A Court of Appeal judge would have dismissed an appeal by Peter and Doreen Thomson over the refusal to extend the time for challenging planning permission for a mobile phone mast near their home in Kells, County Kilkenny.
Mr Justice Allen delivered a dissenting judgment on 29 July 2024. He disagreed with the judgment to be delivered by Mr Justice O’Moore, with which Mr Justice Meenan agreed. Allen J. would have affirmed the High Court decision and dismissed the appeal. His judgment records his proposed outcome; it does not establish the Court of Appeal’s final order.
An Bord Pleanála granted Eircom Limited permission on 17 June 2021 to build a 15-metre mast. The Thomsons initially considered a challenge based on the County Development Plan and ministerial telecommunications guidelines, but decided against proceeding. They later sought an extension of time to bring judicial review proceedings, relying principally on an allegation of bias or apparent bias connected to how mast appeals were allocated to Board members.
Allen J. said the Thomsons had enough information to bring proceedings by mid-June 2022. By then, they had assembled figures on Eircom mast appeals and had raised concerns about the number handled by Deputy Chairperson Paul Hyde, as well as the involvement of another Board member. A mathematician, Seamus Knox, had also assessed the probability of the allocation pattern occurring randomly. Allen J. considered that later enquiries did not supply information needed to bring the case.
The Thomsons decided on 10 October 2022 to start proceedings, after a newspaper report that Hyde was to be prosecuted. Allen J. noted that the report did not link the proposed charges to the Kells permission or other mast decisions. He characterised the decision to proceed as opportunistic and said the delay after the information was available was within the Thomsons’ control.
He also considered other proposed grounds. He said a challenge based on the planning guidelines could have been brought within the original time limit, and described a proposed ground concerning an alleged composition with creditors by Hyde as unsupported by the material cited. The judgment also records that a statutory provision precluded a challenge based only on non-compliance with a code of conduct.
Eircom had undertaken not to re-erect the development while the proceedings were pending. Allen J. said the evidence showed construction had begun but had not followed the permission, and he considered that work indicated an intention to carry out the permitted development. He concluded that the public interest in examining concerns about Board processes did not outweigh the need for challenges to Board decisions to be brought promptly.