Heaney v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 31 May 2022
• Neutral Citation: [2022] IECA 123
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2021/192

Between/

Galina Heaney

Appellant

and

An Bord Pleanála

and

Clare County Council

Respondents

and

John Galvin

Notice Party

[2022] IECA 123

Donnelly J.

Ní Raifeartaigh J.

Collins J.

Record No.: 2021/192

THE COURT OF APPEAL

CIVIL

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

Facts: The appellant, in judicial review proceedings, impugned a grant of planning permission by the first respondent, An Bord Pleanála (the Board), for the 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 farm of the notice party, Mr Galvin, at Moyasta, Kilrush, County Clare. The appellant had appealed to the Board against the decision of the second respondent, Clare County Council, against whom proceedings were subsequently discontinued, to grant planning permission. The High Court (Barr J), in a judgment of the 19th March, 2021 ([2021] IEHC 201), dismissed the application for judicial review brought by the appellant on the ground that it was brought outside the time allowed by s. 50(6) of the Planning and Development Act 2000 as amended for challenging planning decisions. Barr J also refused to grant the appellant an extension of time because the appellant had not met the test for such an extension contained in s. 50(8) of the 2000 Act. The appellant’s appeal to the Court of Appeal raised two main issues. The first concerned the point at which the eight-week time limit in which to bring proceedings as set out in s. 50(6) of the 2000 Act both starts and stops running. The second concerned the nature of the two-limbed test, pursuant to s. 50(8) of the 2000 Act, that an applicant must satisfy before the High Court may exercise its discretion to grant an extension of time in which to bring the judicial review proceedings. The appellant submitted that the fact that the substantive grounds of her judicial review challenge were based on EU law was not sufficiently taken into account in the High Court judgment.

Held by Donnelly J that the eight-week time limit set out in s. 50(6) for the purpose of challenging a planning decision by way of judicial review begins to run on the date of the decision; time will only stop running when an application is made ex parte to the High Court. She held that the extension of time provisions require compliance by an intending applicant who seeks to make an application for judicial review out of time of a two-limbed test; there must be good and sufficient reason for the extension, and the circumstances that resulted in the failure to make the application for leave within the period so provided must be outside the control of the applicant. She held that the onus is on an applicant to demonstrate that their case comes within those criteria. In assessing good and sufficient reason, she held that the Court is entitled to take a holistic view of all the relevant circumstances. She found that the appellant had not provided any evidence as to the reason why she did not move her application within the allotted time period; the appellant had never addressed how her failure to bring the application in time was outside her control. Donnelly J held that the fact that the underlying proceedings concerned EU law (or matters of EU environmental law specifically) was not, of itself, a factor that required an extension of time to be given. She held that the principle of effectiveness is not violated in circumstances where the extension of time provisions permit an extension of time for good and sufficient reason, and where the failure to take proceedings within time was outside the control of an applicant. She held that the appellant had not demonstrated good and sufficient reason or that the circumstances of her failure to take the proceedings were outside her control.

Donnelly J dismissed the appeal. She found that the Board was entitled to the costs of the appeal, those costs to be adjudicated in default of agreement.

Appeal dismissed.

JUDGMENT of Ms. Justice Donnelly delivered (via electronic delivery) on the 31st day of May, 2022.

Introduction

1 The High Court (Barr J.), in a judgment of the 19th March, 2021 ( [2021] IEHC 201), dismissed the application for judicial review brought by the applicant (the appellant herein) on the ground that it was brought outside the time allowed by s. 50(6) of the Planning and Development Act, 2000 as amended (“the 2000 Act”) for challenging planning decisions. Barr J. also refused to grant the appellant an extension of time because the appellant had not met the test for such an extension contained in s. 50(8) of the 2000 Act.

2 This appeal raises two main issues. The first concerns the point at which the eight-week time limit in which to bring proceedings as set out in s. 50(6) of the 2000 Act both starts and stops running. The second concerns the nature of the two-limbed test, pursuant to s. 50(8) of the 2000 Act, that an applicant must satisfy before the High Court may exercise its discretion to grant an extension of time in which to bring the judicial review proceedings. The appellant submits that the fact that the substantive grounds of her judicial review challenge are based on EU law was not sufficiently taken into account in the High Court judgment.

3 The decision impugned in the judicial review proceedings is a grant of planning permission by the first respondent (hereinafter “the Board”) for the 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, County Clare. The appellant had appealed to the Board against the decision of the second respondent – against whom proceedings were subsequently discontinued – to grant planning permission.

4 As the judgment of the High Court indicated “[i]t 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.” The substantive point in the judicial review proceedings is the appellant's claim that the Board failed in its statutory duty to apply and implement the screening procedure for appropriate assessment, in circumstances where screening is mandatory (s. 177U of the 2000 Act) by reason of an adjoining Special Area of Conservation (Lower River Shannon Area). The appellant's challenge is that the wrong test was applied because, instead of carrying out an evidence-based mandatory screening, the Board, without any quantitative or objective evidence, made a finding that the appropriate assessment did not “ arise”. As the Board had failed to carry out that function, it had no jurisdiction to lawfully adjudicate on the application for planning consent. Relying on the provisions of s. 177V(3) of the 2000 Act, the appellant submitted that the Board could only give consent after having determined that “ the proposed development shall not adversely affect the integrity of a European site.” The Board contests the appellant's understanding of the position and submits that, having regard to the entirety of the material before the Inspector, and to his site visit and the substance of his report, it was clear that the Inspector had applied the correct legal test in reaching his conclusion that a stage 2 appropriate assessment was not necessary.

5 As the proceedings were determined on the basis that they were taken out of time, the High Court did not consider the substantive grounds of challenge raised by the appellant to the decision of the Board.

Procedural background

6 Given that the issues concern time periods, it is helpful to include a relevant chronology of the dealings between the parties.

7 The impugned order of the Board is dated the 27th September, 2018, being the date on which it was signed by the Board member. The letter notifying the appellant is dated the 28th September, 2018.

8 On the 22nd November, 2018 (a Thursday), the appellant, acting in person, filed a statement of grounds and affidavit (sworn on the 22nd November, 2018) in the Central Office of the High Court. The application for leave to apply for judicial review was moved before the High Court on the 26th November, 2018 (a Monday) when an ex parte application was made to that Court.

9 The High Court (Noonan J.) on the 26th November, 2018, ordered the appellant to file an amended statement of grounds to include the notice party in the proceedings. In addition, the appellant was directed to put the Board on notice of the application.

10 On the 23rd April, 2019, the appellant, by now legally represented, filed a motion seeking an extension of time to bring the application for judicial review grounded upon an affidavit of the appellant sworn on the 23rd April, 2019.

11 A contested application for leave to apply for judicial review was heard before the High Court (Noonan J.) on the 15th July, 2019. On the 16th July, 2019, the High Court granted leave to the appellant to apply for judicial review on the grounds set out at paragraph E of the statement of grounds. The question of compliance with the statutory time limit and the application for an extension of time was expressly left over to the substantive proceedings for determination. At the hearing of the judicial review all matters were...