O'Meara v Westmeath County Council and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Emily Farrell
• Judgment Date: 04 April 2025
• Neutral Citation: [2025] IEHC 192
• Docket Number: Record No. 2024/174 JR

In the Matter of Section 50 and 50A of the Planning and Development Act 2000 As Amended

Between:

Joe O'Meara

Applicant

and

Westmeath County Council, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

[2025] IEHC 192

Record No. 2024/174 JR

THE HIGH COURT

PLANNING AND ENVIRONMENT

Planning and development – Judicial review – Mootness – Applicant seeking leave to seek orders of certiorari – Whether the proceedings were moot

Facts: The applicant, Mr O’Meara, resided in County Westmeath adjacent to a property owned by the first respondent, Westmeath County Council (the Council). On 8 December 2023, the Council published a site notice in accordance with s. 179A of the Planning and Development Act 2000 and Article 81A of the Planning and Development Regulations 2001-2023, stating that it had decided to develop the property into three apartments for residential use. The applicant applied to the High Court seeking leave to seek orders of certiorari and various declarations by way of judicial review. He sought to impugn the decision of the Council and declaratory relief in respect of the validity of s. 179A, which he contended was unconstitutional and incompatible with EU law as public consultation is not provided for. On 23 January 2025, the Council wrote an open letter to the applicant’s solicitor in which it stated that the proceedings had become moot, and the applicant was referred to s. 179A(1)(g) which provides: “This section applies to housing development....(g) that is commenced on or before 31 December 2024.” The State respondents also contended that the application was moot and should not proceed.

Held by Farrell J that, as a matter of principle, it would be inappropriate for the court to permit the proceedings to continue as they did not demand resolution, nor were they capable of affecting any right or interest of the applicant. She held that the applicant could obtain no benefit from the order of certiorari sought, if granted. She held that the factual and evidential framework underpinning the application for declaratory relief had also fallen away and the challenge to the validity of s. 179A was moot - even if s. 161 of the Planning and Development Act 2024 was commenced, the applicant acknowledged that it could not affect his rights or interests unless the Council applied that section in a manner which impacted on him. She noted the applicant’s submission that it was unlikely that development could take place in reliance on s. 161 (if commenced) unless the section was amended by the Oireachtas. She found that there was no evidence that development could proceed under s. 161 without the applicant, or any person affected having an opportunity to challenge that development; that is the purpose of the eight-week notice period provided for in Article 81A of the Planning and Development Regulations 2001. She held that a judgment on the validity of s. 179A would result in an advisory opinion on the validity of a law which was incapable of being invoked. She did not consider that the question raised was a question of exceptional public importance or that there were special reasons in the public interest which justified it being determined in the abstract by a court of first instance.

Farrell J refused to exercise her discretion to permit the proceedings to continue and refused the application for leave on the grounds that it was moot. As a consequence of the mootness, she held that the applicant lacked a sufficient interest in the matter which was the subject of the application for leave.

Leave refused.

JUDGMENT of Ms. Justice Emily Farrell delivered the 4 ^th April 2025

Introduction

1 The Applicant resides in County Westmeath adjacent to a property owned by Westmeath County Council, which the Council had decided to develop. On 8 ^th December 2023, the Council published a site notice in accordance with 179A of the Planning and Development Act 2000 (as inserted by section 14, of the Planning and Development and Foreshore Amendment Act, 2022) and Article 81A of the Planning and Development Regulations 2001 – 2023, stating that it had decided to develop the property into three apartments for residential use. The Notice also directed the public to the plans and other documents which were available for inspection on the Council's website or at its offices.

2 Public participation was not invited, but the Notice indicated that the validity of the Council's decision to proceed under section 179A could be challenged by way of judicial review. Neither the Act nor the Planning and Development Regulations make provision for a public consultation process leading to a decision to carry out a residential development to which section 179A applies.

3 The Applicant sought leave to seek orders of certiorari and various declarations by way of judicial review. He seeks to impugn the decision of the Council evidenced by the Notice of 8 ^th December 2023 and declaratory relief in respect of the validity of section 179A, which the Applicant contends is unconstitutional and incompatible with EU law as public consultation is not provided for.

4 I directed that the application for leave to seek judicial review be brought on notice to the Respondents. The application for leave was adjourned to await the judgment of the Supreme Court in Save the South Leinster Way & Anor v. An Bord Pleanála & Ors [2024] IESC 55, which was delivered on 5 ^th December 2024.

5 The application for leave was listed for hearing on 27 ^th January 2025. On 23 ^rd January 2025, the Council wrote an open letter to the Applicant's solicitor in which it stated that the proceedings had become moot, and the Applicant was referred to section 179A(1)(g) of the 2000 Act which provides “ This section applies to housing development—…. (g) that is commenced on or before 31 December 2024.” The State Respondents also contend that the application is moot and should not proceed.

6 Written submissions were filed by the Applicant (including replying submissions), the Council and the State Respondents.

7 I am satisfied that an extension of time is not required for the application for leave, the application having been opened on Monday 12 ^th February 2024, which the Supreme Court has confirmed was within time in Save the South Leinster Way. No question arises as to the failure of the Applicant to exhaust an alternative remedy as the Act does not provide for an appeal to An Bord Pleanála.

8 The sole objection to the grant of leave is the contention that the proceedings are moot, and it is submitted this is not an appropriate case in which the court should exercise its discretion to determine a moot case.

9 If I find that the proceedings are not moot, or that the proceedings should continue despite being moot, I shall proceed to decide the substance of the application for leave. The parties have confirmed that they have made all the submissions they wish to have considered for the purposes of the application for leave.

Mootness

10 The effect of section 179A is to remove the requirement for local authorities to undertake the Part 8 development process where a proposed housing development meets the criteria of section 179A of the 2000 Act. One of the criteria is that the development is commenced before 31 ^st December 2024: section 179A(1)(g).

11 It is not in dispute that the development had not commenced by 31 ^st December 2024. At the hearing counsel for the Applicant accepted that the development the subject of the decision of 8 ^th December 2023 cannot now proceed and that a further decision would be required by the Council before any development could take place on the property adjoining his.

12 There is some agreement between the parties as to the applicable principles to be applied in deciding whether this case can or should proceed. In particular, the parties relied on Lofinmakin v. Minister for Justice [2013] 4 IR 274 and Odum v. Minister for Justice [2023] IESC 3; [2023] 3 ILRM 164. The Applicant places considerable reliance on Condon v. Minister for Labour & Ors [1981] IR 61. The parties agree that there is a discretion to allow proceedings continue even where they are moot, which discretion may be exercised in the interests of the administration of justice or fairness between the parties: Odum (para. 10).

13 “ Courts exist to resolve controversies of real importance to real people.” per O'Donnell J. (as he then was) in Odum (para. 37). Central to the principle of mootness is the importance of the resolution of cases which can be characterised as present, live controversies in the common law system. O'Donnell J. described G v. Collins [2004] IESC 38, [2005] 1 ILRM 1 as the beginning of the modern caselaw of the Supreme Court in relation to mootness and held that the principles as identified in Borowski v. Canada [1989] 1 SCR 342 and adopted in G v. Collins, which have been repeatedly endorsed, are of more general application than the caselaw of the United States. These principles were also adopted by Denham C.J. in the majority judgment in Lofinmakin. A concurring judgment was delivered by McKechnie J. (with whom Fennelly J. also agreed). In Odum, Lofinmakin and G v. Collins, the Supreme Court advised caution in applying the US jurisprudence.

14 In G. v. Collins [2004] IESC 38, [2005] 1 ILRM 1 Hardiman J. held:

“ A proceeding may be said to be moot where there is no longer any legal dispute between the parties. The notion of mootness has some similarities to that of absence of locus standi but differs from it in that standing is judged at the start of the proceedings whereas mootness is judged after the commencement of proceedings. Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs, the eventual decision would be of no practical...