High Court: Wind farm planning challenge issued one day late set aside
The High Court has determined that leave granted to bring judicial review proceedings concerning Kilkenny wind farm must be set aside.
About this case:
- Citation: IEHC 577
- Court:High Court
- Judge:Mr Justice Richard Humphreys
Delivering judgment for the High Court, Mr Justice Humphreys warned that “one can only encourage people not to leave it until the last day to try to institute proceedings”.
“If that hasn’t already been shown to be a chillingly risky procedure by cases such as Marshall v. Kildare County Council  IEHC 73, it surely must be that now…put in place some kind of margin for error, rather than living for the thrill of a do-or-die scramble to get the last seat on the last helicopter off the embassy roof in Saigon,” he added.
On 15 December, 2020, An Bord Pleanála determined that a proposed wind-farm development fell within the definition of energy infrastructure in the Planning and Development Act 2000.
Accordingly, the proposed development was considered to be of strategic importance considering the requirements of s. 37A(2)(a), (b) and (c) of the 2000 Act, and so an application for permission for the development was made to An Bord Pleanála under s.37E of the 2000 Act.
The application was considered under the Strategic Infrastructure Development (SID) procedure and permission was granted on 26 September 2022 for the construction of 21 wind turbines and ancillary works at Castlebanny, Co Kilkenny.
The first applicant, an organisation established on 10 October 2020 for the promotion and protection of the environment, contended that the development would impact a portion of the South Leinster Way, a walking route running from Co Carlow through Co Kilkenny, and finishing in Tipperary. The second applicant, the chairperson of the first applicant, lived within the zone which stood to be impacted by the development.
As per S.50(6) of the 2000 Act, an application for leave to apply for judicial review in respect of a decision such as the one challenged by the applicants must be made within eight weeks beginning on the date of the decision. The last day of that eight-week period was Sunday 20 November 2022.
Instead, the applicants filed their application for leave on Monday 21 November 2022 as the court office was closed, and the application was moved before the court that day. Leave was granted on 23 January 2023, and an amended statement of grounds was filed on 31 January 2023.
Following objections from the respondents, the applicants filed a motion on 27 September 2023 seeking liberty to amend the statement of grounds to include an order pursuant to s.50(8) of the 2000 Act extending the time to apply for leave for judicial review, and further seeking an order extending the time for making an application for leave to apply for judicial review and an order extending the time for amending the statement of grounds.
The applicants’ motion came before Mr Justice Humphreys in the High Court.
The High Court
Mr Justice Humphreys noted at the outset that he was inclined to permit the applicants to amend their statement of grounds to seek relief extending time and granted the first relief sought. The judge further noted that the third relief sought was misconceived, with the time limit for amending the statement of grounds applying to moving the application in the first place, not for amending it later.
Recognising that the real question surrounded the second relief, Mr Justice Humphreys highlighted that “the applicants’ case under this heading essentially boils down to an argument that, by analogy with expiry of formal limitation periods on days when the court offices are closed, there should be a presumption of intention to increase that period until the next working day”.
Finding that “at best” the applicants’ point was an interpretative presumption only, the court stated that there are two reasons why such a presumption should not be read into the legislation.
The court continued that having regard to the time limit for planning cases in the commercial context, there is a need for certainty and there is a requirement for a “strict approach” as is supported by a “veritable mountain of jurisprudence”. The court noted that the situation before it involved prejudice to private law actors, not a purely ‘human rights’ or public law context, relying upon O’Riordan v. An Bord Pleanála  IEHC 1.
Finding that the authorities advanced by the applicants in respect of limitation periods were not on point, Mr Justice Humphreys expressed that the commercial context “strongly leans against any implied or presumed legislative intention that there are unstated extensions to the eight-week period to be had if court offices are closed”.
Turning to the express terms of the 2000 Act, the court found that the applicants’ argument that an interpretative presumption should be read into the 2000 Act was displaced by the fact that the 2000 Act itself specifically set out the periods of time which could be disregarded, noting that in 2020, the Oireachtas included provisions disregarding certain periods in light of the Covid-19 pandemic.
Mr Justice Humphreys commented that Order 122 of the Rules of the Superior Courts could not be relevant as it applies only to time under the Rules, rather than statute.
Considering s.50(8) of the 2000 Act, the court noted that the ‘test’ to extend time requires the satisfaction of two criteria: that there is good and sufficient reason for doing so, and that the circumstances resulting in the failure to apply for leave within the prescribed period were outside the control of the applicant for the extension.
Finding that there was “nothing stopping the applicants from bringing their proceedings within the statutory period”, the court observed that “obviously they were labouring under the erroneous view that they could wait until a day after that period, but human error (including error by lawyers as to the legal position) is not normally good and sufficient reason for an extension of time in a commercial context and is not so here”.
The court considered that “I would not be unduly critical of the applicants’ lawyers. From rules of court and from the context of the Statute of Limitations, legal practitioners are familiar with the concept that if the office is closed on the final day, there may be a grace period until the next working day. But it’s easy to lose sight of the point that as far as other legislation such as statutory judicial review is concerned, that is only a potential interpretative presumption, not a fixed rule, and it may be displaced by the content or purpose of the legislation concerned — in this case by both.”
Concluding that “knocking out an applicant who is a day out seems harsh”, Mr Justice Humphreys stressed that time limits become “meaningless and unworkable unless they are applied consistently — otherwise we end up with the paradox of the heap”.
Accordingly, the court refused the extension of time sought and ordered that the order granting leave be set aside.
Save the South Leinster Way & Anor v An Bord Pleanála & Ors  IEHC 577