The Supreme Court has dismissed An Bord Pleanála’s appeals in two planning cases, ruling that an appeal could be withdrawn after the Board had reached an internal decision but before it formulated that decision in writing.
The judgment, delivered by Mr Justice Fennelly on 10 December 2013, concerns Ecological Data Centres Limited’s proposed technology park in County Wicklow and Urrinbridge Limited’s proposed residential and commercial development in County Wexford. In both cases, a planning authority had granted permission and a third party appealed to the Board.
The Board met and decided to refuse permission in each case. The remaining appellants then sought to withdraw their appeals before the Board issued its formal written orders. The Board considered the withdrawals too late, saying its decisions had already been made. The companies successfully sought judicial review in the High Court, which quashed the Board’s decisions. The Board appealed those rulings to the Supreme Court.
The issue was when an appeal is “determined” for the purposes of section 140(1)(a) of the Planning and Development Act 2000, which permits withdrawal in writing before determination by the Board. The Board argued that determination occurred at its meeting, when members decided the appeal’s outcome. The companies argued that withdrawal remained effective until the Board’s written order was formulated.
Justice Fennelly found that the Act used “determination” and “decision” interchangeably in this context. He said the legislation did not establish that an appeal became irrevocable as soon as members reached an internal conclusion. He also relied on provisions allowing an authorised Board member to decide points of detail after a meeting and before the matter was reduced to writing.
The court held that an appeal could be validly withdrawn at any time before the Board formulated its written decision. It rejected the Board’s argument based on European Union law, saying the provisions at issue were part of national procedural law. The court did not decide whether any permission in either case would contravene EU law.
The Supreme Court dismissed both appeals and answered the certified legal question accordingly. The judgment resolves when withdrawal is effective under the cited provision; it does not itself grant either planning permission.