Scott Mernagh v Wexford County Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 29 May 2025
• Neutral Citation: [2025] IEHC 306
• Docket Number: Record No. 2024 1030 JR

Between

Scott Mernagh

Applicant

and

Wexford County Council

Respondent

[2025] IEHC 306

Record No. 2024 1030 JR

THE HIGH COURT

JUDICIAL REVIEW

PLANNING AND ENVIRONMENTAL

Judicial review – Extension of time – Alternative remedy – Applicant seeking leave to apply for judicial review – Whether an extension of time should be granted

Facts: The applicant, Mr Mernagh, applied to the High Court seeking leave to apply for judicial review to challenge two decisions of the respondent, Wexford County Council (the Council), relating to the compulsory acquisition of the applicant’s lands located at Ballynagee, Laurstown, Pembrokestown and Moorfields, County Wexford, namely: (i) the decision of the Council, dated 9 January 2023, to make County Wexford Compulsory Purchase Order No. 01 of 2023 in respect of lands at Ballynagree, Laurstown, Pembrokestown and Moorfields in the County of Wexford (the CPO); and (ii) the decision of the Council, dated 21 June 2023, to confirm the CPO. The making and confirmation of the CPO authorised the Council to compulsorily acquire land which included 21.6171 hectares of farmland in the ownership of the applicant: “for the purposes of the performance of the local authority’s functions and to facilitate the development of a [South-East Technological University (SETU)] Campus and inner relief road within County Wexford.” In his proceedings, the applicant contended, inter alia, that the CPO made and confirmed by the Council did not satisfy s. 213(3)(a) of the Planning and Development Act 2000 because instead of the purposes for which the CPO was stated to have been made and confirmed, the land captured by the terms of the CPO had been acquired as part of a strategic landbank and/or may be used to create or develop a multi-purpose sports and community facilities which were not purposes specified when the CPO was made or purposes directed to the discharge of Council functions. It was contended that the CPO was ultra vires insofar as the land had been compulsorily acquired for a purpose in no way connected to the SETU campus, the contemplated inner relief road and/or the ancillary function of the Council. The Council contested the leave application on two grounds. Firstly, they contended that it was time barred and an extension of time should not be granted. Secondly, they maintained that the applicant failed to exhaust the alternative remedy available to him before An Bord Pleanála in respect of the decision to make the CPO in January 2023.

Held by Phelan J that s. 50A(3)(a) of the 2000 Act provides that the Court shall not grant s. 50 leave unless it is satisfied that there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed. She held that s. 50A(3)(b) makes demonstration of a “sufficient interest” to the Court’s satisfaction a precondition to the grant of leave. Although she was satisfied that the applicant met the sufficient interest test and had demonstrated substantial grounds within the meaning of s. 50, Phelan J was not satisfied that the applicant met the criteria under s. 50(8) for an order extending time for a challenge to decisions made in January and June 2023 in respect of proceedings belatedly filed in August 2024. Phelan J held that the applicant was separately disentitled to leave in respect of any challenge to the January 2023 decision by reason of a failure to engage with the alternative remedy provided under s. 50A(3)(c).

Phelan J refused leave and dismissed the proceedings.

Leave refused.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 29 ^th day of May, 2025.

INTRODUCTION

1 . On this application, the Applicant seeks leave to apply for judicial review to challenge two decisions of Wexford County Council (hereinafter “the Council”) relating to the compulsory acquisition of the Applicant's lands located at Ballynagee, Laurstown, Pembrokestown and Moorfields, County Wexford, namely:

• (i) the decision of the Council, dated the 9 ^th of January, 2023, to make County Wexford Compulsory Purchase Order No. 01 of 2023 in respect of lands at Ballynagree, Laurstown, Pembrokestown and Moorfields in the County of Wexford (hereinafter the “CPO”); and

• (ii) the decision of the Council, dated the 21 ^st of June, 2023, to confirm the CPO.

2 . The making and confirmation of the CPO authorised the Council to compulsorily acquire land which included 21.6171 hectares of farmland in the ownership of the Applicant:

“for the purposes of the performance of the local authority's functions and to facilitate the development of a SETU Campus and inner relief road within County Wexford.”

3 . In his proceedings, the Applicant contends, inter alia, that the CPO made and confirmed by the Council does not satisfy s. 213(3)(a) of the Planning and Development Act, 2000 (as amended) (hereinafter “the 2000 Act”) because instead of the purposes for which the CPO was stated to have been made and confirmed, the land captured by the terms of the CPO has been acquired as part of a strategic landbank and/or may now be used to create or develop a multi-purpose sports and community facilities which are not purposes specified when the CPO was made or purposes directed to the discharge of Council functions. It is contended that the CPO is ultra vires insofar as the land has been compulsorily acquired for a purpose in no way connected to the SETU campus, the contemplated inner relief road and/or ancillary function of the Council.

4 . The Council contest this leave application on two grounds. Firstly, they contend that it is time barred and an extension of time should not be granted. Secondly, they maintain that the Applicant failed to exhaust the alternative remedy available to him before An Bord Pleanála in respect of the decision to make the CPO in January, 2023.

BACKGROUND

5 . The Applicant is a dairy farmer who farms on lands located to the south-west of County Wexford. Following a request from the former Institute of Technology Carlow (ITC) to assist in the identification of a suitable Wexford campus site in 2017, a site assessment report was prepared which considered 12 site options and an analysis of the merits of each of each based upon a number of criteria such as zoning; connectivity, servicing and development potential etc.

6 . A site comprising land owned by the Applicant and a separate named individual scored highly as being an appropriate site location for the development of a university campus in Wexford town. Sometime around this time the Applicant became aware that the Council was interested in acquiring land from him for the proposed development of a campus for the South-East Technological University (hereinafter “SETU”). There was inter partes communication in this regard from as early as 2019, ever before the making of a CPO was pursued.

7 . By letter of offer dated the 4 ^th of April, 2022, the Council followed up on this communication by confirming a wish to voluntarily acquire certain lands from the Applicant. This letter indicated the Council's support for the development of a campus for use by the SETU and identified some 48.5 acres of lands at Ballynagee as of interest to it for this purpose.

8 . In this letter, the Applicant was advised of the existence of an “ outline plan to develop an access road and to extend facilities infrastructure” and the terms of a valuation completed by the Valuation Office. The Council made a monetary offer in the sum of this valuation.

9 . There may have been some without prejudice negotiation following receipt by the Applicant of this letter in April, 2022, but it is common case that there was no agreement and the Council's offer was not accepted by the Applicant.

10 . In the absence of agreement for voluntary sale of the land, on the 9 ^th of January, 2023, the Council issued a statutory CPO Notice regarding the making of a CPO under s. 76 and the Third Schedule to the Housing Act, 1966 (as amended and extended) in respect of the Applicant's lands at Ballynagee, Laurstown, Pembrokestown and Moorsfield, Wexford Rural, Co. Wexford.

11 . The cover letter referred to a land acquisition map and schedule prepared in respect of the scheme which was said to be on display and available to view at the County Hall from the 11 ^th of January, 2023 and confirmed that the Compulsory Acquisition would be published in the local papers on that date.

12 . The CPO Notice stated that, if confirmed, the CPO would authorise the Council to acquire the land identified in the Schedule compulsorily:

“ for the purposes of the performance of the local authority's functions and to facilitate the development of a SETU campus and inner relief road within County Wexford.”

13 . The lands in question were identified as Folio or Plot No. 102 comprising 2.079 ha and Folio or Plot 102A comprising 19.538 ha – this amounted to some 53.4 acres in total, an increase from the land area indicated in the letter of offer.

14 . It was indicated within the CPO Notice that any submissions or objections regarding the proposed CPO could be submitted to An Bord Pleanála prior to the 27 ^th of February, 2023. The CPO Notice further notified the Applicant that An Bord Pleanála could not confirm a CPO in respect of the lands if an objection was made in respect of the acquisition by an owner, unless the objection were subsequently withdrawn, without an oral hearing into the matter and until it has considered the objection and the report of the person who held the oral hearing. The Applicant was specifically referred to the provisions of ss. 214, 215, 215A, 215B, 215C and 218 of the 2000 Act.

15 . On the 16 ^th of January, 2023, the Council wrote to An Bord Pleanála and through this correspondence sought approval for the proposed CPO. By letter dated the 17 ^th of January, 2023, An Bord Pleanála wrote to the Council with reference to their application for confirmation of the...