The High Court found there was no longer a live issue for it to decide about Kerry County Council’s November 2015 retention permission after An Bord Pleanála granted retention permission on appeal in May 2016. It declined to allow the applicants to add An Bord Pleanála as a respondent to keep their judicial review proceedings alive. The court did not, at this stage, make a final order ending the case or decide whether to set aside the council’s 2015 decision by consent.
Maurice and Eileen Browne brought the judicial review against Kerry County Council, with Jerome Browne, the first applicant’s brother, named as notice party. The judgment records that a Circuit Court had earlier upheld the applicants’ complaint that Jerome Browne breached a 2013 planning permission. The council then granted his application for retention permission in November 2015.
The applicants sought judicial review of that decision and also appealed it to An Bord Pleanála. The council acknowledged that it had failed to place a report and a letter on the public file, and proposed that the November decision be quashed and the matter remitted to the council. The applicants’ solicitors agreed to certiorari, a declaration concerning the council’s statutory duties, and costs, but opposed remittal. They argued it would be objectively unfair and would undermine their ability to correct the council’s handling of its functions.
An Bord Pleanála granted retention permission with conditions and reasons on 4 May 2016. The council then asked the High Court for directions on the future conduct of the proceedings. The applicants argued, among other things, that their challenge to the board’s decision was before the court through a request to add the board as a respondent.
Mr Justice Tony O’Connor said the board’s appeal decision had become the operative planning decision, leaving no issue for the court to address about the council’s November 2015 decision. He said the applicants could not bypass the statutory requirements and strict time limits for seeking judicial review of an An Bord Pleanála decision by joining the board to the existing case. He expressly said he was not deciding whether they could apply for an extension of time.
The judge found no exceptional circumstances requiring the court to determine the original grounds for setting aside the council’s decision, and no material benefit in continuing the proceedings for anticipatory declarations. He said the council could still be challenged over any future failure to comply with its duties.
The court directed that the parties could make further submissions about whether to make an order setting aside the 2015 decision by consent and about costs. The judge allowed counsel to mention the case the following week to fix a date for any further submissions. The judgment does not record a final disposal or costs order.