What happens when the High Court quashes a planning permission?

The High Court has recently made a decision confirming the process that applies when considering whether or not to remit a planning application, where permission has been granted and then overturned following judicial review. The Court has reaffirmed that the Court's primary considerations when deciding whether (and how) to remit such an application are "fairness and justice". 

The case of Cork Harbour Alliance for a Safe Environment v An Bord Pleanála [2021] IEHC 629 related to Indaver's proposed waste-to-energy facility in Cork. An Bord Pleanála (the Board) granted planning permission for the incinerator as a Strategic Infrastructure Development (SID) in 2018. The High Court overturned the grant of permission in a decision dated 19 March 2021, following a successful judicial review taken by Cork Harbour Alliance for a Safe Environment (CHASE). The Court accepted two of the grounds pleaded by CHASE, the most important of which was an allegation of "objective bias" against one of the members of the Board, who had previously acted as a consultant for Indaver in relation to waste policy in the Cork area.

CHASE having been successful in its judicial review, the Court then heard submissions on the appropriate next steps for the application. CHASE argued that the Board's decision should be quashed altogether, which would have required Indaver to submit an entirely new SID application. Both the Board and Indaver submitted that the application should be sent back to the Board, to a point in time before the "objective bias" as argued could have affected the decision. That would allow the Board to remedy the legal deficiencies in its original decision without Indaver having to start at the beginning. The Board and Indaver argued that date was in 2018, although both accepted that a date in 2017 could be used if a conservative approach was to be taken.

Barniville J in the High Court referred to previous decisions on remittal, and identified the general principles to be applied when considering such applications:

  • The Court has express power to remit an application under applicable Court rules. In doing so, the Court has wide discretion, and the "governing criteria" in any such decision are "fairness and justice"
  • The Court should aim to undo the consequences of any wrongful or invalid act, but should go no further
  • Where the Board had conducted the decision-making process in a regular and lawful way up until a certain point, the Court should actively consider whether there is any good reason to start the process from the outset again. In particular, the Court should try to avoid an "unnecessary reproduction" of a legitimate process
  • Factors to take into account include expense and inconvenience that may arise from sending the matter "back to the drawing board"
  • The Court should acknowledge where the Board, as the statutory decision maker, has taken the view that it can still carry out its statutory function in light of the Court's findings, if the matter were to be remitted
  • Remittal does not give any advance approval to the Board's subsequent decision making – accordingly, if an objector is not satisfied with the outcome of a remitted application, they are entitled to seek leave to challenge that decision

Having considered those factors, the Court found that the fair and just outcome was to remit the application. In particular, the Court noted that the Board member against whom objective bias had been alleged was no longer a Board member, and would not be involved in any remitted application. The Court also took into account the fact that the original application had involved a lengthy oral hearing, following which a Board inspector had prepared a detailed report (and the Court considered in particular whether those aspects of the process could be "preserved").

The Court then had to decide at which point in the Board's decision-making process the application should be remitted. The Court found that it would not be appropriate to set aside the oral hearing and the conclusions arising from this hearing. Instead the Court focused on a point in the process where the Board had received additional information from Indaver, but had not given CHASE or others the opportunity to make submissions on that further information. The Court found that a reasonable, objective observer could have a reasonable apprehension of bias based on the Board member's involvement in the decision not to allow submissions. It also found that decision could have prejudiced CHASE in terms of its ability to address the additional information and material provided to the Board by Indaver.

Accordingly, the Court found that it would be a reasonable exercise of its discretion to remit the application to a point in time immediately prior to the decision not to allow CHASE and others to make submissions on the further information received from Indaver. The Court noted (but did not direct) that the Board could exercise its power to hold a further oral hearing from that point, and that CHASE could take further proceedings if the Board did not give proper consideration to doing so.

For more information in relation to this topic please contact Alison Fanagan, Consultant or Brendan Abley, Lawyer or any member of ALG's Environmental and Planning Group.

Date published: 19 October 2021