Court dismisses planning board appeals

The Supreme Court has cleared the way for two substantial developments in counties Wicklow and Wexford after dismissing appeals by An Board Pleanála 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 Pleanála becomes final.

Yesterday, the three-judge court unanimously ruled that such decisions become final when put in formal written form and not, as the board argued, when they are made at board meetings. It also ruled that objectors’ appeals against planning permissions given by local authorities for both developments could be validly withdrawn at any time prior to that written decision of the board.

Technology park
The first appeal arose after the board refused permission to Ecological Data Centres Ltd for development of a "very substantial" technology park

between Newtownmountkennedy and Kilpedder in Co Wicklow.

The second arose from a refusal by the board of permission to Urrinbridge Ltd for a development at Bloody Bridge, Lyre, Co Wexford.

Objectors to both developments had withdrawn appeals against decisions of Wicklow and Wexford county councils granting permission.

The objectors’ appeals were withdrawn after the board met and decided to refuse permission, but before it put those decisions in writing just days later.

The board contended, once it had met and “determined” the appeals, there were no appeals remaining which could be withdrawn and thus the refusals of permission stood and the companies lost the benefit of the councils’ permissions.

Both companies rejected those arguments in separate High Court proceedings.

In upholding Urrinbridge’s case, Mr Justice John MacMenamin said logic demanded the date of the board’s formal written order and its “determination” should be the same.

Point of law
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 on when the board “determines” an appeal for the purposes of section 37.1.b and section 140.1.a of the 2000 Act as amended.

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

The board argued that, from the time it determined both appeals at meetings in 2011, it had no power to reconsider its decision, 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 that the 2000 Act made a distinction between a “determination” and a “decision” and found those terms were used interchangeably in the Act.

Dismissing the board’s arguments that 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 became irrevocable, and provisions of the 2000 Act also envisaged that would happen.