The High Court has quashed An Bord Pleanála’s decision to grant planning permission to Rybo Partnership and remitted the matter to the Board for further consideration.
In a judgment delivered on 24 January 2024, Ms Justice Marguerite Bolger said the Board had agreed to the quashing order on the basis of a ground concerning Appropriate Assessment under the Habitats Directive. The court made that order by consent. It did not determine the applicant’s other grounds in the judgment.
Millbourne Residents Association had brought judicial review proceedings challenging the Board’s grant of permission, which followed a refusal by the planning authority. Its six grounds included issues under the Habitats and Environmental Impact Assessment directives, alleged factual errors about alternative public open space, and alleged material contravention of the County Development Plan. The association had described the public open space grounds as the main issue.
The parties disputed where the matter should go after the Board’s decision was quashed. The association argued that a new County Development Plan had come into force since the planning authority’s decision, and that the Board could not reconsider the application under a different plan. It submitted that the court should refuse remittal or send the matter to the planning authority. The Board was neutral on whether the matter should be remitted to it, but disputed that the law barred it from reconsidering the case. Rybo Partnership argued that the matter should return to the Board.
Justice Bolger held that the law presumes remittal unless the court is positively satisfied it would be unlawful. She found no legal preclusion to sending the case back to the Board. The remitted application would be determined by reference to the new plan, she said, and the legislation did not require the planning authority and Board decisions to be made under the same plan. She also noted that the planning authority had found a contravention, not a material contravention, so the statutory provision relied on by the association did not apply in this case.
The court did not direct when the Board should resume its consideration, leaving that procedural question to the Board. The remittal does not predetermine the Board’s decision. The judgment scheduled the matter to return to court at 10.30am on 6 February 2024 for final orders; any written submissions on those orders were to be lodged at least 48 hours beforehand.