RECENT DEVELOPMENTS
The Supreme Court confirms entitlement of notice party developer to continue to defend proceedings after concession of An Bord Pleanála
The Supreme Court confirmed that the issue of a threshold for leave to defend does not arise where a notice party, who is served as an interested party, wishes to defend the decision of which it is a beneficiary, even where the decision-maker concedes the judicial review challenge.
The appeal related to a challenge to a grant of planning permission for a Strategic Housing Development. An Bord Pleanála (the "Board") conceded the challenge on one ground relating to material contravention of the South Dublin County Council Development Plan, which the notice party did not accept. The High Court granted the notice party leave to defend the judicial review despite the Board's concession. This was appealed to the Supreme Court on the grounds that the notice party had not met a sufficient threshold for leave to defend.
The Supreme Court rejected the appeal. It confirmed that, once a notice party is confirmed by the High Court as a "person affected" by a decision of an administrative body such as the Board, that notice party has an entitlement to defend the judicial review proceedings as of right without needing to meet any threshold. This is the case even where the decision-maker concedes the challenge. The Supreme Court held that, while there is a public interest in ensuring early concession of judicial reviews (including reduction of costs and the efficient use of court resources), those matters cannot trump the protection of the "vital interests" of the notice party in defending its planning permission.
RECENT DOMESTIC JUDGMENTS
The High Court confirms EIA Directive requirements where planning permission sought for amendments to a previously-consented development
The High Court confirmed that, where an Environmental Impact Assessment ("EIA") was carried out for a previously-consented development, and planning permission is sought for amendments to that development, the "project" for the purposes of the new EIA is the amendment, so long as the impacts of the entire development are cumulatively assessed.
This case involved a challenge to a decision by the Board to grant planning permission for amendments to the uppermost tip height of turbines for an already-permitted but unbuilt windfarm. For the purposes of its EIA, the Board identified the project as being the proposed development for which planning permission was sought (that is, the project was identified solely as the proposed amendments (the "Proposed Development"), rather than the entire previously consented windfarm (the "Existing Development") plus the amendments (the "Entire Development"). However, in its cumulative assessment, the Board had cumulatively assessed the environmental impacts of the Proposed Development and the Existing Development, along with the related grid connection and other windfarms in the area.
The applicants' primary ground of challenge was that the Board's EIA was defective in failing to define the project as the Entire Development, rather than just the Proposed Development.
The Court rejected this argument, noting that a class of development under Annex II §13(a) of the EIA Directive is: "Any change or extension of projects listed in Annex I or this Annex, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment". Therefore, it is envisaged under the EIA Directive itself that different elements of a project may be subjected to separate EIA, so long as their cumulative effects are assessed. The Court confirmed that the correct project for the purposes of an EIA is the development for which planning permission is sought (in this case, the amendments to the turbine tip height). The Court noted that the Derrybrien Windfarm case supports the principle that amendments, in their own right, are a "project" within the EIA Directive, and therefore the Board's identification of the project for the purposes of its EIA was correct. "To require the proposer of the amendment to reinvent the wheel of the earlier EIA would be burdensome, duplicatory, wasteful and disproportionate to the purpose of EIA. That is true generally but will be especially so as to those elements of environment effect of the original project on which the proposed amendment will have no effect."
The High Court rejected each of the applicants' claims and upheld the Board's decision. We have dealt with the key finding in this case but it is worth noting that several further grounds were pleaded.
The High Court holds that there must be a "causative relationship between the outside-the-control factors and the failure to apply in time" in bringing judicial review proceedings
The High Court has confirmed that the eight-week statutory deadline for challenging a "normal" planning decision of the Board runs from the date of the decision, and not the date of notification of the decision. In this case, the Board decision was made on 28 June 2023, meaning the eight-week statutory deadline to challenge the decision expired on 22 August 2023. Application for leave was opened on 23 August 2023, the day after the deadline expired.
While the High Court found that the Board was in default of its obligation to publish the decision and relevant materials within three days of the decision, the Court rejected the applicants' argument that time only runs from the date of the notification and rejected the applicant's assertion that their application was in time.
Furthermore, in relation to the applicant's argument that it should be granted an extension of time, the Court rejected that the Board's late notification meant that the failure to lodge proceedings on time was outside the applicant's control. The Court held there must be a "causative relationship between the outside-the-control factors and the failure to apply in time". In this case, the Board was satisfied that the applicant's failure to apply on time was due to their misunderstanding of when time to started to run, rather than the Board's failure to notify on time. The proceedings are ongoing with respect to the applicant's EU law validity objections to the time limit procedures set out in the Planning and Development Act 2000.
The High Court holds that medical and personal issues were not "good and sufficient" reasons or "outside the control" of the applicant so as to justify an extension of time to the judicial review deadline
The High Court rejected an application for an extension of time to seek leave to judicially review a decision of the Board to grant retention permission for a change of use from a tennis court to a garden and polytunnel for a flower growing site. The applicant filed papers approximately four months and twelve days after the Board's decision and applied for leave for judicial review approximately one year and three days after the Board's decision, well outside the eight-week statutory deadline.
The applicant sought an extension of time under section 50(8) of the Planning and Development Act 2000, which requires that: (a) there be "good and sufficient reasons" for the delay, and (b) that the circumstances giving rise to the failure to apply on time were outside the control of the applicant.
The applicant argued that this test had been met as, during the relevant period, he was suffering from a number of medical conditions, was experiencing issues in his personal life, had been refused legal aid, and as a litigant in person had not been aware that he was required to open his application in court to stop time running.
The Court held that these were not good and sufficient reasons for an extension of time and were not outside the applicant's control. These issues had not prevented the applicant from appealing the original decision of Donegal County Council to An Bord Pleanála within the statutory deadline for that appeal, and the applicant had engaged a planning consultant for those purposes. The Court also noted that the applicant's application for Legal Aid had been made approximately one year after the Board's decision, when the applicant was already out of time to seek judicial review.
The Court refused the extension of time application and the leave application.
DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS
The Minister for the Environment, Climate and Communications, Eamon Ryan TD, publishes draft Climate Action Plan 2024 for consultation
The draft Climate Action Plan 2024, prepared in accordance with the Climate and Low Carbon Development Act 2015-2021 and approved by the Government in December 2023, sets out the key actions and measures to support the delivery of Ireland's emissions reduction targets and overall climate objectives. It is subject to a Strategic Environmental Assessment and Appropriate Assessment. The closing date for consultation submissions is 5.30pm Friday, 5 April 2024.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
