McHugh v Laois County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 01 February 2021 |
| Neutral Citation | [2021] IEHC 21 |
| Docket Number | 2020 No. 809 J.R. |
| Court | High Court |
| Date | 01 February 2021 |
[2021] IEHC 21
Garrett Simons
2020 No. 809 J.R.
THE HIGH COURT
This matter comes before the High Court by way of an application for leave to apply for judicial review. The applicant in the proceedings seeks to challenge a decision of Laois County Council which was made as long ago as January 2006.
The application for leave was first moved on an ex parte basis before the High Court (Meenan J.) on 9 November 2020. Meenan J. directed that the application should be heard on notice to the planning authority, and the application ultimately came on for hearing before me on 28 January 2021.
Having heard submissions from both sides, I delivered an ex tempore ruling on that date refusing leave to apply for judicial review on the grounds of delay and the non-joinder of the proper respondents. In circumstances where the applicant, Mr McHugh, is a litigant in person, I indicated that I would prepare a written judgment setting out my reasons. The judgment was to be sent to Mr McHugh and he would then have a number of weeks to consider same. The proceedings are to be relisted before me on 22 February 2021 to address the issue of costs, and, if necessary, to hear an application for leave to appeal. This is in ease of the applicant, and will allow him to consider whether or not to pursue the matter further by way of appeal (with the attendant risk on costs).
In the course of preparing this written judgment, I have identified an additional issue which had not been addressed in my ex tempore ruling. The issue concerns the nature of the time-limit which governs the application for judicial review. The fact that the planning authority's decision had been made so long ago has the consequence that these proceedings are subject to the “old” legislative regime, that is, as it stood prior to the commencement of the Planning and Development (Amendment) Act 2006. This issue does not affect the outcome of the application for leave to apply for judicial review. It does, however, have implications for the procedure governing the making of an appeal. I will return to address the time-limit issue at paragraph 16 below.
The applicant seeks to challenge a decision set out in a letter sent to him by Laois County Council on 3 January 2006. The term “decision” is used guardedly in this judgment, given that the planning authority's position as set out in the letter was not final, and the applicant was expressly invited to make submissions to the planning authority but failed to do so.
The letter had been issued in the context of the registration of quarries pursuant to section 261 of the Planning and Development Act 2000. In brief outline, this section imposed an obligation on owners and operators to register certain quarrying activities with the local planning authority. Thereafter, a planning authority was empowered to impose additional controls upon existing authorised quarrying activity.
The effect of registration has been described as follows by the High Court (Hedigan J.) in Frank Harrington Ltd v. An Bord Pleanála [2010] IEHC 428.
“[…] The fact the quarry was registered does not amount to a recognition or determination that the quarry had a pre 1964 user. Section 261 of the Planning and Development Act requires planning authorities to register all quarries that either had no planning permission or had planning permission greater than five years. Section 261 (9) sets out the scope of this section and s. 261 (1) imposes the obligation on quarry owners to notify planning authorities and to register. There is no distinction between pre and post 1964 quarries and there is no discretion. Planning authorities must register such a quarry. The aim of the legislation is clearly to try to bring all quarries pre or post 1964 with no planning permission or quarries with planning permissions more than 5 years old into the control net where conditions reflecting modern approaches to quarrying may be imposed in the public interest. Nothing in the legislation provides that such registration changes unauthorized into authorized. Their separate status at best is that they are registered but still unauthorized.”
Whereas a planning authority had been obliged to register even those quarrying activities which represented unauthorised development, the power to impose conditions or to require a planning application subject to environmental impact assessment had been confined to authorised quarrying activities. Relevantly, a finding, for the purposes of section 261, that quarrying activity was authorised is not conclusive on third parties: Pierson v. Keegan Quarries Ltd [2010] IEHC 404.
In order to ensure fair procedures, a planning authority was required, under section 261(5), to notify the owner and operator of the quarry of its intentions, and to afford an opportunity to the owner and operator to make submissions.
On the facts of the present case, Laois County Council had stated in its letter of 3 January 2006 that it did not intend to impose conditions on the applicant's quarry.
“In accordance with Section 261(5), notice is served that the council does not intend to impose conditions on the operation of the current extracted area for the following reasons;
1. It does not appear that the quarry was in continued operation since pre 1964.
Submissions or observations regarding the proposals may be made by the owner or operator of the quarry to the planning authority by the 27/1/05. These submissions or observations shall be taken into account by the planning authority in performing its functions under subsection ( 6) or (7) of Section 261 of the Planning and Development Act, 2001.”
The deadline for submissions refers to a date in January 2005. This is an obvious error— of a type which often occurs at the start of a new year—and should be read as 2006. The planning authority can scarcely have been understood as requesting submissions to be made at a date which had long since passed.
The core of the case which the applicant wishes to advance in the judicial review proceedings is that the stated reason, i.e. that it did not appear that the quarry had been in continuous operation since 1964, is ultra vires. It is pleaded that the reason “is not a part of the Act, nor is there any phrase or directive in the Act, which is approximate to their given reason”.
With respect, this ground of challenge is misconceived. The concept of continuous use is well known under the planning legislation. The significance of 1964 is that it is the year during which planning control in its modern form was introduced: development (including quarrying activity) which had commenced prior to 1 October 1964 and had continued in a manner proportionate to that pre-1964 user enjoyed the benefit of certain transitional provisions. (See, generally, An Taisce v. Ireland [2010] IEHC 415).
The letter of 3 January 2006 correctly observes the legal distinction between authorised and unauthorised development. If and insofar as the applicant had wished to challenge the provisional finding that his quarry had not been in continuous operation, then he should have made a submission to this effect. The notification from Laois County Council expressly invited submissions from the applicant. No submissions were ever made in response to this invitation.
The within judicial review proceedings were instituted on 9 November 2020, that is, almost fifteen years after the date of the impugned decision.
Under the current version of the planning legislation, any decision made by a planning authority in the performance or purported performance of a function under the Planning and Development Act 2000 (“ the PDA 2000”) is subject to an eight week time-limit.
The legal position had been less clear-cut under the original version of the PDA 2000 in that different time-limits were prescribed for various types of decisions under the planning legislation. The eight week time-limit was principally confined to decisions made by a planning authority on an application for planning permission. Other decisions made by a planning authority under the PDA 2000 were subject to the time-limit prescribed under Order 84 of the Rules of the Superior Courts.
This anomaly was removed by way of an amendment introduced under the Planning and Development (Amendment) Act 2006. The effect of the amendment was that the eight week time-limit now applies to all decisions made by a planning authority pursuant to the PDA 2000. This amendment came into force on 17 October 2006.
The decision which the applicant seeks to challenge in these proceedings predates the coming into force of this amendment (the decision is dated 3 January 2006). The decision is of a type which, prior to the amendment, would have been subject to the time-limit under Order 84 rather than the statutory time-limit. The judgment of the High Court (Charleton J.) in O'Reilly v. Galway City Council [2010] IEHC 97 confirms that the amendments introduced to the judicial review procedure by the Planning and Development (Amendment) Act 2006 were not intended to have retrospective effect, i.e. any decision made prior to the commencement date is subject to the “old” legislative regime.
Put otherwise, legacy cases, such as the present proceedings, benefit from a form of what is sometimes described as “grandfathering” whereby they are subject to the requirements of the old legislative regime. The practical effect of this...
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John McHugh v Laois County Council
...sought to challenge an administrative decision which was made in January 2006. The principal judgment was delivered on 1 February 2021, [2021] IEHC 21. The High Court (Simons J) refused leave to apply for judicial review. The proceedings were then adjourned for a number of weeks to allow th......