Supreme Court ruling on remittal of planning applications will impact Strategic Housing Development projects

Why should I read this?

The Supreme Court's decision in favour of the remittal of planning applications to An Bord Pleanála (the Board) marks a significant moment in planning law. This decision underscores the Court's stance on the High Court’s authority to remit quashed planning applications back to the Board for reconsideration. This ruling is likely to set a precedent for future cases and could potentially reshape the landscape of Strategic Housing Development (SHD) projects.

The Supreme Court's decision not only affects the specific case of the Dún Laoghaire development but also sets a precedent for how quashed planning permissions are handled in the context of evolving development plans and planning regimes. It underscores the importance of a fair and lawful reconsideration process by planning authorities and the role of the judiciary in ensuring that such processes adhere to current regulations and community standards.

What did this case involve?

This case involved a SHD planning application for 102 build-to-rent apartments on the grounds of St Michael’s Hospital in Dún Laoghaire, which was initially approved by the Board but later challenged in the High Court. 

The Board conceded that its decision should be quashed due to a failure to apply a required provision under the Planning and Development (Housing) and Residential Tenancies Act 2016, which materially contravened height objectives in the 2016 Dún Laoghaire-Rathdown development plan. 

Noting this concession, the questions before the court were:

(1) where the planning permission had been quashed, should the SHD decision be remitted to the Board for reconsideration; and

(2) if remitted, should the now-expired 2016 development plan provisions or the current 2022 development plan provisions apply, noting also that a new regime for large-scale residential development (LRD) had superseded the fast tracked SHD process.

Remittal would allow the application to be preserved for decision under the SHD scheme. If quashed simpliciter, the developer would have to make a new application, under the LRD process, which would be decided first by the local planning authority. 

In remitting the application, Mr. Justice David Holland directed the Board to have regard to the 2022 development plan and to hold an oral hearing to achieve fair procedures.

What are the implications for other SHD projects?

The Supreme Court's ruling has broader implications, potentially affecting numerous planning applications made under the now-expired SHD process. Developers must be aware of incurring costs due to revising applications to also satisfy current development plans and the LRD regime, including the extent to which the original applications should be modified. The ruling could lead to significant changes in how SHD projects remaining in the planning process are considered, potentially affecting the housing market and construction industry. A particular concern for developers will be ensuring compliance with the development plan that is in force at the time the Board makes its decision. The exact impact, however, will depend on how the ruling is interpreted and applied in future cases.

The Court's decision to dismiss the appeal without providing specific directions to the Board for the reconsideration process implies a presumption that the planning authority will act fairly and in accordance with the law. 

What else do I need to know?

The case highlights the dynamic nature of planning regulations and the challenges that arise when development plans change during the planning process. With the 2016 Dún Laoghaire-Rathdown development plan having been replaced by a 2022 version, and the new LRD regime superseding the SHD procedure, the court's ruling facilitates a smoother transition for applications caught in the crosshairs of regulatory shifts.

For developers, the ruling may offer some relief, as remittal allows for the preservation of applications for decision under the SHD scheme, rather than starting anew under the LRD process. 

With special thanks to Paul Nugent, Solicitor and Melanie Ardiff, Professional Support Lawyer, for their contribution to this briefing.