Thompson and Another v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 08 November 2024
• Neutral Citation: [2024] IEHC 639
• 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)

Between

Alex and Shahla Thompson

Applicants

and

An Bord Pleanála, Ireland and The Attorney General (By Order)

Respondents

and

Kathy and Barry O'Donnell

Notice Parties

[2024] IEHC 639

[H.JR.2023.0000975]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning – Judicial review – Time limits – Applicants seeking declaratory relief – Whether s. 50 and/or s. 146 of the Planning and Development Act 2000 and/or regulation 74 of the Planning and Development Regulations 2001 is contrary to European law

Facts: The applicants, Mr and Ms Thompson, applied to the High Court seeking: a declaration that s. 50 and/or s. 146 of the Planning and Development Act 2000 and/or regulation 74 of the Planning and Development Regulations 2001 is contrary to European law; in the alternative, a declaration by way of application for judicial review that the second and third respondents, Ireland and the Attorney General, failed to adequately transpose the EIA Directive.

Held by Humphreys J that, to assist the progression of the matter it was appropriate to identify the sub-questions involved - Whether arts. 41 and/or 47 of the EU Charter of Fundamental Rights and/or arts. 6 and/or 11 of Directive 2011/92/EU read in the light of the general EU law principle of legal certainty and/or arts. 6 and/or 9 of the Aarhus Convention as approved on behalf of the European Community by Council decision 2005/370/EC have the effect, in the context of a challenge to a development consent for a project where EIA was rejected at preliminary examination stage under national law corresponding to art. 4(3) of the EIA directive and AA was screened out: (i) of requiring either the specification in the domestic law of a member state of a reasonably contemporaneous, or any, time limit for each channel of notification of a decision if domestic law provides that the time for challenge runs from the date of the decision rather than its notification, or alternatively of requiring provision in the domestic law of a member state for time to run from notification in respect of any decision where the time for any channel of notification is discretionary; (ii) of requiring the domestic law of a member state to make provision for a power, in the event that the national authorities fail to notify a participant in the process of a decision within the period specified in domestic law in respect of any channel of notification so specified, to extend the limitation period for the bringing of the challenge for such limited period as is required to compensate for the time lost between the date on which the applicant ought to have been notified and the date on which she was notified and/or otherwise became aware of the decision; (iii) of precluding a member state from excluding by its domestic law the possibility of extension of time to bring the challenge in circumstances where the applicant fails to show that they could not have brought the proceedings prior to the expiry of the limitation period even in the event that the national authorities fail to notify a participant in the process of a decision within the period specified in domestic law in respect of any channel of notification so specified.

Humphreys J requested the parties to deliver a written summary of their position on each sub-question in the following format within one week (for the applicants) and two further weeks (for the State): (i) a brief summary of the party’s answer (c. 200 words); (ii) the party’s position on whether the question is acte clair and reasons for that position; and (iii) a longer elaboration of the answer if the party so wishes.

Submissions directed.

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 8th day of November 2024

1 . In broad terms, the law as to time limits in judicial review of planning cases is clear. An applicant has eight weeks from the date of the decision, not the date of knowledge or notification, to challenge a planning outcome, and cannot obtain an extension of time unless she was first of all unable to bring the proceedings within that period – good and sufficient reason for an extension is an additional hurdle, not an alternative one (s. 50(8)(b) of the Planning and Development Act 2000). Such a rule is, in general, regarded as both equivalent and effective for the purpose of EU law. So that's it? Apparently not, because the applicants here contend that they have found a new opening based on a new argument – the discretionary nature of the notification requirements and the board's failure to comply with them here. The issue addressed in the present judgment is not to definitively answer that but to address some initial objections and procedural matters, and thereby winnow down the matter to identify the net substantive questions for further and more focused written submissions.

Judgment history

2 . In ( [2024] IEHC 101 Thompson v. An Bord Pleanála (No. 1) Unreported, High Court, 26th February 2024), I held that, leaving aside arguments based on EU law, the proceedings were one day late and the statutory provision for extension of time was not satisfied, and I directed the applicants to put the State on notice of their claim that the legal framework as to time for judicial review was contrary to EU law.

3 . I am now dealing with that claim on a modularised basis (that is, we are not dealing with the actual merits of the challenge, which depend on the applicants being in a position to advance the challenge in the first place).

Geographical context

4 . The site in question (for which the impugned permission provides for sub-division, the provision of a single story infill dwelling to the rear, amendments to the exiting boundary treatment to the side and rear, the provision of two 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) is situated at Howth Road, Sutton, Dublin 13.

Facts

5 . The applicants are scientists, the first named applicant being an emeritus professor and the second named applicant being a retired geneticist.

6 . On 14th March 2022, the notice party lodged the application with Fingal County Council.

7 . 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.

8 . The council then decided to grant permission with conditions, on foot of a planning report dated 28th September 2022.

9 . On 26th October 2022, the applicants appealed to the board.

10 . 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.

11 . On 22nd May 2023, the respondent's inspector carried out a site inspection.

12 . On 24th May 2023, the inspector issued his report. The report contains a screening analysis for the purposes of the environmental impact assessment ( EIA) and appropriate assessment ( AA) directives concluding that due to the limited nature and scale of the project and the distance from sensitive sites and lack of connectivity thereto it would be unlikely to have significant effects on the environment or on European sites. Accordingly:

• (i) EIA was ruled out at preliminary examination stage and no screening was required; and

• (ii) AA was ruled out after screening.

13 . On 29th May 2023, the board wrote again to the applicants indicating that the matter would be further delayed.

14 . 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.

15 . The board order that is the formal decision, is dated 28th June 2023.

16 . The board then has a requirement to provide notification of the decision through three specific channels:

• (i) making available the file for inspection at its office within three days – that presumably happened but it doesn't constitute notice because that in itself doesn't inform anybody of anything – they would have to know that the decision had been made;

• (ii) making the papers available online or elsewhere as the board decides (and the board's consistent policy and practice is to do so on its website – as stated in its published guidance on public access to decision files, noted in Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27 at para. 113) within three days (that ran from (i.e. including) Wednesday 28th June 2023 and expired on Friday 30th June 2023) – that didn't happen until seven days after the decision (on Wednesday 5th July 2023); and

• (iii) notifying the participants in the process as soon as may be (no time limit specified in law) – notice wasn't sent for five days (posted to the applicants on Monday 3rd July 2023), arriving six days later (received on Tuesday 4th July 2023).

17 . Thus the first meaningful notice received by the applicants was on 4th July 2023, which was four days after the web publication should have happened.

18 . The applicants requested a hard copy of the inspector's report and received that on 5th July 2023.

19 . 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 eight days left to bring the proceedings.

20 . The applicants also say that they were busy during that period including due to an unfortunate...