Wednesday 17 January 2018

Supreme Court gives green light to two ‘substantial’ developments – after refusals by An Bord Pleanala

The Supreme Court has cleared the way for two substantial developments in Counties Wicklow and Wexford after dismissing appeals by An Bord Pleanala against the quashing of its refusals of planning permission for those projects.

The issue raised in both appeals concerned what two High Court judges had asked the Supreme Court to clarify as a point of law of "exceptional public importance" concerning the point at which a decision of An Bord Pleanala becomes final.

Today, the three judge court unanimously ruled such decisions become final when they are put in formal written form and not, as the Board argued, when they are made at Board meetings.

It also ruled the appeals by objectors against the planning permissions given by local authorites for both developments could be validly withdrawn at any time prior to that written decision of the Board. 

The first appeal arose after the Board refused permission to Ecological Data Centres Ltd for development of a "very substantial" technology park on a site between Newtownmountkennedy and Kilpedder near the N11 in Co Wicklow.

The second appeal arose from a refusal by the Board of permission to Urrinbridge Ltd for a substantial residential and commercial development at Bloody Bridge, Lyre, Co Wexford.

Objectors to both developments had withdrawn appeals against decisions of Wicklow and Wexford County Councils granting permission for the developments.

The objectors' appeals were withdrawn after the Board met and decided to refuse permission but before it put those decisions in writing just days later. The Board contended, once it had met and "determined" the appeals, there were no appeals remaining which could be withdrawn with the effect the refusals of permission stood and the companies lost the benefit of the Councils' permissions in their favour.

Both companies rejected those arguments in separate High Court proceedings. 

In upholding Urrinbridge's case,  Mr Justice John MacMenamin described the Board's position as "absolutist" and said logic demanded the date of the formal written order or decision of the Board and its "determination" should be the same. In a separate judgment in favour of Ecological, Mr Justice John Hedigan agreed and both judges certified a point of law to the Supreme Court.

The Supreme Court was asked to rule when does the Board "determine" an appeal for the purposes of Section 37.1.b and Section 140.1.a of the 2000 Act as amended.

Giving the Supreme Court judgment, Mr Justice Nial Fennelly said what was involved was "a straightforward issue of statutory interpretation" and items of "national procedural law" .

The Board essentially argued, from the time it determined both appeals at meetings in January and March 2011, it had no power to reconsider its decision after that, even if a member of the Board raised an important point which should persuade the Board to reconsider, the judge noted.

He rejected the Board's arguments the 2000 Act makes a considered distinction between a "determination" and a "decision" and found those terms were used interchangeably in the Act.

Dismissing the Board's arguments it had no power to reconsider a permission decision taken at a meeting before that decision was put in writing, he said it seemed "obvious" any deliberating body should be able to review its decisions before they become irrevocable and provisions of the 2000 Act also envisaged that would happen.

Having construed the relevant provisions of the Act, he ruled they did not mean determination of an appeal takes place at the time of the Board meeting.

The judge added the court could not take into account claims by the Board rejection of its arguments might cause difficulties for it, including concerning the need to respect EU laws.

It was possible withdrawal of an appeal may deprive the Board of an opportunity to decide if a particular permission contravenes EU law, he said. However, that result did not flow from the provisions concerning the time an appeal is deemed to be withdrawn and was not due to the interpretation of the 2000 Act in this judgment but was rather "a random effect".

In the two cases before the court, even if the objectors appeals were withdrawn before the date of the Board's determination in each case, the result would have been the same, he noted.

It was not necessary to consider the issue before the court from the point of view of rights although the right of access to the courts for the purpose of judicially reviewing planing decisions was "highly relevant", he added.  

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