The High Court has certified three points of law for appeal in a planning judicial review concerning a proposed 102-apartment development in Dún Laoghaire. The questions concern the court’s power to direct procedures when sending a quashed strategic housing decision back to An Bord Pleanála for reconsideration.
Mr Justice David Holland delivered the judgment on 16 May 2023. Crofton Buildings Management CLG, the owners’ management company for Harbour View, and apartment owner Stephanie Bourke brought the proceedings. Fitzwilliam DL Limited was the notice party.
The Board had conceded that its 28 April 2021 decision granting planning permission should be quashed because it failed to apply a statutory restriction on granting permission in material contravention of the development plan’s building-height objectives. In a separate judgment in December 2022, the High Court ordered the decision remitted to the Board for reconsideration. It directed the Board to hold an oral hearing and set procedures for submissions, including consideration of the development plan adopted after the original decision.
Crofton sought permission to appeal the remittal directions. It argued that the court had exceeded its powers by requiring procedures and documents beyond those available under the statutory scheme for strategic housing applications, and by directing an oral hearing despite the Board’s statutory discretion. The Board supported certification of a question about whether remittal directions could involve powers not normally available under that scheme. Fitzwilliam proposed a related formulation addressing powers varied or supplemented in the interests of justice.
The judge certified both formulations, finding the issue legally uncertain, capable of affecting the remittal decision and of wider public importance. He also certified a question about whether the court could direct the Board to convene an oral hearing where legislation gives it an “absolute discretion” over whether and how to hold one.
The court did not decide whether the earlier directions were lawful. Certification permits the specified legal questions to be considered on appeal; it does not determine their answers. The judge declined to certify Crofton’s further proposed question about whether remittal directions should be confined to the building-height error conceded by the Board. He said that issue had not been argued at the remittal hearing and therefore did not arise from the judgment under consideration.
The matter was listed for mention on 22 May 2023. The judgment does not state the outcome of any subsequent appeal or mention.