Thompson and Another v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 26 February 2024 |
| Neutral Citation | [2024] IEHC 101 |
| Court | High Court |
| Docket Number | [H.JR.2023.0000975] |
In the Matter of Sections 50 and 50A of the Planning and Development Act 2000 (As Amended)
and
[2024] IEHC 101
[H.JR.2023.0000975]
THE HIGH COURT
PLANNING & ENVIRONMENT
JUDGMENT of Humphreys J. delivered on Monday the 26th day of February, 2024
. An express statutory provision and a mountain of existing caselaw makes clear that time to challenge a normal planning decision runs from the date of the decision. The applicants, who have not shown that they could not have moved within time, were one day late in bringing their challenge on a conventional reading of the law. They now claim that the statute should be interpreted contrary to its settled meaning, or alternatively that time should be extended. Their fall-back argument is that the ordinary application of the time requirement collides with the requirements of EU law.
. The applicants are academic scientists, the first named applicant being an emeritus professor and the second named applicant being a retired geneticist.
. On 14th March, 2022 the notice party lodged the application with Fingal County Council for the sub-division of an existing site, the provision of a single story infill dwelling to the rear of the site, amendments to the exiting boundary treatment to the side and rear of the site, the provision of 2 parking spaces to serve the proposed dwelling, landscaping and a new connection to the existing waste water and water supply and all associated site works at an address on Howth Road, Sutton, Dublin 13.
. On 28th April, 2022, the council issued a request for additional information and subsequently issued public notices in respect of additional information on 19th August, 2022.
. The council then decided to grant permission with conditions, on foot of a planning report dated 28th September, 2022.
. On 26th October, 2022, the applicants appealed to the board.
. On 8th March, 2023 the board wrote to the applicants indicating that the appeal would not be decided within the target time-frame of 18 weeks.
. On 22nd May, 2023, the respondent's inspector, Mr Bernard Dee, carried out a site inspection.
. On 24th May, 2023, the Inspector issued his report.
. On 29th May, 2023, the board wrote again to the applicants indicating that the matter would be further delayed.
. The application was considered at a meeting of the board on 26th June, 2023, at which the board decided to grant planning permission for the development. The Board Direction is dated 26th June, 2023.
. The Board Order is dated 28th June, 2023.
. Regulation 74(1) of the Planning and Development Regulations 2001 provides:
“(1) The Board shall, as soon as may be following the making of a decision on an appeal or referral, notify any party to the appeal or referral and any person who made submissions or observations in relation to the appeal or referral in accordance with section 130 of the Act.”
. This doesn't specify any time limit.
. On the other hand there is a time limit for publication of the material by making it available at the board's office and on the website (or by other means if the board so decides, which generally it doesn't – see Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401). Section 146(5) and (6) of the 2000 Act provide:
“(5) Within 3 days following the making of a decision on any matter falling to be decided by it in performance of a function under or transferred by this Act or under any other enactment, the documents relating to the matter—
(a) shall be made available by the Board for inspection at the offices of the Board by members of the public, and
(b) may be made available by the Board for such inspection—
(i) at any other place, or
(ii) by electronic means,
as the Board considers appropriate.
(6) Copies of the documents referred to in subsection (5) and of extracts from such documents shall be made available for purchase at the offices of the Board, or such other places as the Board may determine, for a fee not exceeding the reasonable cost of making the copy.”
. Three days from a decision includes the day of the decision itself unless the context otherwise requires — see s. 18(h) of the Interpretation Act 2005:
“(h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;”
. The board points out that s. 146(5) of the 2000 Act here refers to 3 days “following” the decision. But “following” is encompassed within the concept of a “period … reckoned from a particular day”. The context certainly doesn't “require” a more favourable interpretation from the board's point of view. Applying that, the 3 days expired on Friday 30th June, 2023.
. The board's compliance with the foregoing was as follows:
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(i) as noted above, the three day requirement for making the material available under s. 146(5) ran from Wednesday 28th June, 2023 — that therefore expired on Friday 30th June, 2023;
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(ii) notice of the decision was posted to the applicants on Monday 3rd July, 2023;
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(iii) this was received on Tuesday 4th July, 2023;
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(iv) the report, direction and decision were published on the board's website on Wednesday 5th July, 2023 – 5 days out of time (and also out of time even if I am wrong about the application of s. 18(h)), albeit that the effect of that lateness insofar as concerns the applicants was somewhat blunted by the arrival of the letter the day before; and
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(v) the applicants requested a hard copy of the inspector's report and received that on 5th July, 2023.
. Following receipt of notice of the board's decision, the applicants didn't act with any noticeable speed for a month, during the period 5th July, 2023 to 4th August, 2023, and then took the (legally misconceived) step of corresponding with the board on the latter date, to ask if there was any other basis for the decision than that disclosed on the papers they had. Dissatisfied with a mere acknowledgement dated 15th August, 2023, they wrote again on 16th August, 2023 and only then decided to seek judicial review – at that point there were only 8 days left to bring the proceedings.
. The applicants also say that they had a lot on their plate in that period including an unfortunate illness of a relative. But without in any way minimising their difficulties, everybody has a lot on their plate all of the time (with the exception of a select few who have reached a state of enlightenment – something I can only speak of with second-hand knowledge). The applicants' difficulties in no way reached the level that would have precluded them acting within time – their real problem was that they mistakenly believed that time ran from notification (as they effectively admit in their joint affidavit at para. 25). One can't be too critical of their lawyers' failure to then bring the proceedings within time seeing as they only had barely more than a week to do so – moreover a week falling in the heart of August – the worst possible time. One might be forgiven for wondering whether – in an era where work-life balance is supposed to be a central feature of modern life, and where it is impossible to go for long without hearing civic and community leaders talking at length about mental health – there might be a case for a provision that time limits including for judicial review would be suspended during the month of August or other critical periods during which there must be a right to disconnect. That said, the court is primarily in the business of applying rather than making law, save where making is properly called for by established doctrines such as to resolve uncertainty, to deal with new and emerging questions not previously addressed, or to protect rights.
. Assuming (discussed below) that time starts from the date of the decision, the 8-week period expired on 22nd August, 2023
. The application for leave to apply for Judicial Review was opened on 23rd August, 2023 before Roberts J. at a vacation sitting of the High Court.
. A motion to admit to the present List (under its previous name) was first returnable on 16th October, 2023. On that date I was minded to grant it but it then transpired that the applicants had failed to notify the notice party of the motion in breach of the Practice Direction then applicable and contrary to the very nature of a notice of motion which requires to be served on the other parties. I then had to reverse my announced intention to admit the matter, and instead to adjourn it.
. The matter was put back to 6th November, 2023, to enable the applicants to rectify that non-compliance.
. On 6th November, 2023, all parties having been properly notified, the motion was granted without objection. Had there been an objection it would have been very borderline in terms of the commercial criteria for admission to the list that prevailed at that point (since removed). Leave was granted with an amended statement of grounds to be delivered within 1 week and the originating notice of motion was made returnable for 2 weeks.
. By letter dated the 8th December, 2023, the Respondent proposed the following directions:
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(i) board Opposition Papers due – 8th February, 2024 (excluding Christmas period);
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(ii) notice Party Papers due – 15th February, 2024;
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(iii) any Replying Affidavit by the Applicants due – 7th March, 2024;
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(iv) any Further Replying Affidavit by any other party due – 21st March, 2024; and
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(v) matter to be listed For Mention – 8th April, 2024.
. On 11th December, 2023, the board indicated to the...
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