The High Court has refused Peter and Doreen Thomson leave to challenge An Bord Pleanála’s 2021 permission for a 15-metre telecommunications mast in Kells, County Kilkenny, after setting aside an earlier order that extended the time limit for their application.
The judgment, delivered by Humphreys J. on 24 July 2023, concerned the preliminary question of whether the judicial review could proceed. It did not decide the applicants’ substantive allegations about bias, the Board’s conduct or the planning merits of the mast.
The Board granted Eircom permission for the mast on 17 June 2021, overturning Kilkenny County Council’s refusal. The applicants’ stated grounds for challenging the decision included alleged bias or apparent bias, alleged breaches of the Board’s code of conduct, and claims that the Board had failed to apply planning policy properly or give adequate reasons. These were grounds advanced by the applicants, not findings made by the court.
The statutory eight-week period to challenge the permission expired on 11 August 2021. The applicants issued proceedings on 28 November 2022, after concerns about a pattern of mast decisions and media reports about the former deputy chairperson of the Board. They said they had delayed while gathering information and awaiting the outcome of inquiries.
The judge found that the alleged planning-policy errors were apparent from the decision at the outset, so the applicants’ failure to raise those points in time was not outside their control. For the other principal grounds, he accepted that the matters would not initially have been obvious to a reasonably diligent applicant. However, he concluded that the applicants had enough information by mid-June 2022 at the latest to bring proceedings, and that they had not acted within eight weeks of then.
The court held that awaiting further details or the results of investigations did not provide good and sufficient reason for the delay. It also considered the need for certainty and the unfairness to the developer of reopening a permission long after the challenge period.
The order set aside the earlier extension of time and leave to apply for judicial review, and refused both. Eircom was released from its undertaking not to proceed with the development once the order took effect. The order was to be perfected after seven days unless a party applied otherwise by written legal submission; the court specified no order as to costs on that basis.