The Court of Appeal has rejected David Cooper’s appeal against the striking out of his planning judicial review proceedings, but deferred settling the final order and costs until a further hearing.
The court held that Cooper had not challenged An Bord Pleanála’s decision to treat his planning appeal as invalid. As a result, the question of whether the Board could accept a late appeal under a de minimis exception did not arise in these proceedings.
Cooper lives close to Dundrum Town Centre and objected to a proposed outdoor screen for open-air cinema events, citing concerns including evening and night-time noise. Dún Laoghaire-Rathdown County Council decided on 8 December 2020 to grant planning permission, subject to conditions, and issued the formal permission on 21 January 2021.
Cooper said he received notice of the Council’s decision on 12 January 2021. He lodged an appeal with the Board on 14 January. The Board decided on 19 January that the appeal was outside the statutory period, which the judgment said expired on 13 January after the Christmas period was excluded from the calculation.
Cooper began judicial review proceedings in March 2021, seeking to quash the Council’s permission. The High Court later struck out the proceedings, finding, among other things, that they were out of time and disclosed no cause of action against the Board. Cooper appealed.
The Court of Appeal explained that no relief had been sought against the Board’s decision to reject Cooper’s planning appeal. That decision could only have been challenged through judicial review proceedings brought under the statutory planning review process, the court said. It was too late to bring such proceedings.
The court did not decide whether the Board could ever excuse a late appeal under a de minimis principle. It noted that the statutory appeal period appeared absolute, but said the issue was not properly raised in this case and declined to address it further. Cooper had not argued that the High Court was otherwise wrong to strike out his case.
The court concluded that the proceedings against the Board were unsustainable. However, because Cooper had also sought relief against the Council, and the Council had not applied to strike out the case against it, the court said the parties should address the appropriate form of order at a further listing. It also deferred costs to that hearing. The judgment records no final order on those matters.