Thomson v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 24 July 2023
• Neutral Citation: [2023] IEHC 431
• Court: High Court
• Docket Number: [2022 No. 1039 JR]

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000

Between

Peter Thomson and Doreen Thomson

Applicants

and

An Bord Pleanála

Respondent

and

Eircom Limited

Notice Party

[2023] IEHC 431

[2022 No. 1039 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Judicial review – Extension of time – Applicants seeking an order of certiorari quashing the decision of the first respondent to grant planning permission – Whether there was good and sufficient reason to extend time

Facts: The applicants, Mr and Ms Thomson, applied to the High Court seeking an order of certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986 as amended and s. 50 of the Planning and Development Act 2000 as amended quashing the decision of the first respondent, An Bord Pleanála (the Board), dated 17 June 2021, to grant permission for erection of a 15m high mobile phone mast at Kells, County Kilkenny. The core grounds were as follows: (1) the Board decision was invalid because the Board was affected by bias or the appearance of bias; (2) the Board decision was invalid because the Board members involved in taking the decision failed to comply with the provisions of the Code of Conduct, contrary to s. 150(1) of the 2000 Act; (3) the Board decision was invalid because Mr Hyde entered into a composition or arrangement with creditors as a result of which he was deemed pursuant to s. 106(13)(d) of the 2000 Act to have ceased to be a member; (4) the Board decision was invalid because the Board erred in law in its interpretation of paragraph 9.4.2.1 of the 2014 development plan, and/or failed to have any or any adequate regard to the Ministerial Guidelines in breach of s. 28 of the 2000 Act, and/or failed to give any or any adequate reasons for its departure from Ministerial Guidelines and the requirements of the 2014 development plan in breach of s. 34(10) of the 2000 Act; (5) there was good and sufficient reason to extend time for the bringing of the application for leave to apply for judicial review, and the circumstances of same were outside the control of the applicants, in accordance with s. 50(8) of the 2000 Act; (6) the applicants were entitled to the protection against costs conferred by s. 50B of the 2000 Act and/or ss. 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011; and (7) the Court should stay the re-erection of the development, and/or require removal of the development insofar as same may have been re-erected.

Held by Humphreys J that he probably would have regarded mid-June (a few weeks from 12th May, 2022 to allow for obtaining the minutes) as being the latest date on which the applicants had (or a reasonably diligent applicant would have had) sufficient information to bring proceedings; eight weeks from then expired in mid-August, 2022. Humphreys J held that the applicants were out of time and had not established that there was good and sufficient reason to extend time. Humphreys J held that the law, validly enacted by the Oireachtas, provides for a time limit and for criteria for extending that, citing In re Planning and Development Bill 1999 [2000] IESC 20. Humphreys J held that those criteria were not met in this case. Humphreys J held that the potential merits of the important points raised by the applicants were not sufficient to overcome that. Humphreys J found that to extend time would be unfair to the commercial interests involved. Humphreys J held that the developer was entitled to rely on its permission unless there was a clear case for a belated challenge. The Court also bore in mind the various structural asymmetries in planning law in favour of applicants, and balanced those with a reasonably strict approach to time in a commercial context.

Humphreys J ordered that: (i) the order granting an extension of time and granting leave to apply for judicial review be set aside and in lieu thereof there be an order refusing the application for an extension of time and refusing leave to apply for judicial review; (ii) the notice party, Eircom Ltd, be released from their undertaking not to proceed with the development, with effect from the perfection of the order; and (iii) unless any party applied otherwise by written legal submission within 7 days, the foregoing order be perfected forthwith thereafter on the basis of no order as to costs.

Relief refused.

JUDGMENT of Humphreys J. delivered on the 24th day of July, 2023

Facts prior to the impugned decision

1 . On 25th June, 2020, the developer applied to Kilkenny County Council for permission to erect a telecommunications mast. The council validated the application on 1st July, 2020. The applicants made a submission to the council objecting to the development.

2 . The council's senior executive planner prepared a report. That report concluded that due to the location of the proposed development within the village of Kells, close to existing dwellings and amenities, and having regard to its height and bulk, it would be visually obtrusive, and she felt that the developer had not demonstrated that this was the most suitable site for a mast.

3 . A note at the end of the planner's report said that the council should request further information, which it did. That was responded to, and the senior planner then prepared an updated report in which reference was made to section 4.3 of the ministerial guidelines (Telecommunications Antennae and Support Structures, Guidelines for Planning Authorities, July 1996) which states that the visual impact of antennae is an important consideration, and that various areas, including archaeological sites, architectural conservation areas and listed buildings, should be avoided. The report emphasised that the ministerial guidelines also state that “only as a last resort should free-standing masts be located within or in the immediate surrounds of towns or villages,” and that the antennae support structure should be “kept to a minimum height consistent with effective operation”. Refusal of permission was recommended.

4 . In line with that, on 26th November, 2020, the council decided to refuse permission.

5 . On 17th December, 2020, the developer appealed, arguing that there was a coverage blackspot and that co-location on masts of other companies would not provide coverage. It argued that the mast use was established at the site of the proposed development. In relation to co-location, it said it was prepared to share its new mast with other operators.

6 . The council made a submission to the board. It argued that 5 other telecommunications operators had good to very good coverage in Kells, and that the developer should co-locate on their masts. The applicants also made a submission.

7 . The board's inspector recommended refusal of permission on the basis of the ministerial guidelines, in particular para 4.3 which advises that permission should only be granted as a last resort for masts in towns and villages.

8 . The board disagreed with all of the foregoing and adopted a decision on 17th June, 2021, granting permission.

Facts after the impugned decision

9 . The Applicants say in the statement of grounds (factual paras. 25 and 26) that:

“… they considered challenging the validity of the Board's Decision. They felt that the Board Decision did not align with the Ministerial Guidelines. The Guidelines make it clear that visual impact is a serious issue. The Board did not address the policy of only allowing development in towns and villages as a last resort. Kells is a village. It has architectural conservation significance and indeed now contains an architectural conservation area under the 2021 Development Plan, adopted in November 2021. (The designation is made under Section 81 of the 2000 Act.) The Applicants considered the Board erred in law in its approach to co-location: it accepted the irrelevant reasoning offered by the Developer that the proposed mast would be made available to other operators, whereas the Ministerial Guidelines make clear that it is co-location on existing masts that must be ruled out before a new mast will be allowed. Clustering of masts must also be ruled out. Accordingly, the Proposed Development did not even approach the threshold required for justification of a new mast in a village. The Applicants considered that the Board had failed to offer adequate reasons, had failed to direct itself correctly in law as to the proper interpretation of the Plan and the Ministerial Guidelines, and had acted irrationally and unreasonably.

They considered challenging the validity of the Board Decision, but ultimately decided not to, predominantly in light of the costs risk which could materialise. The First Named Applicant also had a concern at the time given his position as a private planning consultant with many dealings with An Bord Pleanála and his concern that his challenge of the Board could lead to repercussions for his clients and his business.”

10 . On 11th August, 2021, the 8-week period to challenge the decision under s.50(6) of the Planning and Development Act 2000 expired.

11 . The developer began construction of the development, but the applicants complained that it had failed to build the project in accordance with the permission. On 15th November, 2021, the applicants complained to the council about alleged non-compliance with the permission. They alleged a series of breaches, including that the foundation was in the wrong location. They sent copies of the complaint to Eircom and its contractor, Delmec.

12 . On 17th November 2021, the applicants submitted an application for a declaration under s. 5 of the 2000 Act questioning the works by reference to the permission.

13 . On 1st December, 2021, the council issued a warning letter to the developer regarding the alleged unauthorised location of the foundation.

14 . On 17th December, 2021, the developer made a submission to the...