Judgment: 2018-10-12 · Court archive

High Court refuses late challenge to An Bord Pleanála planning decision

The court found the applicants had not shown that circumstances outside their control prevented them from applying within the statutory eight-week period.

High Court · [2018] IEHC 829

Who, what, where, when and why

Who
  • Eileen Browne (Applicant)
  • Kerry County Council (Respondent)
  • Jerome Browne
  • An Bord Pleanála
What

The court found the applicants had not shown that circumstances outside their control prevented them from applying within the statutory eight-week period.

Where

Places mentioned in the report

  • Kerry
When

Judgment:

Other dates in the report
  • 4 May 2016

    The board made its decision on 4 May 2016, refusing the applicants’ appeal and granting retention permission. The eight-week deadline to seek leave for judicial review expired on 28 June 2016. The applicants filed the motion seeking an extension on 13 April 2017.

Why

Reasons reported in the judgment

The court applied the statutory test, which requires both a good and sufficient reason for an extension and circumstances outside the applicant’s control that caused the delay. It found the applicants knew, or ought to have known, that the board’s decision would annul the council’s decision. Their correspondence showed they had enough information to seek leave within the eight weeks, the court said. Waiting for a reply did not pause the statutory deadline, and the court was not persuaded that the applicants’ failure to act resulted from an inability to do so.

The High Court has refused Maurice and Eileen Browne an extension of time to seek judicial review of An Bord Pleanála’s decision granting retention permission to Jerome Browne. The court did not decide whether the board’s planning decision was legally flawed.

The board made its decision on 4 May 2016, refusing the applicants’ appeal and granting retention permission. The eight-week deadline to seek leave for judicial review expired on 28 June 2016. The applicants filed the motion seeking an extension on 13 April 2017.

The applicants said they had expected their existing judicial review proceedings against Kerry County Council to resolve the dispute. They argued that the board’s delay in responding to their letter asking whether it would be bound by orders in those proceedings contributed to their failure to challenge the board’s decision in time. The board’s substantive reply came in March 2017.

An Bord Pleanála, represented as the intended respondent, opposed an extension. It argued that the applicants knew of the decision and could have sought leave within the deadline. It also said their correspondence and motion to join the board to the existing proceedings did not replace an application for judicial review.

The court applied the statutory test, which requires both a good and sufficient reason for an extension and circumstances outside the applicant’s control that caused the delay. It found the applicants knew, or ought to have known, that the board’s decision would annul the council’s decision. Their correspondence showed they had enough information to seek leave within the eight weeks, the court said. Waiting for a reply did not pause the statutory deadline, and the court was not persuaded that the applicants’ failure to act resulted from an inability to do so.

Because the applicants failed to meet the outside-their-control requirement, the court did not assess whether they had a good and sufficient reason for an extension. It refused the application to enlarge the time for bringing judicial review proceedings against the board’s 4 May 2016 decision. The judgment addresses only the extension request; it makes no ruling on the merits of a judicial review challenge to the planning decision.

Read the original court judgment

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