McCreesh v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 08 July 2016
• Neutral Citation: [2016] IEHC 394
• Docket Number: [2016 No. 363 JR]
• Court: High Court
• Date: 08 July 2016

BETWEEN

MARTIN MCCREESH

APPLICANT

AND

AN BORD PLENÁLA

RESPONDENT

AND

LOUTH COUNTY COUNCIL

NOTICE PARTY

[2016] IEHC 394

Humphreys J.

[2016 No. 363 JR]

THE HIGH COURT

JUDICIAL REVIEW

Environment & Planning – S. 50 of the Planning and Development Act 2000 – Leave to apply for judicial review – Time barred – Substantial grounds – Dismissal.

Facts: Following the decision of the respondent in confirming the compulsory purchase order made by the notice party, the applicant sought leave under s. 50 of the Act of 2000 to apply for judicial review of the decision of the respondent. The respondent contested the application of the applicant on the grounds that it was time barred and that the applicant had raised no substantial grounds.

Mr. Justice Richard Humphreys held that the application for an order for leave to apply for judicial review would be refused. The Court however, noted that the application would not be time barred. The Court held that the date of filing in the Central Office as required by practice had to be done first which the applicant did within time and delay in serving the respondent did not render it out of time. The Court held that the applicant failed to raise a substantial ground as the applicant only had its mere assertion to support its conspiracy theory and no evidence to prove the same.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of July, 2016

1 The applicant in this case seeks leave subject to s. 50 of the Planning and Development Act 2000 to apply for judicial review of a decision of the board dated 30th March 2016 confirming a compulsory purchase order made by Louth County Council. The application raises an issue of general application, namely the date on which the clock stops for the purposes of the judicial review limitation period.

2 Notice of the making of the board's decision was published by Louth County Council on 6th April, 2016. The application was filed on 27th May, 2016 and was moved in court on 30th May, 2016. The application was not served on the board until 10th June, 2016, pursuant to a direction in that regard which I gave on the 30th May, 2016.

3 The application is subject to s. 50 of the 2000 Act because it relates to a challenge to a consent given by the board pursuant to a function transferred by Part XIV of the Act (see s. 50(2)(b)).

4 I have heard from the applicant in person and from Mr. Alan Doyle solicitor, of Barry Doyle & Co. solicitors for the board, who makes two submissions: firstly that the application out of time and secondly that there are no substantial grounds.

Is the application out of time?

5 Pursuant to s. 50(7), time in this case runs from the publication of the decision rather than its making. Time therefore ran from 6th April, 2016.

6 In support of the submission of the time should stop running when the application is served or moved, rather than filed, the board relies on an obiter comment of Finlay C.J. in K.S.K Enterprises Ltd. v An Bord Pleanála [1994] 2 I.R. 128 at 136 that ‘an application to the court made by motion ex parte cannot be said to be made until it is actually moved in court’.

7 As noted, it is clear that, and indeed it is accepted by the board that, this comment was obiter on the facts of K.S.K. More fundamentally, the Chief Justice in that case was referring to an ex parte judicial review application in the context of the procedure which applied at that time, which did not involve a requirement for the filing of papers before the ex parte application was moved.

8 The judgment in K.S.K. was delivered on 24th March, 1994. The following day, however, 25th March, 1994, a new High Court practice direction HC02, entitled ‘ Ex parte applications for judicial review’ was issued (see Benedict Ó Floinn B.L., Practice and Procedure in the Superior Courts, 2nd ed., p. 977 as to the date of this instrument, which is undated in the version currently published on courts.ie). It expressly states that ‘the original statement and grounding affidavit should be filed in the Central Office beforehand and a certified copy bearing the record number issued by the Central Office, provided to the court on moving...