Milbourne Residents Association v An Bord Pleanala & anor (Approved)

Factual and Procedural Background

The Appellant, a residents’ association, challenged a planning permission granted for three apartment blocks (thirty apartments in total) on a site in a town within a county council area (“the Site”). The Notice Party applied to the local planning authority (“the Planning Authority”) in mid‑2019 under section 34 of the Planning and Development Act 2000 (“the 2000 Act”). In June 2020 the Planning Authority refused permission for a single stated reason but did not find any material contravention of the then operative county development plan for 2013–2019 (“the 2013 Development Plan”).

The Notice Party appealed that refusal to the national planning appeal body (“the Commission”) under section 37 of the 2000 Act. In September 2020 the Commission allowed the appeal and granted permission subject to thirteen conditions, again without making any finding of material contravention of the 2013 Development Plan. Both the Planning Authority’s refusal and the Commission’s grant were made by reference to the 2013 Development Plan.

In October 2020 the Appellant commenced judicial review under sections 50 and 50A of the 2000 Act to challenge the validity of the Commission’s decision. During the life of those proceedings, a new county development plan for 2021–2027 (“the 2021 Development Plan”) was adopted in September 2021. Under that new plan, the zoning of the Site changed from residential to open space.

In June 2022 the Commission indicated that it would concede the judicial review on the first ground advanced by the Appellant, namely failure to carry out appropriate assessment under the Habitats Directive. The remaining controversy concerned what should happen after the quashing of the Commission’s decision. The Notice Party sought an order remitting the matter back to the Commission; the Appellant argued that, in light of the new zoning under the 2021 Development Plan, the matter should instead be remitted to the Planning Authority. The Commission adopted a neutral stance on the destination of remittal, but made submissions that there was no legal bar to remittal to it.

In January 2024 the High Court (Judge B) made an order of certiorari quashing the Commission’s decision by consent and ordered remittal to the Commission, applying section 50A(9A) of the 2000 Act. In October 2024 the High Court refused to certify a point of law of exceptional public importance under section 50A(7) and refused leave to appeal to the Court of Appeal, relying on a strong presumption in favour of remittal articulated by a prior Supreme Court decision (Case B [2024] IESC 12).

In February 2025 the Supreme Court granted leave to appeal (Case [2025] IESCDET 20). The Court considered that the appeal raised an important issue concerning the scope of the remittal power in section 50A(9A), in particular whether it could ever be “unlawful” to remit an appeal back to the Commission when there had been a change in the applicable development plan between the Planning Authority’s decision and the Commission’s reconsideration. The appeal was heard by a five‑judge panel of the Supreme Court, and judgment was delivered by Judge A in November 2025.

Legal Issues Presented

1. Whether, under section 50A(9A) of the 2000 Act, a court that quashes a decision of the Commission on judicial review may lawfully remit “the matter” to the Planning Authority rather than to the Commission, and in particular how the phrase “as may be appropriate” should be interpreted.
2. Whether, having regard to the proviso in section 50A(9A) (“unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so”), it would be unlawful to remit this matter to the Commission in circumstances where a new county development plan and different zoning came into force after the Planning Authority’s decision and the Commission’s original decision.
3. Whether the Commission’s jurisdiction under section 37(2) of the 2000 Act to grant permission in material contravention of a development plan is dependent on a prior decision of the Planning Authority on material contravention of the same development plan, such that the Commission’s jurisdiction would be “indeterminate” if the development plan had changed.
4. The related, novel underlying question identified at the leave stage: whether a decision of the Commission (including on remittal) may lawfully be made by reference to a different development plan than that considered at first instance by the Planning Authority.

Arguments of the Parties

Appellant's Arguments

• Power to remit to the Planning Authority:
  • Section 50A(9A) displaces the general remittal rule in Order 84, rule 27(4) of the Superior Courts Rules and creates a mandatory duty to remit, when requested by the applicant for permission, unless remittal would be unlawful.
  • Unlike the general rule, section 50A(9A) does not speak of remittal to the “authority concerned” but instead allows remittal to “the planning authority, the local authority or the [Commission], as may be appropriate”, which the Appellant says confers a discretion on the court to remit to any of these bodies, even where the quashed decision was that of the Commission.
  • The omission of the phrase “authority concerned” demonstrates a legislative intention to give the court flexibility over to whom remittal should be made, compensating for the removal of discretion over whether to remit.
• Distinguishing prior Supreme Court authority on remittal:
  • The Appellant distinguishes the earlier Supreme Court case (Case B [2024] IESC 12), which concerned strategic housing applications made directly to the Commission, where remittal could only logically be to the Commission and the issue was “remittal or no remittal”.
  • Here, in contrast, the application originated with the Planning Authority, so the live question is “if there is remittal, to which decision‑maker should the matter be remitted?”
• Appropriateness of remittal to the Planning Authority:
  • The Site’s zoning has changed under the 2021 Development Plan from residential to open space. The Appellant contends that, if the Planning Authority were to reconsider the application under this new plan, it would likely refuse permission for material contravention.
  • Only the Planning Authority can make the primary decision as to whether the proposal materially contravenes the current development plan, which is critical to determining whether the Commission has power under section 37(2)(b) to grant permission in material contravention.
  • If the matter is remitted only to the Commission, there will be no existing Planning Authority decision on material contravention of the new plan, which, the Appellant says, prevents the Commission from lawfully invoking section 37(2)(b) and leaves its general jurisdiction under section 37(2)(a) “indeterminate”.
  • On this analysis, remittal to the Commission would be unlawful because the Commission’s jurisdiction could not be clearly ascertained; therefore, applying the “appropriateness” criterion in section 50A(9A), the Court should remit the matter to the Planning Authority.
• Construction of section 37(2):
  • The Appellant accepts that section 37(2)(a) confers a general power on the Commission to grant permission in material contravention of a development plan, regardless of the Planning Authority’s stance, but contends that this is constrained where section 37(2)(b) is engaged.
  • Section 37(2)(b) is said to presuppose that the Planning Authority has already considered whether the proposal materially contravenes the development plan, and that both bodies are considering the same plan.
  • Where the Planning Authority has refused permission on material contravention grounds and the Commission is also of that view, the Commission’s power to grant permission is limited to the special circumstances set out in section 37(2)(b), and it must give specific reasons under section 37(2)(c).
  • The Appellant argues that, if the plan has changed and the Planning Authority has not had an opportunity to consider material contravention under the new plan, the Commission cannot properly operate section 37(2)(b), and consequently cannot exercise its section 37(2)(a) jurisdiction.
• Different development plans at first instance and on appeal:
  • The Appellant accepts that it would be anomalous for the Commission to make a decision by reference to an expired development plan, but argues that anomalies also arise if the Commission determines an appeal by reference to a new plan that was not before the Planning Authority.
  • Public participation is said to be undermined because members of the public who engaged with the original application by reference to the old development plan will not have had the opportunity to make submissions on the implementation of the new plan, particularly on remittal where no new public notices are issued.
  • The Commission’s powers to seek submissions (e.g., under section 131 of the 2000 Act) are argued to be limited to identified persons and inadequate to replicate the general public participation regime (site and newspaper notices) at first instance. The Appellant notes an apparent absence of regulations specifically dealing with appeals where the development plan has changed.
  • The Planning Authority is said to possess broader mechanisms for ensuring public participation and for internal technical consultation in the context of implementing a development plan, functions that the Commission lacks.
  • Accordingly, it is argued that allowing the Commission to determine the appeal by reference to a new plan blurs the division between first‑instance and appellate roles, undermines effective public participation, and is inappropriate and unlawful where a new county development plan is in force.

Respondent Commission's Arguments

• Statutory context and coherence:
  • The Commission submits that provisions of the 2000 Act must be construed as part of a coherent statutory scheme. It refers to a line of cases in which courts interpreted planning provisions to produce workable and coherent outcomes.
  • By analogy to another appellate body case (Case C [2024] IEHC 608), it notes that when an appellate body’s decision is quashed on judicial review, the appeal should ordinarily be remitted to that appellate body, not to the first‑instance authority.
• Development plans and temporal changes:
  • Under Part II of the 2000 Act, development plans are adopted for limited periods and may be varied during their lifetime. The Legislature can be presumed to have been aware of these temporal features when establishing the planning application and appeal regime.
  • The Act contains no express limitation on the Commission’s jurisdiction to determine an appeal when the applicable development plan has changed between the Planning Authority’s decision and the appeal decision.
• Nature of appeals under section 37:
  • Section 37(1)(b) provides that, where an appeal is not withdrawn, the Commission must determine the application as if it had been made to it in the first instance, and its decision annuls the Planning Authority’s decision from the time it is given. Appeals are therefore de novo.
  • The Appellant’s claim that a Planning Authority decision on the same development plan is a “condition precedent” to the Commission’s jurisdiction is said to be inconsistent with this de novo character.
  • In deciding a de novo appeal, the Commission must, like the Planning Authority, have regard to the development plan under section 34(2)(a)(i), and it must do so by reference to the plan in force at the time of its decision, a position expressly endorsed by a prior Supreme Court decision (Case B [2024] IESC 12).
  • Even if a Commission decision is later held invalid, it still annuls the Planning Authority’s decision by virtue of section 37(1)(b).
• Section 37(2) and material contravention:
  • The Commission argues that section 37(2)(a) vests a discretionary power to grant permission in material contravention of a development plan; it “may” grant such permission.
  • Section 37(2)(b) applies only where the Planning Authority has refused permission on the ground of material contravention and the Commission shares that view. In that scenario, the Commission’s power to grant permission is subject to additional conditions and reasoning requirements under section 37(2)(c).
  • This interpretation is said to be confirmed by High Court decisions such as Case D [2016] IEHC 134 and Case E [2016] IEHC 84, which held that section 37(2)(b) limits the Commission’s power to grant permission in specific circumstances but does not otherwise curtail its de novo jurisdiction to hear and determine appeals.
  • The Commission submits that there is no express restriction in section 37(2) preventing it from determining an appeal where the Planning Authority’s decision was taken under an earlier development plan.
• Public participation:
  • The Commission disputes that a change in the development plan necessarily undermines public participation. It argues that public participation is primarily triggered by the proposed development, not the specific iteration of the development plan.
  • Persons with an interest in, or potentially affected by, the proposed development are provided with opportunities to participate through the statutory noticing requirements at first instance. The Commission can also use its statutory powers to invite further submissions from interested stakeholders where there has been a material change, such as a new development plan.
• Section 50A(9A) and remittal:
  • The Commission argues that section 50A(9A) must be interpreted in light of section 50(2). The “matter” referred to is the subject of the decision actually challenged in judicial review. Where the challenged decision is an appeal decision of the Commission, that “matter” is the appeal itself.
  • The Planning Authority has never considered the appeal and therefore has no basis on which to “reconsider” it. Remittal of the appeal to the Planning Authority would be conceptually incoherent.
  • The phrase “as may be appropriate” is said to refer to which of the listed decision‑makers is appropriate in light of the nature of the decision being quashed: a Planning Authority decision is remitted to the Planning Authority; a Commission decision is remitted to the Commission, etc.
  • The Commission contends that the Appellant’s proposed limitation on its jurisdiction is radical, circular, and unworkable: any change in a development plan (or variation) between first instance and appeal would effectively deprive the Commission of jurisdiction, forcing repeated restarts at Planning Authority level and undermining the coherence of the planning system.
  • Remittal to the Commission in this case would not be unlawful. The Appellant’s unlawfulness claim is grounded on its own view of the merits (that the development materially contravenes the new plan) and on a narrow reading of sections 37(2) and 50A(9A) that disregards the broader statutory scheme and the de novo nature of appeals.

Notice Party's Arguments

• Remittal must be to the Commission:
  • The Notice Party maintains that, applying ordinary principles of statutory interpretation, section 50A(9A) did not create a regime under which a quashed decision of an appellate planning body can be remitted to the first‑instance decision‑maker.
  • Before the 2022 amendment, courts had a discretionary power to remit to the Planning Authority or to the Commission. The insertion of section 50A(9A) simply made remittal generally mandatory when requested by the applicant for permission, unless unlawful; it did not expand remittal to bodies that had not made the impugned decision.
  • Read naturally and in context, “as may be appropriate” refers to remittal to the body that made the decision or performed the act that has been quashed under section 50(2). The appropriate entity is whichever of the Planning Authority, local authority, or Commission actually took the quashed decision.
• Efficiency and legislative purpose:
  • The Notice Party argues that its interpretation aligns with the policy behind section 50A(9A), as explained in Case B [2024] IESC 12, namely to reduce cost and delay in planning litigation.
  • Remitting a quashed Commission decision back to the Planning Authority would introduce further cost, delay, and uncertainty, contrary to that legislative objective.
• Functus officio and absence of any matter to remit to the Planning Authority:
  • Section 37(1)(b) provides that the Commission’s decision on appeal annuls the Planning Authority’s prior decision. That annulment occurs even if the Commission’s decision is later found invalid.
  • There is therefore no subsisting Planning Authority decision to which any “matter” could be remitted. Section 50A(9A) does not alter section 37(1)(b) or recreate the annulled first‑instance decision.
• Section 37(2)(b) not a jurisdictional bar:
  • The Notice Party submits that section 37(2)(b) simply sets out how the Commission may nonetheless grant permission in material contravention where a Planning Authority has refused on that basis; it is not a “jurisdictional straightjacket”.
  • Where the Planning Authority has not refused permission on grounds of material contravention of a particular plan, section 37(2)(b) does not limit the Commission’s jurisdiction.
  • If a new development plan comes into effect after the Planning Authority’s decision, the Authority could not have refused permission on grounds of material contravention of that new plan, so the Commission is not constrained by section 37(2)(b) when considering the appeal under the new plan.
  • In any event, section 37(2)(b) does not condition the Commission’s jurisdiction to hear and determine an appeal; it merely limits its power to grant permission in a specific subset of cases. It follows that remittal to the Commission cannot be “unlawful” on the basis advanced by the Appellant.
• Lawfulness of remittal to the Commission:
  • The Notice Party argues that even if the proposed development appears to materially contravene the new development plan, that is not a basis to refuse remittal. It is for the Commission, on remittal, to assess material contravention and decide whether permission should be granted.
  • The Commission has sufficient powers (for example, under section 131) to seek further views from the Planning Authority and the Appellant on any material contravention before making its decision.
  • The Appellant’s unlawfulness claim is based on an isolated reading of sections 50A(9A) and 37(2)(b) that ignores other relevant provisions, including sections 37(1)(b) and 50(2), and the established de novo nature of the Commission’s appellate jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case A [2022] IEHC 704	Described section 50A(9A) of the 2000 Act as a statutory expression and reinforcement of a general presumption in favour of remittal; remittal should only be refused where the court is positively satisfied it would be unlawful.	Quoted by the High Court to support the view that the bar for refusing remittal is set high and that the default position is remittal, unless the court is satisfied remittal would be unlawful. This presumption underpinned the High Court’s decision to remit to the Commission.
Case B [2024] IESC 12	(i) Strongly endorsed the presumption in favour of remittal under section 50A(9A). (ii) Clarified that “lawful” in that provision concerns the lawfulness of the court’s decision to remit, not whether the Commission could lawfully grant permission. (iii) Confirmed that the Commission must decide by reference to the development plan in force at the date of its decision.	The High Court relied on this case to refuse certification of a point of law and to emphasise the strength of the remittal presumption. The Supreme Court, in the present appeal, adopted its interpretation of “lawful” and reaffirmed that the Commission must apply the development plan in force at the time of its decision, both on initial appeal and on remittal.
Case C [2024] IEHC 608	Held, in another statutory context, that where the decision of an appellate body is quashed in judicial review proceedings, the appeal should be remitted to that body rather than to the first‑instance decision‑maker.	Cited by the Commission to support the general principle that, when an appellate decision is quashed, the matter should be remitted back to the appellate body. This formed part of the contextual background for interpreting section 50A(9A) in favour of remittal to the Commission.
Case D [2016] IEHC 134	Interpreted section 37(2)(b) of the 2000 Act. Held that the limitations in sections 37(2)(b) and (c) apply only where the Planning Authority has refused permission on material contravention grounds and the Commission also finds a material contravention; otherwise, the Commission’s general jurisdiction is not curtailed.	Relied on by the Commission to argue that section 37(2)(b) does not generally limit its jurisdiction to determine appeals and that the restrictive consequences urged by the Appellant would not reflect the Legislature’s intention. The Supreme Court’s analysis of section 37(2) is consistent with this approach.
Case E [2016] IEHC 84	Held that the Commission’s jurisdiction to hear and determine an appeal de novo as if made to it in the first instance is not affected by section 37(2)(b); that provision merely limits the Commission’s power to grant permission in material contravention where certain first‑instance procedures have not been followed.	Cited by the Commission to reinforce that section 37(2)(b) is a limitation on certain grants of permission, not on the basic jurisdiction to hear an appeal. This supported the Supreme Court’s conclusion that the Commission’s jurisdiction on remittal was not rendered “indeterminate” by the change in development plan.
Case F [2022] 2 ILRM 313	Restated core principles of statutory interpretation: starting from the ordinary and natural meaning of the words; reading them in context (including surrounding provisions and the Act as a whole); using interpretive canons; and, where ambiguity remains, considering legislative purpose and mischief.	The Supreme Court adopted these principles as the interpretive framework for construing section 50A(9A), particularly the phrase “as may be appropriate” and the references to “the matter” and “reconsideration”.
Case G [2019] 2 IR 1	Provided a detailed statement of statutory interpretation principles that was subsequently endorsed in Case F.	Quoted indirectly through Case F; its summary of interpretive principles guided the Court’s textual and contextual reading of section 50A(9A).
Case H [2013] IEHC 60	Held that, under section 37(1)(b), even an invalid decision of the Commission operates to annul the Planning Authority’s earlier decision, leaving no scope for recourse back to the Planning Authority once the Commission has decided an appeal.	The Supreme Court endorsed this reasoning to conclude that the Planning Authority is functus officio once the Commission has issued its decision, and that there is no extant Planning Authority decision to which “the matter” could be remitted under section 50A(9A).

Court's Reasoning and Analysis

The Supreme Court identified the “net issue” as whether, after quashing the Commission’s grant of permission, the High Court was correct to remit the matter to the Commission for reconsideration rather than to the Planning Authority. This required answering (i) how section 50A(9A) should be interpreted, particularly “as may be appropriate”; and (ii) whether remittal to the Commission would be “unlawful” in the circumstances of a new development plan and zoning.

Interpretation of section 50A(9A): Applying the interpretive principles summarised in Case F (drawing on Case G), the Court first focused on the ordinary and natural meaning of the words of section 50A(9A), viewed in their statutory context. The provision states that, where a decision is quashed on judicial review, “the Court shall, if requested by the applicant for permission or approval, remit the matter to the planning authority, the local authority or the [Commission], as may be appropriate, for reconsideration…unless the Court considers…that it would not be lawful to do so.”

The Court held that the key terms “the matter” and “for reconsideration” must be read together. In this case, the “matter” was the planning application as it stood on appeal to the Commission, including the additional material and submissions typically lodged at the appeal stage under Chapter III of Part VI of the 2000 Act. The only body capable of “reconsidering” that matter is the appellate decision‑maker that actually dealt with it—the Commission—not the Planning Authority, which had only considered an earlier iteration of the application at first instance.

The Court then located this reading within the wider statutory framework, particularly section 37(1)(b). That provision requires the Commission, when an appeal is not withdrawn, to determine the application as if made to it in the first instance and provides that the Commission’s decision “shall operate to annul the decision of the planning authority as from the time when it was given.” Endorsing the analysis in Case H, the Court held that even an invalid Commission decision annuls the Planning Authority’s earlier decision, leaving the Planning Authority functus officio. Once annulled, there is no longer any Planning Authority decision capable of being remitted for reconsideration.

From this textual and contextual analysis, the Court concluded that, under section 50A(9A), the “appropriate” body to which the matter should be remitted will normally be the decision‑maker that made the quashed decision. In the case of a quashed Commission decision on appeal, the Commission is therefore the appropriate recipient of remittal. The Appellant’s reading—allowing a quashed Commission decision to be remitted to the Planning Authority—was not supported by the statutory language or structure.

The “lawful” proviso and scope of review: Turning to whether remittal to the Commission would be “unlawful” in this case, the Court relied on the interpretation given in Case B. There, the Supreme Court held that “lawful” in section 50A(9A) refers to the lawfulness of the High Court’s decision to remit, not to a predictive assessment of whether the Commission could lawfully grant permission. The High Court need not, and should not, analyse in detail whether the Commission could lawfully grant or refuse permission on remittal; it is sufficient that a remittal would put the Commission in a position to take a valid decision within its powers and subject to fair procedures.

Accordingly, the question for the Supreme Court was whether anything in the statutory scheme rendered a remittal to the Commission inherently unlawful, not whether, on the Appellant’s view of the merits, the Commission would later lack power to grant permission.

Section 37(2) and alleged jurisdictional uncertainty: The Appellant’s main contention was that, because the 2021 Development Plan and new zoning came into force after the Planning Authority’s decision, the Commission could not operate section 37(2)(b) and its general jurisdiction under section 37(2)(a) would therefore be “indeterminate”. The Court rejected this argument as misconceived.

First, the Court reiterated that the Commission, when determining a de novo appeal under section 37, has a general jurisdiction under section 37(2)(a) to grant permission even where the proposed development materially contravenes the development plan. Consistent with Case B, “development plan” here means the plan in force when the Commission makes its decision, whether on an initial appeal or on remittal.

Second, the Court emphasised that section 37(2)(a) is expressly stated to be “subject to” paragraph (b). Paragraph (b) addresses the particular situation where the Planning Authority has already refused permission on the specific basis that the proposed development materially contravenes the development plan, and the Commission is also of that view. In that scenario, the Commission’s power to grant permission in material contravention is restricted to the circumstances set out in section 37(2)(b), with reasons required under section 37(2)(c). However, this does not mean that the Commission’s jurisdiction is indeterminate or non‑existent where section 37(2)(b) is inapplicable.

In the present case, the Planning Authority had not refused permission on material contravention grounds, and thus the factual preconditions for section 37(2)(b) were not met. There was also no statutory requirement that the Planning Authority must now re‑examine the proposal under the new development plan; such a requirement would contradict the functus officio consequence of section 37(1)(b). As a result, section 37(2)(b) simply “has no application” on these facts, and the Commission’s general jurisdiction under section 37(2)(a) remains intact.

Different development plans at first instance and on appeal: The Court addressed the underlying question flagged at the leave stage: whether the Commission can lawfully make a decision by reference to a development plan different from that considered by the Planning Authority. Citing Case B, the Court held that the Commission must always decide an appeal by reference to the development plan in force at the time of its decision. This applies regardless of whether the plan differs from that applied at first instance and whether the decision is being taken for the first time or on remittal following quashing.

On that basis, the Court concluded that the existence of a new development plan and changed zoning between the Planning Authority’s decision and the Commission’s reconsideration does not render remittal to the Commission unlawful under section 50A(9A). The Commission is required to apply the current development plan and has sufficient jurisdiction under section 37 to do so; any limitations arising from section 37(2)(b) simply do not arise here.

Overall conclusion on remittal: Combining its textual, contextual, and structural analysis of the 2000 Act, the Court agreed with the High Court that: (i) the appropriate body to reconsider “the matter” under section 50A(9A) was the Commission, being the original decision‑maker on the appeal; and (ii) there was no legal preclusion or unlawfulness in remitting the case to the Commission despite the intervening adoption of a new development plan. The Appellant had not displaced the presumption in favour of remittal established in section 50A(9A) and articulated in earlier authority.

Holding and Implications

Holding: The Supreme Court held that the High Court correctly applied section 50A(9A) of the 2000 Act in quashing the Commission’s decision and remitting “the matter” to the Commission for reconsideration. The Court determined that: the appropriate recipient of remittal was the Commission, not the Planning Authority, and remittal to the Commission was lawful despite the intervening change in the applicable development plan. Accordingly, the appeal was DISMISSED.

Immediate implications for the parties: The Commission must reconsider the planning appeal de novo, treating the application as if made directly to it in the first instance, and must have regard to the development plan in force at the time of its new decision (the 2021 Development Plan). The Planning Authority remains functus officio and has no further decision‑making role in respect of this application. The Appellant retains the opportunity to participate in the Commission’s reconsideration to the extent permitted by the applicable statutory procedures.

Broader legal implications: The decision clarifies that:

• Under section 50A(9A), where an appellate planning decision of the Commission is quashed, “the matter” will ordinarily be remitted back to the Commission for reconsideration, not to the Planning Authority whose earlier decision has been annulled under section 37(1)(b).
• The Planning Authority’s decision, once annulled by a Commission decision (even if later quashed), cannot be revived or treated as an extant decision for the purposes of remittal; the Planning Authority is functus officio.
• The Commission’s jurisdiction under section 37(2)(a) to grant permission in material contravention of a development plan is not contingent on a prior Planning Authority decision on material contravention of the same plan. Section 37(2)(b) applies only in the specific circumstances where the Planning Authority has refused on that ground and the Commission shares that view.
• A change in the applicable development plan between the Planning Authority’s decision and the Commission’s reconsideration does not, by itself, make remittal to the Commission “unlawful” under section 50A(9A). The Commission must simply apply the development plan in force at the time of its decision.

The judgment thus reinforces the strong statutory presumption in favour of remittal to the original decision‑maker under section 50A(9A) and provides authoritative guidance on the interaction between that remittal power and the Commission’s appellate jurisdiction under section 37 of the 2000 Act. The Court did not purport to create any new cause of action or broader doctrine beyond the interpretation of the existing statutory provisions.