Pearce v Westmeath County Council and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 24 July 2012
• Neutral Citation: [2012] IEHC 300
• Docket Number: RECORD NO: 359J.R/2011
• Court: High Court
• Date: 24 July 2012

Pearce v Westmeath County Council & Anor

JUDICIAL REVIEW

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2010 AND IN THE MATTER OF THE PLANNING AND

DEVELOPMENT ACT 2000, (AS AMMENDED) AND IN THE MATTER OF AN APPLICATION

BETWEEN:-

ANGELA PEARCE

APPLICANT

v.

WESTMEATH COUNTY COUNCIL

RESPONDENT

&

ANGELA BOYHAN

NOTICE PARTY

[2012] IEHC 300

RECORD NO: 359J.R/2011

THE HIGH COURT

JUDICIAL REVIEW

Practice and procedure

Preliminary point of law - Time limit for bringing application - Application to set aside leave to apply for judicial review pursuant to inherent jurisdiction of court - Challenge to submission of haulage route survey pursuant to variation of planning permission condition - Decision made that submission compliant with condition - Date of impugned decision - Internal document - Written communication of decision - Manner in which decision recorded - Mistaken apprehension as to purpose and effect - Extension of time - Public interest - Whether challenge to impugned decision taken outside statutory time-limit - Whether decision properly recorded - Whether good and sufficient reason to extend time - Whether circumstances that resulted in failure to make application within period limited were outside control of applicant - Whether court should act proprio motu to extend time - Openneer v Donegal County Council [2005] IEHC 156, (Unrep, Macken J, 13/4/2005); Adam v Minister for Justice [2001] 3 IR 53; Gordon v DPP [2002] 2 IR 369; O'Keeffe v An Bord Pleanála [1993] 1 IR 3; R v The Chief Constable of North Wales XP Evans [1982] 1 WLR 1155 and The State (Keegan) v The Stardust Victims Compensation Tribunal [1986] IR 642 considered - Planning and Development Act 2000 (No 30), ss 50(6) and 50(8) - Local Government Act 2001 (No 37), s 151 - Application refused and time extended so as to permit decision to be challenged (2011/359JR - Hedigan J - 24/7/2012) [2012] IEHC 300

Pearce v Westmeath County Council

Facts: The notice party operated a quarry near the applicant”s residence. The respondent had agreed the submission of a survey as part of the requirements stipulated for the grant of planning permission by An Bord Pleanála. The applicant contended this decision was flawed, and sought judicial review. The parties disputed the operative date of the decision, with the respondent claiming the applicant was out of time for bringing the application.

Held by Hedigan J, that in cases such as the instant, the applicant would have to satisfy the Court that a decision made by an entity with special competence in a specialist area was irrational. In the instant case, the evidence strongly supported the respondent”s contention the decision was made earlier than the applicant suggested, and so prima facie the application was brought outside of the time limit for doing so.

Notwithstanding the above, the Court considered the poor manner in which the respondent”s decision was recorded meant that members of the public were misled as to when the decision was made. The Court therefore found that it would be appropriate to extend the time limit in the current case.

PLANNING & DEVELOPMENT ACT 2000 S50(6)

OPENEER v DONEGAL CO COUNCIL 2006 1 ILRM 150

LOCAL GOVERNMENT ACT 2001 SCHED 15

ADAM v MIN FOR JUSTICE 2001 3 IR 53 2001 2 ILRM 452

GORDON v DPP 2002 2 IR 369

LOCAL GOVERNMENT ACT 2001 CH 3

LOCAL GOVERNMENT ACT 2001 S151

O'KEEFFE v BORD PLEANÁLA 1993 1 IR 3

R v CHIEF CONSTABLE OF NORTH WALES XP EVANS 1982 1 WLR 1155

STATE (KEEGAN & LYSAGHT) v STARDUST VICTIMS COMPENSATION 1986 IR 642

PLANNING & DEVELOPMENT ACT 2000 S50(8)

Mr. Justice Hedigan

1 The applicant resides at Fearbranagh, Multifarnham, Co Westmeath. The respondent is the County Council with responsibility for the administrative area of Co. Westmeath. The notice party operates a quarry located at Killintown, Ballinriddera, Multyfarnham, Co. Westmeath.

2 2.1 This is a preliminary application brought by the respondent, Westmeath County Council for the trial of a point of law preliminary to the substantive hearing, to determine whether the within proceedings are within or outside the eight week time limit specified for bringing an application for judicial review under s. 50(6) of the Planning and Development Acts 2000-2010.

3 The respondent also seeks an order pursuant to the inherent jurisdiction of the Court setting aside the order granting the applicants leave to apply for judicial review.

4 3 2.2 In the substantive proceedings the applicant seeks to challenge by way of judicial review a purported decision of the respondent to agree the submission by the notice party of a haulage route survey and details regarding the provision of lay-bys, dated the 1^st December 2010 and made pursuant to amended condition 16(1) of planning permission (An Bord Pleanála) Reference Number PL. 25.222171M.

5 4 2.3 The planning permission which is the subject matter of the substantive proceedings was granted by on Board Pleanála on the 15^th July 2009. The planning permission was for the continuation of quarrying activity by the notice party at Multifarnham, County Westmeath. Condition 16 of the permission required the notice party to submit to the respondent for agreement a haulage route survey and details in respect of the provisions of lay-bys in the interests of traffic safety and development. Condition 16 was subsequently varied by An Board Pleanála on the 23^rd July 2010. Condition 16 as varied provided as follows:-

6 2 "16. (1) The developer shall submit to the planning authority for written agreement a detailed survey of the entire one-way, haul route showing width, levels, verges and all other relevant features and identifying the number and location of all lay-bys to be provided by the developer.

7 (2) The developer shall provide and complete all lay-bys agreed under paragraph 1 above within six months from the date of this order and shall comply with the requirements of the planning authority for such works and services."

8 5 2.4 On the 1^st December 2010, Sean Lucy and Associates Ltd, planning consultants, acting on behalf of the notice party lodged a submission with the respondent in respect of compliance with Condition 16 (as amended) of the planning permission. This submission was considered by Mr. Mkhululi Ndebele an executive engineer with the respondent on 3^rd March 2011. On that date Mr. Ndebele determined that the submission was compliant with Condition 16 of the planning permission. A written record of this determination of compliance was made. The respondent wrote to Sean Lucy and Associates Ltd on the 11^th March 2011 informing them of the decision.

9 6 2.5 On the 3^rd May 2011 the applicant issued proceedings seeking leave to apply for judicial review of the impugned decision on a number of grounds including inter alia that it was made in breach of amended condition 16 of the planning permission and/or the six month time limit imposed therein, was made in a manner which was in breach of natural and constitutional justice and/or that the respondent failed to give any reasons in respect of the impugned decision and it was ultra vires, invalid or of no legal effect.

10 7 2.6 The applicant maintains that the decision regarding compliance with condition 16 was made on the 11^th March 2011, whereas the respondent maintains that this decision was made on the 3^rd March 2011. This issue is of particular significance because the within proceedings issued on the 3^rd May 2011. Consequently if it is determined that the decision was taken on the 3^rd March 2011 the proceedings are outside the statutory eight week time limit prescribed by s.50 (6) of the Planning and Development Acts 2000-2011 ('the PDA') for challenging such decisions by way of judicial review.

11 2 3.1 It is agreed between the parties that the impugned decision is a decision which may only be challenged in accordance with the provisions of s 50(6) of the Planning and Development Act 2006 which provides as follows:-

"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."

12 Section 50(8) of the Planning and Development Act 2006 makes provision for the extension of the aforesaid eight week time-limit in certain limited circumstances. The respondent however submits that s.50 (8) is not relevant in the within proceedings as no application for an extension has been made by the applicant.

13 3 3.2 The courts have held that the eight week statutory time-limit imposed by s.50 (6) of the Planning and Development Act 2006 in respect of challenging planning decisions is a strict time-limit. In Openneer v Donegal County Council (Unreported, High Court, Macken J., 13^th April 2005) the Court outlined the reasons behind the 8 week time limit that applies, at pages 12-13:-

"It is a well established principle of law that any application for judicial review must be sought promptly. That has been interpreted in the jurisprudence as imposing a high obligation to move, not merely within the time scale provided for by Order 84 of the Rules of the Superior Courts, but to move at all events promptly, as is clear from the decision of Fennelly J. in the judgment of the Supreme Court inDekra Eireann Teo v. Minister for the Environment, unreported, 4^th April, 2004 and of the High Court in the judgment of Finlay Geoghegan, J. in Connolly v. The Director of Public Prosecutions, unreported, 15^th May, 2003. The situation is even more certain and strict in the case of planning, which is the subject of a statutory scheme intended to impose and actually imposing...