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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Byrne v An Bord Pleanala & Anor (Approved) [2025] IEHC 222 (29 April 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC222.html
Cite as: [2025] IEHC 222

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APPROVED                                                               [2025] IEHC 222

 

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THE HIGH COURT

 

2024 1234 JR

BETWEEN

 

PATRICK BYRNE

APPLICANT

AND

AN BORD PLEANÁLA

AND

(BY ORDER)

CORK COUNTY COUNCIL

RESPONDENTS

 

 

RULING of Mr Justice Nolan delivered on the 29th day of April 2025

1.                  This is an application to amend the Applicant's Statement of Grounds seeking leave for judicial review. The Notice of Motion states that the application is in accordance with Order 84 Rule 20(4) of the Rules of the Superior Courts ("the Rules"). It also says that it aims to comply with High Court Practice Direction HC126 of the Planning and Environmental list and includes necessary corrections to the original Statement of Grounds dated the 4th of October 2024. The motion specifically states that the amendments do not introduce new grounds but instead, maintain the fundamental essence and arguments of the original Statement of Grounds. The Second Named Respondent ("the Council") disputes this.

2.                  In his grounding affidavit, the Applicant states that the amendments introduce no additional grounds of relief, clarifies the factual dates regarding the receipt of the planning application by the planning authority and its decision of the 13th of June 2022 and does not prejudice the Respondents nor does it materially alter or enlarge the Applicant's case.

3.                  He disputes the assertion of the Council, that he is advancing an alternative basis for a default permission. At the time of applying for judicial review, his focus was primarily upon quashing the 13th of August 2024 decision of the First Named Respondent ("the Board").

4.                  The explanation or reason he gives as to why the amendments were not in his original application relates to his personal circumstances and the death of his wife of 22 years in 2024. She had been ill for six months before that and he devoted all his available time to looking after her. He believes that he was overwhelmed with grief, exhaustion, sleep deprivation which significantly impaired his ability to concentrate and navigate complex legal procedures. He also developed an eye condition from sleep deprivation.

 

The Nature of the Amendment

5.                  The leave application was opened before Humphreys J. on the 2nd of December 2024 and counsel for the Council set out the basis of opposition. At that point, the Applicant sought to advance a new basis to an entitlement of a default permission. He said that he presented at the head office of the Council on the 15th of April 2022, which was Good Friday, a day it was not open for business. He says he left a planning application at the porter's desk and that it was date stamped as received on the 15th of April. He took a photo of it. The Applicant says the original date stamp was altered since it now bears a different date stamp of the 19th of April 2022, which was the following Tuesday, being the first day its offices were open for business after the Easter break.

6.                  Therefore, he contends that a subsequent request for further information which was issued on the 13th of June 2022 from the Council was out of time, having regard to Section 34 (8)(b) of the Planning Development Act 2000 ("the 2000 Act"), as amended, which allows the planning authority to seek further information on a planning application within eight weeks of the receipt of such an application.

 

The Attitude of the Respondents

7.                  The Board is taking a neutral stance in relation to the application. However, the Council is taking a more robust approach. Mr. Keaney BL for the Council makes three submissions. The first, he describes as arguability. He submits that the Applicant had at least three opportunities to challenge the decision of the Council, in June, August of 2022 or January 2023. He says that the Applicant failed to take up any of these opportunities and therefore, at this stage, he simply cannot make a case on that basis.

8.                  He urges the court to form a view in relation to this issue, bearing in mind the provisions of the 2000 Act and in particular Section 37(1)(b). He makes the point that the effect of the Board's decision means that any decision of the Council is nullified in which case, the proposed amendment cannot serve any useful purpose.

9.                  He refers the court to number of decisions namely McCallig v An Bord Pleanala (No. 1) [2013] IEHC 60, Yennusick v Wexford County Council [2023] IEHC 70 and Duffy v Clare County Council [2023] IEHC 430, all of which support his contention.

10.              Therefore, he submits that the Applicant is in fact making an entirely new case, which should not be allowed. If the court accepts that the point is unarguable, then the court should not look at the other two submissions.

11.              The second submission relates to the explanation proffered by the Applicant. He says that the Applicant has not set out a reason on affidavit for his delay in relation to the proposed amendments. Whilst he refers to his tragic personal circumstances, it does not provide an explanation which excuses the delay in respect of the proposed new grounds concerning a default permission. He should have challenged the Council's decision to serve a further information request on the 13th of June 2022 much sooner. This, he didn't do.

12.              His third ground is prejudice. This is an entirely new case which will have to be addressed by way of further affidavits and that is something which the courts have taken into consideration when granting the relief to amend the Statement of Grounds.

 

The Jurisprudence

13.              It is common case that the law relating to seeking an amendment of judicial review proceedings is that the Applicant must explain his delay (see Keegan v Garda Siochana Ombudsman Commission [2012] 2 IR 570). In that case, Fennelly J. noted that the courts are reluctant to admit new grounds which amount to advancing an entirely new cause of action and that an amendment may be more likely be permitted where it does not involve a significant enlargement of the Applicant's case. He noted that an additional ground might not make any significant difference if it is based purely on a matter of law, however, a different view might be taken if the new ground is likely to give rise to an exchange of affidavits relating to facts.

14.              In North West Meath Turbine Action Group v An Bord Pleanála [2022] IECA 126, Collins J. stated that ultimately, the touchstone for determining whether to permit an amendment was the interests of justice. Further, in Sherwin v An Bord Pleanála [2023] IEHC 26, Humphreys J. noted that a further amendment does not require the same level of good and sufficient reason, as set out in proceedings challenging a decision which is brought outside the statutory period.

 

The Position of a Litigant in Person

15.              In Heavey v An Bord Pleanála [2024] IEHC 480, Holland J. noted:

"The court will usually go to considerable lengths to assist lay litigants and will allow considerable latitude to them in stating their case.  Papers drafted by lay litigants should be held to "less stringent standards than formal pleadings drafted by lawyers". "[w]here a lay litigant is involved, pleadings may be confused. Traditionally, in every court, judges have done all that they can constitutionally do to assist".  The court must be open to whatever approach to the pleadings serves the interests of justice, including giving what could be extensive liberty for a re-phrasing of a lay litigant's pleadings so that the real matters in dispute and the legal issues arising therefrom are identified.  However, I observe that even these allowances have limits - circumscribed by considerations of practicality, devotion of scarce court resources to work properly that of the litigant and, perhaps most of all, the imperative that the judge may not enter the lists as a partisan".

Decision

16.              As matters stand, the Applicant simply seeks leave for judicial review. That hearing has not concluded. In relation to the three submissions that the Council makes, the first relates to the issue of arguability. There is no doubt that the cases to which Mr. Keaney has referred me are all very much on point. There is one distinction, however, and that is that they do not relate to an application to amend the Statement of Grounds. At this remove, it is unclear to me as to whether the amendments sought amount to an entirely new case, but I can see how that might arise.  Therefore, it seems to me that this is an issue which is better dealt with by Humphries J., when he deals with the application for leave, without prejudice to the Council's right to challenge the matter on this ground at the hearing.

17.              This leads me to the second issue, namely, the alleged failure on the part of the Applicant to give reasons. In point of fact, the Applicant has given a reason, but Mr. Keaney says that that does not relate to the years of 2022 and 2023. In response, the Applicant says the mistake which he seeks to remedy in regard to matters around Easter of 2022, only came to his notice when he was preparing the judicial review, but at that time, he was not in a position to deal with things in a coherent way due to his wife's illness and subsequent death. He reiterates, however, that it is the Board's decision he wants quashed and not that of the Council. However, it seems to me that is a matter which will form a central role in the application to grant leave.

18.              Nonetheless, it seems to me that the question to be asked is whether, in the interests of justice, it is appropriate to allow the amendments sought. I think he has set out a reason and that reason relates to his wife's ill health and subsequent death. I think that in the interests of justice, bearing in mind that the Plaintiff is a litigant in person and the views expressed by Holland J. in Heavey, I will allow the amendments. But I do so without prejudice to the matter being subject to far greater scrutiny and assessment at the application for leave.

19.              The last issue is that of prejudice. It does not seem to me that any significant prejudice arises from allowing the amendments. While a further affidavit may be required in the overall context of a judicial review, I regard that as very minor.

20.              The matter will now go back for a hearing on the substantive application, to include the amendments he seeks, without prejudice to the Respondents' right to challenge all issues raised, including the amendments.

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