The High Court has refused to remit a strategic housing development application to An Bord Pleanála after ruling that the application was invalid from the outset because it did not notify the public of a material contravention of the development plan.
In a judgment delivered electronically on 1 July 2020, Mr Justice Garrett Simons said the public had not been told that the proposed development materially contravened the plan or given the opportunity to respond to the developer’s justification for seeking permission despite that contravention.
The ruling concerns the remedy following an earlier judgment, delivered on 10 March 2020, which found that the development involved material contraventions relating to housing density and public open space. The court had held An Bord Pleanála’s decision to grant permission invalid because the board had not used its statutory power to grant permission in material contravention of the plan.
The developer sought to have the application returned to the board for a new inspector’s report, without further public consultation. It argued that the process first went wrong when the inspector misread the development plan’s “institutional lands” designation, and that the application materials already gave the board relevant information.
The judge rejected that argument. The application, submitted in May 2019, had been made on the mistaken basis that there was no material contravention. As a result, it lacked the required public notice and a statement explaining why permission should nevertheless be granted. The judge said the statutory notice requirement is triggered objectively where a development materially contravenes the plan, regardless of the developer’s or board’s view.
Mr Justice Simons said the public-participation shortfall could not be repaired through the form of remittal the developer proposed. He also noted that An Bord Pleanála opposed remittal and that refusing it would cause less delay in a strategic housing case than in a conventional planning application.
The court proposed an order of certiorari setting aside the board’s decision of 15 August 2019, reference PL06D.304420, and refused the developer’s remittal application. The parties had agreed that Michael Redmond would recover €3,959.69 in costs from the board. The judgment does not determine whether a fresh planning application will be made or what its outcome might be.