The High Court has refused to extend the time for Desmond and Kay Corbett to challenge the 2013 planning approval for an ESB substation beside their home, finding they had not moved with sufficient expedition after learning it was being built.
The case concerned a substation and adjoining storerooms planned as part of a school development at the Marshes in Dundalk. The applicants said the site notice did not mention the substation and that a concept drawing near the notice had led them to believe there was no reason to object. They also challenged the plans made available for inspection and the council manager’s report to elected members.
The permission took effect on 1 August 2013. The applicants said they first discovered construction near their property on 3 May 2017. They began judicial review proceedings on 25 July 2017, seeking extra time to bring the challenge, an order stopping completion of the substation, an order quashing the part of the permission authorising it, and demolition of the portion already built.
Justice Faherty found there was an established practice of referring to ESB substations in site notices where one was proposed. The omission could have misled the applicants before they learned of the construction, and might have supported an extension if they had acted with expedition after 3 May 2017.
But the court was not satisfied that their failure to object within the statutory period was outside their control. The first applicant had seen that plans were available for inspection, and the notice’s reference to associated works “including” listed facilities indicated that the list was not exhaustive. The court found the applicants could not reasonably rely on the notice and concept drawing without checking the plans, which would have shown the substation.
The court also found they had not explained the delay after discovering the construction. By 1 June 2017, correspondence from a local representative indicated that the substation was expected to remain in place while the storerooms might be moved or omitted. The applicants did not then act with the expedition required for a challenge to a decision made almost four years earlier.
The court ruled that the statutory conditions for extending time had not been met and proposed making an order refusing the extension. It did not determine the applicants’ challenges to the plans or manager’s report, or grant the other reliefs they had sought.