Supreme Court dismisses appeal, holding planning appeals must be decided by the development plan in force at the time of the Commission's decision.

THE SUPREME COURT

Record No.: 2024/165

[2025] IESC 50

Charleton J. Woulfe J. Hogan J. Murray J. Donnelly J.

Between:

MILLBOURNE RESIDENTS ASSOCIATION

Applicant/Appellant

-and-

AN COIMISIÚN PLEANÁLA

Respondent

-and-

RYBO PARTNERSHIP

Notice Party/Respondent

JUDGMENT of Mr. Justice Woulfe delivered on the 27th day of November, 2025

Introduction

1. The appellant appeals against a decision of the High Court (Bolger J.) which quashed a

decision of the respondent (“the Commission”)1 to grant permission for a proposed development, and ordered remittal of the planning application to the Commission, rather than remittal back to the planning authority. In her judgment dated the 9th October, 2024, Bolger J. refused an application made on behalf of the appellant for a certificate for leave to appeal to the Court of Appeal. It is the refusal of the High Court to remit the matter back for consideration to the planning authority which the appellant appeals to this Court.

Background

2. On the 2nd July, 2019, the notice party applied to Meath County Council pursuant to s.

34 of the Planning and Development Act, 2000 (the “2000 Act”), for planning permission for three apartment blocks containing a total of thirty apartments on a site located in Ashbourne, Co. Meath. Permission for same was refused by the planning authority, by a decision dated the 2nd June, 2020, for one reason only. No finding of material contravention of the Meath County Development Plan 2013-2019 (the “2013 Development Plan”) was made.

3. On the 29th June, 2020, the notice party lodged an appeal against the decision of the planning authority to the Commission. The Commission, in determining the appeal pursuant to s. 37 of the 2000 Act, decided to grant permission for the proposed It is the not the general practice of this Court to alter the names of the parties between the date of the High Court and/or Court of Appeal judgment and the appeal to this Court, not least because of the confusion this causes for law reporters and general readers alike. Section 495(3) of the Planning and Development Act, 2024 now provides, however, that references in legal proceedings to An Bord Pleanála “shall…be construed as a reference to An Coimisiún Pleanála”. This subsection was commenced on the 17 th June, 2025: see Planning and Development Act 2024 (Commencement) (No. 2) Order (S.I. No. 256 of 2025). In these circumstances the Court proposes (exceptionally) to rename the proceedings by substituting the name of “An Coimisiún Pleanála” for “An Bord Pleanála”.

development, subject to thirteen conditions, by way of Commission order dated the 11th September, 2020. No finding of material contravention of the 2013 Development Plan was made by the Commission in granting permission.

4. Both the planning authority’s decision and the Commission’s decision were made having regard to the policies and objectives of the 2013 Development Plan.

5. The appellant commenced judicial review proceedings on the 28th October, 2020, challenging the validity of the Commission’s decision pursuant to ss. 50 and 50A of the 2000 Act. In the meantime, however, the Meath County Development Plan 2021-2027 (the “2021 Development Plan”) was adopted on the 22nd September, 2021.

6. On the 24th June, 2022, the Commission indicated that it was conceding the proceedings on the basis of ground 1 of the appellant’s statement of grounds, which related to a failure to carry out appropriate assessment under the Habitats Directive (Directive 92/43/EEC).

7. Thereafter, correspondence ensued between the parties in respect of remittal. The notice party argued that the Court should order remittal to the Commission. However, the appellant argued that the matter should be remitted to the planning authority, in circumstances where the zoning of the site had changed from residential to open space under the 2021 Development Plan. The Commission was neutral on whether the matter should be remitted to it or not, but it made submissions to the High Court on why it considered that there was no legal preclusion on the matter being remitted to it, as had been claimed by the appellant.

8. Section 50A(9A) of the Planning and Development Act 2000, as amended by s. 22 of the Planning and Development, Maritime and Valuation (Amendment) Act, 2022 provides as follows:

“If, on an application for judicial review under [Order 84 of the Rules of the Superior Courts], the Court decides to quash a decision or other act to which section 50(2) applies, made or done on an application for permission or approval, the Court shall, if requested by the applicant for permission or approval, remit the matter to the planning authority, the local authority or the Board, as may be appropriate, for reconsideration, subject to such directions as the Court considers appropriate, unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so.”

The High Court

9. In her first judgment ([2024] IEHC 31] delivered on the 24th January, 2024, Bolger J. quashed the decision of the Commission to grant permission on consent of the parties. As regards remittal, she stated that the bar to refuse a remittal has been set high by s. 50A(9A) of the 2000 Act, which requires the Court to remit “unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so”. She noted how this provision was described by Holland J. in Crofton Buildings Management CLG v. An Bord Pleanála [2022] IEHC 704 (at para. 16) as “a statutory expression and reinforcement of the principles and presumption in favour of remittal generally discernible in the cases”, and Holland J. went on to state that remittal should only be refused where the Court is positively satisfied that it would be unlawful to remit.

10. Bolger J. held that, unless there was any specific legal preclusion to remittal to the Commission, then the matter should be remitted to the Commission to consider the remitted application in accordance with its statutory powers. At para. 13 of her judgment, she stated that she was “not positively satisfied that it would be unlawful to remit this matter to the Board”, and that any remitted application would be determined by reference to the new County Development Plan (“CDP”). As regards the appellant’s concern that the planning authority’s decision related to the old CDP, she held that there is nothing in the legislation or the authorities suggesting that both decisions (of the planning authority and the Commission) must be determined in relation to the same CDP. The appellant relied on s. 37(2)(b) of the 2000 Act, but Bolger J. held that this provision never applied in the circumstances of this case, as there was no decision by the planning authority that there had been a material contravention of the CDP. The planning authority’s finding was of a contravention, which she held was a different finding to a material contravention.

11. The trial judge went on to state (at para. 14) that if the Oireachtas had intended to make such a significant change to the planning system, depriving the Commission of jurisdiction to determine an application to it where the development plan had changed between the decision of the planning authority and when the application came before the Commission, then she believed that this would have been expressly stated by the Oireachtas, in accordance with the presumption against radical amendment.

12. Bolger J. was not positively satisfied that there was any preclusion in law to the Commission dealing with this matter on remittal. She held that the appellant had failed to rebut the presumption in s. 50A(9A) of the 2000 Act in favour of remittal, and was thus satisfied that the matter should be remitted to the Commission. She was concerned that a remittal to the planning authority could be an inappropriate usurpation of the Commission’s statutory function and, in any event, she was not satisfied that the

introduction of the new CDP since the decision of the planning authority was sufficient to allow a remittal to the planning authority, even if such power existed pursuant to the subsection, although it seemed more likely to her that the reference to the planning authority was to cover the situation where judicial review was taken in relation to their

decision.

13. The High Court went on to make an order of certiorari quashing the decision of the Commission and remitted the matter to the Commission.

14. In her second judgment ([2024] IEHC 580) delivered on the 9th October, 2024, Bolger

J. referred to the intervening decision of this Court in Crofton Buildings Management CLG v An Bord Pleanála [2024] IESC 12 (“Crofton”), in which she said that this Court had given a strong endorsement to the presumption of remittal. She refused to certify a point of law of exceptional public importance, as set out in s. 50A(7) of the 2000 Act, and refused leave to appeal to the Court of Appeal.

Determination

15. The appellant was granted leave to appeal the decision of the High Court to the Supreme Court by a determination dated the 11th February, 2025 (see: [2025] IESCDET 20). The Court considered that the appeal raised an important issue of principle regarding the scope of the remittal power in s. 50A(9A) of the 2000 Act. The net question presented was whether it would not be lawful to remit the matter to the Commission pursuant to that provision because of the new change of circumstances, namely the new development plan. This itself gave rise to an underlying question of some novelty which did not previously appear to have been fully judicially addressed, namely whether the decision of the Commission can be made by reference to a different development plan than that considered at first instance by the relevant planning authority. This question had the potential to affect many other planning decisions. In these circumstances the Court considered that the special requirements of Article 34.5.4° of the Constitution had been satisfied.

Submissions of the Parties

Submissions of the Appellant

Can a Commission decision be remitted to the planning authority?

16. The appellant accepts that, if this Court were to remit the matter to the planning authority, as per its suggestion, the Court would have to be satisfied that such a power exists. It cites the full text of s. 50A(9A), which it says displaces the general rule under

O. 84, r. 27(4) of the Rules of the Superior Courts (the “Rules”). It notes that s. 50A(9A) does not require remittal to the “authority concerned”, as per the general rule. It states that the import of s. 50A(9A) is that a Court’s discretion to remit is removed, where remittal is requested by the applicant for permission, unless it would be unlawful to do so. However, the Court has now been given a discretion to remit to the planning authority, local authority or the Commission “as may be appropriate”.

17. The appellant also seeks to differentiate the circumstances of the instant proceedings from those that arose in Crofton. Crofton was concerned with an application for permission for a strategic housing development, which, pursuant to the Planning and Development (Housing) and Residential Tenancies Act, 2016, had to be submitted directly to the Commission. Because of this, any remittal clearly could only have been to the Commission. The issue in Crofton was remittal or no remittal, whereas this appeal deals with a separate question – if there is to be remittal, to which decisionmaker should the application be remitted.

18. The appellant submits that the position adopted by it does not involve any frustration of the will of the Oireachtas. Rather, it submits that the emphasis in the High Court’s analysis should have been on the “appropriateness” of remitting the matter to the planning authority as opposed to the Commission. It suggests that the decision of the Oireachtas not to reproduce the phrase “authority concerned” from O. 84, r. 27(4) of the Rules indicates a legislative intent to mitigate potential unintended consequences of removing a court’s discretion to remit i.e. when to remit, with a discretion over who to remit to. The appellant submits that the plain meaning of s. 50A(9A) is that the court has a discretion to remit to the planning authority rather than to the Commission, even where the decision quashed is the Commission’s decision, as long as the court considers such a remittal to be appropriate.

19. Where the development plan has changed between a decision of a planning authority and the decision on appeal, and the Commission makes its decision by reference to the new development plan rather than old one, it is submitted that this can create anomalies, and that legislation should be interpreted to avoid such anomalies. It contends that the interpretation contended for by the appellant does not engage the presumption against radical amendment, as suggested by the trial judge at para. 14 of her first judgment, given that, here, the Oireachtas expressly elected not to reproduce the wording of the previous provision in O. 84, r. 27 of the Rules.

Remittal to which decision-maker?

20. The appellant contends that were the planning authority to assess the proposed development against the backdrop of the new development plan, it is likely that it would refuse permission on the grounds of a material contravention of the open space zoning, the zoning now applicable to the proposed development. It submits that the upshot of this is that unless the matter is remitted to the planning authority, it will not be able to consider the question of material contravention and make the decision necessary for the purposes of determining the Commission’s jurisdiction to grant permission in material contravention of the new development plan. It contends that if the matter is remitted to the Commission, on the facts of this case, the Commission would not have jurisdiction to invoke s. 37(2)(b) of the 2000 Act, as there would be no pre-existing decision of the planning authority dealing with the question as to whether the proposed development materially contravenes the development plan. Remittal unlawful?

21. The appellant contends that the Commission’s jurisdiction to grant planning permission for a proposed development which materially contravenes the development plan is dependent on the decision of the planning authority, and is limited where the planning authority refused to grant permission for a proposed development which materially contravened the development plan. It quotes s. 37(2)(a) and (b) of the 2000 Act, and submits that the wording of this section posits two different scenarios.

22. Firstly, s. 37(2)(a) provides a general power to the Commission to grant permission on appeal for a proposed development which materially contravenes the development plan, regardless of whether such a determination has been made by the planning authority, or equally if the planning authority has in fact granted permission. It submits that this contrasts with the special procedure available where a planning authority decides to grant such permission.

23. The second scenario, which the appellant submits was identified by the trial judge at para. 13 of her first judgment, is where the planning authority has decided to refuse permission on the specific ground that the proposed development constitutes a material contravention of the development plan. The Commission’s jurisdiction is then constrained, as it can only grant permission in line with the limited circumstances set out in s. 37(2)(b). Where permission is granted pursuant to s. 37(2)(b), the Commission is required by s. 37(2)(c) to indicate in its decision the main reasons for granting same despite a finding of material contravention.

24. The appellant submits that this necessarily presupposes that the planning authority will have considered whether or not the proposed development materially contravenes the development plan, and moreover that the same plan would then be considered by the Commission on appeal. It contends that if the present matter were to be remitted to the Commission, on the facts of this case, the Commission would not have jurisdiction to invoke s. 37(2)(b) as there would be no decision of the planning authority dealing with the question as to whether the proposed development materially contravenes the new development plan. Further, they submit that the Commission’s jurisdiction under s. 37(2)(a) would be indeterminate, since the governing decision of the planning authority would not be available due to the change of development plan.

25. The appellant contends that a critical element of the Commission’s decision-making power cannot therefore be exercised. Where the Commission cannot lawfully engage in the procedure set out in s. 37(2)(b), it axiomatically cannot have jurisdiction for the purposes of s. 37(2)(a). A remittal to the Commission would therefore be a remittal where the Commission’s jurisdiction could not be ascertained. This lack of a clearly defined jurisdiction on remittal renders remittal to the Commission unlawful according to the appellant, and application of the appropriateness criterion in s. 50A(9A) means that the appropriate body to remit the matter to would be the planning authority.

26. The appellant submits that, correctly construed, the question is not that remittal to the Commission should be preferred to remittal to the planning authority because the Commission might grant permission but, rather, that remittal to the planning authority must be ordered in preference to the Commission because, in the absence of a new

decision of the planning authority, the Commission cannot make a lawful decision to grant permission as it cannot engage with the procedure set out in s. 37(2)(b) of the 2000 Act, and its jurisdiction under s. 37(2)(a) cannot be established.

27. The appellant also contends that it is irrelevant that the planning authority did not find a contravention of the previous development plan, as that development plan is no longer in force and the zoning for the site has now been changed from residential to open space use. It submits that the reliance of the notice party on a decision by the planning authority in respect of a now expired development plan, in support of its application that the Commission should make a new decision by reference to a different development plan, is telling, and that this cannot be squared with the Commission’s jurisdiction as an appellate body pursuant to s. 37 of the 2000 Act.

Whether the decision of the Commission can be made by reference to a different development plan than that considered at first instance by the relevant planning authority

28. The appellant contends that a broader issue identified in the Court’s determination is whether a decision of the Commission (presumably on appeal) can be made by reference to a different development plan than that considered at first instance by the relevant planning authority. It submits that it would be clearly anomalous for the Commission to make a decision by reference to an expired development plan. However, where the development plan has changed between the first instance decision and the appeal, and the Commission makes its decision by reference to the new CDP rather than the old one, this can also create anomalies.

29. The focus of the appellant’s argument is that the public are entitled to make submissions and observations on an application for permission, including in relation to the implementation of the development plan. It submits that where the Commission makes a decision on appeal by reference to a new development plan, members of the public who are not a party to the appeal or an observer on same will not have had an opportunity to comment on the implementation of the new development plan. This is particularly so upon remittal, since in that case no notice of a new appeal is given to the general public, and public observations are not generally possible.

30. The appellant submits that the Commission’s jurisdiction to request observations and submissions under s. 131 of the 2000 Act is limited to identified persons who are notified directly in writing by the Commission. It contends that this provision cannot be used to invite submissions from the public at large, in the same way that such submissions are invited through site notices and newspaper notices at first instance. While this provision may ensure fair procedures for particular individuals, it does not ensure fair procedures for the public generally. While it is true that s. 142(4) of the 2000 Act confers a power on the Commission to require public notice to be given, this is in the context of a provision that enables the Minister for Housing, Local Government and Heritage to make Regulations providing for such additional, incidental, consequential or supplemental matters as regards procedure in respect of appeals as appears to the Minister to be necessary. As far as can be ascertained by the appellant, the Minister has not made Regulations dealing with the situation where the development plan has changed between the first instance decision and the appeal, and therefore the Commission’s power to direct publication of notices cannot be availed of, since it is not connected with any other public participation procedure. In a similar vein, the Commission lacks procedures to carry out internal consultations within the planning authority, which the appellant submits is an important element of every first instance planning decision.

31. The appellant submits that even if the Commission could ensure public participation at the appellate stage in relation to a materially different development plan, the public would still be deprived of their right to an administrative appeal to the Commission. The other side of this coin, it is submitted, is that the planning authority would have procedural powers to ensure full public participation, as well as a power to request further information from the applicant for permission.

32. The appellant contends that, overall, it would be inappropriate and unlawful to blur the lines between the planning authority as the first instance decision-maker and the Commission’s appellate jurisdiction, in relation to a new CDP. It submits that the Commission not only lacks the procedural framework to ensure full public participation, but also lacks the local knowledge and detailed technical functions that are found in a planning authority through its implementation of the CDP. It refers to s.

15 of the 2000 Act, which makes it the duty of the planning authority to take steps to secure the objectives of the development plan, and notes that this duty does not extend to the Commission. The appellant submits that the approach in the instant proceedings would be the antithesis of effective public participation, and this demonstrates the anomalies that arise from the Commission making a decision by reference to a different development plan than that considered at first instance.

Submissions of the Commission

Statutory context

33. The Commission refers to cases involving interpretation of various provisions of the 2000 Act which have come before this Court in recent years, and where this Court has emphasised that the provisions should be interpreted in light of the Act as a whole and should be read so as to produce a workable and coherent interpretation. As regards remittal, albeit by reference to a different statutory scheme, the Commission cites the

decision of Holland J. in Salmon Watch v. ALAB [2024] IEHC 608 wherein the High Court determined that where an appellant body’s decision is quashed in judicial review proceedings, the appeal should be remitted to that body, and not to the first instance

decision-maker.

34. The Commission submits that the consequence of the broader issue raised in this appeal is that, on any appeal before it, a change in the CDP would have the effect of depriving the Commission of jurisdiction to determine the appeal because the planning authority, at first instance, had not made a decision by reference to the same development plan. It contends that an examination of the overall statutory framework demonstrates that the 2000 Act does not contain any limitation on the jurisdiction of the Commission to determine an appeal, where there has been a change or variation to the development plan considered at first instance.

Development Plans

35. Part II, Chapter I of the 2000 Act provides for the making of development plans every six years – subject to some specified exceptions set out in s. 9. The planning authority may vary a development plan at any stage over the course of its lifetime, per s. 13. In this regard, the Commission submits, the Legislature can be presumed to have been aware of the temporal nature of development plans, and the possibility that they may be changed or varied, when proceeding to set out the planning application/appeal process in the subsequent parts of the 2000 Act.

Planning Applications & Appeals

36. The Commission refers to s. 34 of the 2000 Act which governs planning applications made to a planning authority, and requires that body to have regard to the provisions of the development plan. Section 34 also provides for specific procedures where the planning authority is minded to grant permission where a development is in material contravention of the development plan. Section 37 deals with appeals made to the Commission regarding decisions made by the planning authority under s. 34. The Commission also cites a range of supplemental provisions within the 2000 Act relevant to such appeals.

37. The Commission states that a number of observations may be made about the nature of the appeal process under s. 37, including: i. Pursuant to s. 37(1)(b), where an appeal is brought against a decision of the planning authority and is not withdrawn, the Commission shall determine the application as if it had been made to the Commission in the first instance, and the decision of the Commission shall operate to annul the decision of the planning authority as from the time when it was given. The consequence, as recognised in a series of judgments, is that an appeal to the Commission operates as a de novo appeal. ii. The appellant’s submission that a decision by the planning authority on the same development plan is a “condition precedent” to the Commission having jurisdiction to consider an appeal fails to engage with this aspect of the Commission’s functions and the de novo nature of an appeal. iii. In deciding the de novo appeal, by reference to s. 37(1)(b) and s. 34 (2)(a)(i), and noting that the same “statutory restriction” applies to the Commission’s decision as to the first instance decision of confining consideration to the “proper planning and sustainable development of the area”, the Commission is required to have regard to the provisions of the development plan. iv. It is common case between the parties that the Commission must decide any application on appeal before it by reference to the development plan in force at the time the Commission makes its decision. This is reflective of the decision in Crofton wherein this Court, per Donnelly J., stated (at para. 30) that “(N)othing in any of the relevant sections…requires the Board to have regard to anything other than the development plan in effect on the date of the decision”. v. The decision of the Commission on appeal, per s. 37(1)(b) of the 2000 Act, operates to annul the decision of the planning authority, even if the Commission’s decision is subsequently held to be invalid.

38. In light of the foregoing, the Commission submits that there is no statutory preclusion on the Commission considering an appeal if the development plan changes, and it notes that there are no express words to that effect in the legislation. The Commission, in determining the de novo appeal, must have regard to the current development plan. It submits that it is the appellant who seeks to “reformulate” the statutory procedures engaged by seeking to imply a statutory pre-condition on the Commission’s de novo jurisdiction to consider an appeal.

39. The Commission notes the appellant’s submission relating to public participation in the planning process being undermined, where a CDP changes during that process. It states, however, that this submission overemphasises the consequence of a change in the development plan and fails to acknowledge that principally it is the proposed development, not the development plan, which engages or triggers public participation. Thus, it submits, those having an interest in the development proposal, and/or those potentially affected by same, can reasonably be expected to have engaged in the process. The planning system has requirements for site notices/public notification which provide a gateway to persons affected to participate in the planning process.

40. In respect of s. 37(2) of the 2000 Act, which relates to situations where the Commission decides to grant permission in cases of material contravention, the Commission submits that s. 37(2)(a) vests a discretionary power in the Commission to do so, given that the text states that the Commission “may” grant permission. Further, s. 37(2)(b) prescribes, in a specific factual context (a refusal of permission by the planning authority on material contravention grounds), what the Commission, having also found a material contravention, is required to do if minded to grant permission. Significantly, the Commission states, s. 37(2) does not limit the jurisdiction of the Commission from determining an appeal if the first instance decision was made by reference to a previous development plan.

41. The Commission notes the appellant’s submission that its jurisdiction to grant planning permission which materially contravenes the development plan is dependent on the

decision of the planning authority, and is limited where the planning authority refused to grant permission of a proposed development which materially contravened the development plan. It submits that this is not an accurate reflection of the circumstances in which the Commission may grant permission in such a case, and that the limitation on the Commission’s jurisdiction which the appellant contends for only arises where the planning authority refused permission on the basis of a material contravention, and the Commission on appeal is also of the same opinion.

42. The Commission submits that a similar argument to that now made by the appellant was rejected by the High Court in Balz and Heubach v An Bord Pleanála [2016] IEHC

134 (“Balz”). In Balz the Court found that the interpretation which the applicants, in that case, sought to have placed on the provisions of s. 37(2)(b) would, in the Court’s view, have produced a meaning which, if not absurd, would not have given effect to the plain intention of the Legislature. The Court held that where and only where the planning authority has refused permission on the grounds that the proposed development materially contravenes its own development plan, and where the Commission is of the same opinion, do the limitations and requirements of subs. 2(b) and (c) apply to the Commission’s discretion to grant permission. The Commission submits that the Court in Balz thus adopted a holistic approach of the statutory scheme, unlike the approach of the appellant, which it submits focuses mainly, if not exclusively, on s. 37(2)(b) of the 2000 Act.

43. The Commission also cites the decision in South Western Regional Shopping Centre Ltd v An Bord Pleanála [2016] IEHC 84, wherein the High Court held that the Commission’s jurisdiction to hear and determine an appeal de novo as if the application for permission had been made directly to it is not affected by the provisions of s. 37(2)(b). Rather, it added, the provisions of this section are designed to limit the Commission’s jurisdiction to grant permission in material contravention of the development plan where the Commission itself forms the view that the proposed grant would materially contravene the development plan and the complex statutory procedure set out in s. 34 has not been followed.

44. Having regard to ss. 34 – 37 of the 2000 Act, and noting the broader issue raised in the determination of this Court, the Commission emphasises that there is no express requirement or preclusion that it can only determine an appeal if it relates to the same development plan considered by the planning authority at first instance. It submits that the approach adopted by the appellant is difficult to reconcile with the de novo nature of the appeal, and the accepted position that same must be determined by reference to the current development plan. It submits that such a reading as advanced by the appellant would be a significant restriction on the Commission’s jurisdiction. Further, it submits that the appellant’s interpretation of the 2000 Act is inconsistent with the principle of statutory interpretation that radical changes in the law require clear words.

45. Moreover, the Commission submits, implying such a restriction as the appellant contends for would be entirely circular and unworkable, as both grants and refusals of permission under appeal would have to effectively start again. Consequently, planning authorities would, in essence, have to reconsider appeals already determined, and appeals (including remitted appeals) would be incapable of being processed/determined. It submits that this approach would be the opposite of a “workable and coherent” approach to the interpretation of the 2000 Act.

46. The Commission submits that the more workable interpretation is one that recognises that its jurisdiction is not constrained by the development plan considered by the planning authority at first instance. Further, if the Commission considers it appropriate in any given case, it may utilise the suite of statutory powers available to it to ensure that stakeholders with an interest in a proposed development may comment on it, if there has been a material change relevant to the appeal, such as a new development plan. Therefore, they submit, the Commission’s jurisdiction to consider and determine an appeal is not restricted or predicated upon a first instance decision by the planning authority on the same development plan.

Remittal and Judicial Review

47. The Commission submits that the nature of the decision challenged pursuant to s. 50(2) of the 2000 Act is relevant for the purposes of interpreting the “supplemental provisions” in s. 50A(9A) of the Act, including the provisions relating to remittal. The Commission notes that ss. 34 and 37 relate to different decisions, which are both capable of being challenged pursuant to s. 50 of the 2000 Act. It states that in interpreting ss. 50 and 50A together, a logical and workable interpretation of same is that the remittal provision is directed at the subject “matter” of the decision actually challenged. By referring to “matter” and “reconsideration” of same following the quashing of the “decision”, it would not make sense that the Commission’s decision on an appeal, if quashed, would result in the appeal (being the “matter” determined by the Commission) being remitted to the planning authority “for reconsideration” - in circumstances where the planning authority’s decision did not concern a consideration of the appeal, and was never challenged pursuant to s. 50, and was annulled by s. 37 of the 2000 Act.

48. As regards the appellant’s emphasis on the text in s. 50A(9A) and the words “as may be appropriate”, in support of its argument that remittal of the matter to the planning authority is permitted, the Commission submits that such an approach cannot be correct, and ignores the fact that what was before the Commission was the appeal. This appeal was never considered by the planning authority, who, the Commission submits, therefore is not in a position to “reconsider” same. The Commission submits that the phrase “as appropriate” acknowledges that, depending on the nature of the decision challenged under s. 50(2) of the 2000 Act, the matter to be remitted may go back to one of the identified entities for “reconsideration”.

Remittal to the Commission in this case

49. The Commission submits that, in light of the decision of this Court in Crofton, remittal of the appeal to the Commission would not be unlawful. It submits that the appellant’s assertion that such a remittal would be unlawful is premised on two matters: (i) the appellant’s view that the proposed development will materially contravene the development plan, which the Commission submits appears to invite determination by this Court, and; (ii) an isolated and incorrect interpretation of s. 37(2) and s. 50A(9A) of the 2000 Act – an interpretation which the Commission contends is advanced absent any reference to other provisions of the Act, namely s. 37 and s. 50, and/or any engagement with the de novo nature of the appeal. It is submitted that the appellant’s contention that the Commission’s decision on an appeal must be based on the same development plan as the first instance decision is not correct, and thus the basis for asserting unlawfulness does not arise herein.

Submissions of the Notice Party

Remittal is to the Commission and not the planning authority

50. The notice party submits that the application of normal rules of statutory interpretation can resolve the issues presented in the within appeal. It submits that when those principles are applied to the present case, there is no basis for the contention that s. 50A(9A) of the 2000 Act introduced a scenario where a quashed decision of the appellate planning body can be remitted to the first instance decision-maker in any circumstance.

51. The notice party submits that upon reading s. 50A(9A) and the phrase “as may be appropriate”, the appellant’s contention that a court is given the discretion to remit to any of the planning authority, the local authority or the Commission is not supported. Instead, when viewed in context, particularly in the context of s. 50(2), the reference is far less radical than that contended for by the appellant. It submits that, prior to the enactment of s. 50A(9A) in 2022, the High Court merely had a discretion to remit a matter to the planning authority or the Commission. It submits that the extent of the 2022 amendment, i.e., the insertion of s. 50A(9A), was merely to turn that discretion into an imperative, unless remittal was unlawful, and nothing more radical. It did not introduce an amendment which allows for remittal to an entity other than the decisionmaker.

52. Giving the wording of s. 50A(9A) and the words “as may be appropriate” their ordinary and natural meaning, the notice party submits that these words are clearly referring to remittal to the appropriate decision-maker of the decision being challenged, depending on which body made the decision or did the act which is to be quashed on foot of the judicial review pursuant to s. 50(2). Section 50A(9A), it submits, deals with remittal following the quashing of specified planning decisions challenged under s. 50(2) of the 2000 Act, and the reference to “as may be appropriate” ought to be logically interpreted as meaning the appropriate one of the bodies which made the decision or did the act which has been quashed.

53. The notice party submits that their approach is entirely in keeping with the policy or object of s. 50A(9A), as explained in Crofton, of avoiding cost and delay in planning challenges. It submits that if a case such as the present were to go right back to the planning authority, it would add cost and delay, as well as uncertainty to an already complex process, which they say is contrary to the object of the amendment brought about by s. 50A(9A).

54. Furthermore, the notice party submits that there is no matter to remit to the planning authority. This is so when one reads the text of s. 37(1)(b) whereby the Commission’s

decision, on an appeal, annuls the previous decision of the planning authority. The fact that such a decision may subsequently be found to be invalid nonetheless has the effect of permanently annulling the planning authority’s first instance decision. The notice party submits that nothing in s. 50A(9A) of the 2000 Act operates to change the position in s. 37(1)(b), that once the Commission makes its decision, the decision of the planning authority is annulled. In the circumstances, when s. 50A(9A) is considered in context, there is no provision in the 2000 Act which allows for a quashed Commission decision to be remitted to the first instance planning authority decision-maker.

Section 37(2)(b) is not a jurisdictional bar on the Commission considering the matter on remittal

55. The notice party submits that the meaning of s. 37(2)(b) of the 2000 Act is fairly simple. If the planning authority has refused permission on the grounds of material contravention, the Commission can still grant permission in material contravention if one of the criteria in subs. (2)(b) is satisfied. If the planning authority has not refused an application on material contravention grounds, no restriction on the Commission’s jurisdiction applies.

56. The notice party contends that where a new development plan has come into effect after the planning authority’s decision, it could not have refused permission on grounds of material contravention of that plan. Therefore, the Commission is not constrained by s. 37(2)(b). The provision is not a form of “jurisdictional straightjacket” as contended for by the appellant. If that were the case, that would have much wider ramifications than those arising here, as the effect would be that where there has been a change of development, including by variation, between the planning authority’s decision and the Commission’s determination of the appeal, the logic is that the Commission would be deprived of jurisdiction. In respect of the planning authority’s ability to subsequently consider a new development plan from the standpoint of material contravention, the notice party submits that there is no mechanism for this. It submits that once a planning authority has made its decision, it has no further involvement in the decision-making process, save for the admission of a grant or refusal of permission. In respect of the appellant’s “condition precedent” argument, the notice party submits that this contention is entirely at variance with the notion that an appeal to the Commission is de novo in nature, and is to be determined as if made to the Commission in the first instance.

57. The notice party submits that in this case s. 37(2) has no application, because the planning authority did not refuse planning permission on the basis that the proposed development would materially contravene the development plan. It also submits that s. 37(2)(b) does not condition the Commission’s jurisdiction; it merely limits the scope of the Commission to grant permission where a finding of material contravention is made, however it does not prevent it from doing so. Therefore, they submit, it cannot be regarded as jurisdictional and it cannot be unlawful for the High Court to remit the matter back to the Commission for fresh consideration under s. 50A(9A).

Not unlawful to remit to the Commission

58. The notice party submits that even if the proposed development would, on the face of it, materially contravene the new development plan, that is not a basis for refusing remittal to the Commission. Specifically, that would not make remittal to the Commission unlawful. It is submitted that it is a matter for the Commission to determine whether the development is in material contravention of the new development plan, and, if so, whether permission for same should nonetheless be granted.

59. The notice party submits that the Commission has ample powers to seek the views of the planning authority by inviting further submissions from it under s. 131 of the 2000 Act, and it may also seek the views of the planning authority and the appellant in respect of the issue of any material contravention before it makes its decision.

60. The notice party submits that the appellant’s assertion of unlawfulness is based on an isolated reading of both ss. 50A(9A) and 37(2)(b) of the 2000 Act, and their assertion is made without any consideration of the other provisions of the 2000 Act, in particular ss. 50(2) and 37(1)(b). It concludes that there is no statutory basis for the contention that remittal to the planning authority could occur.

Decision

61. It is clear that the net issue arising in this appeal is whether it was correct for the trial judge, having quashed the Commission’s decision to grant permission, to remit the matter to the Commission for reconsideration, as opposed to remitting to the planning authority as sought by the appellant. This net issue raises the question of whether it would not be lawful to remit to the Commission because of the new circumstances, namely the adoption of a new CDP since the first instance decision of the planning authority. This in turn may give rise to a more general underlying question of some novelty, namely whether any decision of the Commission can be made by reference to a different development plan than that considered at first instance by the relevant planning authority.

62. I am satisfied that the High Court was correct to order remittal of the matter to the Commission, for the following reasons.

63. Firstly, the issue was primarily a question of the correct interpretation of s. 50A(9A) of the 2000 Act (leaving to one side for now the application of the “unless” proviso at the end of the provision, to which I will return below). The principles governing statutory interpretation have recently been restated by this Court in Heather Hill Management Company CLG v. An Bord Pleanála [2022] 2 ILRM 313 (“Heather Hill”). In his judgment for the Court Murray J. cited with approval the judgment of McKechnie J. in The People (DPP) v. Brown [2019] 2 IR 1, and he summarised the essential points which McKechnie J. had made as follows (at para. 106): “(i) The first and most important port of call is the words of the statute itself, those words being given their ordinary and natural meaning…

(ii) However, those words must be viewed in context; what this means will depend on the statute and the circumstances, but may include ‘the immediate context of the sentence within which the words are used; the other subsections of the provision in question; other sections within the relevant part of the Act; the Act as a whole; any legislative antecedents to the statute/the legislative history of the Act, including…LRC or other reports; and perhaps…the mischief which the Act sought to remedy’…

(iii) In construing those words in that context, the court will be guided by the various canons, maxims, principles and rules of interpretation all of which will assist in elucidating the meaning to be attributed to the language…

(iv) If that exercise in interpreting the words (and this includes interpreting them in the light of that context) yields ambiguity, then the court will seek to discern the intended object of the Act and the reasons the statute was enacted…”

64. In my opinion the application of the above principles leads to the clear conclusion that the correct interpretation of s. 50A(9A) is that the appropriate body to whom the matter should be remitted will normally be the decision-maker which made the quashed

decision. This conclusion arises from both the ordinary and natural meaning of the words used in s. 50A(9A), and viewing those words in context.

65. It is necessary to view the phrase “as may be appropriate” in the context of the sentence in s. 50A(9A) within which those words are used. The context is the reference to remittal of “the matter” to the appropriate body “for reconsideration”.

66. The “matter” in this case is the application as it stood on appeal to the Commission, not the application as it may have stood at first instance when before the planning authority. By virtue of the appeal procedures in Chapter III of Part VI of the 2000 Act, an appeal to the Commission is often accompanied by further documents/reports which may seek to address the planning authority’s reasons for refusal, or alternatively seek to address reasons for granting permission. In addition, the appeal is often accompanied by submissions and observations by the parties to the appeal.

67. The only body capable of “reconsideration” of that matter is the appellate body – the Commission – and not the first instance decision-maker who never considered that same matter, but an earlier version of the matter more generally.

68. The above conclusion is also borne out by the wider statutory context, and in particular by s. 37(1)(b) of the 2000 Act. This provision, whereby the Commission shall determine an application on appeal as if it had been made to the Commission in the first instance and whereby the decision of the Commission shall operate to annul the

decision of the planning authority, confirms that the planning authority is functus officio once the Commission has given its decision, and from that time there is no extant

decision of the planning authority which could be remitted to it for reconsideration.

69. In this respect I agree with the High Court decision in McCallig v. An Bord Pleanála [2013] IEHC 60, to the effect that even an invalid decision by the Commission has the legal effect of annulling the earlier decision of the planning authority. In that case Herbert J. stated as follows: “83…In my judgment…it was the intention of the [L]egislature that once the appeal process was activated and the appeal was not withdrawn, abandoned, or dismissed, there could be no recourse back to the planning authority, nor could its decision be reactivated should the decision of the respondent be successfully impugned…The decision of the planning authority is overreached by the appeal and remains entirely ineffective unless that appeal is withdrawn, abandoned or dismissed. The intention of the Legislature that the two-part planning process should produce only one decision is further emphasised by the provision in s.

37(1)(b) of the Act of 2000, that the decision of the respondent, ‘shall operate to annul the decision of the planning authority’.

84. It is to be noted that it is only the ‘decision’ of the respondent which is to have this effect and not simply the taking of the appeal to the respondent. I am satisfied that the Legislature employed the term “annul”, consciously and deliberately in order to convey, emphatically and conclusively, in the interest of clarity and certainty and in order to forefend against the possibility of administrative confusion, that upon the respondent giving its decision any prior

decision of the planning authority was no longer to be regarded as a decision or as a determination and became as nothing…”

70. The next question, as framed by the Court’s Determination set out at para. 15 above, is whether it would not be lawful to remit to the Commission, having regard to the circumstances of this case, whereby a new CDP for County Meath was adopted on the 22nd September, 2021, subsequent to both the planning authority’s decision and the Commission’s decision. As set out above, the appellant makes a complicated argument that remittal to the Commission in these circumstances would not be lawful, as the Commission’s jurisdiction under s. 37(2) “would be indeterminate” or “could not be ascertained”. It is argued that if the matter is remitted to the Commission, it would not have jurisdiction to invoke s. 37(2)(b) as there is no decision of the planning authority as to whether the proposed development materially contravenes the new development plan. It is then argued that where the Commission cannot lawfully engage in the procedure provided for in s. 37(2)(b), it axiomatically cannot have jurisdiction for the purposes of s. 37(2)(a).

71. In my opinion the above argument of the appellant is misconceived. In the first place it is necessary to recall the import of the decision of this Court in Crofton, which made clear that the focus is on the lawfulness of the decision to remit, and not whether the Commission can or cannot lawfully grant permission. In her judgment for the Court, Donnelly J. stated as follows: “50. …In my view, the phrase ‘having regard to the circumstances of the case’ is a phrase which permits a Court to look at the position of the case before it in coming to a decision on whether remittal would be lawful, but it does not change the exhortation to the High Court to remit unless it is not lawful to do so. The consideration by the High Court of the issue of lawfulness would never be ‘mechanical’ but it does not mean that the High Court has to analyse whether the Board could lawfully grant a permission. On the contrary, the significant change brought about by the subsection in making remittal mandatory when the conditions are met save where it would not be lawful to do so can only be viewed as a change made by the Oireachtas in the knowledge that the Board is obliged only to act fairly and within their powers.

51. There is nothing to support the contention that the High Court must disregard the fact that the Board may lawfully come to a decision to refuse a planning permission as well as grant one. Instead, the word lawful must relate to the High Court’s decision to remit. There is nothing unlawful about a remittal which would end up with the Board being in a position to take a valid decision. This meaning of lawful is consistent with the presumption, known to the Oireachtas, that the Board is obliged only to act within their powers and also to act fairly.”

72. I might also add the following general comments. The Commission, in determining an appeal de novo pursuant to s. 37 of the 2000 Act, has a general jurisdiction under s. 37(2)(a) to grant a permission even if the proposed development contravenes materially the CDP. This means the CDP that is in effect on the day the Commission’s decision is made (as per the decision of this Court in Crofton, at para. 30).

73. That general jurisdiction, however, is expressly stated in s. 37(2)(a) to be subject to paragraph (b), which deals with the situation where the planning authority has previously decided to refuse permission on the grounds that the proposed development materially contravenes the development plan. In those circumstances, if the Commission is also of the view that the development gives rise to a material contravention, then its jurisdiction to grant permission in material contravention is restricted, in that it may only grant permission in accordance with the conditions set out in s. 37(2)(b). However, providing that the Commission’s jurisdiction under s. 37(2)(a) may be restricted in certain circumstances does not, in my opinion, mean that the said jurisdiction in this case would be indeterminate or could not be ascertained.

74. In the present case s. 37(2)(b) has no application, because firstly, the planning authority did not refuse permission on the grounds that the proposed development materially contravened the development plan. Secondly, there is no requirement that the planning authority must now consider whether the proposed development materially contravenes the new development plan, and this is not surprising given that the planning authority is now functus officio following the decision of the Commission.

75. In the circumstances the Commission’s jurisdiction to determine an appeal is not predicated upon a first instance decision by the planning authority as to whether the proposed development materially contravenes the new development plan.

76. The determination of this Court granting leave stated that the “lawful” question arising under s. 50A(9A) itself gave rise to an underlying question of some novelty which did not previously appear to have been fully judicially addressed, namely, whether the

decision of the Commission can be made by reference to a different development plan than that considered at first instance by the relevant planning authority. However, it seems to me that any such underlying question has already been answered above. The

decision of the Commission in determining a de novo appeal, pursuant to s. 37 of the 2000 Act, must be made by reference to the development plan then in force, as per the recent decision of this Court in Crofton. This is the case irrespective of whether the Commission is determining an appeal on a first occasion before any possible judicial review, or alternatively on remittal after a decision of the Commission has been quashed.

Conclusion

77. In conclusion, I agree with the trial judge that the matter should be remitted to the Commission for reconsideration. I would therefore dismiss the appeal.