O'Donnell and Others v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 01 November 2023
• Neutral Citation: [2023] IEHC 594
• Court: High Court
• Docket Number: [2021 No. 251 JR]

In the Matter of Sections 50, 50A and 50B of the Planning and Development Act 2000 and

In the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Alice O'Donnell, Colin Acton, Seán Goff, Evelyn Cawley, Declan Morris, Ciara Man, Gareth Madden, Aileen Lennon, Keith Scanlon and Carina Harte-Holmes

Applicants

and

An Bord Pleanála, Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondent

and

Drumakilla Limited

Notice Party

[2023] IEHC 594

[2021 No. 251 JR]

THE HIGH COURT

JUDICIAL REVIEW

(No. 2)

JUDGMENT of Humphreys J. delivered on Wednesday the 1st day of November, 2023

Judgment history

1 . In O'Donnell v. An Bord Pleanála (No. 1) [2023] IEHC 381, ( [2023] 7 JIC 0501 Unreported, High Court, 5th July, 2023), I dismissed an application for certiorari of a planning permission for a housing development and adjourned for further submissions a challenge to a derogation licence in connection with that development.

2 . An important point in this regard is that the applicants “failed to mount a derogation-based challenge” to the planning permission, as the State points out. No such case is made on the pleadings. Thus the derogation licence point has no impact on the certiorari.

3 . The applicants propose to seek leave to appeal in relation to certiorari, which will be dealt with at a later stage, but of course in that context a would-be appellant is also confined to the pleadings.

Background

4 . The background is set out in the No. 1 judgment. At para. 162 I set out the issues which the applicants would have to establish in order to quash the derogation licence, although in fairness to the applicants they have somewhat refined their arguments since.

5 . The licence states:

“This licence is granted solely to allow the activities specified in connection with the proposed strategic housing development located at Delgany, Co. Wicklow, for Drumkilla Ltd.”

6 . Condition 4 states:

“The mitigation measures outlined in the application report (Environmental Impact Assessment for a proposed strategic housing development on lands, Delgany, Co. Wicklow, 7. remedial or reductive measures, 7.11 Protection Measures for Bat Roosts — Buildings, 7.12 Protective Measures for Bat Roosts — Trees, 7.13 Protective Measures for Bat Foraging and Commuting, pp 30–37), together with any changes or clarification agreed in correspondence between NPWS and the agent or applicant, are to be carried out. Strict adherence must be paid to all the proposed measures in the application.”

7 . The critical dates are as follows:

• (i) date of derogation licence – 4th March, 2020, amended on 21st July, 2020;

• (ii) date applicants knew or could reasonably have been aware of the derogation licence – 21st October, 2020 on the making of the application for permission;

• (iii) Date of permission – 15th February, 2021; and

• (iv) Date on which the proceedings challenging the derogation licence were brought – 25th March, 2021.

8 . The No. 1 judgment permitted further submissions on the derogation licence question. A hearing was then held on 24th October, 2023. A further relatively brief follow-up mention was held on 25th October, 2023, at which it was agreed that the questions now arising be specified by the court, anything that can be determined now addressed, and a final round of submissions permitted, with the court to deal with the matter (either itself or by way of a reference) on the papers thereafter.

Conforming interpretation

9 . Some complexity has been caused in the present case by the fact that “conforming interpretation” has been invoked liberally, but it has four different relevant senses:

• (i) a conforming interpretation of O. 84 r. 21(1) and/ or (2) whereby time would not commence to run until an applicant knew or ought to have known of a decision even in the absence of an application for an extension of time;

• (ii) a conforming interpretation of O. 84 r. 21(1) and/ or (2) whereby time would not commence to run for a derogation licence until the planning permission decision had been made even in the absence of an application for an extension of time;

• (iii) a conforming interpretation of O. 84 r. 21(3) whereby in the event of an application for an extension of time to reflect the date when the applicant knew or ought to have known of a decision, time would be so extended insofar as that was required to give effect to EU law rights (this was the situation in the Judgment of 28 January 2010, Uniplex (UK) Ltd v NHS Business Services Authority, C-406/08, ECLI:EU:C:2010:45); and

• (iv) a conforming interpretation of O. 84 r. 21(3) whereby in the event of an application for an extension of time to reflect the date of the subsequent planning permission, time would be so extended insofar as that was required to give effect to EU law rights.

10 . It is going to be crucial to keep in mind distinguish between these possibilities because they have different implications for the way in which this matter has to be resolved.

The options in relation to the time issue

11 . At first sight the applicants have little to no wriggle room arising from the No. 1 judgment. The State pegs the applicants down with a series of powerful propositions deriving from the judgment as follows:

• (i) “For the purposes of Irish law, the Derogation Licence is a legally separate decision under a legally separate code made by a legally-separate decision-maker and is not a preliminary decision with any unitary process leading to a development consent.” That is correct, as discussed further below, but subject to one caveat which is factoring in any requirement for a conforming interpretation of O. 84 r. 21.

• (ii) “Secondly, the Court noted that there is no challenge in these proceedings to the validity of the European Communities (Birds and Natural Habitats) Regulations 2011 [S.I. 477 of 2011] (the ‘2011 Regulations’) by reference to the procedure for granting Derogation Licences, either in terms of lack of public participation or a failure to provide a ‘joined up’ system.” Any such claim is not pleaded so cannot succeed.

• (iii) “[A]s a matter of domestic law, an extension is required to challenge a derogation licence if the challenge is brought more than three months after the date of the licence, given the time limit in Order 84 of the Rules of the Superior Courts.” That is correct as discussed below subject to a conforming interpretation of O. 84 r. 21.

• (iv) “Fourth, on the facts, it was held (§136) that the Applicants did not move within three months from the date upon which when they became aware of the Minister's decision to grant the Derogation Licence.” That is the position.

• (v) “Fifth, the Court noted (at §151 of the Judgment), having cited and quoted from the judgment of the CJEU in Case C-348/15 Stadt Wiener Neustadt, ‘that there isn't anything inherently unlawful about national law providing rules about things like time limits as an aspect of the principle of national procedural autonomy…’ Rather, as the Court observed (§153), ‘the principle of EU law is that the domestic procedural rule must not make it in practice impossible or excessively difficult to exercise EU law rights.’ This conclusion is consistent with the Supreme Court decision in Krikke v Barranafaddock Sustainability Electricity Ltd. – which is expressly referenced at §151 of the Judgment – wherein Hogan J. stated (§28) that it is perfectly clear from a multitude of decisions of the Court of Justice that domestic time limitation periods are in principle consistent with EU law provided the time periods in question comply with the principles of equivalence and effectiveness.” Again I think that is clear but the argument has become slightly more nuanced now in that the applicants are not taking issue with the 3 month time limit as such but only arguing for the need for a conforming interpretation in the second sense above.

• (vi) “Relatedly, the Judgment of this Court suggests that the time limit in Order 84, r.21 – which applies in the case of a challenge to the Derogation Licence – does not breach the principles of equivalence and effectiveness that subtend the principle of national procedural autonomy, further noting that the time limit allows for flexibility insofar as it permits for extensions for time. In that respect, the Judgment is consistent with the decision of the Court of Appeal in Arthropharm (Europe) Ltd. v. The Health Products Regulatory Authority [2022] IECA 109, which expressly considered the provisions of Order 84, r.21 and in which the Court of Appeal considered and applied the judgments of the CJEU in Case C-456/08 Commission v. Ireland and Case C-408/08 Uniplex (UK) Ltd. v. NHS Business Services Authority.”

• (vii)“As noted in the Court's Judgment, the Applicants in this case elected not to seek an extension of time”.

12 . The State's eloquent response is undoubtedly formidable. The critical points are that the applicants didn't seek an extension of time, that they didn't challenge O. 84 r. 21 in the statement of grounds, or seek to amend their statement to include such a challenge once time was raised by way of opposition (which would be a permissible procedure – an applicant can't be held liable for not anticipating points of defence), and they are faced with the problem that in domestic law the derogation licence is a separate decision, separately challengeable, subject only to the issue of conforming interpretation. Does that mean they must lose? The problem for the opposing parties, despite being correct about almost everything, is that the answer is possibly not.

13 . Conceptually there are only a limited number of options for the applicants in relation to the issue of time:

• (i) Order 84 r. 21(1) and (2) RSC allows the challenge here, leaving aside a conforming interpretation;

• (ii) if not, a conforming...