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[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 BORD 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)
AMICUS CURIAE
(No. 4)
JUDGMENT of Humphreys J. delivered on Friday the 21st day of March 2025
2. The request is being made in proceedings seeking an order quashing a development consent granted by An Bord Pleanála dated 28 June 2023 (ref. ABP314936-22) (https://www.pleanala.ie/anbordpleanala/media/abp/cases/orders/314/d314936.pdf) to grant the notice parties permission for the sub-division of an existing site, the provision of a single story infill dwelling to the rear of the site, amendments to the exiting boundary treatment to the side and rear of the site, the provision of two parking spaces to serve the proposed dwelling, landscaping and a new connection to the existing waste-water and water supply and all associated site works at a site at Howth Road, Sutton, Dublin 13.
3. Articles 41 and 47 of the EU Charter of Fundamental Rights of the European Union (2000/C 364/01) provide:
"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."
4. Article 6 of Directive 2011/92 provides:
"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."
5. Article 11 of Directive 2011/92 provides:
"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."
6. Article 6(1) and (9) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (done at Aarhus on 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447 (the Aarhus Convention), approved on behalf of the European Community by Council Decision 2005/370 of 17 February 2005 provides:
"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."
7. Article 9(3) of the Aarhus Convention provides:
"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."
8. Section 50(6) to (8) of the Planning and Development Act 2000 (the 2000 Act) provides (https://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/html#SEC50):
"(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."
9. Reference to "the Order" means Order 84 of the Rules of the Superior Courts (https://www.courts.ie/rules/judicial-review-and-orders-affecting-personal-liberty).
10. As far as the test in the judgment of 18 October 2012, Pelati v Republika Slovenija, C-603/10, ECLI:EU:C:2012:639, is concerned, the starting point for the running of time is unambiguously and foreseeably set out in domestic law as being the date of the decision itself. Under domestic law, time runs from that date even if that is not known to anyone at the time other than to the decision-taker.
11. Order 84 rule 21(1) of the Rules of the Superior Courts which applies to judicial review generally is consistent with the special rule in section 50(6) of the 2000 Act. It provides:
"(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."
12. The term "proceeding" is in practice normally applied to administrative proceedings, so that time for a challenge runs from the date of the decision rather than notification.
13. The way the domestic legislation operates (subject to any contrary requirement of EU law) is that:
(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 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); Marshall v. Kildare County Council [2023] IEHC 73, [2023] 2 JIC 1705 (Unreported, 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).
14. Section 146(5) to (7) of the 2000 Act provides (https://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/html#SEC146):
"(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."
15. There is a time limit for publication of the material by making it available at the board's office and on the website (or by other means if the board so decides, which generally it does not - see Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, Humphreys J., High Court, 24 January 2024) (https://www.courts.ie/ga/view/Judgments/8ddfaf53-e3f7-4485-a028-647afd70dba7/15984f2b-d915-4c1b-87ba-30c2f14fb784/2024_IEHC_27.pdf/pdf)). In that case it was held as follows:
''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."
16. Three days from a decision includes the day of the decision itself unless the context otherwise requires - see section 18(h) of the Interpretation Act 2005 (https://www.irishstatutebook.ie/eli/2005/act/23/enacted/en/print#sec18):
"(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;"
17. Section 146(5) of the 2000 Act refers to 3 days "following" the decision. But "following" is encompassed within the concept of a "period ... reckoned from a particular day". The context certainly doesn't "require" a more favourable interpretation from the board's point of view.
18. Article 74(1) of the Planning and Development Regulations 2001 provides (https://www.irishstatutebook.ie/eli/2001/si/600/made/en/print#part7):
"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."
19. This Article does not specify any time limit.
20. The amicus curiae has helpfully prepared a table showing how the time limits and the basis on which they can be extended vary considerably across domestic law depending on the type of development consent concerned:
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.
|
21. The applicants are scientists, the first named applicant being an emeritus professor and the second named applicant being a retired geneticist.
22. On 14 March 2022, the notice parties lodged the application for development consent with Fingal County Council (the council).
23. On 28 April 2022, the council issued a request for additional information and subsequently issued public notices in respect of additional information on 19 August 2022.
24. The council then decided to grant permission with conditions, on foot of a planning report dated 28 September 2022.
25. On 26 October 2022, the applicants appealed to the board.
26. On 8 March 2023, the board wrote to the applicants indicating that the appeal would not be decided within the target time-frame of 18 weeks.
27. On 22 May 2023, the respondent's inspector carried out a site inspection.
28. On 24 May 2023, the inspector issued his report. The report contains a screening analysis for the purposes of Directive 2011/92 and Council Directive 92/43 concluding that due to the limited nature and scale of the project and the distance from sensitive sites and lack of connectivity thereto it would be unlikely to have significant effects on the environment or on European sites. Accordingly:
(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.
29. On 29 May 2023, the board wrote again to the applicants indicating that the matter would be further delayed.
30. The application was considered at a meeting of the board on 26 June 2023, at which the board decided to grant planning permission for the development. The board direction is dated 26 June 2023.
31. The board order that is the formal decision is dated 28 June 2023.
32. The board then had a requirement to provide notification of the decision through three specific channels:
(i) making available the file for inspection at its office within three days - that presumably happened but it doesn't 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).
33. Thus the first meaningful notice actually received by the applicants was on 4 July 2023, which was four days after the web publication should have happened.
34. The applicants requested a hard copy of the inspector's report and received that on 5 July 2023.
35. Following receipt of notice of the board's decision, the applicants didn't act with any noticeable speed for a month, during the period 5 July 2023 to 4 August 2023, and then took the legally misconceived step of corresponding with the board on the latter date, to ask if there was any other basis for the decision than that disclosed on the papers they had. Dissatisfied with a mere acknowledgement dated 15 August 2023, they wrote again on 16 August 2023 and only then decided to seek judicial review - at that point there were only eight days left to bring the proceedings.
36. The applicants also say that they were busy during that period including due to an unfortunate illness of a relative. But the applicants' difficulties in no way reached the level that would have precluded them acting within time - their real problem was that they mistakenly believed that time ran from notification (as they effectively admit in their joint affidavit at paragraph 25). This mistake is not attributable to the State because the domestic rules are clear and foreseeable in providing that time runs from the date of a decision even if it has not been notified.
37. Working from the date of the decision, the eight-week period expired on 22 August 2023.
38. The application for leave to apply for judicial review was made in domestic law (as it stood at the relevant time) when it was opened on 23 August 2023 at a vacation sitting of the High Court.
39. On 18 December 2023, the referring court gave the applicants liberty to bring a motion seeking an extension of time.
40. On 26 February 2024, the referring court ordered inter alia that the applicants be directed to serve notice on the Chief State Solicitor on behalf of Ireland and the Attorney General.
41. Liberty to file a second amended statement of grounds was given on 11 March 2024, to be filed by 20 March 2024 for the purpose of adding relevant relief against the State in relation to the validity of the statutory scheme regarding time limits.
42. Friends of the Irish Environment applied to join an amicus curiae, which application was granted. The referring court was then of the view that the matter raised questions of the interpretation of EU law which were necessary for it to give judgment and that it was appropriate in the circumstances to refer these questions to the CJEU. The board and the notice parties did not propose answers to the draft questions.
43. In those circumstances the referring court is staying the proceedings and referring the questions below to the Court of Justice for a preliminary ruling.
44. The first question is:
Do Articles 41 and/or 47 of the EU Charter of Fundamental Rights 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?
45. The applicants' proposed answer is in the affirmative. The only position consistent with safeguarding rights derived under EU law would be one where time begins to run from the notification of the decision and in the event that it runs from the date of the decision, the express specification of a compensatory mechanism if maladministration on the part of a competent authority results in the limitation period of a party being foreshortened. There is also the added complicating factor of the impugned legislative regime allowing a period of three days in which the competent authority should notify, meaning different parties essentially have different limitation periods depending on when the competent authority elect to notify.
46. The State's proposed answer is that EU law does not mandate any specific notification period(s) for decisions engaging Directive 2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50. However, notification periods prescribed by Member States should comply with the principles of equivalence and effectiveness so as to conform with EU environmental law. Irish law is consistent with those principles.
47. The amicus curiae's proposed answer is that public notification of the fact of the making of a decision for a development consent, and the making available of the reasons and documents supporting that decision, must be done in a manner that is as prompt and accessible as possible, which in modern terms means online publication. They have concerns about the proper interpretation of the term "reasonably contemporaneous" used in this question.
48. The referring court's proposed answer is Yes. The referring court agrees that in principle the specification of time limits is a matter within the scope of national procedural autonomy, subject to the principles of equivalence and effectiveness. The Irish domestic time limits are equivalent as between EU and domestic claims. However as regards effectiveness, this involves compliance with the principle of legal certainty (see judgment of 28 January, Uniplex (UK) Ltd v NHS Business Services Authority, C-406/08, ECLI:EU:C:2010:45), and an open-ended provision in domestic law for discretionary notification of a decision by a particular channel (even if there are time requirements specified for other channels), with time running from the date of the unnotified making of the decision, is contrary to the principle of legal certainty. Thus the principle of effectiveness requires either that time for effecting the notification of the decision be specified in law (if time runs from the making rather than notification of the decision), or alternatively that if notification periods are discretionary, time should run from the date of actual notice rather than from the decision.
49. The relevance of the question is that Irish law provides that time runs from the decision and that an extension of time in circumstances such as exist here is not possible. Any interpretation of the relevant enactments that would allow an extension or that would regard the action as being brought within time would be contra legem. Therefore if the answer is Yes, the referring court would be likely to be required to declare one or more of the relevant enactments invalid (either s. 50(6) or (8)(b) of the 2000 Act or both - most likely (8)(b) only).
50. The second question is:
Do Articles 41 and/or 47 of the EU Charter of Fundamental Rights 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?
51. The applicants' proposed answer is that transparency, the right to an effective remedy, effective public participation and the principles of good administration all require that whatever time period is prescribed for a party to the appeal or member of the public concerned to bring a judicial review of a decision of a competent authority, this cannot be foreshortened by maladministration on the part of the competent authority. Consequently, in the event of such maladministration arising, European law requires that the prospective applicant should enjoy the benefit of the time period that he or she would have had if the maladministration had not occurred. Such a provision should be expressly set out in the domestic law of a Member State in order to make the time limits precise, foreseeable and compliant with the principle of legal certainty. There is no decided case of the CJEU that the applicants are aware of that would render the court's second question acte clair.
52. The State's proposed answer is that this question should be answered in the negative. There is no express provision for a "compensable" extension of time in the EU legal instruments referred to in the question, and this is a matter for national procedural autonomy. In the event that the relevant competent authority fails 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 and, as a consequence, the participant in the process was unable to challenge the decision within time, Irish law provides a remedy in section 50(8) of the 2000 Act.
53. The amicus curiae's proposed answer is that to accord with fair procedures and to prevent unnecessary barriers to access to justice, where there are statutory time limits in public notification of decisions and in the provision of documents relevant to the decision, and where any delay in notification impinges on the period for access to the courts, there should be compensation in time for the notification time lost.
54. The referring court's proposed answer is Yes. While again at the level of principle the procedures for extension of time fall within national procedural autonomy, the principle of effectiveness is engaged here. The effective implementation of EU law requires that if the authorities of a Member State are, as here, in breach of the obligation to notify a decision of EU law relevance within a time specified in domestic law, the effects of such a breach should not fall on an applicant. In such circumstances, an applicant should be entitled to a compensatory extension of time. The problem with the State's answer is that section 50(8) of the 2000 Act only benefits an applicant who was thereby prevented from bringing the action within time, and does not benefit applicants such as those here who were not prevented from acting within time but who simply failed to act within that time, although they were nonetheless disadvantaged by having had a shorter period than that provided in law.
55. The relevance of the question is that if the answer is Yes, the applicants should benefit from an extension of time here to compensate for the default in notifying the decision within the statutory period. However an interpretation of section 50(8)(b) of the 2000 Act that would allow such an extension would be contra legem. Hence the effect of an affirmative answer would be that the referring court would be likely to be required to declare section 50(8)(b) of the 2000 Act to be invalid.
56. The third question is:
Do Articles 41 and/or 47 of the EU Charter of Fundamental Rights 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?
57. The applicants' proposed answer is in the affirmative. A Member State cannot employ a valid legislative scheme in respect of limitation periods that excludes the possibility of an extension of time to bring a challenge in circumstances where such a regime allows different parties to have different limitation periods within which to bring a legal challenge to a decision of a planning authority. European law also requires that a competent authority is bound to make good any adverse harm caused to a party by a breach. However, with the facts and legislative regime arising here, the competent authority sought to unknowingly take advantage of their late notification such was the uncertainty surrounding the limitation period. A legislative regime that allows a competent authority that fails to notify a party within a mandatory timeframe to raise such a point, creates an obstacle to meaningful and accessible public participation and infringes the right of the party and public concerned to access a review mechanism which they are entitled to under Union law. The applicants rely on the judgment of 17 November 2016, Stadt Wiener Neustadt v Niederösterreichische Landesregierung, C-348/15, ECLI:EU:C:2016:882 and the judgment of 7 November 2019, Alain Flausch and Others v Ypourgos Perivallontos kai Energeias and Others, C-280/18, ECLI:EU:C:2019:928 to illustrate that a Member State is precluded from omitting to provide an extension of time mechanism where that Member State's legislative regime prejudices and places a party or member of the public concerned with a less favourable and potentially much shorter period of time within which to bring a challenge by way of judicial review without recourse to an extension of time. Such a regime is not compatible with EU law and is acte clair.
58. The State's proposed answer is that this question should be answered in the negative. EU law does not preclude a Member State from excluding the possibility of an extension of time to bring a 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.
59. The amicus curiae's proposed answer is that any test set by the national authorities for the public to meet in order to justify the extension of time to bring a judicial review because of a delay should not have unforeseen consequences. They submit that the current tests under the 2000 Act and Order 84 are too onerous. The delay to be justified in these tests is over the entire period allowed (eight weeks, two months or three months depending on the legislation) and is not focused on the effect of the prejudice caused by losing time at the start due to (for example) tardy notification procedures or at the end due to (for example) any obligation there may be to incorporate notice of judicial review into the time allowed, where the process calls for a motion on notice. The full time period is treated as if it is a generosity that can be comfortably trimmed at either end as required. The question being asked in these tests is "how did you use the rest of your time?" It has the unintended consequence of treating a statutory time limit as if it was an overmeasure in the first place. A more reasonable test is found in the Environmental Protection Agency Act 1992, as amended (https://revisedacts.lawreform.ie/eli/1992/act/7/front/revised/en/html), which provides for a time extension "if the Court considers that in the particular circumstances there is good and sufficient reason for doing so".
60. The referring court's proposed answer is Yes. The principle of effectiveness requires that a court of a Member State should have discretion to extend time to compensate for a breach of domestic law in notifying a decision of EU law relevance, even if an applicant was thereby merely prejudiced through having less time, rather than having been unable to bring the action, i.e., that the applicant could not satisfy the test that the failure to bring the action within time was outside the applicant's control. The State's submission gives a misleading and inaccurate picture of domestic law by portraying the power to extend time as broad and flexible. The caselaw does illustrate flexibility but only within the statutory criteria, and primarily only as regards the question of "good and sufficient reason" for the extension (section 50(8)(a) of the 2000 Act). The prior requirement that the reason for the failure to bring the proceedings prior to the expiry of the deadline was outside the applicant's control is neither broad nor flexible, and any interpretation to give it such a broad meaning would be contra legem. The State's argument that section 50(8)(b) of the 2000 Act "might" be interpreted as allowing an extension if an applicant was "prejudiced" as opposed to the failure to act in time having been "outside the control" of the applicant is the first time such a suggestion has been made by the State in domestic jurisprudence and hence is an expedient contrivance for the purposes of this case and possibly for this case only, is wholly speculative, has no basis whatsoever in domestic statute law or caselaw, and is contrary to the wording of section 50(8)(b) of the 2000 Act. On the other hand, if the State were to be correct in its speculative submission, that would illustrate a complete lack of legal certainty in the Irish domestic legislation as to the time for bringing proceedings. On the facts here it would be a distortion of the statutory language beyond permissible limits to say that the applicants could not have brought the action within time, or that factors beyond their control resulted in their failure to do so. The primary reason for their failure was their misunderstanding of the law, which was not a factor beyond their control. But they were nonetheless prejudiced by not having had more time within which to act. Even if the legislation could be given the extremely artificial meaning now for the first time advanced by the State, that meaning is not reasonably foreseeable and hence is not valid as measured against the principle of legal certainty.
61. The relevance of the question is that an extension of time to benefit the applicants here would be contrary to section 50(8)(b) of the 2000 Act because the breach of notification requirements only caused prejudice by shortening the time to act rather than preventing the bringing of the action within time. The terms of the domestic legislation are clear and, contrary to the State's position, an interpretation that would allow an extension here would be contra legem. Hence the effect of an affirmative answer would be that the referring court would be likely to be required to declare section 50(8)(b) of the 2000 Act to be invalid.
62. For the foregoing reasons, it is ordered that:
(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.