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Browne & Anor v Kerry County Council [2018]_IEHC_829 (12 October 2018)
URL: http://www.bailii.org/ie/cases/IEHC/2018/2018_IEHC_829.html
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THE HIGH COURT
BETWEEN
[2018] IEHC 829
[2015 695 JR]
MAURICE BROWNE AND EILEEN BROWNE
AND
APPLICANTS
KERRY COUNTY COUNCIL
RESPONDENT
AND
JEROME BROWNE
NOTICE PARTY
JUDGMENT of Ms. Justice Eileen Creedon delivered on the 12th of October 2018,
1. By way of Notice of Motion, dated 15 May, 2017, the applicants in this action seek
the following reliefs:
(i) An order granting an extension of time within which to seek leave to bring
an application for judicial review against the decision of the proposed
respondent, An Bord Pleanála made on the 4th May 2016;
and
(ii)Should an extension of time be granted by this Honourable Court, further
orders:
(i) Granting leave to the applicants herein to join as co-respondent to
these proceedings, An Bord Pleanála;
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(ii) Granting liberty to the applicants herein to serve an amended
statement grounding an application for judicial review;
(iii) And such further orders or directions as this Honourable Court may
deem necessary.
2. The issue, which was argued before the court, is whether an extension of time
should be granted to seek leave to bring an application for judicial review against the
decision of the proposed respondent, An Bord Pleanála, made on the 4th day of May 2016.
Section50A(2)(b) of the Planning and Development Act 2000, as amended, states that it is
a matter for the court hearing the application for leave to decide whether the application for
leave should be conducted on an inter partes basis.
3. There was no appearance on behalf of the respondent or the notice party, however,
An Bord Pleanála were represented as the intended respondent. The board made oral
arguments and furnished written submissions.
The Law
4. Section 50(2)(a) of the Planning and Development Act 2000, as amended by the
Planning and Development (Strategic Infrastructure) Act 2006 and the Planning and
Development (Amendment) Act 2010, provides that a person shall not question the validity
of any decision made or other act done by a planning authority, a local authority or the
board in the performance or purported performance of a function under that act otherwise
than by way of an application for judicial review under O. 84 of the Rules of the Superior
Courts (S.I. 15 of 1986).
5. Section 50(6) prescribes the eight-week time limit for such applications as follows:
“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
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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.”
6. This application for an extension of time is made under section 50(8). It provides
that:
“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.”
7. This test has been the subject matter of a number of High Court decisions to
include Irish Skydiving Club Ltd. v. An Bord Pleanála [2016] IEHC 448, which was cited
with approval in Cassidy v. Waterford City and County Council [2017] IEHC 711.
8. In Irish Skydiving, Baker J described section 50(8) in the following way at paras 9
and 10:
“Section 50(8) (a) is a reflection of the inherent jurisdiction of the court to extend
time when it considers that good and sufficient reason exists to so do, but sub
paragraph (b) of the subsection contains a restriction on the power such that in
addition to being satisfied that good and sufficient reasons exists, the court must be
satisfied as a matter of fact that the circumstances which resulted in the delay were
outside the control of the applicant.
Thus, while the court has a discretion it is required by the cumulative provisions of
subs. 8 to consider not merely the interests of justice, or the interests of all of the
parties, but whether the applicant for the extension can show on the facts that the
delay and the reason why he or she is out of time arose from matters outside his or
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her control. When a delay arises from circumstances which were within the control
of the applicant, the court may not extend.”
9. In that case, the court found that the applicant did not satisfy section 50(8)(b). The
court was not satisfied as a matter of fact that the circumstances which resulted in the delay
were outside the control of the applicant. For this reason, it was not necessary for the court
to make any findings under Section 50(8)(a).
10. In Cassidy, Eager J took the same approach and concluded at para 42 that:
“Having regard to the fact that the test is cumulative and that the applicant has in my view
failed to satisfy me that he meets the second part of the test, I do not propose entering into
a
consideration of whether the applicant meets the first part of the test as whether there is
good
and sufficient reason for extending the time.”
11. With regard to the importance of the limitation period, the court in Irish Skydiving
observed as follows at para 11:
“The time limit is strict, and one in respect of which the power to grant an
extension is also to be strictly construed. That this is justifiably so has been
considered in a number of cases. In Noonan Services Limited & Ors v. the Labour
Court (Unreported, High Court, 25th February, 2004) Kearns J. explained the
policy for a strict approach:
‘This approach does no more than reflect a growing awareness of an
overriding necessity to provide for some reasonable cut-off point for
legal challenges to decisions and orders which have significant
consequences for the public, or significant sections thereof.’”
Chronology
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12. On the 11th June, 2015 the applicants brought section 160 enforcement proceedings
in the Circuit Court to restrain certain development by the notice party.
13. On 15th July, 2015, the Circuit Court upheld the applicant’s complaint.
14. On the 2nd October, 2015, the notice party applied to Kerry County Council for
retention permission.
15. On 26th November, 2015, Kerry County Council made a decision to grant retention
permission to the notice party.
16. On the 21st December, 2015 the applicants were granted leave to apply for judicial
review of the decision of Kerry County Council, reference: 2015 695 JR.
17. On the same date, being the 21st December, 2015, the applicants did appeal the
decision of Kerry County Council to An Bord Pleanála.
18. On the 31st March, 2016, Kerry County Council made an open offer to compromise
these judicial review proceedings. They were listed for the purposes of effecting that
compromise before the High Court on the 9th May 2016.
19. On the 4th May, 2016, An Bord Pleanála made a decision to refuse the applicant’s
appeal and granted retention permission to the notice party.
20. By letter dated the 6th May, 2016, the notice party sent the retention permission
granted by An Bord Pleanála to Kerry County Council and asked that no orders of
certiorari would be consented to.
21. By letter dated 13th May 2016, the applicants wrote to An Bord Pleanála in an open
letter, requesting that An Bord Pleanála provide confirmation on or before the 30th May,
2016 that they would be bound by such orders as might be made by the High Court in
respect of the decision of Kerry County Council to grant retention permission to the notice
party.
22. An Bord Pleanála acknowledged this letter of the 13th May, 2016 by letter of the
20th May, 2016 but did not respond in substance until the 16th March 2017.
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23. By letter dated the 24th May, 2016 from Kerry County Council to the applicants,
the Council indicated that in light of An Bord Pleanala’s decision in respect of the
applicant’s appeal, the issue as between Kerry County Council and the applicants in the
judicial review proceedings had been rendered moot and that there was no longer a
decision of Kerry County Council to quash.
24. On the 3rd June, 2016, Kerry County Council issued a motion for directions
including the striking out of these proceedings.
25. On or about the 7th June, 2016, the applicants issued a motion to compel Kerry
County Council to file a statement of opposition and an order seeking to join An Bord
Pleanála as a notice party. The motion was not served on An Bord Pleanála at that time.
26. On the 28th June, 2016, the eight-week limitation period for challenge to the
decision of An Bord Pleanála expired.
27. By letter dated the 16th March, 2017, solicitors for An Bord Pleanála wrote to the
applicants in response to their letter of the 13th May 2016 and stated:
“The Board apologises for the oversight in not responding substantively to your
letter of 13 May last. By virtue of Section. 37(1)(b) of the 2000 Planning Act, the
‘decision of the Board shall operate to annul the decision of the planning authority
as from the time when it was given’.
There is, therefore, at this time, no order of Kerry County Council against which
your
proceedings can have effect. The only order in being is that of the Board, and it is
not the subject of any judicial review challenge at this time. There is no suggestion
that it is in itself legally flawed. In order to bring a challenge at this time, you
would need to seek and obtain an extension of time from the High Court. Such an
order can only be granted if you can satisfy the court that there is good and
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sufficient reason to grant it, and if you can satisfy the court that you could not have
moved sooner to bring the challenge.
If such an extension of time is granted, the question will then arise whether the
court should quash the Board’s decision for the purpose of reviving the Council’s
decision for the purposes of enabling the latter decision to be quashed.
The Board does not propose to become involved in this matter, and will await any
order which the Court may make, given that the proceedings are not aimed at it
directly, but it will draw this matter to the attention of the County Council which
may choose to rely on it.”
28. A motion for directions was heard before O’ Connor J of the High Court, sitting in
Cork on the 20th March, 2017.
29. On the 21st March, 2017, O’ Connor J issued an ex tempore judgment allowing the
applicant’s application to join An Bord Pleanála as named respondent. The decision is
currently under appeal by the applicants.
30. On 13th April, 2017, the applicants issued this motion seeking an extension of time.
The Arguments
31. The applicants have made an application for an extension of the period within
which to bring an application for judicial review, in reliance on the powers of the court
contained in s. 50(8) of the Act.
32. The applicants say that An Bord Pleanála made a decision refusing the applicants
appeal on the 4th day of May, 2016. The applicants did not become aware of that decision
until they received a letter from the notice party’s solicitors, dated 6th May, 2016, outlining
same.
33. The applicants say that at this point in time, being May 2016, they were not entirely
sure what was going on as it had been anticipated prior to the notice parties letter of the 6th
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May, 2016 that all parties would attend before the High Court in Dublin to have the matter
ruled.
34. The applicants wrote to An Bord Pleanála by letter, dated the 13th May, 2016
stating that:
"These proceedings were issued and served before Christmas and have progressed
to the stage where Kerry County Council have accepted that its decision to grant
permission was unlawful (although the basis for this illegality is not agreed) and
will be quashed by means of an order for certiorari and will not be remitted to
Kerry County Council for determination afresh…Our position is that your decision
does not affect these Judicial Review proceedings, on the basis that if Kerry
County Council is now prepared to accept that its granting of planning permission
is invalid and unlawful, that the Appeal to you on the merits, does not affect the
legal position…The purpose of this letter is to request from you, to provide in open
letter form, on or before the 30th inst., confirmation that you will be bound by such
orders as may be made by the High Court in respect of the decision of Kerry
County Council to grant Retention Permission on application bearing planning
register reference number 15/864 (An Bord Pleanála reference 245940)”.
The applicants say that the response from An Bord Pleanála, dated the 20th May, 2016,
while promising a further reply “as soon as possible”, was essentially an acknowledgment
letter only. The applicants acknowledge receipt of a letter from Kerry County Council
dated 31st May, 2016, in which Kerry County Council indicated that there was no longer a
decision to quash, upon An Bord Pleanala’s decision in respect of the appeal and that
Kerry County Council proposed to issue a motion for directions as to the future conduct of
the case.
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35. However, the applicants go on to say that it was by letter dated the 16th March,
2017, that An Bord Pleanála wrote to assert for the first time that the decision of the board,
on the appeal, annulled the decision of Kerry County Council:
“There is, therefore, at this time, no order of Kerry County Council against which
your proceedings can have effect. The only order in being is that of the Board, and
it is not the subject of any judicial review challenge at this time.”
The applicants then go on to say that, upon receipt of this letter from An Bord Pleanála
dated the 16th March, 2017, it became apparent that there was no other alternative available
to the applicants except to join An Bord Pleanála to these proceedings. The applicants
indicate that it is correct that they did not seek to join An Bord Pleanála within the eight-
week period, running from its decision of the 4th May, 2016. However, they say they
believed that at that point in time and indeed when they attended before the High Court on
the 9th May, 2016, it appeared that sense would prevail, as Kerry County Council had
openly agreed that its decision was made unlawfully and should be quashed and the
proceedings would be determined other than by a full hearing. The applicants do,
however, acknowledge that the notice party’s letter dated the 6th May, 2016, asking Kerry
County Council to confirm that it would not agree to an order of certiorari likely rendered
that belief unrealistic.
36. The applicants say that they notified An Bord Pleanála and brought an application
to join them as a third party to these proceedings within the eight-week period, running
from the date of the decision of An Bord Pleanála on the 4th May, 2016.
37. The applicants say that Kerry County Council’s application for directions was
made returnable for the 13th June, 2016 and at that point everything stalled.
38. The applicants say that the delay of the hearing of those motions was outside of the
control of the applicants. The applicants say that it was not until the letter sent on An Bord
Pleanala’s behalf on the 16th March, 2017, that An Bord Pleanála first indicated that it
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would not agree to be bound by the decision of this honourable court on the issues raised in
these proceedings against Kerry County Council. The applicants say that the delay of An
Bord Pleanála in responding between their initial letter seeking the response dated the 13th
May, 2016 until the 16th March, 2017 was entirely outside of the control of the applicants.
39. The applicants further say that if An Bord Pleanála had communicated to them the
same attitude demonstrated in their letter of the 16th March, 2017, in immediate response to
their letters dated the 13th May, 2016 and 3rd June, 2016, the applicants would have
brought an application to join An Bord Pleanála at that time, which would have been
within the eight-week period provided for in the legislation. The applicants say, that the
decision of An Bord Pleanála is a happenstance and was not something within the control
of the applicants or indeed any other party other than An Bord Pleanála.
40. The applicants say that these proceedings raise issues of general public importance
in the planning realm, they go on to say that none of the parties involved in these
proceedings will suffer any prejudice if An Bord Pleanála is joined in these proceedings.
41. With regard to the applicants’ assertion that they believed that the proceedings
against the board would be unnecessary, the intended respondent argues that the applicants
had already fairly conceded that this belief was rendered unrealistic by the notice party’s
letter dated the 16th May, 2016, long before the limitation period expired. The intended
respondent argues that the applicants chose to appeal to the board. They argue that,
therefore, the applicants knew or ought to have known that when the board makes a
decision it operates to annul the decision of the planning authority. The respondent refers
to the case of Dunnes Stores v. An Bord Pleanála [2015] IEHC 716, where McGovern J
states that:
“The provisions of s.37(1)(b) of the Act are quite clear and unambiguous. The
effect of that section is that once the Board made its decision, it has the effect of
annulling the decision of the planning authority, SDCC [South Dublin County
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Council]. That being so, there is no decision of SDCC which can be challenged.
There is no basis upon which the court can go beyond the provisions of the Act.
That would be clearly impermissible. At this stage there is simply no decision of
SDCC to quash and, therefore, no basis upon which the court can accede to the
application to join the planning authority as a respondent in the proceedings”.
The intended respondent argues that, as the applicants are represented by solicitor and
counsel, they could not have been more alive to the fact that if the board exercised the very
jurisdiction the applicants invoked, that their proceedings against Kerry County Council
would be rendered moot and that the operative decision would be the decision of the board.
It says that if the applicants wanted to challenge the decision of the board they could have
done so within the eight-week statutory time limit.
42. With regard to the applicant’s contention that they wrote to the board before the
limitation period expired, the intended respondent points again to section 50 of the
Planning and Development Acts, which it says positively states that no party should
question the validity of an action of the board save by judicial review. They say that the
action of the applicants in writing to the board reveals only that the applicants were
appraised of the facts and information sufficient to instruct solicitors to advise and act on a
challenge to the board’s decision.
43. It is further asserted that the failure to progress beyond a ‘letter before action’ was
entirely within the applicants’ control. The intended respondent asserts that the fact that
the board did not make any substantive reply until March 2017 is irrelevant. The
applicants say that the letter dated the 13th of May 2016 included a specific deadline for
response of the 30th May. The intended respondent says that the applicants’ decision to let
the correspondence rest without a response from the board as to their imposed deadline
was entirely within their control. The applicants, it is argued, cannot simply and
unilaterally extend time by writing letters and relying on a non-reply as an excuse for non-
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action. In that regard, the intended respondent points again to the case of Irish Skydiving.
It says that that case highlights that the court must look at the information that the party
possessed at the time and determine whether, in truth, the delay stemmed for reasons
outside their control. The intended respondent asserts that on the basis of the Irish
Skydiving case, an absence of reply is no reason for non-progression and that this is
irrelevant.
44. With regard to the applicants’ assertion that they brought an application to join the
board as a third party to these proceedings before the limitation period expired, the
respondent opened the terms of the notice of motion dated 7th June, 2016. They quoted
paragraphs (b) and (c) in full:
“(b) An Order, should the [council] maintain an entitlement to defend these
proceedings by virtue of a Decision of An Bord Pleanála, granting liberty to the
Applicant herein to notify [the Bord] of these proceedings or, in the alternative, to
join [the Bord] as a Notice Party;
(c) In the event that An Bord Pleanála be joined, an Order granting liberty to the
Applicants herein to amend the reliefs sought in their Statement of Claim to include
Declarations as set out in the Schedule hereto.”
The schedule mentioned therein, sought the following additional declarations:
“(a) a Declaration that the Respondent is incorrect in its assessment of the effect of
a Decision of An Bord Pleanála on these Judicial Review proceedings;
(b) a Declaration that a Decision of An Bord Pleanála on Appeal (to uphold the
Decision of the Respondent on the merits), is not determinative of the issue of
whether the Decision of the Respondent is invalid and void on the basis of the
Respondent’s failure to comply with its statutory obligations, at first instance;
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(c) a Declaration that the Respondent is incorrect in its interpretation of the effect
of section 37 of the Planning & Development Act, 2000 (as amended) in the context
of these Judicial Review proceedings;
(d) a Declaration that a Decision of An Bord Pleanála on Appeal cannot cure a
defect in a decision of the Respondent at first instance and
(e) a Declaration that an Appeal to An Bord Pleanála and an Application for
Judicial Review are not mutually exclusive procedures.”
This, the respondent asserts reveals only that the applicants were appraised of the facts and
information sufficient to instruct solicitors to advise and act in a challenge to the board’s
decision. It says that the decision to proceed by way of motion to join the board as a notice
party rather than by way of application for leave was entirely within the applicants’ control
and it was a choice that they made. With regard to the applicants’ assertion that
proceedings stalled when the council’s motion to strike out was given a return date of the
13th June and the applicants’ belief that their proceedings could not move on until those
motions were disposed of the respondent asserts that the applicants were not restrained
from action. It asserts that the applicants chose to ignore the limitation period for
proceedings against the board. It says that at all times on or before the 28th June, 2016, the
applicants were entirely free to move an ex parte application for leave against the decision
of the board, in fresh proceedings, entirely separate from these.
45. With regard to the applicants’ assertion that the delay in hearing of the council’s
motion for directions and the applicants’ motion to compel opposition papers and join the
board as a third party was entirely out of their control: the intended respondent says that
while, of course, the delay between when a motion for hearing is ready to be heard and the
actual hearing date is beyond the control of the applicants, this delay is irrelevant. The
applicants were entirely free to move an ex parte application for leave against the decision
of the board in fresh proceedings, entirely separate from these. The respondent notes that
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it appears that the applicants chose between an application for leave against the board and
a motion to join the board as a third party.
46. With regard to the applicants’ assertion that they were entitled to delay pending a
substantive response from the board to their letter of the 16th May, 2016, and that this delay
was entirely out of their control: the intended respondent says that the applicants were
plainly appraised of the facts and had information sufficient to instruct solicitors to advise
and act on a challenge to the boards’ decision. They say that a failure to progress beyond a
letter before action was entirely within their control. The intended respondent refers to the
case of Irish Skydiving. In this case, the applicants argued that the eight-week period only
began to run from when the board made its substantive reply to an email from the
applicant. In that case they invited the court to excuse the delay before the boards’
substantive reply. However, in response, Baker J was firm in concluding that no ‘date of
knowledge’ excuse existed and stated:
“There is no ambiguity in the simple terms of the legislation which would permit
me to interpret it as suggesting that time began to run when an aggrieved or
potentially aggrieved party came to know of the decision. Time is stated to run from
the date the decision is made.”
In that case the court went on at para 51 to make it clear that:
“The public policy interest in strict time limits in planning matters would not be
furthered were a party who knew that his or her rights had arguably been
breached,
and who knew of a decision well within time to bring an application for judicial
review, could seek to argue that time began to run only when it had formulated a
decision to bring the challenge. The formulation of a decision to bring a challenge
is in the normal way one that would be made on legal advice, but the date when
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legal advice is taken, considered, or decided to be adopted, is not and cannot be the
date at
which time begins to run, and to consider otherwise would be to ignore the very
clear
language of the subsection which fixes the time limit by reference to the date of the
decision, and not either to the date of knowledge or the date when a party impacted
by the decision became aware that rights might have been infringed, or the extent
to
which that person might be successful in bringing a judicial review.”
With regard to the applicants’ assertion that the board has made the same error as Kerry
County Council and that the applicants have no faith in the independence of the board: the
respondent indicates that it is not clear as to how this might be relevant to the application
to extend time. It goes on to say that whatever error the applicants allege was made by the
board, it is one that was apparent to the applicants at an early time and before the limitation
period had expired. The intended respondent goes on to say, in conclusion, that the
applicants chose to pursue alternative remedies for the alleged wrongful decision of Kerry
County Council and that the applicants invited the High Court to quash the decision by
way of judicial review and invited the board to overturn the decision on appeal. At all
material times, it is argued, the applicants must be presumed to have known that the
dispute would be resolved by the earlier outcome from the two alternative remedies.
47. The intended respondent says that the applicants chose not to apply to restrain the
board from making a decision on their pending appeal. The applicants received an open
offer from the council on the 31st March, 2016. The proceedings were listed for mention
on two occasions before the board made its decision on the 4th May, namely on the 11th
April and 25th April, 2016. The intended respondent says that no explanation has been
given by the applicants for why the opportunity was missed to compromise proceedings
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before the decision was made by An Bord Pleanála. The intended respondent says that
having received the open offer from Kerry County Council, the applicants could have
withdrawn the then-pending appeal to An Bord Pleanála. It says that would have entirely
removed any prospect for the board to make a decision that would render these
proceedings moot. It says that each of these factors was entirely within the control of the
applicants.
Decision
48. The test that an applicant must meet in an application for an extension of the strict
time limits under section 50(8) of the Act is cumulative and mandatory. The court shall
not extend the time unless it is satisfied that both limbs of the test are met:
“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.”
49. The commencement of the eight-week period is not based on a consideration of
when an applicant had formulated a decision to bring the challenge. Section 50(6) clearly
links the running of time to the making of the decision:
“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.”
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50. In this case, the decision was made by An Bord Pleanála on the 4th May, 2016.
The applicants became aware of the decision as early as the 6th May, 2016 but no later than
the 13th May, 2016. On the 28th June, 2016, the eight-week limitation period expired. The
court notes Baker J’s ratio in Irish Skydiving as relevant in this regard:
“The public policy interest in strict time limits in planning matters would not be
furthered were a party who knew that his or her rights had arguably been
breached,
and who knew of a decision well within time to bring an application for judicial
review, could seek to argue that time began to run only when it had formulated a
decision to bring the challenge. The formulation of a decision to bring a challenge
is in the normal way one that would be made on legal advice, but the date when
legal advice is taken, considered, or decided to be adopted, is not and cannot be the
date at
which time begins to run, and to consider otherwise would be to ignore the very
clear
language of the subsection which fixes the time limit by reference to the date of the
decision, and not either to the date of knowledge or the date when a party impacted
by the decision became aware that rights might have been infringed, or the extent
to
which that person might be successful in bringing a judicial review.”
In Cassidy, the court mirrored the approach above, concluding that:
“Having regard to the fact that the test is cumulative and that the applicant has in
my view failed to satisfy me that he meets the second part of the test, I do not
propose entering into consideration of whether the applicant meets the first part of
the test as whether there is good and sufficient reason for extending the time.”
Page 18 ⇓
51. Having considered the arguments and counter arguments made by both sides the
Court is persuaded by those made by the intended respondent An Bord Pleanála.
52. With regards to whether the applicants’ failure to act before the time limit expired
on the 28th June, 2016 arose from circumstances outside of their control: the court opines
that, on an examination of the chronology of events, it is clear that the applicants had
knowledge, which it clearly articulated in correspondence with the respondent, sufficient to
allow it to seek leave to bring an application for judicial review against the decision of the
proposed respondent within the statutory eight-week time limit.
53. Section 50(8) allows for the extension of time to challenge a decision of the board
in cases where a failure to act was the result of an inability to act, not a choice not to act.
The applicants’ knew, or ought to have known that the board’s decision on the applicants’
appeal would in effect annul the decision of the planning authority. Indeed, the court
accepts that this was the very jurisdiction that the applicants’ were relying on when they
initiated their appeal: they hoped that the council’s decision to grant retention permission
to the notice party would be overturned by the board, rendering the council’s order moot.
Although the applicants’ wrote to the board on 13th May, 2016, before the limitation period
expired asking it to confirm that it would be bound by any orders made by the High Court
in the aforementioned judicial review proceedings, it should have been clear that as the
board had made a decision de novo on the council’s grant of permission, it could not be
bound by subsequent judicial review proceedings. As such, any application brought by the
applicants to join the board as a notice party in relation to proceedings which were on their
face moot, were ill-advised at best.
54. The court notes Baker J’s ratio in Irish Skydiving. Here, the applicant argued that
the eight-week limitation period only began to run from when the board made its
substantive reply to an email from the applicant. Baker J states at para where she stated at
para 37:
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“There is no ambiguity in the simple terms of the legislation which would permit
me to interpret it as suggesting that time began to run when an aggrieved or
potentially aggrieved party came to know of the decision. Time is stated to run from
the date the decision is made.”
As such, it is clear that the time limit began to run from the date of the board’s decision.
The applicants have not persuaded that court that they were entitled to wait for a response
to their letters to the board before acting. It is not permissible to stall or pause a statutory
time period by way of correspondence, especially if the purpose of said correspondence is
to request the board to confirm that they will be bound by the outcome of now moot
proceedings against Kerry County Council; when the applicants’ knew, or ought to have
known, said proceedings were now moot following the board’s decision. As such, the court
is not persuaded that the applicants’ failure to act within the eight-week time limit given,
was the result of an inability to do so arising from circumstances outside of their control.
55. Arguments advanced by the applicant with regard to whether there is good and
sufficient reason to extend time focus on what is argued to be the frailty of the decision
making process and not on whether there is good and sufficient reason to extend the time
as such. Given, however, that the test is cumulative and that the applicant has failed to
satisfy the court that it meets the second part of the test, the court does not propose entering
into any consideration as to whether the applicant meets the first part of the test, that being:
whether there is good and sufficient reason for extending the time.
56. Accordingly, the court makes an order refusing the application to enlarge the time
for the bringing of an application for judicial review against the decision of the proposed
respondent, An Bord Pleanála made on the 4th May 2016.