Judgment Title: Bracken & Ors -v- Meath County Council & Ors
Neutral Citation: 2012 IEHC 196
High Court Record Number: 2012 71MCA
Date of Delivery: 04/27/2012
Court: High Court
Composition of Court:
Judgment by: Birmingham J.
Status of Judgment: Approved
Neutral Citation Number  IEHC 196
THE HIGH COURT
2012 No. 71MCA
CATHERINE BRACKEN, BRIAN BYRNE, CAROLINE BYRNE AND SHELLY RAFFERTY
MEATH COUNTY COUNCIL
NAVAN TOWN COUNCIL
JAMES NOEL BURNS, KATHLEEN BURNS AND NUALA BURNS
JUDGMENT of Mr. Justice Birmingham delivered the 27th day of April, 2012
1. Before the Court is an application brought by the respondents seeking to dismiss judicial review proceedings commenced by the applicants on the basis that those proceedings have been brought outside the time provided by s. 50(6) of the Planning and Development Acts, 2000 to 2010 and that there is no basis for an extension of time for the bringing of proceedings pursuant to s. 50(8).
2. To put the application now before the Court in context, it should be explained that judicial review proceedings have been issued by the applicant seeking to challenge a decision of the respondents pursuant to s. 5 of the Planning and Development Act, declaring certain developments to be exempted development. I am referring to the declaration of the respondents without being more specific, though there is some controversy whether the decision was that of Meath County Council or Navan Town Council, the matter is complicated by boundary changes, but the issue is of no particular significance in the context of the present application. The effect of the declaration under challenge was to permit the substitution of two glass windows on a gable end with obscured glass with a single window, also with obscured glass.
3. The statutory provisions in issue would appear to be these. Section 50(6):-
4. The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in that subsection may be made, but shall only do so if it is satisfied that:-
(b) The circumstances that resulted in the failure to make application for leave within the period so provided were outside the control of the applicant for the extension."
(2) The 9th May 2011 - a decision by the respondents in the present proceedings to declare the development exempt.
(3) The 10th May 2011 - details of decision entered upon the planning register.
6. The next development of some relevance is that on the 8th September 2011, the first named applicant noticed activity at the gable end in the form of the removal of bricks.
7. What was observed happening on the gable end resulted in a letter being sent by the solicitors for the applicants in the judicial review proceedings seeking undertakings and threatening proceedings in default of a satisfactory response. In the absence of any response, on the 24th October 2011, proceedings pursuant to s .160 of the Planning and Development Act were issued by the applicants against the notice parties. These proceedings were made returnable on 29th November 2011, before the Circuit Court.
8. There was a very significant development on 17th November 2011, in that on that day the solicitor for the notice parties informed his opposite number, the solicitor for the applicants that as. 5 declaration had been sought and obtained and that the notice party would be relying on it. This was confirmed by fax.
9. On the same day the applicant's solicitor went to the planning section of Meath County Council and confirmed that the position was indeed as he had been told.
10. At that stage the applicants were already out of time by some four months and would require an extension of time if judicial review proceedings were to be launched successfully. One might have thought that proceedings would have been launched immediately and that there would have been an application to extend time. That did not happen. Instead, it seems a decision was taken to defer action until a replying affidavit from the notice parties became available in the Circuit Court proceedings. That happened on the 19th January 2012. The procedure followed thereafter was slightly unusual in that the applicants issued a Motion on Notice dated 28th February 2012, made returnable for the 26th March 2012. However on the 12th March 2012, the matter was brought before Ryan J. on a ex-parte basis, who directed that the application should proceed on notice.
11. The respondents and moving party point to the period of time that has been permitted to elapse and says that in these circumstances there is no good or sufficient reason for extending time and that it cannot be said that the circumstances that resulted in the failure to make an application were outside the control of the applicant's for judicial review. It is said this is clearly so if one has regard to the time that was allowed elapse since the 4th July 2011, which was the statutory deadline for bringing the judicial review application, but that even if one was minded to indulge the applicants and take the view that the period until the 17th November 2011, when the applicant's solicitor was informed of the fact that a declaration had been made, should be excluded from consideration, then even on that basis there had been very considerable delay since then which ought not be excused.
12. The applicants on the other hand, object to the procedure that has been adopted by the moving party and say that this is not one that was ever contemplated by the rules of the Superior Courts. The procedure adopted is one that seeks to circumvent the rules, they contend.
13. The applicants say that the Court should have regard to the merits of their case, which they contend is a particularly strong one, in deciding how to deal with the issues raised in relation to time limits. They say that the Order which they seek to challenge was clearly made in breach of Regulation 9 of the Planning Regulations 2001 which provides that:-
(a) If the carrying out of such development would-
14. Furthermore, it is argued on behalf of the applicants that it was reasonable for them to await the replying affidavit. They urge that the requirement that the circumstances that caused the application to be out of time should be beyond the control of the applicant's should be interpreted in a liberal manner, favourable to applicants. They say that if this is done, then the circumstances were outside the control of the applicants, as they were not in control of when the notice parties would deliver a replying affidavit in the Circuit Court proceedings.
15. In my view the notice of motion that has been issued tends to conflate two issues:(1) proposing that the applicants' request for an extension of time be dealt with as a preliminary issue and (2) deciding whether the application to extend time should succeed or whether the proceedings should be dismissed, as the respondents urge. In my view, this is not a procedure to be encouraged. In the case of B.T.F v. The DPP 2 I.R. 559, the Supreme Court reversed the decision of the High Court to deal with the issue of delay on the part of the prosecutor in applying for judicial review as a preliminary issue. The Supreme Court was of the view that having regard to the list of factors that a court had to consider in an application to extend time it would not normally be appropriate to try such a matter as a preliminary issue. It must be said that the case was a complex one raising for consideration questions relating to both prosecutorial delay and applicant delay. In the course of his judgment (at p. 566) Hardiman J. commented:
17. On the 5th April, 2012 in response to an affidavit sworn on the 21st March, 2012 by a senior executive officer of the planning department of Meath County Council, the solicitor for the applicants swore an affidavit, the conclusion of which was in these terms:
18. Turning to the substantive issue, in this case the applicants were completely unaware of the declaration that has been made until the 17th November, 2011. In the circumstances of this case and, in particular, given the history surrounding the development which had seen Circuit Court proceedings commenced by the applicant's late mother and compromised, there can be no question of the applicants being out of time and refused an extension, before they were aware of the declaration. However, once they learnt of the Declaration of Exemption it was incumbent on them to move with all possible expedition. This they singularly failed to do. I find the explanation of waiting for a replying affidavit in the Circuit Court proceeding quite unconvincing. In mid/late November the applicants found themselves affected by a decision made more than six months earlier. If they were to succeed in mounting a challenge, no further time could be lost, but instead further time was allowed to pass, including approximately five weeks after the replying affidavit was delivered in the Circuit Court.
18. In my view the good and substantial reasons which would have justified extending time ceased to have effect around the 8th December or thereabouts and thereafter there were not good and substantial reasons in existence justifying an extension of time. Moreover, from a date fairly shortly after the 17th November, 2011 it was very plainly, to echo the language of Hardiman J., not the situation that the failure to commence judicial review proceedings was due to circumstances beyond the applicants' control. Far from that being the case, the applicants, on their own account, consciously and deliberately decided to defer action. In these circumstances it is very plain that the applicants cannot hope to meet the requirements of s. 50(8)(b) and in these circumstances I must accede to the respondents' application.