Save the South Leinster way and Tara Heavey v an Bord Pleanála, The Minister for Housing, Local Government and Heritage Ireland and The Attorney General

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Maurice Collins,Ms. Justice Donnelly,Mr. Justice Brian Murray
• Judgment Date: 05 December 2024
• Neutral Citation: [2024] IESC 55
• Docket Number: Record No: S:AP:IE:2023:000157

Between

Save the South Leinster Way and Tara Heavey

Applicants/Appellants

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage Ireland and The Attorney General

Respondents

and

Springfield Renewables Ltd

Notice Party/Respondent

[2024] IESC 55

Dunne J.

O'Malley J.

Murray J.

Collins J.

Donnelly J.

Record No: S:AP:IE:2023:000157

High Court Record No: 2022 1006 JR

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judicial review – Leave to apply – Extension of time – Appellants seeking leave to apply for judicial review – Whether the proceedings were out of time

Facts: The appellants, Save the South Leinster Way and Ms Heavey, challenged the granting of planning permission by the first respondent, An Bord Pleanála (the Board) for 21 wind turbines in Co. Kilkenny on grounds arising from both domestic and EU law. The Board made its decision on 26 September 2022. The appellants filed a grounding affidavit and accompanying statement of grounds on 21 November 2022 and applied to the High Court on that day for leave to apply for judicial review. The eight-week deadline provided for in s. 50(6) of the Planning and Development Act 2000, on which the Board’s decision could be challenged by way of judicial review (without an application to extend time) ordinarily expired on 20 November 2022, unless the period could be construed as ending on the next day that the Central Office was open, that being 21 November 2022. The argument that s. 50(6) granted the appellants an extra day to apply for leave because the final day fell on a Sunday was rejected by the High Court. The High Court also refused to extend the time to apply for judicial review. The appellants appealed to the Supreme Court, submitting that the proceedings were not out of time. Alternatively, in the event that the proceedings were found to be out of time, the appellants submitted that an extension of time was justified in the circumstances, particularly where their case raised a point of EU law.

Held by Donnelly J that an important aspect of the context in which s. 50(6) was enacted was that of a previous High Court decision which held that the statutory time limit for taking judicial review was to be extended to the next day when the court offices were open if the expiration of the time period would otherwise fall on a day when the court could not act. She noted that the importance of the commercial context as repeated in dicta in the case law was specifically directed towards extensions of time and not towards the definition of the period. She held that there is a need for certainty as to the statutory time limit but the common law presumption as to construction is consistent with the purpose of the Act as it provides certainty. She held that the operation of the presumption does not of itself provide any greater or lesser certainty as to when a planning decision can be said to be immune from further challenge as there is still a possibility of time being extended by the court provided the statutory criteria are met. She held that the presumptive rule of construction could have been negated either expressly or by necessary implication having regard to the context and purpose of the 2000 Act. She noted that the 2000 Act, having regard to similar or even more strongly worded limitation periods or statutory time limits where this construction applies and the relevant context in which the provision was enacted, did not do so. She noted that the common law presumption provides that, where an act required by a party to stop time running is one which requires some action by the court but it is impracticable to do such act because the court offices are closed, the period will expire on the next day upon which the offices of the court are open. She was satisfied that the common law presumption that applies generally to statutory limitation periods also applies to the construction of the statutory time limits in s. 50(6) of the 2000 Act.

Donnelly J held that, in all the circumstances, she would allow the appeal.

Appeal allowed.

JUDGMENT of Mr. Justice Maurice Collins delivered on 5 December 2024

1 I agree with Murray J and Donnelly J that this appeal should be allowed. As they have reached that common conclusion by rather different analytical pathways, I wish to explain my position briefly.

2 For that purpose, I gratefully adopt the detailed account of the facts and the arguments of the parties in the judgment of Donnelly J.

3 For well over a century, the Rules of the Superior Courts have included a rule expressly addressing the position where “ the time for doing any act or taking any proceedings expires” on a day the Central Office is closed, and, as a result, “ such act or proceeding cannot be done or taken on that day” (my emphasis). In that event, “ such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open.” A Rule in those terms was contained in the 1905 Rules and, as Donnelly J observes, it is clear from M'Kibbin v M'Clelland [1894] 2 IR 654, that a similar such rule was in the earlier Rules. The 1905 Rule was reproduced in the 1962 Rules. The rule is now contained in Order 122, Rule 3 RSC. The only difference between Order 122, Rule 3 and its 1962 and 1905 predecessors is that the current rule reflects the fact that the Central Office no longer opens on Saturdays. Order 122, Rule 3 therefore prescribes Saturdays as dies non, along with Sundays and other days when the Central Office is closed.

4 Like Davies LJ in Hodgson v Armstrong [1967] 2 QB 299, at 320–321, there does not appear to me to be “ any possible ground upon which such a rule should be excluded or ignored.” Properly understood, the effect of the rule is not to amend any statutory limitation period (which would clearly be impermissible) “ but to provide that in the special circumstances the act shall be in time if done on the next day” ( ibid). The “ special circumstances” are that the prescribed mode of initiating proceedings require the intervention of the Central Office, which is closed on certain days.

5 Here, the Oireachtas has prescribed that challenges to planning decisions must proceed “ by way of an application for judicial review under Order 84 of the Rules of the Superior Courts”: section 50(2) of the Planning and Development Act 2000 (as amended) (“ the PDA”). The Oireachtas has further prescribed that such applications are to be made by motion ex parte, grounded in the manner specified in Order 84 in respect of an ex parte motion for leave. Current practice requires such a motion to issue out of the Central Office and accordingly in the event that the last day of the statutory 8-week period for bringing such an application (clearly a “ proceeding” for the purposes of the Rule) falls on a day on which the Central Office is closed, Order 122, Rule 3 applies.

6 The Oireachtas could, of course, legislate to exclude the application of Order 122, Rule 3 to any given category of proceedings but, in my view, there is nothing in sections 50 and 50A PDA that can plausibly be said to have that effect here. The Court heard a good deal of rather over-heated rhetoric about the need for expedition, finality and certainty in this area. In my view, the application of Order 122, Rule 3 (or any equivalent common law interpretive presumption) would not undermine any of those salutary and important objectives and I agree fully with what is said by Donnelly J in that regard. It seems clear that the Oireachtas takes the same view, given that it has recently legislated to effectively incorporate the substance of Rule 3 into section 281 of the Planning and Development Act 2024. The arguments made by reference to section 251 PDA and the other statutory provisions invoked by the Respondents, are equally unconvincing, as Donnelly J's judgment demonstrates.

7 For these reasons, and the further reasons set out in the judgment of Murray J with which I agree, it appears to me that Order 122, Rule 3 is a complete answer to the time point taken by the Respondents here. I agree with Murray J's analysis of the relationship between Order 122, Rule 3 and Order 118, Rule 4 RSC and the relationship between those Rules and statutorily prescribed limitation periods, including section 50(6) PDA, where the commencement of proceedings necessitates having access to the Central Office.

8 That being so, it is not necessary to consider whether there is a presumptive rule of construction of the kind identified by Donnelly J in her judgment or the precise status or effect of any such presumption. While I see the force in what Murray J says at paragraphs 15 and 16 of his judgment, and much as I recognise the value of doctrinal consistency and coherence in the exercise of statutory construction, it does not follow that presumptive rules of construction must in all circumstances be excluded. Donnelly J's judgment sets out a persuasive case for such a presumptive rule here but, as I have said, it is not necessary to reach that issue given the view I have taken as to the effect of Order 122, Rule 3 RSC.

9 I therefore agree that the appeal should be allowed. I reach that conclusion without any sense of regret. The 8-week period for bringing an application for judicial review challenging a planning decision is short. I readily understand why that should be so and in any event, there is the possibility of extension in certain (limited) circumstances. The issue of whether that time-limit is properly characterised as “ jurisdictional” or not does not require determination in this appeal and I express no view on it. But, in reality, applicants do not have the benefit of that full 8-week period, as that period begins from the date of the decision rather than the date of its notification or publication. Here, the decision was...