Clonres CLG v The Minister for Culture, Heritage and the Gaeltacht
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 16 July 2020 |
| Neutral Citation | [2020] IEHC 353 |
| Docket Number | [2019 No. 2960 P] |
| Court | High Court |
| Date | 16 July 2020 |
[2020] IEHC 353
Twomey J.
[2019 No. 2960 P]
THE HIGH COURT
COMMERCIAL
Extension of time – Special protection area – Judicial review – Plaintiff seeking extension of time – Whether there was good and sufficient reason for the High Court to grant an extension of time
Facts: The plaintiff, Clonres, issued proceedings in April 2019 against the Minister for Culture, Heritage and the Gaeltacht regarding her failure to designate lands located at St. Paul’s, Sybil Hill, Raheny, Dublin 5 as a special protection area (SPA). The Minister had designated several sites in the locality of St. Paul’s as SPAs in 2009/2010. The first, second and third defendants, the Minister, Ireland and the Attorney General (the State defendants), applied to the High Court for, inter alia, an order dismissing the claim as against those defendants on the grounds that the April 2019 proceedings were in substance judicial review proceedings and should have been instituted within three months of the decision by the Minister not to designate the St. Paul’s site as an SPA in 2009/2010 or (at the latest) within three months of the Minister’s refusal to designate the site in August 2018. Clonres applied to the High Court seeking to amend its plenary summons and statement of claim and to extend time for the purpose of seeking the reliefs sought in the proceedings.
Held by Twomey J that the plenary proceedings were subject to the time limit contained in Order 84, rule 21(1) of the Rules of the Superior Courts. Despite Clonres’ claim that it was not challenging any public law measure, the Court concluded that Clonres was seeking to challenge the decision made by the Minister in 2009/2010 not to designate the St. Paul’s site as an SPA. Twomey J held that the proceedings should have been brought within three months of that decision and that even if the August 2018 letter was the Ministerial decision being challenged, the issue of the April 2019 proceedings was five months outside the time-limit. Twomey J held that the reliefs sought by Clonres against the State defendants were therefore out of time. Twomey J held that Clonres had not proven that there was ‘good and sufficient reason’ for the Court to grant an extension of time; nor had it shown that the circumstances leading to its failure to institute its proceedings within time were outside its control. In addition, Twomey J held that the grant of an extension of time would cause prejudice to Crekav; hence there was no basis for extending the time.
Twomey J held that the Court would grant the reliefs sought by the State defendants in their notice of motion dated the 27th January, 2020; the proceedings as against the State defendants would therefore be struck-out. Consequently, the Court refused to grant the reliefs sought by Clonres in its notice of motion dated 16th March, 2020 in which it sought to amend both the plenary summons and statement of claim and in which it sought an extension of time. The Court would hear from the parties in relation to the precise form of the orders to be made and any other matters arising from the judgment.
State defendants’ motion granted. Plaintiff’s motion refused.
This case concerns an attempt by a local residents’ association in Clontarf to prevent the building of housing on lands located at St. Paul’s. Sybil Hill, Raheny, Dublin 5 (the “St. Paul’s site”). The plaintiff (“Clonres”) is seeking to have the St. Paul’s site designated as a special protection area (“SPA”) because of the use of that site as feeding grounds by brent geese and black tailed godwit. This would have the result of rendering the building of housing on the St. Paul’s site highly unlikely, if not impossible. In addition, the designation of the St. Paul’s site as an SPA would require the State to take measures to prevent the deterioration and disturbance of the aforementioned species of birds pursuant to Article 4(4) of Directive 2009/147/EC (the “Birds Directive”).
These proceedings were issued by Clonres in April 2019 (the “April 2019 Proceedings”) against the Minister for Culture, Heritage and the Gaeltacht (the “Minister”) regarding her failure to designate the St. Paul’s site as an SPA. The Minister had designated several sites in the locality of St. Paul’s as SPAs in 2009/2010, including the North Bull Island SPA, which is just 1.2 kilometres from the St. Paul’s site. It is relevant to note that in a planning submission to An Bord Pleanála in February 2018, Clonres claimed that the St. Paul’s site was ‘inextricably linked’ to the North Bull Island SPA.
It is also relevant to note that Clonres challenged a grant of planning permission by An Bord Pleanála for the building of housing on the St. Paul’s site by the fourth named defendant and owner of the site (“Crekav”). Clonres issued those judicial review proceedings in May 2018 (the “Judicial Review”). The Minister was joined to those Judicial Review proceedings.
In that May 2018 Judicial Review, Clonres challenged the decision of An Bord Pleanála to giant planning permission, for the building of 536 residential units, to Crekav. While the primary aim of the Judicial Review against An Bord Pleanála was to quash the decision of the Board to giant planning permission, the Minister was joined to those proceedings as a respondent, as Clonres also claimed in that Judicial Review that the lands should have been designated by the Minister as an SPA - very similar relief as Clonres is seeking in these April 2019 Proceedings.
Before this Court, counsel for Clonres accepted that the relief sought against the Minister in the May 2018 Judicial Review was ‘ancillary’ to the relief of quashing the grant of planning permission sought in those proceedings. This was because its primary aim was to prevent the building of housing on the St. Paul’s site, for which purpose it relied on, inter alia, the fact that the environmental status of the lands meant they should not be developed.
The outcome of the Judicial Review was that the grant of planning permission was quashed on consent by An Bord Pleanála and remitted back to the Board on the 31 st July, 2018. Of significance, is the fact that the ancillary relief against the Minister to have the St. Paul’s site designated as an SPA in that May 2018 Judicial Review was never pursued by Clonres. It is also significant that it received a letter, after the proceedings had been struck out. from the Chief State Solicitor’s Office (on behalf of the Minister) on the 24 th August, 2018 (the “August 2018 Letter”), refusing Clonres’ demand of the 7 th August, 2018 for the St. Paul’s site to be designated as an SPA. Despite the threat by Clonres to issue proceedings if it got such a refusal from the Minister, Clonres did not issue proceedings at that time or within the three month time limit for the bringing of judicial review proceedings.
However, Clonres is now seeking very similar relief in these April 2019 Proceedings against the Minister. As noted below:
• Clonres’ failure to challenge the initial non-designation by the Minister of the St. Paul’s site almost 10 years previously in 2009/2010.
• its failure to proceed with the May 2018 Judicial Review against the Minister (to designate the site as an SPA), and
• its failure to carry through its threat to litigate after the refusal of the Minister in the August 2018 Letter to designate the site,
may well have been because (in 2009/2010) the St. Paul’s site was part of a school and (thus unlikely to be developed for housing) and because (in 2018) Clonres had achieved its primary aim of preventing the grant of planning permission on the site and so was not as focused on the protection of the birds through designation of the site as an SPA. since this was ‘ancillary’ to its primary aim of preventing the building of housing on the site. However, the primary issue in considering whether time-limits have been complied with is not the reason for the failure to issue proceedings, but rather the fact of that failure to issue proceedings within time.
This judgment deals primarily with the application by the first, second and third defendants (the “State Defendants”) for, inter alia, an Order dismissing the claim as against those named defendants on the grounds that these April 2019 Proceedings are in substance judicial review proceedings and should have been instituted within three months of the decision by the Minister not to designate the St. Paul’s site as an SPA in 2009/2010 or (at the latest) within three months of the Minister’s refusal to designate the site in August 2018. The judgment also considers an application brought by Clonres whereby it seeks to amend its Plenary Summons and Statement of Claim and to extend time for the purpose of seeking the reliefs sought in these proceedings.
For the reasons set out below, this Court concludes that Clonres is out of time in issuing these proceedings challenging the non-designation of the St. Paul’s site by the Minister. This should have occurred within three months of the failure to designate the site as an SPA in 2009/2010. Even if the Court is wrong in this regard, it should have occurred within three months of the Minister’s refusal by letter to designate the site in August 2018. This Court also concludes that Clonres has not provided a good and sufficient reason for the delay and it has not shown to the Court that the circumstances that led to the delay were outside of its control or could not reasonably have been anticipated by it. Thus, this Court finds that there is no basis for an extension of the time-limit and the proceedings should be struck out.
Clonres is a representative...
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