The Supreme Court has dismissed an appeal by Crofton Buildings Management CLG and apartment owner Stephanie Bourke over the remittal of a planning application to An Bord Pleanála, while removing directions that the High Court had attached to the remittal.
In a judgment delivered on 10 April 2024, Justice Donnelly said planning cases must be remitted when the applicant for permission requests it, unless the court considers that remittal would be unlawful. The threshold for refusing remittal is high, she said, and would be met only where the Board or planning authority could not reach a lawful decision to grant or refuse permission.
The dispute followed the Board’s 2021 grant of permission to Fitzwilliam DL Limited for 102 build-to-rent apartments, residential amenities and a publicly accessible café at St Michael’s Hospital Car Park on Crofton Road, Dún Laoghaire. The appellants had challenged the decision, including on the ground that it materially contravened building-height objectives in the Dún Laoghaire-Rathdown Development Plan 2016–2022. The Board conceded that ground, and the developer agreed the permission should be quashed.
The High Court quashed the decision and remitted the application to the Board. It directed the Board to hold an oral hearing and set out steps for circulating the developer’s submissions and allowing responses from the appellants, public bodies and the public. The appellants argued that the application should instead be quashed without remittal, partly because the 2016 plan had been replaced by the 2022–2028 plan and the statutory process for strategic housing development applications restricted further participation.
The Supreme Court said the Board must have regard to the development plan in force when it makes its decision. It held that the change of plan and concerns about how the Board might handle the application did not establish that remittal itself would be unlawful. The Board would have to act within its powers and follow fair procedures; it could lawfully refuse permission if it could not grant it through a lawful process.
The Court also held that the power to give directions on remittal does not let a court alter the Board’s statutory powers or duties. Detailed directions designed to ensure a fair process were not appropriate in this case, the judgment said, because it must be presumed that the Board will act lawfully.
The appeal was dismissed. The High Court order was varied by deleting its directions, and the application was remitted to An Bord Pleanála for reconsideration without those terms. The Supreme Court did not decide whether permission should be granted; that remains for the Board to determine in accordance with law and fair procedures.