Gardiner v Mayo County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 15 January 2024
• Neutral Citation: [2024] IEHC 5
• Court: High Court
• Docket Number: 2022 299 JR

Between

John Gardiner

Applicant

and

Mayo County Council

Respondent

BP Mitchell Haulage & Plant Hire Ltd

Trading as Killala Rock

Notice Party

[2024] IEHC 5

2022 299 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Collateral challenge – Notice party seeking to have the proceedings dismissed – Whether the proceedings entailed an impermissible collateral challenge to an earlier decision in respect of which the statutory time-limit had expired

Facts: The applicant, Mr Gardiner, in judicial review proceedings, sought to challenge a grant of planning permission. The planning permission authorised the carrying out of certain quarrying activities. The notice party, BP Mitchell Haulage & Plant Hire Ltd, the beneficiary of the planning permission, i.e. the quarry operator, applied to the High Court to have the proceedings dismissed. The notice party submitted that the proceedings entailed an impermissible collateral challenge to an earlier decision in respect of which the statutory time-limit had expired. More specifically, it was submitted that it was not open to an objector to use the occasion of the “grant” of planning permission to launch a collateral attack upon the underlying “decision” to grant planning permission. The area of disagreement between the parties was narrow. Both sides accepted that, for the purposes of s. 50(2) and s. 50(6) of the Planning and Development Act 2000, the making of a grant of planning permission by a planning authority constitutes an “act” done by a planning authority in the performance or purported performance of a function under the 2000 Act. Both sides also accepted that the act of making a grant of planning permission is justiciable. The disagreement centred on whether the grounds of challenge advanced in the case implicated the validity of the earlier decision to grant planning permission.

Held by Simons J that the essence of the concept of a collateral challenge is that a party who has the benefit of an administrative decision, which has not been challenged within the prescribed time-limit, should not be exposed to the risk of having the validity of that decision challenged in later proceedings which seek to quash a subsequent decision on the basis that the earlier decision was invalid. Applying Sweetman v An Bord Pleanála [2018] IESC 1, Simons J held that the judicial review proceedings involved an impermissible collateral challenge to an earlier decision in respect of which the time-limit had already expired prior to the institution of the proceedings; more specifically, all of the grounds pleaded in the statement of grounds sought to question the validity of the underlying decision to grant planning permission. Simons J held that the applicant was out of time to challenge that decision and could not sidestep the time-limit by purporting to challenge the subsequent grant of planning permission by reference to grounds which impugned the validity of the underlying decision to grant.

Simons J held that the proceedings would be dismissed. As to legal costs, Simons J noted that the proceedings were subject to the special costs rules under s. 50B of the 2000 Act (as interpreted by the Supreme Court in Heather Hill Management Company v An Bord Pleanála [2022] IESC 43); more specifically, the proceedings sought to challenge a decision made pursuant to s. 34 of the 2000 Act which is a statutory provision which gives effect to, inter alia, the Environmental Impact Assessment Directive (Directive 2011/92/EU). Simons J noted that the default position under the special costs rules is that an unsuccessful applicant is not required to pay the other side’s costs. Simons J’s provisional view was that no order as to costs should be made and that each party should instead bear its own costs.

Application granted.

Appearances

John Kenny for the applicant instructed by Walter P. Toolan & Son (Ballinamore)

Oisin Collins SC and Gabriel Dennison for the notice party instructed by O'Connell & Clarke Solicitors

JUDGMENT ofMr. Justice Garrett Simonsdelivered on 15 January 2024

INTRODUCTION

1 The applicant in these judicial review proceedings seeks to challenge a grant of planning permission. The planning permission authorises the carrying out of certain quarrying activities. This judgment is delivered in respect of an application by the beneficiary of the planning permission, i.e. the quarry operator, to have the proceedings dismissed. The quarry operator submits that the proceedings entail an impermissible collateral challenge to an earlier decision in respect of which the statutory time-limit has expired. More specifically, it is submitted that it is not open to an objector to use the occasion of the “ grant” of planning permission to launch a collateral attack upon the underlying “ decision” to grant planning permission.

LEGISLATIVE FRAMEWORK

2 The Planning and Development Act 2000 (“ PDA 2000”) prescribes a two-stage decision-making process in respect of an application for conventional planning permission. The first instance decision is made by the local planning authority. Thereafter, there is a right of appeal to An Bord Pleanála. In the event of an appeal, An Bord Pleanála's decision operates to annul the first instance decision of the planning authority.

3 The planning legislation draws a distinction between a “ decision” to grant planning permission and the subsequent “ grant” of planning permission. This distinction reflects the fact that the planning authority's decision is amenable to appeal. The “ decision” does not authorise the carrying out of development. Rather, it is necessary to await the making of a “ grant” of planning permission.

4 The right to carry out the permitted development only crystallises once the possibility of an appeal has expired. It is only then that the planning authority's “ decision” is given legal effect by the issuing of a “ grant” of planning permission. More specifically, the planning authority may only make a “ grant” in circumstances where (i) the four-week period prescribed for an appeal has expired without an appeal having been made, or (ii) an appeal has been withdrawn prior to An Bord Pleanála making a determination on that appeal. In either contingency, the planning authority is then required to make a “ grant” of planning permission.

5 It should be explained that the function of the planning authority in making a grant of planning permission is purely mechanical and perfunctory. The planning authority is confined to implementing its earlier decision by faithfully transposing the terms and conditions of that decision into a formal grant of planning permission. The planning authority cannot change any aspect of the decision: the planning authority could not, for example, add or delete conditions.

6 In the event that an appeal has been made to An Bord Pleanála, and not withdrawn, no grant of planning permission will ever issue pursuant to the planning authority's decision. This is because the decision of An Bord Pleanála operates to annul the decision of the planning authority as from the time when it was given: see Section 37 of the PDA 2000. If An Bord Pleanála decides to grant planning permission, then the grant will be issued by An Bord Pleanála itself. The planning authority has no role in this regard. (Of course, if An Bord Pleanála decides to refuse planning permission, then no grant will be made).

7 The PDA 2000 prescribes a special judicial review procedure for legal challenges to decisions and acts of a planning authority. Insofar as relevant, Section 50(2) of the PDA 2000 reads as follows:

“(2) A person shall not question the validity of any decision made or other act done by—

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,

[…]

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (the ‘Order’).”

8 Section 50(6) of the PDA 2000 prescribes an eight-week time-limit for such judicial review proceedings:

“(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.”

9 Provision is made for the High Court to grant an extension of time in certain circumstances. No application for an extension of time has been made in the present proceedings.

PROCEDURAL HISTORY

10 The notice party made an application for planning permission to Mayo County Council on 1 July 2021 (Reg. Ref. P21/708). The development was described, inter alia, as the continued use and operation of a limestone quarry. Mayo County Council made a decision to grant planning permission on 11 January 2023.

11 The applicant in these judicial review proceedings resides adjacent to the quarry. The applicant had made an objection to the planning authority in relation to the planning application. Thereafter, the applicant attempted to make an appeal against the planning authority's decision to grant planning permission. The appeal was, however, rejected as invalid by An Bord Pleanála on technical grounds: the appeal had not been accompanied by the requisite proof that the applicant had made an objection to the planning authority at first...