THE HIGH COURT
PLANNING AND ENVIRONMENT
[2025] IEHC 192
Record No. 2024/174 JR
IN THE MATTER OF SECTION 50 AND 50A OF THE PLANNING
AND DEVELOPMENT ACT 2000 AS AMENDED
Between:
JOE O'MEARA
APPLICANT
-AND-
WESTMEATH COUNTY COUNCIL, THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of Ms. Justice Emily Farrell delivered the 4th April 2025
Introduction
1.The Applicant resides in County Westmeath adjacent to a property owned by Westmeath County Council, which the Council had decided to develop. On 8th December 2023, the Council published a site notice in accordance with 179A of the Planning and Development Act 2000 (as inserted by section 14, of the Planning and Development and Foreshore Amendment Act, 2022) and Article 81A of the Planning and Development Regulations 2001 - 2023, stating that it had decided to develop the property into three apartments for residential use. The Notice also directed the public to the plans and other documents which were available for inspection on the Council's website or at its offices.
2.Public participation was not invited, but the Notice indicated that the validity of the Council's decision to proceed under section 179A could be challenged by way of judicial review. Neither the Act nor the Planning and Development Regulations make provision for a public consultation process leading to a decision to carry out a residential development to which section 179A applies.
3.The Applicant sought leave to seek orders of certiorari and various declarations by way of judicial review. He seeks to impugn the decision of the Council evidenced by the Notice of 8th December 2023 and declaratory relief in respect of the validity of section 179A, which the Applicant contends is unconstitutional and incompatible with EU law as public consultation is not provided for.
4.I directed that the application for leave to seek judicial review be brought on notice to the Respondents. The application for leave was adjourned to await the judgment of the Supreme Court in Save the South Leinster Way & Anor v. An Bord Pleanála & Ors [2024] IESC 55, which was delivered on 5th December 2024.
5.The application for leave was listed for hearing on 27th January 2025. On 23rd January 2025, the Council wrote an open letter to the Applicant's solicitor in which it stated that the proceedings had become moot, and the Applicant was referred to section 179A(1)(g) of the 2000 Act which provides "This section applies to housing development— .... (g) that is commenced on or before 31 December 2024." The State Respondents also contend that the application is moot and should not proceed.
6.Written submissions were filed by the Applicant (including replying submissions), the Council and the State Respondents.
7.I am satisfied that an extension of time is not required for the application for leave, the application having been opened on Monday 12th February 2024, which the Supreme Court has confirmed was within time in Save the South Leinster Way. No question arises as to the failure of the Applicant to exhaust an alternative remedy as the Act does not provide for an appeal to An Bord Pleanála.
8.The sole objection to the grant of leave is the contention that the proceedings are moot, and it is submitted this is not an appropriate case in which the court should exercise its discretion to determine a moot case.
9.If I find that the proceedings are not moot, or that the proceedings should continue despite being moot, I shall proceed to decide the substance of the application for leave. The parties have confirmed that they have made all the submissions they wish to have considered for the purposes of the application for leave.
Mootness
10.The effect of section 179A is to remove the requirement for local authorities to undertake the Part 8 development process where a proposed housing development meets the criteria of section 179A of the 2000 Act. One of the criteria is that the development is commenced before 31st December 2024: section 179A(1)(g).
11.It is not in dispute that the development had not commenced by 31st December 2024. At the hearing counsel for the Applicant accepted that the development the subject of the decision of 8th December 2023 cannot now proceed and that a further decision would be required by the Council before any development could take place on the property adjoining his.
12.There is some agreement between the parties as to the applicable principles to be applied in deciding whether this case can or should proceed. In particular, the parties relied on Lofinmakin v. Minister for Justice [2013] 4 IR 274 and Odum v. Minister for Justice [2023] IESC 3; [2023] 3 ILRM 164. The Applicant places considerable reliance on Condon v. Minister for Labour & Ors [1981] IR 61. The parties agree that there is a discretion to allow proceedings continue even where they are moot, which discretion may be exercised in the interests of the administration of justice or fairness between the parties: Odum (para. 10).
13."Courts exist to resolve controversies of real importance to real people." per O'Donnell J. (as he then was) in Odum (para. 37). Central to the principle of mootness is the importance of the resolution of cases which can be characterised as present, live controversies in the common law system. O'Donnell J. described G v. Collins [2004] IESC 38, [2005] 1 ILRM 1 as the beginning of the modern caselaw of the Supreme Court in relation to mootness and held that the principles as identified in Borowski v. Canada [1989] 1 SCR 342 and adopted in G v. Collins, which have been repeatedly endorsed, are of more general application than the caselaw of the United States. These principles were also adopted by Denham C.J. in the majority judgment in Lofinmakin. A concurring judgment was delivered by McKechnie J. (with whom Fennelly J. also agreed). In Odum, Lofinmakin and G v. Collins, the Supreme Court advised caution in applying the US jurisprudence.
14.In G. v. Collins [2004] IESC 38, [2005] 1 ILRM 1 Hardiman J. held:
"A proceeding may be said to be moot where there is no longer any legal dispute between the parties. The notion of mootness has some similarities to that of absence of locus standi but differs from it in that standing is judged at the start of the proceedings whereas mootness is judged after the commencement of proceedings. Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs, the eventual decision would be of no practical significance to the parties."
15.The following dictum from the Supreme Court of Canada in Borowski was endorsed in G v. Collins and Odum:
"An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceedings is commenced but also when the Court is called upon to reach a decision. The general policy is enforced in moot cases unless the Court exercises its discretion to depart from it."
16.As Denham C.J. noted in Lofinmakin, had the Minister wished to deport the applicant father a fresh deportation order would have been required and the making of any such deportation order would give rise to fresh proceedings. Therefore, she concluded that any decision of the Court would be based on a hypothetical foundation and would be an advisory opinion. The Supreme Court held that there was no basis on which to proceed. Despite the applicant in Odum arguing that he may experience consequences arising from the deportation order, which remained part of his immigration record after that order had been revoked, O'Donnell J. found that the proceedings were, as a matter of law, moot.
17.
18.The US position, relied upon in Condon v. Minister for Labour, is that an issue is not considered moot if it is "capable of repetition, yet evading review". In Condon, the Supreme Court held that the proceedings were not moot even though the Regulation of Banks (Remuneration and Conditions of Employment) (Temporary Provisions) Act 1975
19.was not in force at the time the case came on for hearing. Therefore, it was held that the High Court should determine plenary proceedings which were ready for trial when the impugned provision expired by virtue of a Ministerial Order made after the defence had been delivered.
20.In Condon, the Supreme Court found that it was "highly probable" that similar legislation would be introduced in the future. The impugned provision had been adopted specifically to empower the Minister to prohibit the payment of pay increases under agreements reached between Banks and the Irish Bank Officials' Association, of which the plaintiffs were members. If similar provisions were enacted, there would be a direct and immediate effect on the plaintiffs' rights. Condon was a very particular case: the sole purpose of the provision in question was to cap the plaintiffs' remuneration despite agreement having been reached between the Banks and the IBAO, who represented the plaintiffs. Furthermore, the provision was brought to an end by Ministerial Order after the defence had been delivered and shortly before the date which had been fixed for hearing. An application was then made to introduce the defence that plaintiffs' claim failed to disclose a cause of action, provision no longer being in force. Condon is the only case, cited to me at least, in which a party sought to proceed with a challenge to the validity of legislation which was no longer in force. As the Supreme Court has made clear, particularly in Odum, the modern jurisprudence on mootness commences with G v. Collins and caution must be exercised before applying the principles from US caselaw.
21.The State Respondents submit that the judgment in Condon applies the principle, exemplified in G v. Collins, that there must be at least a reasonable expectation based on some evidential foundation that the plaintiff or applicant in the proceedings may be affected by similar legislation or administrative act under such legislation in the future.
22.In Farrell v. Governor of St. Patrick's Institution [2012] IEHC 429 Hogan J. found that the starting point in considering whether proceedings were now moot by reason of intervening events "is that the mootness doctrine represents the application of prudential rules of practice designed to conserve the judicial power, protect the proper administration of justice and to ensure that the judicial branch does not stray from the its constitutionally assigned mandate in Article 34.1 by delivering in effect what are in effect advisory opinions." He described proceedings which are moot as typically involving cases "which are no longer live or where the controversy lacks any immediacy or force of reality." Notwithstanding this, he considered that the principle of mootness is subject to the exception that the court will rule on a matter which otherwise affects legal rights, but by reason of its short duration is capable of evading review. As he noted, this is especially true in cases of a person's liberty.
23.Although Murray C.J. held, in O'Brien v. PIAB [2008] IESC 71, that the proceedings had not completely lost their character as a present, live controversy, O'Donnell J. stated, at para. 22 of Odum, that O'Brien may also be read as a case in which the Supreme Court decided to exercise its discretion to determine an appeal that was moot. Clarke C.J. also considered O'Brien to have been a case in which the appeal had become moot, in Okunade v. Minister for Justice [2012] IESC 49, [2012] 3 IR 152; [2013] 1 IRLM 1, but noted the issue was clearly one which would arise in many other cases. In Okunade the Supreme Court found that the appeal was moot, but exercised its discretion to determine the appeal as the same issue was likely to arise regularly in future cases and it was considered likely that those cases would also become moot before they could be resolved by the Supreme Court. Although McKechnie J. referred to Condon as a case which had been found not to be moot, in Lofinmakin, he gave as an example of an issue which may cease to give rise to any real or actual conflict between the parties "the repeal of the impugned provision or the expiry of the entire statute leaving no issue". (para. 65)
24.Viewed through the lens of the modern jurisprudence Condon may also be interpreted as recognising the case as exceptional and finding that it was in the interests of the administration of justice that the constitutional challenge would be determined, as O'Donnell J. regarded O'Brien v. PIAB in Odum. Whilst Condon is clearly binding on me, care must be taken before relying on the principles derived from US jurisprudence for the reasons explained by O'Donnell J. in Odum. I consider myself bound to apply the principles enunciated in what the Supreme Court has described as the modern caselaw on mootness.
25.O'Donnell J. identified the interlinked factors of a requirement of the full adversarial context for a legal decision, the management of scarce and expensive court resources, and whether a case is likely to create a precedent and the desirability and perhaps necessity of avoiding purely advisory opinions as justifications for the principle of mootness. At para. 33, O'Donnell J. held that "The strength with which these factors will apply in a particular case will determine the issue of whether a trial or appeal is moot, and the related question of whether, even if moot, the trial, or appeal should nonetheless proceed."
26.The stage proceedings are at when they become moot is a very significant factor for the exercise of the discretion to proceed. In this case, the application for leave to seek judicial review is before the court. Although O'Donnell J. stressed, at para. 53, that the judgment related to the implications of mootness for appeals before the Supreme Court, and that different considerations will apply to cases that become moot before they are heard at first instance, the judgment of the Supreme Court in Odum provides very useful guidance. The modern jurisprudence consistently regards a case where there is no longer a potential adverse impact on the interests or rights of the applicant or plaintiff as moot.
27.In Odum v. Minister for Justice, O'Donnell J. held that it was necessary to distinguish between at least three different situations. Firstly, issues of standing may arise at the commencement of proceedings. He noted that this occurs most clearly in proceedings which seek to challenge the constitutionality of a statutory provision or where an application is made for leave to seek judicial review of a public law measure. Secondly, proceedings can be rendered moot after they have commenced but before the first instance decision such as in Condon v. Minister for Labour, or after the first instance decision but before an appeal is brought or determined, as occurred in cases such as Odum, Lofinmakin, O'Brien v. PIAB (No. 2) [2006] IESC 62, Irwin v. Deasy [2010] IESC 35.
28.These three situations should be treated differently for reasons including the different implications for the parties to the litigation and for the administration of justice. Weighty considerations arise in proceedings which have been determined at first instance but become moot thereafter as a legal precedent will stand without having enjoyed the benefit of review on appeal, despite the unsuccessful party having appealed, or intended to appeal, that judgment. The grant of a certificate of leave to appeal on the basis that the point of law arising is a point of law of exceptional public importance, or acceptance of an appeal by the Supreme Court, having found that a point of law of general public importance arises, are further matters which might lean in favour of determining an appeal which has become moot. In these cases, the objective of clarifying the law would not be achieved if the Supreme Court declined to determine an appeal on grounds of mootness.
29.Judgments of the Supreme Court and, judgments of the Court of Appeal when a certificate to appeal has been granted, by their nature become binding precedents in respect of persons and entities who have not had the opportunity of participating in those proceedings. The fact that other judges of the High Court would be bound to follow a judgment (unless appealed), if the Worldport principles do not justify departing from it, is a relevant consideration in deciding whether a first instance decision should be made on the validity of a statutory provision where the Applicant cannot benefit in a tangible way even if he succeeds.
30.The jurisprudence of the Supreme Court indicates that the more clearly a case retains its essential character as a real controversy and the less it resembles a contrivance for the purposes of achieving some change in the law abstracted from a real controversy, the more likely it is that the court will proceed to hear the case in the proper exercise of its jurisdiction (para. 51). This is more likely to occur before an appellate court than before the court of first instance.
31.As O'Donnell J. stated at para.52 of Odum, while the Supreme Court will still refuse leave (to appeal) if it considers a case to be "so moot that it does not provide a proper or suitable vehicle for the determination of a legal issue", it is not uncommon for the Supreme Court to exercise its discretion to hear and determine cases which are technically moot by the time they reach that court. The rationale for doing so does not apply at an early stage particularly where, as here, the application for leave to seek judicial review has not been determined.
32.In E.L.G. (a minor suing by her mother and next friend S.G.) v. Health Service Executive [2021] IESC 82, which was considered by O'Donnell J. in Odum, Baker and Hogan JJ. expressed the view that the existence of a judgment of the Court of Appeal or High Court which had been determined by the Supreme Court to contain an issue of general public importance, meant that the Supreme Court was entitled or perhaps obliged to proceed to determine the issue notwithstanding any question of mootness.
33.There is a very significant difference in the considerations which apply to an application which has not been the subject of any judicial determination and proceedings which have been determined at first instance, particularly for appeals to the Supreme Court. In Odum O'Donnell J. stated: "In this case, if the applicants had sought to commence proceedings seeking certiorari of the deportation order after that order had been revoked, and without being able to point to any circumstances particular to the case justifying the application, then in my view, a court would have been justified in refusing leave to seek judicial review."
34.A factor which weighed against the appeal proceeding in Lofinmakin was the fact that the judgment of the High Court had not addressed the impact of the judgment of the CJEU in Zambrano. That was an issue which would have been argued for the first time before the Supreme Court had the appeal continued. Hearing a moot case from the beginning would result in a judgment of the High Court which one of the parties may seek to appeal - which would be no less moot, but the considerations justifying such an appeal proceeding would be greater. If this case is determined by the High Court despite there being no concrete dispute between the parties, the judgment of the High Court should be followed in future cases before the High Court unless departure is justified by application of the Worldport principles. As the issue relates to the constitutionality of section 179A and its compatibility with EU law, it may be more appropriate that a subsequent High Court judge would follow the judgment even if she or he had reservations about the correctness of the conclusion regarding the validity of the section: A v. Minister for Justice & Ors; S and S v. Minister for Justice & Others; I v. Minister for Justice [2021] 3 IR 140.
Challenges to the validity of legislation
35.As a general rule, the courts will not determine the question of the constitutional validity of a legislative provision unless that is necessary to determine the dispute between the parties: McDaid v Sheehy [1991] 1 IR 1; [1991] ILRM 250. The rationale for this principle was explained by O'Higgins C.J. in M. v. An Bord Uchtála 1976 WJSC-SC 1033, [1977] IR 287:
"Normally, such a law as a statute of the Oireachtas will enjoy a presumption of constitutionality which ought not to be put to the test unnecessarily. However, there may be circumstances of an exceptional nature where the requirement of justice and the protection of constitutional rights make the larger enquiry necessary."
36.In McDonald v. Bord na gCon [1964] IR 350 O'Dálaigh C.J. held:
"Moreover, while the constitutional validity of a statute has to be determined by reference to the Statute's general application, I must doubt whether it would be proper to pronounce a statute repugnant to the Constitution except in a case where the specific facts of that case themselves exemplified the repugnancy complained of".
37.This issue was specifically considered by the Supreme Court in G v. Collins. Referring to G v. Collins, O'Donnell J. stated in Odum:
"It is clear that Hardiman J. considered that the consequence for a pending case of mootness, where it arose, fell to be addressed within the rubric of the court's discretion, closely linked to the discretion to be exercised in relation to the granting of leave to apply for judicial review. He felt that this was particularly so where the decision sought involved the constitutionality of a statutory provision, in which context, it was well settled law that it was not proper to embark upon a consideration of the constitutional validity of an Act of the Oireachtas except where the specific facts of a case exemplified the repugnancy of which the complaint was made (McDonald v. Bord na gCon [1964] I.R. 350). Furthermore, as elucidated in McDaid v. Sheehy [1991] 1 I.R. 1 at page 17 (and cited with approval in White v. Dublin City Council, Ireland and The Attorney General [2004] IESC 35, [2004] 1 IR 545) the jurisprudence of the Court was that it should not engage in the question of the possible invalidity of an Act of the Oireachtas "unless it is necessary for its decision to do so." These considerations also underpin the court's approach to mootness."
38. Quoting from his own judgment in Mohan v. Ireland & Attorney General [2019] IESC 18; [2021] 1 IR 293, O'Donnell J. emphasised the importance of challenges to legislation being determined in cases where the applicant or plaintiff is adversely affected in reality. He stated:
"11. The decision in Cahill v. Sutton [1980] I.R. 269 contains an important discussion on the justification for a rule of locus standi (and, indeed, for the other prudential limitations on claims challenging the validity of legislation by reference to the Constitution). Standing is not, as a general rule, established by a simple desire to challenge legislation, no matter how strongly the putative claimant believes the provision to be repugnant to the Constitution. It is now clear that there is no actio popularis (a right on the part of a citizen to challenge the validity of legislation without showing any effect upon him or her, or any greater interest than that of being a citizen) in Irish constitutional law, although, of course, some jurisdictions do permit such claims. Rather, in Irish law, it is necessary to show some adverse effect on the plaintiff either actual or anticipated. Part of the rationale for this rule is discussed in Cahill v. Sutton. Public general legislation exists because a majority of the members of the Oireachtas considered, at some stage, that the legislation was in the public interest. The particular provision challenged may indeed still operate entirely beneficially and helpfully for the great majority of cases. If such a provision is invalidated, it is, in principle, of no effect in law and the area is left unregulated, with the result that citizens may be deprived of the benefit of the provision. The invalidity of legislation is therefore a very significant disruption of the legal order which operates in a blunt and, essentially, negative way. ..."
39. O'Donnell J. concluded that the step of permitting a challenge to the constitutionality of legislation "should not, therefore, be taken lightly, simply because someone wishes, however genuinely, to have the question determined, but rather should only be taken when a person can show that they are adversely affected in reality. Courts do not exist to operate as a committee of wise citizens providing a generalised review of the validity of legislation as it is enacted ...".
40.Odum warns that embarking on the determination of issues which are not based "on a real case or controversy which the parties require (rather than simply desire) to be resolved in order to establish and justify the court's exercise of jurisdiction" risks blurring, and perhaps exceeding, the proper bounds of the exercise of the judicial power. McKechnie J. also considered the separation of powers in Lofinmakin, where he stated at page 290 of the reported judgment:
"...the discharge of the judicial function is best performed where the reference point is focussed on resolving defined issues in a concrete legal setting. In that way there is much less danger of inadvertently overstepping the reach of the judicial role as envisaged in Article 34 of the Constitution".
41.The Applicant relies in particular on para. 45 of the judgment of in Odum where O'Donnell J. held that determining the appeal would not amount to, or have the flavour of, an advisory opinion, nor would it amount to an impermissible expansion of the proper function of courts in the separation of powers. He noted that the facts were not in dispute and stated: "The issue in this case is the legal consequence of those facts and will be determined in exactly the same way as it would have been if the deportation order had not been revoked, or as it would be in any case in which a deportation order remained in existence."
42.Two possible exceptions to these principles were noted in White v. Dublin City Council & Ors [2004] IESC 35, where the Supreme Court found that it was not permissible to consider the question of the constitutionality of a statutory provision in advance of the other issues in the case. Fennelly J. noted that, in M v An Bórd Uchtála, O'Higgins C.J. considered that "there may be circumstances of an exceptional nature where the requirement of justice and the protection of constitutional rights make the larger [i.e. constitutional] enquiry necessary." He also noted that in Murphy v. Roche [1987] IR 106 Finlay C.J. expressed the view that this principle, and of not deciding a moot, must be subject in any individual case to the overriding consideration of doing justice between the parties.
43. In Irwin v. Deasy [2010] IESC 10 Murray C.J. stated that "Exceptions may only arise where there is a question of exceptional public importance at issue and there are special reasons in the public interest for hearing the appeal. " In that case, the issue remained a live issue in the context of the continued exercise by the Revenue Commissioners of their statutory powers to seek to recover outstanding taxes. Baker J. also considered that exceptions do exist, "primarily where it can be shown that the point of law in contention is one of exceptional public importance" in MC v. Clinical Director of the Central Mental Hospital [2020] IESC 28; [2021] 2 IR 166; [2020] 2 ILRM 309.
44.However, it is clear from Lofinmakin, that the fact that a case raises an important point of law is not of itself sufficient to bring it within the exceptional category. In that case, the point of law had been certified as a point of law of exceptional public importance. As Denham C.J. held "The foundations of a case that is moot have fallen away and so they are usually not appropriate cases upon which to decide important points of law, unless there are other factors such as arose in O'Brien v. Personal Injuries Assessment Board (No. 2) [2006] IESC 62, [2007] 1 IR 328 and Okunade v. Minister for Justice [2012] IESC 49, [2012] 3 IR 152."
Analysis
45.The application for leave to seek judicial review had opened and been adjourned when the Respondents submit that the proceedings became moot. It is appropriate to consider each element of the proceedings separately.
46.The Applicant has withdrawn the application to seek declaratory relief in respect of the specific decision of 8th December 2023, specifically that it materially contravened the County Development Plan, failed to comply with section 179A(1)(b), and was ultra vires the authority of the Council, invalid and of no effect. Whilst nothing turns on it, I note that the Westmeath County Development Plan 2021-2027 came into effect on 3rd May 2021 and continues to apply.
47. The Applicant has accepted, through counsel, that the Council cannot carry out any development of the property adjoining his in reliance on section 179A of the 2000 Act, and that the decision of the Council has 'lapsed'. The Council has unequivocally stated that it accepts that it cannot and will not do so. The Applicant wishes to proceed with the application for leave to seek certiorari of the Council's decision of 8th December 2023 only in so far as that might be necessary to provide a foundation for the constitutional challenge to section 179A, and alleged incompatibility with EU law.
48.As in Lofinmakin, Odum and G v. Collins, the Applicant does not need an order of certiorari to prevent the Council developing the adjoining property without affording him a right to make submissions. The grant of such an order could not benefit the Applicant, save insofar as it may assist him in an application for costs - the issue of costs is considered below. The decision and Notice of 8th December 2023 no longer have any force or effect. In Odum, O'Donnell J. held that the fact that the deportation order had been revoked was "a powerful factor ... that leans in favour of finding that the case is now moot."
49.I am satisfied that the application for leave to apply for certiorari is moot. The question arises whether it is appropriate that the application should be allowed proceed, as the Applicant contends, in order to support the ability of the Applicant to proceed with the challenge to the constitutionality and compatibility with EU law of section 179A. Although the section has not been repealed, it has been stripped of any force, as it is impossible for any new development to be commenced by 31st December 2024. It was open to the Oireachtas to have extended that provision by substituting the date provided in section 179A, pending its repeal by the Planning and Development Act, 2024, but it did not do so. It is open to the Council, or any other local authority, to carry out residential development in accordance with the Part 8 procedure in the Planning and Development Regulations 2001 (as amended). That process requires public consultation.
50.The Applicant submits that, although section 179A is now without effect, the challenge to its validity should proceed because section 161 of the Planning and Development Act, 2024 has been enacted in similar terms. That provision has not yet been commenced and includes a 'sunset clause' as it applies only to development commenced before 31st December 2025. The Applicant accepts that this provision is not in force and submits that amendment of section 161(4) is likely to be required to extend the period during which development may be commenced so that the provision can take effect. The Applicant relies on Condon v. Minister for Labour, and contends that, as it can be anticipated that a provision similar to section 179A will be enacted or brought into force, the challenge to the validity of section 179A is not moot or that it should be allowed proceed.
51.Whilst the facts grounding the challenge to the validity of section 179A are not in dispute, and would not have needed to be determined had the proceedings not become moot, the Applicant can only point to an interference with his rights or interests if section 161 is commenced in time to permit the commencement of a development prior to 31st December 2025, and the Council opts to invoke that power, rather than embarking on a Part 8 process, which option currently exists.
52.The State Respondents argue that this is not a suitable case in which the issue of the absence of, or need for, public consultation for residential development by local authorities ought to be considered, as there is no risk of adverse effect on the Applicant's rights or interests. The Council, who first raised the issue of mootness, also contends that the proceedings should not continue.
53.In G v. Collins, it was held that that there must be at least a reasonable expectation based on an evidential foundation that the plaintiff or applicant in the proceedings may be affected by similar legislation or an administrative act under such legislation in the future. Unlike Condon, where the enactment of similar legislation was considered highly probable, the commencement of section 161, whether amended or not, will not have any direct or immediate effect on the Applicant without an intervening act on the part of the Council. There is no evidence from which it can be inferred that the Council would not seek to proceed under Part 8, which requires public consultation, nor is there evidence from which it can be inferred that section 161 will be commenced or amended in a manner which enables the Council to rely upon it. The Council has not disclosed its intentions either way, but it is safe to presume that it is likely to maintain its desire to develop the property. The Applicant's submissions include reference to Mayo County Council having published a Notice under section 179A which expired after 31st December 2024. However, there is no evidence of this before the Court, and the Respondent Council has unequivocally indicated to the Applicant in open correspondence, and to the Court, that it cannot and will not develop the site in reliance on section 179A. Allowing the proceedings to continue by reference to a (possible) development in Mayo would be a classic example of a jus tertii.
54.The legislation in Condon was directed at a specific category of people which included the plaintiffs. Not only was it enacted to prevent the Banks from entering into an agreement with the IBOA which would increase their salaries above a certain level, it was brought to an end by Ministerial Order after the defence had been filed in the proceedings in which it was pleaded that the provision was consistent with the Constitution. The enactment of a further similar provision, which was found to be "highly probable", would have an immediate and tangible effect on the plaintiffs.
55.In effect, the sole basis on which the Applicant seeks to proceed with the application for leave to apply for certiorari of the Council's decision is an attempt to avoid the application of the well-established jus tertii rule. The Applicant accepts that the Council's decision is incapable of affecting his rights. The jus tertii rule operates to prevent a litigant from seeking to invalidate a statutory provision which does not have an effect on their own rights or interests. Either it is correct that the Applicant's challenge to the validity of section 179A should proceed, or it is not. The maintenance of an issue in dispute, which has no other potential benefit to the Applicant, is not necessary to do justice between the parties nor is it consistent with the efficiency and effectiveness of the administration of justice.
56.I will not exercise my discretion to permit the Applicant to proceed in respect of the Council's decision simply to strengthen his position in relation to his challenge to the validity of section 179A. The fact that the Council is precluded from making a fresh decision to invoke section 179A at this time reinforces my view that it is appropriate to refuse rather than permit that aspect of the proceedings continue, despite being moot.
57.The position is somewhat different in relation to the challenge to the validity of section 179A. Section 179A, which was commenced on 8th March 2023, applied only to residential developments commenced by 31st December 2024: Planning and Development and Foreshore (Amendment) Act 2022 (Commencement) (No.2) Order 2023 S.I. 107 of 2023. Whilst section 179A has not been repealed and remains on the statute book, it cannot be relied upon by Westmeath County Council or any other local authority for a development which has not already commenced.
58.If the Council wishes to develop the site for residential purposes, such a decision could be made in accordance with Part 8 of the Planning and Development Regulations 2021 (as amended), which process requires public consultation.
59.It is significant that the application for leave to seek judicial review had not been determined before the proceedings were rendered moot. The fact that the Supreme Court had granted leave to appeal the judgment of the High Court before the issue became moot was described as a decisive factor in Odum. Had that appeal not proceeded, the legal issue, which had been found to be one of general public importance, would have remained unsettled until a further case came before the Supreme Court. Proceeding with the appeal was considered to be a better use of resources and court time. O'Donnell J. stated that the role of the High Court in future cases would have been reduced to a vehicle for bringing the issue back before the Supreme Court. The judgments of the Supreme Court in Lofinmakin, O'Brien and Irwin v. Deasy are consistent with Odum. The fact that the High Court has not determined the application for leave is a factor which weighs heavily against the continuation of the Applicant's challenge to the constitutionality and compatibility with EU law of section 179A. The risk of a judgment of the High Court remaining as a precedent unreviewed, and if wrong, undisturbed, as considered by Haughton J. in Kozinceva v. Minister for Social Protection [2020] IECA 7 does yet not arise in the instant case. The Applicant concedes that this creates 'an uphill battle'. The institution of these proceedings has not created a state of uncertainty in the law.
60.The Applicant contends that this case is exceptional but points to nothing other than the fact that section 179A does not allow for public participation, and that section 161 of the 2024 Act has been enacted in very similar terms and is likely to be commenced as a tool to tackle the housing crisis in the State. The enactment of section 161 is a material factor to be considered. I do accept that there is a real likelihood of section 161 being brought into force and note that the State Respondents have not suggested otherwise. However, it is only if section 161 is commenced and the Council decides to proceed with a further residential development in the property adjoining the Applicant's, which must be commenced by 31st December 2025, that his rights or interests could be affected. The Applicant has submitted that this is unlikely to occur without amendment of section 161 to extend the relevant period. The issue raised by the Applicant as to the validity of the section, by reason of the lack of public participation, has been brought to the State Respondents' attention. I also note that the Council did not proceed with the proposed development before 31st December 2024, despite there being no order restraining it from doing so.
61.As with section 179A, the only available remedy in respect of the decision to carry out a residential development under section 161 would be the institution of judicial review proceedings challenging the specific decision. An applicant with a sufficient interest in any such proceedings could also challenge the validity of the section at that time.
62.There is currently no process in being which has the potential to adversely affect the Applicant's rights, nor any real or imminent danger of him being adversely affected by the commencement of section 161 of the 2024 Act. Without an intervening decision made by the Council (or possibly another relevant local authority) under 161, if/when commenced, the commencement of section 161 is incapable of restricting or impinging on the Applicant's rights or interests.
63.The Supreme Court has repeatedly deprecated the determination of constitutional issues unless that is necessary to determine the issues in dispute. Both the rule against jus tertii and the general rule of avoidance, which ensures that the question of the invalidation of a statute is only reached if a case cannot be determined on some other ground, have this effect: Cahill v. Sutton [1980] I.R. 269; Mohan v. Ireland and Attorney General [2019] IESC 18; White v. Dublin City Council [2004] IESC 35. These principles are linked with the need to ensure that the resources and jurisdiction of the High Court are only employed when necessary to determine concrete issues in dispute and to do justice between the parties
64.In G v. Collins, Hardiman J. held that there was no reasonable expectation that the applicant would be subject to the same action under the impugned statutory provision (which remained in force), noting that there was no evidential foundation for such an expectation. As in G v. Collins, there is no evidential basis for presuming that the Council will seek to proceed with a similar development before 31st December 2025 but would wait to do so under section 161 if /when commenced, rather than proceeding under Part 8. It is not possible to predict at this stage whether section 161 will be commenced in sufficient time to facilitate the commencement of such a development. In Odum, G v. Collins was described as very close to the border of cases which should proceed; the legislation challenged by the applicant remained in force and could have been relied upon in a future application although such an application was not anticipated. By reason of the terms of the settlement of the family law proceedings, which was reached prior to the grant of leave, it was considered that the proceedings were moot and should not continue.
65.In Condon v. Minister for Labour, significant reliance was placed on the US jurisprudence, which the Supreme Court has subsequently held cannot be read across to the State. The Respondents rely on the fact that the impugned legislation, which had ceased to have effect before the proceedings came on for hearing, was adopted in respect of a category of persons which included the plaintiffs. Unlike the 1975 Act, section 179A and section 161 of the 2024 Act are of general application and were neither enacted, nor terminated, for reasons connected with the Applicant or any sector of the community. There are cases, such as Crotty v. An Taoiseach [1987] IR 713, McGimpsey v. Ireland [1988] IR 56, McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10 in which no member of the public is in a stronger position than another to challenge the constitutionality of a piece of legislation. This is not the case for section 161 of the 2024 Act, as there will be individuals who will be affected if it is commenced and relied upon by a local authority. The Applicant was in an equivalent position as regards section 179A when the application for leave to apply for judicial review was opened. However, as the development proposed by the Council was not commenced before 179A ceased to have effect by reason of subsection (1)(g), he is no longer in that position.
66.As noted above, in Condon the impugned provision had a concrete and direct impact on the plaintiffs. Similar legislation had been in force for six months during 1973. The defendants' defence had been delivered almost three months prior to the making the Ministerial Order which appointed the date on which the statutory provision in question would expire. The Order of 29th June 1976 appointed that day as the date on which the 1975 Act should expire. The proceedings had been listed for hearing on 27th July 1976 and on 8th July 1976 the defendants notified the plaintiffs of their intention to apply for liberty to amend the defence to raise the question whether the plaintiffs still had a cause of action as a preliminary point. O'Higgins C.J. was clearly concerned by the Oireachtas having the power to enact temporary legislation creating offences, which might escape examination by the courts and stated that "a form of legislative intimidation could be exercised. More serious, however, by permitting such to happen this Court would be failing to exercise that vigilance and care upon which constitutional rights and guarantees depend for their protection. In my view, this Court could not countenance such a development." He also agreed with Kenny J., who relied heavily on the jurisprudence of the United States. Okunade and Farrell v. Clinical Director are modern examples of cases where it was considered appropriate to determine an issue which was no longer a live issue in dispute.
67.The Applicant has not pointed to any factor which would justify the grant of leave if the effect of section 179A and the Council's decision had lapsed or expired before he sought to commence the proceedings, nor to any circumstances which would give him standing to challenge the validity of section 179A had the Council not relied upon it in respect of the property adjacent to his own. The Applicant cannot point to any material interest or right which would potentially be affected by section 179A, or section 161 if commenced, without further independent action on the part of the Council.
68.Whilst the Applicant and Council have raised the issue of costs in their submissions, the costs incurred to date are, in relative terms, not significant as leave has not been granted. The Applicant has not argued that the need to resolve the question of costs should persuade the court to hear the proceedings. He submits that the resource costs of allowing these proceedings proceed are significantly less than striking them out, which may lead to an appeal to the Supreme Court and possible referral to the CJEU. I disagree. The incurring of costs, and exposure thereto, would increase if the case were to proceed to substantive hearing, and a possible appeal. As the Supreme Court found in Lofinmakin and Odum, the fact that a costs order may have been made would not justify a moot case continuing, except in exceptional circumstances. If the court does not exercise its discretion to permit the case to proceed, there is no uncertainty in the law. The issue can be raised in future proceedings if section 161 is commenced and the Council, or another local authority, seeks to carry out a housing development in accordance therewith. As noted above, it is possible that the Council might opt to proceed under Part 8 rather than await the commencement of section 161.
69.If proceedings can be instituted by any person with a sufficient interest after section 161 is commenced, an early or expedited date could be sought for the hearing of any such proceedings, if appropriate. This is not a case where there is a strong likelihood of the issue also becoming moot in future proceedings without the possibility of it being determined, such as was found to be the case in Farrell v. Clinical Director of the Central Mental Hospital and Okunade v. Minister for Justice. That was also a factor considered by the Supreme Court in Condon.
70.It will not be necessary for future proceedings to be determined by the High Court simply to allow the point be determined by a higher court on appeal, as would have occurred in Odum or Okunade, had the Supreme Court not exercised its discretion to hear the moot appeals. Unlike the instant case, there would be a real issue in dispute between the parties to any such future proceedings. It is consistent with Cahill v. Sutton and Lofinmakin, Mohan and Odum that I should not exercise my discretion to permit the Applicant continue with these proceedings, the outcome of which can have no direct impact on his rights or interests. I do not consider that circumstances exist to justify an exception being made to the general policy not to proceed with moot cases, as identified in Borowski, and adopted by the Supreme Court.
71.I do not consider that such a decision infringes the Applicant's right of access to the courts. As is clear from Mohan, the right of access to the Court is not unlimited.
Conclusion
72.I am satisfied that, as a matter of principle, it would be inappropriate for the court to permit these proceedings to continue. These proceedings do not demand resolution, nor are they capable of affecting any right or interest of the Applicant. The Applicant could obtain no benefit from the order of certiorari sought, if granted.
73.The factual and evidential framework underpinning the application for declaratory relief has also fallen away and the challenge to the validity of section 179A is moot - even if section 161 of the 2024 Act is commenced, the Applicant acknowledges that it could not affect his rights or interests unless the Council applies that section in a manner which impacts on him. The Applicant submitted that it is unlikely that development could take place in reliance on section 161 (if commenced) unless the section is amended by the Oireachtas. There is no evidence that development could proceed under section 161 without the Applicant, or any person affected having an opportunity to challenge that development. This is the purpose of the eight-week notice period provided for in Article 81A of the Planning and Development Regulations 2001 (as inserted by the Planning and Development (Section 179A) Regulations 2023 (S.I. 101 of 2023). A judgment on the validity of section 179A would result in an advisory opinion on the validity of a law which is incapable of being invoked. I do not consider that the question raised is a question of exceptional public importance or that there are special reasons in the public interest which justify it being determined in the abstract by a court of first instance.
74.Whilst it can reasonably be anticipated that section 161 of the 2024 Act will be commenced, whether in sufficient time to be operated without amendment, or in conjunction with an amendment of section 161(4), that fact is not sufficient to persuade me that an exception should be made to the rule against jus tertii, the principle that constitutional issues should be resolved last or the modern jurisprudence in relation to mootness as enunciated by the Supreme Court.
75.Whilst the point of law relied upon by the Applicant may be an important point of law, that is not sufficient to justify the exercise of the court's discretion to determine proceedings that are moot at first instance. I am satisfied that the point of law sought to be raised is not exceptional. As the Supreme Court held in Mohan, standing is not, as a general rule, established by a simple desire to challenge legislation, no matter how strongly the applicant believes the provision to be repugnant to the Constitution. The same is true for proceedings which seek to assert that legislation conflicts with EU law.
76.Therefore, I refuse to exercise my discretion to permit the proceedings to continue and accordingly, I refuse the application for leave on the grounds that it is moot. As a consequence of the mootness, the Applicant lacks a sufficient interest in the matter which is the subject of the application for leave.
Emily Farrell