The High Court has refused to extend the time for John Kelly to seek judicial review of part of An Bord Pleanála’s decision about a change of use at the Landmark Hotel in Carrick-on-Shannon.
The decision, delivered by Mr Justice Clarke on 27 January 2005, concerned only whether Kelly should receive extra time to bring the challenge. The court did not decide whether to grant leave for judicial review or determine the substantive legality of the Board’s decision.
The Board decided on 17 September 2004 that changing part of the hotel from a leisure centre to a nightclub and functions area was a material change of use, constituted development and was not exempted development. Kelly accepted that the Board had jurisdiction to decide those points about the change of use. His proposed challenge focused on a separate part of the decision concerning structural works associated with the change. He argued that the Board had impermissibly determined that those works were not exempted development.
Six days after the Board’s decision, the County Council issued an enforcement notice. It required the unauthorised use to stop and required associated alterations to be removed, with compliance due within 84 days. Kelly’s complaint about the works also concerned the Council’s inclusion of their removal in that notice.
The statutory deadline to apply for leave was 11 November 2004. For the purpose of the hearing, the court treated the application as made on 30 November, a delay of 19 days, while allowing the parties to return to that issue if it became disputed.
Kelly relied on a serious illness in his family and on receiving conflicting legal advice shortly before the deadline. The court acknowledged his difficult personal circumstances but found the explanation for the delay incomplete. It noted that the later advice recommending judicial review arrived on 11 November, and that no real explanation had been given for the further 19 days before the papers were served. The court also considered the need for finality in planning decisions, despite there being no significant third-party rights involved.
The court concluded that the delay was significant and the explanation limited, and refused to extend time. It therefore did not reach the later question of whether leave to apply for judicial review should be granted.