Irish Skydiving Club Ltd v an Bord Pleanála

 
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[2016] IEHC 448

THE HIGH COURT

JUDICIAL REVIEW

Baker J.

[2015 No. 170 JR]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

BETWEEN
IRISH SKYDIVING CLUB LIMITED
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
KILKENNY COUNTY COUNCIL
FIRST NAMED NOTICE PARTY
AND
SKYDIVE IRELAND LIMITED
SECOND NAMED NOTICE PARTY
AND
CONOR FOLEY/KILKENNY AIRFIELD CONCERN GROUP
THIRD NAMED NOTICE PARTY
AND
MARY CASS
FOURTH NAMED NOTICE PARTY
AND
RICHARD CASS
FIFTH NAMED NOTICE PARTY

Environment & Planning – S. 50 of the Planning and Development Act, 2000, as amended – Judicial review – Barred by limitation – Date of knowledge or date of decision – Extension of time – No sufficient reasons

Facts: The applicant, by way of the present application for judicial review, sought an order of certiorari to quash the decision of the respondent made on a referral by the first named notice party to the effect that the use of the Kilkenny airfield for sponsored parachute jumping was a development and not an exempted development. The key issue that arose in the case was whether the applicant was out of time to file an application for judicial review under s. 50 of the Planning and Development Act, 2000, as amended. The respondent objected to the application of judicial review on the ground that it was made out of time. The applicant contended that the respondent caused delay in providing the information regarding its decisions and in replying to its correspondences, which further caused delay to the applicant in filing the present application for judicial review. The applicant argued that the time began to run on the date on which it came to its knowlwdge about the making of the impugned decision.

Ms. Justice Baker refused to make an order to enlarge the time for bringing the judicial review application by the applicant. The Court held that there must exist circumstances to enlarge time for delay as laid down under s. 50 (6) of the Act of 2000, which was mandatory. The Court held that the test, which fixed the running of time for judicial review, was not based on the date of knowledge, but the date of the party making the decision to initiate the proceedings and seeking legal advice for the same. The Court held that the applicant could not rely on its ignorance to excuse itself from the statutory time limit. The Court held that in the present case, the applicant had clear knowledge that the jurisdiction of the respondent was spent as the respondent had replied to the correspondence of the applicant. The Court held that the applicant further continued to correspond with the respondent without any reason, despite knowing that an issue had arisen and did not take measures immediately to file an application for judicial review. The Court held that the applicant had all the relevant materials in its control to initiate litigation. The Court held that the respondent failed to give any good and sufficient reason to extend the time under s. 50 (6) of the Act of 2000.

JUDGMENT of Ms. Justice Baker delivered on the 29th day of July, 2016.
1

This is my judgment in the trial of a modular issue in this judicial review, whether the applicant is out of time to review a decision of An Bord Pleanála by reason of s. 50 of the Planning and Development Act, 2000, as amended, (‘the Act’).

2

The applicant seeks judicial review of the decision of An Bord Pleanála made on a referral by Kilkenny County Council under s. 5 of the Act by which the Board determined that the use by the applicant of Kilkenny Airfield for sponsored parachute jumping was a development and not an exempted development. The applicant is a limited liability company and carries out the activities of sports parachuting from the aerodrome and is a registered aerodrome license holder for that purpose.

3

The decision of the Board was made on 14th January, 2015. Leave was given by Eager J. on 27th March, 2015 to seek an order of certiorari by way of an application for judicial review quashing the decision, and for various reliefs inter alia on the grounds that despite the fact that the applicant is the approved operator and holder of the license, and that it is involved in carrying out the activities in respect of which the referral was made, it was not a notice party to the referral. Relief is also sought on the grounds that the Board had disregarded the recommendations of its inspector.

4

The respondent argues by way of preliminary objection that the applicant is out of time and following submissions made to me on the first day of the hearing, I determined that the matter would proceed by way of modular hearing and that I would first determine the procedural time question. This decision was made following an application for an adjournment by Eoin Nevin, a director of the applicant company, who sought to represent the company and after I had refused to permit him leave to do so. In those circumstances the matter was adjourned for a short a period to enable the applicant to obtain legal representation which it duly did, and having regard to the fact that the solicitor who came on record for the applicant had less than 48 hours to prepare his submissions, I considered that justice would be done to all parties were I to confine my deliberations to the question of time only.

5

My decision to try the modular issue was also made in the context of the position of the notice parties, Mary Cass and Richard Cass, who said that their enjoyment of their home and lands adjacent to the aerodrome was severely impacted by the ongoing parachuting and flight activity from the aerodrome, and that they were strongly opposed to the matter adjourning.

6

Section 50 of the Act, as substituted by s. 12 of the Act of 2002, provides the time limits for the bringing of a judicial review of any decision of An Bord Pleanála. It is not doubted that the decision of the Bord under s. 5 is governed by this provision. The section provides an eight week period beginning on the date on which the notice of the decision was first sent or published.

7

Section 50 (6) provides as follows:

‘(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.

8

Time may be extended by the court subject to the requirements set out in section 50 (8):

‘(8) The High Court may extend the period provided for in subsection ( 6) or (7) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.’

9

Section 50(8) (a) is a reflection of the inherent jurisdiction of the court to extend time when it considers that good and sufficient reason exists to so do, but sub paragraph (b) of the subsection contains a restriction on the power such that in addition to being satisfied that good and sufficient reasons exists, the court must be satisfied as a matter of fact that the circumstances which resulted in the delay were outside the control of the applicant.

10

Thus, while the court has a discretion it is required by the cumulative provisions of subs. 8 to consider not merely the interests of justice, or the interests of all of the parties, but whether the applicant for the extension can show on the facts that the delay and the reason why he or she is out of time arose from matters outside his or her control. When a delay arises from circumstances which were within the control of the applicant, the court may not extend.

11

The time limit is strict, and one in respect of which the power to grant an extension is also to be strictly construed. That this is justifiably so has been considered in a number of cases. In Noonan Services Limited & Ors v. the Labour Court (Unreported, High Court, 25th February, 2004) Kearns J. explained the policy for a strict approach:

‘This approach does no more than reflect a growing awareness of an overriding necessity to provide for some reasonable cut-off point for legal challenges to decisions and orders which have significant consequences for the public, or significant sections thereof.’

12

After listing a number of pieces of modern legislation which provide strict cut-off periods he explained that those provisions reflect the desire that legislation would function effectively, and in many cases comply with Ireland's obligations as a Member State of the EU.

13

In Kelly v. Leitrim County Council & Anor. [2005] 2 I.R. 404 Clarke J. also concluded that provisions broadly similar to s. 50 had been introduced in other areas of the review of administrative or quasi-judicial decision-making in recent time, and quoted with approval the decision of Finlay C.J. in K.S.K. Enterprises Limited v. An Bord Pleanála & Anor. [1994] 2 I.R. 128 where at p. 135 he said:

‘it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision.’

That decision of Finlay C.J. was given before the amendment to s. 50 gave the court...

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