[2025] IEHC 161
THE HIGH COURT
PLANNING & ENVIRONMENT
[H.JR.2023.0000975]
IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)
BETWEEN
ALEX THOMPSON AND SHAHLA THOMPSON
APPLICANTS
AND
AN COIMISIÚN PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL (BY ORDER)
RESPONDENTS
AND
X.X. AND Y.X.
NOTICE PARTIES
AND
FRIENDS OF THE IRISH ENVIRONMENT (BY ORDER) AND PROTECT EAST MEATH LIMITED (BY ORDER)
AMICI CURIAE
(No. 4)
JUDGMENT of Humphreys J. delivered on Friday the 21st day of March 2025 (as revised on Friday the 4th day of July 2025)
"Article 41
Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.
2. This right includes:
– the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
– the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
– the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.
...
Article 47
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."
"1. Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences are given an opportunity to express their opinion on the information supplied by the developer and on the request for development consent, taking into account, where appropriate, the cases referred to in Article 8a(3). To that end, Member States shall designate the authorities to be consulted, either in general terms or on a case-by-case basis. The information gathered pursuant to Article 5 shall be forwarded to those authorities. Detailed arrangements for consultation shall be laid down by the Member States.
2. In order to ensure the effective participation of the public concerned in the decision-making procedures, the public shall be informed electronically and by public notices or by other appropriate means, of the following matters early in the environmental decision-making procedures referred to in Article 2(2) and, at the latest, as soon as information can reasonably be provided:
(a) the request for development consent;
(b) the fact that the project is subject to an environmental impact assessment procedure and, where relevant, the fact that Article 7 applies;
(c) details of the competent authorities responsible for taking the decision, those from which relevant information can be obtained, those to which comments or questions can be submitted, and details of the time schedule for transmitting comments or questions;
(d) the nature of possible decisions or, where there is one, the draft decision;
(e) an indication of the availability of the information gathered pursuant to Article 5;
(f) an indication of the times and places at which, and the means by which, the relevant information will be made available;
(g) details of the arrangements for public participation made pursuant to paragraph 5 of this Article.
3. Member States shall ensure that, within reasonable time-frames, the following is made available to the public concerned:
(a) any information gathered pursuant to Article 5;
(b) in accordance with national legislation, the main reports and advice issued to the competent authority or authorities at the time when the public concerned is informed in accordance with paragraph 2 of this Article;
(c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information ( 7 ), information other than that referred to in paragraph 2 of this Article which is relevant for the decision in accordance with Article 8 of this Directive and which only becomes available after the time the public concerned was informed in accordance with paragraph 2 of this Article.
4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken.
5. The detailed arrangements for informing the public, for example by bill posting within a certain radius or publication in local newspapers, and for consulting the public concerned, for example by written submissions or by way of a public inquiry, shall be determined by the Member States. Member States shall take the necessary measures to ensure that the relevant information is electronically accessible to the public, through at least a central portal or easily accessible points of access, at the appropriate administrative level.
6. Reasonable time-frames for the different phases shall be provided for, allowing sufficient time for:
(a) informing the authorities referred to in paragraph 1 and the public; and
(b) the authorities referred to in paragraph 1 and the public concerned to prepare and participate effectively in the environmental decision-making, subject to the provisions of this Article.
7. The time-frames for consulting the public concerned on the environmental impact assessment report referred to in Article 5(1) shall not be shorter than 30 days."
"1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively;
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.
3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To that end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2) shall be deemed sufficient for the purpose of point (a) of paragraph 1 of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of point (b) of paragraph 1 of this Article.
4. The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
5. In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures."
"1. Each Party:
(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;
(b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; and
(c) May decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes.
...
9. Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based."
"3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment."
"(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.
(7) [not applicable]
(8) 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—
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension."
"(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding."
(i) if the applicant does not know of the decision at the outset of the eight weeks, but learns of it during that period in sufficient time to be capable of bringing a challenge before the expiry of the period, then they have the balance of the eight weeks but no more and are not eligible for an extension of time if they fail to do so, because that failure was not outside their control (that is the effect of the mandatory and cumulative nature of section 50(8)(a) and (b) of the 2000 Act); and
(ii) if the applicant learns or was only capable of learning with reasonable diligence of the decision either so late in the eight-week period that it is not possible to challenge the decision by the end of that period, or after the expiry of that period, then not only are they eligible for an extension of time but they should be given an extension equivalent to a full period of eight weeks running from the date they knew or ought to have known of the decision: see:
i. Arthropharm (Europe) Ltd v. The Health Products Regulatory Authority [2022] IECA 109, [2022] 5 JIC 1003 (Unreported, Court of Appeal, Murray J., 10 May 2022) (https://www.courts.ie/view/Judgments/30ce7673-a959-48e7-a1fd-84761c3f9b87/793fc333-b735-4a12-b688-c02a77a0c6b7/2022_IECA_109.pdf/pdf);
ii. Marshall v. Kildare County Council [2023] IEHC 73, [2023] 2 JIC 1705 (Unreported, High Court, Humphreys J., 17 February 2023) (https://www.courts.ie/view/judgments/aefb9f12-1827-4bbe-9cb6-684b11c9ecad/4a43e6a7-df8a-4a35-a286-1f6e7dc3bc6e/2023_IEHC_73.pdf/pdf).
"(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.
(7) The documents referred to in subsection (5) shall—
(a) where an environmental impact assessment was carried out, be made available for inspection on the Board's website in perpetuity beginning on the third day following the making by the Board of the decision on the matter concerned, or
(b) where no environmental impact assessment was carried out, be made available by the means referred to in subsection (5)(b) for a period of at least 5 years beginning on the third day following the making by the Board of the decision on the matter concerned."
''102. Section 146(5) of the Planning and Development Act 2000 provides:
'(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.'
103. Paragraph (b) sounds discretionary ('may') but in fact is ultimately mandatory when one turns to sub-s. (7):
'(7) The documents referred to in subsection (5) shall—
(a) where an environmental impact assessment was carried out, be made available for inspection on the Board's website in perpetuity beginning on the third day following the making by the Board of the decision on the matter concerned, or
(b) where no environmental impact assessment was carried out, be made available by the means referred to in subsection (5)(b) for a period of at least 5 years beginning on the third day following the making by the Board of the decision on the matter concerned.'
104. Thus the board 'shall' make the documents available by the means referred to in sub-s. (5)(b) if no EIA applies. As regards the duration for which the order should be available, since no EIA was conducted, the 5-year publication in s. 146(7)(b) applies rather than the indefinite publication in s. 146(7)(a).
105. While the board tries to characterise the process as discretionary, that is therefore misconceived. The 'may' in sub-s. (5) is qualified by the 'shall' in sub-s. (7). The board could not exercise any discretion in sub-s. (5) in a way that would nullify the 'shall' in sub-s. (7). In practice that means that the board 'may' do (5)(a) or it 'may' do (5)(b) but it 'shall' do either (a) or (b). Thus the 'may' can only mean 'shall' do one or the other of the sub-s. (5) options. That is perfectly harmonious because the board retains a discretion — but not a discretion to do nothing. The board completely exaggerates the difficulty of statutory interpretation here. The harmonious reading is obvious and straightforward."
"(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 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."
Legislation |
Decision Type |
Period to apply for JR |
Application method (JR) |
Method and Timing of Notification of Decision |
Parameters by which JR period may be extended |
Waste Management Act 1996 |
Waste Licence |
2 months commencing on the decision date |
Motion on Notice |
By notice in writing, as soon as may be after the decision is made. |
Order 84: (a) good and sufficient reason, and (b) the circumstances were either: (i) outside the control of, or (ii) could not reasonably have been anticipated by the applicant. |
S.I. No. 821/2007 - Waste Management (Facility Permit and Registration) Regulations 2007 |
Waste Facility Permit |
Within three months from the date when grounds for the application first arose (Order 84 Rules of the Superior Courts) |
Motion ex parte |
By notice in writing as soon as may be after making a decision to grant a waste permit under article 16(3). |
Order 84: (a) good and sufficient reason, and (b) the circumstances were either: (i) outside the control of, or (ii) could not reasonably have been anticipated by the applicant. |
Planning and Development Act, 2000, as amended |
Planning Decision s. 50 (2)(a) |
Within the period of 8 weeks beginning on the date of the decision |
Motion ex parte |
Variety of rules including:
S. 146 If EIA carried out - Within 3 days following the making of the decision the documents shall be made available at the offices of the Board and may be made available online.
If no EIA carried out - Documents shall be made available for inspection on the Board's website in perpetuity beginning on the third day following the decision.
S. 5 Referral - On the Board's website within 3 working days of the decision
S. 169 SDZ - publish notice of the approval of the scheme in at least one newspaper circulating in its area, and shall state that a copy of the planning scheme is available for inspection at a stated place |
(a) there is good and sufficient reason for doing so, and (b) the circumstances of delay were outside the control of the applicant for the extension.
|
Planning and Development Act, 2000, as amended |
Roads Consents and CPO s. 50(2)(b) PDA |
8 weeks beginning on the date on which notice of the decision or act was first sent |
Motion ex parte |
Approval of Roads Scheme s. 49 Roads Act – Publish notice of decision in one or more newspapers circulating in the area
EIA Decision s. 51 Roads Act - publish in one or more newspapers circulating in the area in which the proposed road development would take place, and in electronic form. |
(a) there is good and sufficient reason for doing so, and (b) the circumstances of delay were outside the control of the applicant for the extension |
Fisheries Amendment Act
and
S.I. 369/2010 - Aquaculture (Licence Application) (Amendment) Regulations 2010. |
Aquaculture Licence
On appeal from Aquaculture Licences Appeal Board |
Within the period of three months commencing on the date on which the decision or determination was made |
Motion on Notice |
A licensing authority shall, within 28 days of making a decision, cause a notice informing the public of a decision in respect of an application, made by the authority, to be published—
(a) in one or more newspapers circulating in the area to which the decision relates, and
(b) in Iris Oifigiúil if an environmental impact statement was required |
Order 84: (a) good and sufficient reason, and (b) the circumstances were either: (i) outside the control of, or (ii) could not reasonably have been anticipated by the applicant.
|
EPA Act 1992
And
S.I. 137/2013 - Environmental Protection Agency (Industrial Emissions) (Licensing) Regulations 2013, as amended
|
Industrial Emissions Licence |
8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made.
|
Not specified |
The Agency shall, within 10 days of the giving of a decision publish a notice of its decision on its website and in a newspaper circulating in the district in which the industrial emissions directive activity is or will be situate. |
Where the Court considers that in the particular circumstances there is good and sufficient reason for doing so. |
Foreshore Act, 1933, as amended |
Foreshore Licence or Foreshore Lease |
Within three months from the date when grounds for the application first arose (Order 84 Rules of the Superior Courts) |
Order 84 Motion ex-parte |
Publish a notice, in Iris Oifigiúil and in one or more newspapers circulating in the area where the foreshore subject to the determination is situate, of the determination |
Order 84: (a) good and sufficient reason, and (b) the circumstances were either: (i) outside the control of, or (ii) could not reasonably have been anticipated by the applicant.
|
Transport (Railway Infrastructure) Act 2001, as amended |
Railway Order |
Within the period of 8 weeks beginning on the date on which the order was made |
Motion on Notice |
Publish a notice in at least 2 newspapers circulating in the area to which the order relates of the making of the railway order and of the places where, the period during which and the times at which copies thereof and any plan referred to therein may be inspected or purchased |
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.
|
(i) environmental impact assessment (EIA) under Directive 2011/92 was ruled out at preliminary examination stage and no screening was required; and
(ii) appropriate assessment (AA) under Directive 92/43 was ruled out after screening.
(i) making available the file for inspection at its office within three days - that presumably happened but it does not constitute notice because that in itself doesn't inform anybody of anything - such a person would have to already 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 28 June 2023 and the time to comply expired on Friday 30 June 2023) - but compliance didn't happen until seven days after the decision (on Wednesday 5 July 2023); and
(iii) notifying the participants in the process as soon as may be (there is no time limit specified in law) - notice was not sent for five days (posted to the applicants on Monday 3 July 2023), arriving six days after the decision (received on Tuesday 4 July 2023).
Do Articles 41 and/or 47 of the Charter of Fundamental Rights of the European Union and/or Articles 6 and/or 11 of Directive 2011/92 read in the light of the general EU law principle of legal certainty and/or of Articles 6 and/or 9 the Aarhus Convention as approved on behalf of the European Community by Council Decision 2005/370, have the effect, in the context of a challenge (based on Directive 2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50) to a development consent for a project where the need for environmental impact assessment under Directive 2011/92 was rejected at preliminary examination stage under national law corresponding to Article 4(3) of Directive 2011/92 (insofar as it provides that Member States may set thresholds or criteria to determine when projects need not undergo either the determination under Articles 4(4) and (5), or an environmental impact assessment) and where the need for appropriate assessment under Directive 92/43 was screened out, 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?
Do Articles 41 and/or 47 of the Charter of Fundamental Rights of the European Union and/or Articles 6 and/or 11 of Directive 2011/92 read in the light of the general EU law principle of legal certainty and/or of Articles 6 and/or 9 the Aarhus Convention as approved on behalf of the European Community by Council Decision 2005/370, have the effect, in the context of a challenge (based on Directive 2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50) to a development consent for a project where the need for environmental impact assessment under Directive 2011/92 was rejected at preliminary examination stage under national law corresponding to Article 4(3) of Directive 2011/92 (insofar as it provides that Member States may set thresholds or criteria to determine when projects need not undergo either the determination under Articles 4(4) and (5), or an environmental impact assessment) and where the need for appropriate assessment under Directive 92/43 was screened out, 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?
Do Articles 41 and/or 47 of the Charter of Fundamental Rights of the European Union and/or Articles 6 and/or 11 of Directive 2011/92 read in the light of the general EU law principle of legal certainty and/or of Articles 6 and/or 9 the Aarhus Convention as approved on behalf of the European Community by Council Decision 2005/370, have the effect, in the context of a challenge (based on Directive 2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50) to a development consent for a project where the need for environmental impact assessment under Directive 2011/92 was rejected at preliminary examination stage under national law corresponding to Article 4(3) of Directive 2011/92 (insofar as it provides that Member States may set thresholds or criteria to determine when projects need not undergo either the determination under Articles 4(4) and (5), or an environmental impact assessment) and where the need for appropriate assessment under Directive 92/43 was screened out, 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?
(i) the questions set out in this judgment be referred to the CJEU pursuant to Article 267 TFEU;
(iii) the substantive determination of the proceedings be adjourned pending the judgment of the CJEU, without prejudice to the determination of any appropriate procedural or interlocutory issues in the meantime.