High Court: Limited company out of time to review a decision of An Bord Pleanála
A limited company, the Irish Skydiving Club Ltd (hereafter ISC) sought judicial review of the decision of An Bord Pleanála that the use by the ISC of Kilkenny Airfield for sponsored parachute jumping was a development and not an exempted development.
Judgment was given in the trial of a modular issue in this judicial review, whether the ISC was out of time to review a decision of An Bord Pleanála by reason of section 50 of the Planning and Development Act 2000, which states that “(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2) (a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate”.
The decision of the Board was made on 14th January 2015, and leave was given on 27th March 2015 to seek an order of certiorari by way of an application for judicial review quashing the decision,
An Bord Pleanála argued by way of preliminary objection that the ISC was out of time and following submissions made to Justice Baker on the first day of the hearing, it was determined that the matter would proceed by way of modular hearing and that she would first determine the procedural time question.
Test under the Planning and Development Act 2000
Justice Baker held that the test that an applicant must meet in an application for an extension of the strict time limits under section 50(6) of the Act is cumulative and mandatory, and would not extend the time unless both tests were met.
Justice Baker was not satisfied that the ISC had persuaded the Court that the circumstances which resulted in the application for judicial review not being made until 27th March 2015 were outside the control of the ISC.
The ISC had knowledge of the matters in respect of which it complained; it had clear knowledge from the email of the Board of 5th February 2015 that the Board’s jurisdiction was spent, and it didn’t explain in any convincing way why it chose to continue to engage in correspondence with the Board after it received that email; a threat of litigation was made on 5th February 2015, and no explanation was given as to why it did not then move when it had 34 days left to bring proceedings.
Further, Justice Baker stated that the running of time in judicial review is not based on a consideration of when an applicant became aware of the decision sought to be challenged, and the legislation clearly links the running of time to the making of the decision.
The ISC knew from its search on the website of the Board that a decision which it regarded as flawed and serious for its ongoing land use had been made, and at that point in time it knew the date of the decision and the basis for it, which were transparent and obvious from the documents on the website. Consequently, Justice Baker was of the view that the public policy interest in strict time limits in planning matters would not be furthered were a party who knew that his or her rights had arguably been breached, and who knew of a decision well within time to bring an application for judicial review, could seek to argue that time began to run only when it had formulated a decision to bring the challenge.
Justice Baker accepted that the formulation of a decision to bring a challenge is one that would be made on legal advice, but held that “the date when legal advice is taken, considered, or decided to be adopted” could not be the date at which time begins to run.
Justice Baker emphasised that to consider otherwise would be to ignore the very clear language of the subsection which “fixes the time limit by reference to the date of the decision”; not to the date of knowledge, or the date when a party impacted by the decision became aware that rights might have been infringed, or the extent to which that person might be successful in bringing a judicial review.
Having regard to the fact that the test is cumulative, and that the ISC failed to satisfy the second part of the test, Justice Baker stated that she would not consider whether it met the first part of the test – whether there was good and sufficient reason for extending the time.
Justice Baker noted that the arguments advanced by the ISC advanced no evidence that justified an extension of time, and instead focused on what is argued to be the frailty in the decision-making process, and not on whether there was good and sufficient reason to extend the time as such.
As a result, Justice Baker considered that the ISC was in possession of all of the relevant facts and information at the latest on 5th February 2015, or probably earlier on 29th January 2015.
It had control of all of the relevant factors at that stage, and had sufficient information and knowledge to instruct solicitors to advise and to act on its behalf.
Citing the Supreme Court decision in S. v. Minister for Justice Equality & Law Reform 2 IR 163: “Circumstances must exist to excuse such a delay and to enable the matter to be considered further” – Justice Baker held that no excusing circumstances had been shown and proposed making an order refusing to enlarge the time for the bringing of the ISC’s application.