Judgment: 2004-06-10 · Court archive

Supreme Court upholds challenge to absolute planning review deadline

The Court dismissed the State’s appeal, holding that the two-month limit was unconstitutional as applied where the planning authority’s unlawful act deprived the applicants of a genuine opportunity to challenge the permission in time.

The Supreme Court ·

Who, what, where, when and why

Who
  • Michael White (Applicant)
  • Dublin City Council
  • The Attorney General (Respondent)
  • Kevin Tracey
What

The Court dismissed the State’s appeal, holding that the two-month limit was unconstitutional as applied where the planning authority’s unlawful act deprived the applicants of a genuine opportunity to challenge the permission in time.

Where

Places mentioned in the report

  • Dublin
When

Judgment:

Why

Reasons reported in the judgment

The Supreme Court has dismissed an appeal against a High Court ruling that an absolute two-month deadline for challenging a planning decision was unconstitutional. It held that the deadline, which allowed no extension, compromised the applicants’ constitutional right of access to the courts in the circumstances of the case.

The Supreme Court has dismissed an appeal against a High Court ruling that an absolute two-month deadline for challenging a planning decision was unconstitutional. It held that the deadline, which allowed no extension, compromised the applicants’ constitutional right of access to the courts in the circumstances of the case.

Maud and Michael White sought judicial review of planning permission granted to notice party Kevin Tracey. Their challenge began outside the two-month period set by section 82(3B)(a)(i) of the Local Government (Planning and Development) Act 1963, as amended. They argued that the provision was invalid because it contained no power to extend time where an affected person could not reasonably have known of the decision in time.

The High Court had accepted that argument and declared the provision repugnant to the Constitution. Dublin City Council and the Attorney General appealed. The Supreme Court considered the constitutional validity of the absolute deadline, with the central issue being the absence of discretion to extend it.

The Court recognised the public interest in certainty and finality for planning decisions, including enabling developers to know whether they can safely proceed. It also affirmed that people affected by administrative decisions have a constitutionally protected right of access to the courts to challenge their legality. It distinguished the case from earlier decisions concerning longer limitation periods for private civil claims, where different considerations, including stale evidence, carry greater weight.

The Court found that the applicants could not reasonably have known that substantially modified plans had been required of the notice party. The planning authority had not required a new public notice. The Supreme Court had determined that the authority’s interpretation of its discretionary power under the regulations was incorrect and that its failure undermined the validity of the planning permission. As a result, the applicants were deprived, through no fault of their own, of a genuine opportunity to challenge the permission within two months.

The Court concluded that applying an unextendable time limit in those circumstances undermined the constitutional right of access to the courts, protected by Article 40.3. It held that the High Court was correct to find the provision repugnant to Article 40.3 and dismissed the appeal. The judgment did not decide the applicants’ separate claim that the right was also protected as a property right under Article 43.

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