Significant Delay Fatal To Judicial Review

Author:Ms Alice Whittaker
Profession:Philip Lee Solicitors

In an interesting judgment delivered by Mr Justice David Barniville in the High Court on 24 January 2018 in SC SYM Fotovoltaic Energy SRL v Mayo Co Council, Aeolus Wind Farms Limited and ESB Networks Limited the Court held that there was no 'good and sufficient reason' for a significant delay in applying for judicial review of a planning decision.

Time-limit for judicial review

In the ordinary course, an application for judicial review of a planning decision must be made within eight weeks of the decision - section 50(6) of the Planning and Development Act 2000, as amended (the 2000 Act). However, in certain limited circumstances the Court may grant an extension of time - section 50(8) of the 2000 Act.

The planning decision at issue in this case was a declaration of Mayo Co Council pursuant to section 5 of the 2000 Act, that a proposed development consisting of the laying of underground electrical cabling between an existing EirGrid substation and a proposed new windfarm substation, was exempted development. The planning decision was made on 6 June 2017 but the application for judicial review was not made until 2 October 2017, some 17 weeks later.

Extension of time

The Court held that the Applicant would have to satisfy the requirements of section 50(8) of the 2000 Act, namely that:

there is 'good and sufficient' reason for extending the period of eight weeks, and that the circumstances giving rise to the delay were outside the control of the Applicant. The Court found that the Applicant or its agents had all of the essential information on which to ground an application for judicial review on by 2 August 2017, and that the delay between 2 August and 2 October 2017 was 'particularly significant' when added to the statutory eight week period, and when compared with the much less significant periods of delay in other cases in which the Court has granted an extension of time.

The Court was not satisfied that the Applicant had established 'good and sufficient' reasons for the delay, and that the steps it took after 2 August 2017 were not necessary in order to commence the application for judicial review. Whilst the Court took account of the fact that the Applicant is a Romanian company and was therefore somewhat disadvantaged by geography, the Applicant had legal and technical advisers 'on the ground' acting on its behalf who were aware, or ought to have been aware, of the need to act without delay.

The works carried out under the Section 5...

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