procedural outcome.

Holding and Implications

DISPOSED OF

The court quashed the Respondent’s decision refusing planning permission and ordered that the matter be remitted to the Respondent for reconsideration at the stage of the May 18, 2021 meeting where the Inspector’s assessment and recommendation were accepted, but before the refusal decision was made.

This remittal allows the Respondent to proceed lawfully under the current legal framework, including reconsideration of whether an oral hearing is necessary, without the jurisdictional impediment previously relied upon.

No new precedent was established beyond the application of existing principles on remittal and judicial review. The decision restores the parties to their position prior to the invalid decision and preserves the Respondent’s statutory discretion in the planning process.