Galina Heaney v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 19 March 2021
• Neutral Citation: [2021] IEHC 201
• Docket Number: [Record No. 2018/979 JR]
• Court: High Court
• Date: 19 March 2021

Between

Galina Heaney

Applicant

and

An Bord Pleanála

Respondent

and

John Galvin

Notice Party

[2021] IEHC 201

[Record No. 2018/979 JR]

THE HIGH COURT

Judicial review – Planning permission – Extension of time – Applicant seeking extension of time – Whether the High Court had jurisdiction to extend time for the bringing of the application

Facts: The applicant, Ms Heaney, applied to the High Court seeking relief by way of judicial review, overturning a decision of the respondent, An Bord Pleanála, made on 27th September, 2018, in which it granted planning permission to the notice party, Mr Galvin, for retention of an existing cattle crush and concrete plinths as constructed, together with permission to construct a new extension to an existing livestock slatted house for the purpose of accommodating calf pens for existing livestock, along with associated site works, at the notice party’s farm at Moyasta, Kilrush, Co. Clare. The applicant alleged that the findings of the inspector appointed by the respondent as contained in his report, that there was no evidence of adverse environmental impact due to the existing structure in respect of which retention permission was sought and his further finding that there was no evidence that the proposed development would have an adverse effect on any European sites, did not satisfy the legal test that had to be carried out at the screening stage. On this basis, it was alleged that the decision of the respondent ought to be set aside. In response, the respondent raised a preliminary objection that the applicant’s proceedings seeking relief by way of judicial review were out of time, having regard to the time limit provided for in s. 50 of the Planning and Development Act 2000 (as amended). In response, the applicant pointed to the fact that the respondent’s decision of 27th September, 2018, had only been notified to her agent on 1st October, 2018. It was submitted that in circumstances where her papers seeking leave to seek relief by way of judicial review had been lodged in the Central Office of the High Court on 22nd November, 2018 and she had moved her ex parte application on 26th November, 2018, it was arguable that she was only one day out of time, or at most five days out of time, in bringing the application and in those circumstances the court ought to extend time pursuant to s. 50(8) of the Act.

Held by Barr J that the applicant had not given any adequate reason why she did not bring her application on or before 21st November, 2018; she knew of the decision as far back as 1st October, 2018. Barr J found that the applicant had not pointed to anything in the intervening period which prevented her making her application in time. Barr J noted that under s. 50(8) the court shall only extend time if it is satisfied that there is good and sufficient reason for so doing and is satisfied that the circumstances that resulted in the failure to make the application for leave within the period provided for under the statute, were outside the control of the applicant. The court could not find that those matters had been established by the applicant in this case. The only excuse proffered was that her agent did not learn of the decision until four days after it was made and Barr J found that this was not sufficient. Barr J held that the court did not have jurisdiction to extend time for the bringing of the application.

Barr J refused the reliefs sought by the applicant in her amended notice of motion.

Reliefs refused.

JUDGMENT of Mr. Justice Barr delivered electronically on the 19th day of March, 2021

Introduction

1 In these proceedings the applicant seeks relief by way of judicial review, overturning a decision of the respondent made on 27th September, 2018, in which it granted planning permission to the notice party for retention of an existing cattle crush and concrete plinths as constructed, together with permission to construct a new extension to an existing livestock slatted house for the purpose of accommodating calf pens for existing livestock, along with associated site works, at the notice party's farm at Moyasta, Kilrush, Co. Clare.

2 It is common case between the parties that the notice party's farm is within 50 metres of the lower River Shannon special area of conservation (SAC) and within 60 metres of the River Shannon and River Fergus Estuary, special protection area (SPA). It is also accepted that there is a stream running from the notice party's farm into the adjacent Poulnasherry Bay.

3 Put at its very simplest, the applicant alleges that the inspector appointed by the respondent and by extension the respondent itself, which had adopted the inspector's report, had applied the wrong test when carrying out screening as to whether an appropriate assessment was necessary under the provisions of the relevant EU Directives and under the provisions of s.177U (4) and (5) of the Planning and Development Act 2000 (as amended). It was alleged that the test provided for under the statute, was that unless adverse effects on European sites could be excluded by means of objective evidence, an appropriate assessment “ shall” be carried out.

4 The applicant alleges that the findings of the inspector appointed by the respondent as contained in his report, that there was no evidence of adverse environmental impact due to the existing structure in respect of which retention permission was sought and his further finding that there was no evidence that the proposed development would have an adverse effect on any European sites, did not satisfy the legal test that had to be carried out at the screening stage. On this basis, it was alleged that the decision of the respondent ought to be set aside.

5 In response, the respondent raised a preliminary objection that the applicant's proceedings herein seeking relief by way of judicial review were out of time, having regard to the time limit provided for in s.50 of the 2000 Act (as amended).

6 Without prejudice to that objection, the respondent contended that when one had regard to the entirety of the material that was before the inspector and had regard to the site visit that he had carried out in advance of preparing his report; then having regard to the substance of his report, rather than focussing on the wording used by the inspector, it was clear that he had applied the correct legal test when reaching the conclusion that a stage 2 appropriate assessment was not necessary. It was submitted that in reality, this application was a merits based appeal against the findings and conclusions reached by the inspector and adopted by the Board and such an attack was not permitted by way of judicial review.

7 In response to the argument raised by the respondent that her application was out of time, the applicant pointed to the fact that the respondent's decision of 27th September, 2018, had only been notified to her agent on 1st October, 2018. It was submitted that in circumstances where her papers seeking leave to seek relief by way of judicial review had been lodged in the Central Office of the High Court on 22nd November, 2018 and she had moved her ex parte application on 26th November, 2018; it was arguable that she was only one day out of time, or at most five days out of time, in bringing the application herein and in these circumstances the court ought to extend time pursuant to s.50(8) of the Act.

8 It is appropriate for the court to first determine the issue of whether the applicant's application herein is out of time, and if so, whether the court should extend time pursuant to the jurisdiction conferred on the court by s.50(8).

Chronology of relevant dates

9 On 15th September, 2017, the notice party made an application for planning permission to Clare County Council for retention of an existing cattle crush and concrete plinths as constructed and permission to construct a new extension to an existing livestock slatted house on his farm. On 9th November, 2019 Clare County Council issued a notification to grant planning permission for retention of the existing structure and for development of the extension to the livestock slatted house.

10 On 4th December, 2019 an appeal against that decision was submitted to the respondent by Ger O'Keeffe, Consulting Engineers Limited, on behalf of the applicant and her husband. The applicant's husband has died in the interim. Submissions on the appeal were made by Clare County Council and the notice party.

11 The respondent appointed a Senior Planning Inspector, Mr. Paul Caprani, to consider the appeal. He carried out a site inspection on 7th March, 2018. He issued his report on 26th March, 2018, in which he recommended that planning permission be granted in accordance with the plans and particulars lodged.

12 The submissions filed and the inspector's report were considered at a meeting of the respondent held on 10th September, 2018. At that meeting, the respondent decided to grant planning permission generally in accordance with the inspector's recommendation, for the reasons and considerations contained in the Board Directions dated 11th September, 2018.

13 By Order of the respondent dated 27th September, 2018, the respondent granted planning permission for the proposed development. In an affidavit sworn on 3rd February, 2020, by Mr. Chris Clarke, Secretary of the respondent, he outlined that, while it was the usual practice of the respondent to post out a notification of its decision to all interested parties on the day that the decision was made; sometimes due to the large number of decisions made by the respondent on a given day, the notification might not be sent out until the following day. In this case, a letter was posted to the applicant's engineer, along with certain explanatory documentation, by post on 28th September, 2018, which was a Friday. It is common case between the parties, that that correspondence was...