Reidy v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 31 July 2020
• Neutral Citation: [2020] IEHC 423
• Docket Number: [2019 NO. 49 J.R.]
• Court: High Court
• Date: 31 July 2020

BETWEEN

OLIVIA REIDY

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

[2020] IEHC 423

Barr J.

[2019 NO. 49 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Extension of time – Applicant seeking extension of time – Whether the applicant had established that there was good and sufficient reason to extend the time for the bringing of the proceedings

Facts: The applicant, Ms Reidy, on 25th August, 2017, lodged an application with Wexford County Council for permission to build a dwelling house for herself, her husband and her son at Camolin Park, Kilcomb, County Wexford. That application for planning permission was refused by Wexford County Council on 11th October, 2017. The applicant lodged an appeal against that decision with the respondent, An Bord Pleanala, on 24th October, 2017. An inspector appointed by the respondent carried out a site investigation and furnished a report on 25th January, 2018. On 14th February, 2018, the respondent refused to grant planning permission for the development. The eight-week period provided for under s. 50 of the Planning and Development Act 2000 (as amended) within which an application could be made seeking judicial review of that planning decision, expired on 10th April, 2018. The applicant sought leave to judicially review the decision of the respondent. The High Court directed that the application for leave to seek judicial review should include an application for an extension of time within which to seek judicial review and should be made on notice to the respondent. The applicant submitted that where she had not been informed of her right to challenge the decision of the respondent by way of judicial review proceedings until she received their letter and information document on or just after 18th December, 2018, it was appropriate that the court should extend the time for her to bring these proceedings, as she had moved promptly on receipt of such documentation by lodging the statement of grounds and first affidavit on 24th January, 2019.

Held by Barr J that he was not satisfied that the applicant had established that there was good and sufficient reason to extend the time for the bringing of the judicial review proceedings in this case.

Barr J refused to grant an extension of time to the applicant within which to institute judicial review proceedings in respect of the decision of the respondent made on 14th February 2018. He refused her leave to seek relief by way of judicial review against that decision.

Application refused.

JUDGMENT of Mr. Justice Barr delivered electronically on the 31st day of July, 2020

Introduction

1 The background to these proceedings can be summarised in the following way: on 25th August, 2017, the applicant, who is representing herself in these proceedings, lodged an application with Wexford County Council for permission to build a dwelling house for herself, her husband and her son at Camolin Park, Kilcomb, County Wexford. That application for planning permission was refused by Wexford County Council on 11th October, 2017.

2 The applicant lodged an appeal against that decision with the respondent on 24th October, 2017. An inspector appointed by the respondent carried out a site investigation and furnished a report on 25th January, 2018. On 14th February, 2018, the respondent refused to grant planning permission for the development.

3 In its decision dated 14th February, 2018, the respondent noted that the site where the proposed works were to be carried out, was located in a ‘strong rural area’ as designated in the Wexford County Development Plan, 2013 – 2019. It was also within an ‘area under strong urban influence’ as set out in the ‘Sustainable Rural Housing Guidelines for Planning Authorities’ issued by the Department of the Environment, Heritage and Local Government in April, 2005. In refusing the applicants application for planning permission, the respondent stated as follows:

‘It is considered that the applicant does not come within the scope of the housing need criteria as set out in the Guidelines or the Development Plan for a house at this location. The proposed development, in the absence of any identified locally-based social and economic need for the house, would contribute to the encroachment of random rural development in the area and would militate against the preservation of the rural environment and the efficient provision of public services and infrastructure. The proposed development would, therefore, be contrary to the Development Plan Provisions relating to sustainable rural housing and to the ‘Sustainable Rural Housing Guidelines for Planning Authorities’ and would be contrary to the proper planning and sustainable development of the area.’

4 The eight-week period provided for under s. 50 of the Planning and Development Act, 2000 (as amended) within which an application could be made seeking judicial review of that planning decision, expired on 10th April, 2018.

5 An initial statement of grounds and the first affidavit sworn by the applicant seeking leave to judicially review the decision of the respondent was filed on 24th January, 2019. However, the ex parte application seeking leave to proceed by way of judicial review was not moved by the applicant until 8th May, 2019.

6 A notice of motion seeking an extension of time and a second affidavit was filed on behalf of the applicant on 14th May, 2019. The notice of motion was served on the respondent on 24th May, 2019.

7 A stamped second statement of grounds and two affidavits were served on the respondents on 7th November, 2019. The second statement of grounds and the third and fourth affidavits sworn by the applicant were filed on 26th November, 2019. An affidavit on behalf of the respondent was sworn by Mr. Pierce Dillon and was filed on 6th February, 2020. A further affidavit was sworn by the applicant on 17th February, 2020.

8 The High Court directed that the application for leave to seek judicial review should include an application for an extension of time within which to seek judicial review and should be made on notice to the respondent.

The issues for consideration by the Court

9 On this application, the court has to determine the following issues:

(a) Whether to extend the time to enable the applicant to challenge the decision of the respondent refusing her permission for the development, which decision was made on 14th February, 2018;

(b) Whether, having regard to the provisions of s. 50A (3) (a) there are substantial grounds for contending that the decision concerned is invalid or ought to be quashed and, if so, whether the court should grant the applicant leave to proceed by way of judicial review.

Submissions on behalf of the applicant

10 While the applicant represented herself in this application, she is an articulate and intelligent woman and was able to put her case in a coherent and forceful manner both in person and on the papers that were submitted to the court. In relation to the first issue, as to whether the court should grant her an extension of time within which to bring the present judicial review proceedings, she stated that there were two primary reasons why she had not brought the present proceedings within the eight-week time limit provided for under s. 50 (6) of the Planning and Development Act, 2000 (as amended).

11 Firstly, by way of background, she stated that her father owned a plot of land at Camolin in County Wexford. He had obtained planning permission to build a house on his land on 14th October, 2013. In order to assist the applicant, he had made a gift to her of a portion of the lands that he owned in that area. The applicant stated that she was a married woman, who had one son, who was born on 13th August, 2017, which was very shortly prior to the time that she had submitted the initial planning application to Wexford County Council.

12 The applicant stated that she had not been in a position to institute the judicial review proceedings within the eight-week period after the decision had been made by An Bord Pleanála refusing her permission on 14th February, 2018, due to the fact that her infant son had considerable health difficulties.

13 In this regard, she referred to a letter which had been furnished by Professor Muhammed Azan, a consultant paediatrician at Wexford General Hospital, dated 10th January, 2018, which he had written in support of her application for Domiciliary Care Allowance. In the letter he stated that the applicant's son was a patient of his and was under investigation because of delayed developmental milestones. At that time, he was approximately five months old. Professor Azan noted that the baby was exclusively breastfed and was having great difficulty with solids in any texture or form. He might drink two sips of water from a Sippy cup per day. He was on iron supplement for his anaemia and it was a struggle to get him to take that supplement.

14 The doctor went on to note that the child had poor social interaction and became very distressed very easily, especially with loud sounds, bright lights and people/children activity around him. He also had speech delay and was diagnosed with Sensory Processing Disorder and features of Autistic Spectrum Disorder. As the child's paediatrician, he strongly supported the application made by his parents for Domiciliary Care Allowance as the boy would require ongoing care.

15 The applicant submitted that due to these considerable health needs on the part of her son, she had not been able to make the necessary application for leave to seek judicial review within the required time period. In this regard, she stated that her husband was an engineer employed by an alarm company and his work required him to travel extensively throughout Ireland. She was employed in the sales and marketing department of the ‘Wicklow People’ newspaper, which was based in Bray, County...