Save The South Leinster way and Another v an Bord Pleanála and Others
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 25 October 2023 |
| Neutral Citation | [2023] IEHC 577 |
| Court | High Court |
| Docket Number | [H.JR.2022.1006] |
In the Matter of Section 50 of the Planning and Development Act, 2000, As Amended
and
[2023] IEHC 577
[H.JR.2022.1006]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Planning permission – Extension of time – Applicants seeking extension of time – Whether there was good and sufficient reason for an extension of time
Facts: The first respondent, An Bord Pleanála, decided on 26th September, 2022 to grant planning permission to the notice party, Springfield Renewables Ltd, for the construction of 21 wind turbines with an overall blade tip height of 185 metres and ancillary works. The applicants, Save the South Leinster Way and Ms Heavey, sought leave to apply for judicial review. The first applicant’s aims and objectives related to the promotion of the protection of the environment around the section of the South Leinster Way that they said was impacted by the impugned wind farm development. The second applicant was chairperson of the first applicant and lived in the zone of influence of the impugned development. The grounding affidavit and statement of grounds were filed on 21st November, 2022. The matter was moved before the High Court on that date. Leave was granted on 23rd January, 2023. An amended statement of grounds was filed on 31st January, 2023. Following objections as to time from the opposing parties, the applicants filed a motion on 27th September, 2023 seeking the following reliefs: “1. Liberty to amend the Statement of Grounds to include an order pursuant to section 50(8) of the Planning and Development Act 2000 extending the period provided for the making of an application for leave to apply for judicial review, insofar as same is necessary. 2. An order pursuant to section 50(8) of the Planning and Development Act 2000 extending the period provided for the making of an application for leave to apply for judicial review, insofar as same is necessary. 3. Insofar as necessary, an order extending the time for seeking an amendment to the Statement of Grounds.” Regarding relief 2, the applicants argued that, by analogy with expiry of formal limitation periods on days when the court offices are closed, there should be a presumption of an intention to increase that period until the next working day.
Held by Humphreys J that the applicants should be allowed to amend the statement of grounds to seek relief extending time so he granted relief 1 and treated the matter as if that claim had been included in the statement of grounds, without the formality for filing of an amended pleading. He noted that relief 3 was misconceived. He held that the power to amend can be exercised outside the time period for bringing proceedings. He held that the time limit applies to moving the application in the first place, not for amending it later. Regarding relief 2, he held that at best the applicants’ point was an interpretative presumption only. He held that there were two reasons why any such presumption should not be read into the legislation: the commercial context and other express provisions of the 2000 Act. He held that, on balance, one has to read the 2000 Act as not involving an implied additional day or days for an applicant if the final day of the 8 weeks falls on a holiday or a weekend day. He held that the applicants did not satisfy the test for an extension of time. He held that there was no good and sufficient reason for doing so, and that the circumstances that resulted in the failure to make the application for leave within the period so provided were not outside the control of the applicants.
Humphreys J ordered that: (i) the applicants be permitted to amend the statement of grounds to seek an extension of time and the matter be treated as if that claim had been included without the formality of the filing of an amended pleading; (ii) the extension of time be refused; (iii) the leave order be set aside and the leave application be dismissed as out of time, with liberty to re-enter the proceedings within 28 days of any appellate court decision that an extension of time is not necessary or that such an extension should be granted; (iv) the applicants’ application to file a further substantive affidavit be dismissed; and (v) unless the parties apply otherwise by written submissions within 7 days, the foregoing order be perfected forthwith thereafter on the basis of no order as to costs.
Application refused.
JUDGMENT of Humphreys J. delivered on the 25th day of October, 2023
. The South Leinster Way is a walking route that runs south-westwards from the village of Kildavin in County Carlow through part of County Kilkenny to finish in the town of Carrick-on-Suir in County Tipperary. The route is part of the European E8 walking route which links Dublin with Dursey Island off the southwest coast.
. The first named applicant was established on 10th October, 2020. It is an organisation of individuals living in the Castlebanny area in Co. Kilkenny, the aims and objectives of which relate to the promotion of the protection of the environment around the section of the South Leinster Way that they say is impacted by the impugned wind farm development.
. The second named applicant Tara Heavey is chairperson of the first applicant and lives in the zone of influence of the impugned development.
. In relation to the planned wind farm, on 15th December, 2020, the board determined that the proposed development fell within the definition of energy infrastructure in the Seventh Schedule of the Planning and Development Act 2000, thereby satisfying the requirements set out in s. 37A(1) of that Act. The proposed development was considered to be of strategic importance by reference to the requirements of s. 37A(2)(a),(b) and (c) of the 2000 Act and it was decided that an application for permission for the proposed development was to be made directly to the board.
. On 28th January, 2021, the developer therefore applied to the board for planning permission for the development under s.37E of the Planning and Development Act, 2000.
. The application was considered under the SID procedure and the board decided on Monday 26th September, 2022 to grant planning permission to the Notice Party for the construction of 21 wind turbines with an overall blade tip height of 185 metres and ancillary works at Castlebanny, County Kilkenny.
. Section 50(6) of the 2000 Act provides that (subject to the power to extend time) “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”.
. The last day of that 8 week period was Sunday, 20th November, 2022.
. The grounding affidavit and statement of grounds were filed on Monday, 21st November, 2022. The matter was moved before the court on that date.
. Leave was granted on 23rd January, 2023. An amended statement of grounds was filed on 31st January, 2023.
. Following objections as to time from the opposing parties, the applicants filed a motion on 27th September, 2023 seeking the following reliefs:
“1. Liberty to amend the Statement of Grounds to include an order pursuant to section 50(8) of the Planning and Development Act 2000 extending the period provided for the making of an application for leave to apply for judicial review, insofar as same is necessary.
2. An order pursuant to section 50(8) of the Planning and Development Act 2000 extending the period provided for the making of an application for leave to apply for judicial review, insofar as same is necessary.
3. Insofar as necessary, an order extending the time for seeking an amendment to the Statement of Grounds.”
. I am now dealing with that motion. In doing so I am inclined to the view that the applicants should be allowed to amend the statement of grounds to seek relief extending time so I would grant relief 1 and treat the matter as if that claim had been included in the statement of grounds, without the formality for filing of an amended pleading. That wasn't opposed by the board and was only faintly opposed by the notice party.
. I should also note that relief 3, the extension of time to seek an amendment, is misconceived. The power to amend can be exercised outside the time period for bringing proceedings. The time limit applies to moving the application in the first place, not for amending it later.
. The real question is around relief 2 — whether the applicants are out of time and if so whether time should be extended.
. Separately, the applicants also sought to put in a further replying affidavit, but that only arises if the proceedings survive the time challenge.
. The applicants' case under this heading essentially boils down to an argument that, by analogy with expiry of formal limitation periods on days when the court offices are closed, there should be a presumption of an intention to increase that period until the next working day.
. Ultimately the context here is that at best the applicants' point is an interpretative presumption only. There are two reasons why any such presumption shouldn't be read into the legislation – the commercial context and other express provisions of the 2000 Act. Statutory interpretation involves looking at text, context and purpose, and here all push in the same direction.
. The problem with the applicants' argument is the commercial context of the time limit for...
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