SC SYM Fotovoltaic Energy SRL v Mayo County Council

JurisdictionIreland
JudgeMr. Justice David Barniville
Judgment Date24 January 2018
Neutral Citation[2018] IEHC 20
Date24 January 2018
CourtHigh Court
Docket Number[2017 No. 745 J.R.] [2017 No. 197 COM]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN
SC SYM FOTOVOLTAIC ENERGY SRL
APPLICANT
AND
MAYO COUNTY COUNCIL
RESPONDENT
AND
AEOLUS WIND FARMS LIMITED
AND
ESB NETWORKS LIMITED
NOTICE PARTIES

[2018] IEHC 20

Barniville J.

[2017 No. 745 J.R.]

[2017 No. 197 COM]

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Environment, Transport and Planning - S. 50 of the Planning and Development Act, 2000 - Delay in filling the application - Grant of extension - Good and sufficient cause

Facts: The applicant sought an extension of time pursuant to s. 50(8) of the 2000 Act for bringing the judicial review application. The key issue arose as to whether there was a good and sufficient reason for granting the extension. The applicant contended that the reason for the delay was that its solicitors were engaged in correspondence with the first notice party.

Mr. Justice David Barniville refused the relief sought by the applicant. The Court held that the applicant had not satisfied the requirements of s. 50(8) of the 2000 Act. The Court opined that the applicant had failed to establish that the circumstances that resulted in its failure to make the application were outside its control. The Court also observed that the applicant had not established that there was a good and sufficient reason for extending the time within which the application had to be made.

JUDGMENT of Mr. Justice David Barniville delivered on the 24th day of January, 2018
Introduction
1

On 2nd October, 2017, the Applicant, a Romanian company, obtained leave to seek a number of reliefs by way of judicial review in respect of a decision made by the Respondent, Mayo County Council (the 'Council') on 6th June, 2017 pursuant to s. 5 of the Planning and Development Act, 2000 (as amended) (the '2000 Act (as amended)'). One of the reliefs sought by the Applicant was an extension of time to bring its application. On foot of the order of the High Court (Noonan J.) made on 2nd October, 2017, the Applicant was given leave to seek such an extension of time.

Preliminary Issue
2

On 6th November, 2017, the High Court (McGovern J.) entered the proceedings into the Commercial List on the application of the first named Notice Party, Aeolus Wind Farms Ltd. ('Aeolus'), and gave directions for the hearing of a preliminary issue as to whether the Applicant was out of time in respect of its application and for the hearing of the substantive application for judicial review in February, 2018.

3

On 13th November, 2017, on the application of Aeolus, the High Court (McGovern J.) brought forward the hearing of the preliminary issue as to whether the Applicant was out of time for bringing the proceedings and listed that issue to be heard on 6th December, 2017. The court gave the necessary directions to enable this to happen. The preliminary issue is described in both of the orders of 6th November, 2017, and 13th November, 2017, as being whether the Applicant was out of time for bringing its application for judicial review. The sequence of the directions given for the exchange of affidavits and submissions was that the Council and Aeolus were to serve their affidavits and written submissions first and that the Applicant would reply. The second named Notice Party, ESB Networks Ltd. ('ESBN'), had informed the court on 6th November, 2017, that it would not be participating in the proceedings.

4

The preliminary issue came on for hearing before me on 6th December, 2017. It seemed to me that there was no dispute between the parties that the Applicant's application for judicial review was brought outside the eight week period provided for in s. 50(6) of the 2000 Act (as amended) and that the proceedings could only be entertained if the Applicant obtained an extension of time under s. 50(8) for bringing them. On that basis, at the outset of the hearing of the preliminary issue, I indicated my view that it was appropriate that the issue should proceed on the basis that the Applicant should go first and move its application for an extension of time for bringing the proceedings and that the Council and Aeolus should respond. The parties agreed with that suggestion. The application proceeded, therefore, as the Applicant's application pursuant to s. 50(8) of the 2000 Act (as amended) for an extension of time to seek the reliefs sought in its amended statement of grounds dated 4th October, 2017, in respect of the Council's decision of 6th June, 2017, pursuant to s. 5 of the 2000 Act (as amended).

5

In order to succeed in its application for an extension of time, the Applicant has to demonstrate that the requirements of s. 50(8) are satisfied. In particular, the Applicant has to persuade me that:-

(a) there is ' good and sufficient' reason for extending the period of eight weeks from the date of the decision within which to make the application for leave, and that

(b) the circumstances that resulted in the failure to make the application for leave within the eight week period were outside the control of the Applicant.

Factual Background
6

Before considering the relevant statutory provisions and the legal principles governing an application for an extension of time pursuant to s. 50(8) of the 2000 Act (as amended), it is necessary at the outset briefly to sketch out the relevant factual background. It was agreed by the parties that there was very little disagreement between them on the facts and the hearing proceeded on the basis of the affidavit evidence only with no cross-examination of the deponents. It must be said, however, that there are a small number of issues of fact on which the parties are not in agreement and, where possible and where necessary for the determination of the Applicant's application for an extension of time, I will attempt to resolve those issues but at all times I bear in mind the absence of any cross-examination of the deponents.

7

On 6th June, 2017, the Council issued a declaration under s. 5 of the 2000 Act (as amended) that a proposed development to be undertaken by Aeolus was exempt development (the 's. 5 declaration'). The proposed development consisted of the laying of underground cabling and ducting along a particular route linking an existing EirGrid substation, known as the Glenree substation, at Bonniconlon East in County Mayo and a proposed wind farm substation at Bonniconlon East which Aeolus intends to develop. Aeolus had applied to the Council for the s. 5 declaration on 20th March, 2017 (the 's. 5 application'). Planning permission for the wind farm which Aeolus intends to develop at Bunnyconnellan (the 'Bunnyconnellan wind farm') was granted by An Bord Pleanála on 13th December, 2013, subject to a number of conditions. The application for that permission was made by a number of commonage landowners who have entered into a lease agreement with Aeolus permitting it to erect, inspect and maintain a wind farm on their lands. One of the conditions of the permission granted by An Bord Pleanála was that the permission ' shall not be construed as any form of consent or agreement to connection to the national grid or to the routing or nature of any such connection' (Condition 2). While the application for the s. 5 declaration described the location of the proposed development as 'Bonniconlon East', and while the application for permission for the wind farm which Aeolus intends to development described the area as 'Bunnyconnellan East', the developments are in the same area notwithstanding the different spellings.

8

A small portion of the works the subject of the s. 5 declaration was required to be undertaken on lands now owned by the Applicant and comprised in Folio 33457 of the Register, County Mayo (the 'MY 33457 Lands'). The Applicant did not own the MY 33457 Lands on 20th March, 2017, when the s. 5 application was made or on 6th June, 2017, when the s. 5 declaration was made by the Council. At that stage, those lands together with adjoining lands comprised in Folio 31669 of the Register, Co. Meath (the 'MY 31669 Lands') (together 'the Lands') were owned by another company, Aeropower Wind Energy Ltd. ('Aeropower') which had acquired them from Powercon Wind Energy Ltd. ('Powercon') in June, 2016. The Applicant acquired the Lands on 18th July, 2017, on foot of a contract of sale it entered into with Aeropower on 4th July, 2017, that sale being completed on 18th July, 2017. The Lands (and, particular, the MY 33457 Lands) surround the Glenree substation which was constructed on lands comprised in Folio 68384F of the Register, Co. Meath owned by the ESB and are now under the control of ESBN. The MY 33457 Lands are subject to a right of way in favour of the ESB.

9

Aeolus did not inform the Council in its s. 5 application that the Lands were, at the time of the application in the ownership of another entity, namely, Aeropower. Aeolus have asserted that it is entitled to carry out the works on the Lands in order to connect its proposed Bunnyconnellan wind farm with the Glenree substation on foot of letter of undertaking dated 7th December, 2009, given by Michael Rouse on behalf of Powercon, Aeropower's predecessor in title to the Lands, to Aeolus (the 'Undertaking'). Under the terms of the Undertaking, Powercon irrevocably agreed and undertook to grant the ESB a wayleave and/or an easement in respect of a 38kV electricity line or cable as defined in s. 46 of the Electricity (Supply) (Amendment) Act, 1945 over or underground through the Lands to service the wind farm being developed on adjoining lands by Aeolus, its agents, successors or assigns, and:-

'not to object in any way to any planning application regarding the development of to (sic) the said 38kV line or any poles or cables required in connection with it'.

While some argument before me was directed to the validity and effectiveness of...

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