About this case:

• Citation:
  [2025] IESC 31
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Séamus Woulfe

Delivering judgment for the Supreme Court, Mr Justice Séamus Woulfe expressed that, in his opinion, “it was appropriate and reasonable for the court below to in effect hold that the public interest in certainty was, in this very exceptional case, outweighed by the very serious allegations of systemic failure on the part of the board”.

Background

On 17 June 2021, the appellant granted permission to Eircom Ltd to erect a telecommunications mast near the respondents’ home in Kilkenny.

The respondents had eight weeks to challenge the appellant’s decision pursuant to s.50(6) of the Planning and Development Act 2000. 

Initially, the respondents decided against challenging the decision in light of inter alia the costs risk to them. In February 2022, the respondents discovered that in each of the 28 mast appeals that had taken place since September 2022, the appellant had overturned a refusal of permission by the planning authority.

The respondents also became aware of newspaper articles which suggested concerns around the impartiality of Paul Hyde, the chairperson of the appellant and one of the two members of the appellant who had granted the permission in question.

The respondents engaged with media organisations in relation to Mr Hyde in May 2022 and in July 2022, requested that the Eircom files would be included in an investigation being conducted by the appellant.

The eight-week period having expired on 11 August 2021, the respondents issued judicial review proceedings on 28 November 2022.

The respondents alleged that the appellant was biased in the discharge of its functions in circumstances where there was partiality in the allocation of files resulting in the disproportionate allocation of files to Mr Hyde, where the appellant panels led by him departed from planning authorities’ decisions in 79 per cent of cases and where the decisions departed from development plan policy and/or misinterpreted ministerial guidelines without offering any clear reasons for doing so.

The High Court

In the High Court, Mr Justice Richard Humphreys granted leave to judicially review the decision on an ex parte basis on the basis that time ought to be extended. The appellant then issued a motion seeking to set aside that order on grounds of delay and/or that the application for leave was not made in time having regard to s.50(6).

Mr Justice Humphreys applied the test in s.50(6), noting that time to bring a leave application could be extended if there is good and sufficient reason for doing so, and where the failure to bring the application in time was due to reasons “outside the control” of the respondents.

The court was satisfied that by mid-June 2022 at latest, the respondents would have had sufficient information to bring proceedings and accordingly, they were out of time to seek leave. 

As to whether a good and sufficient reason to extend time existed, the court found that it was required to consider holistically all the circumstances, finding inter alia that the complaints of systemic failure on part of the respondents did not outweigh the substantial public interest in commercial certainty for the developer who was entitled to rely on the appellant’s decision unless there was a clear case for a belated challenge.

The Court of Appeal

On appeal, the Court of Appeal came to a different conclusion on the question of “good and sufficient reason”, citing jurisprudence including Arthropharm (Europe) Limited v. The Health Products Regulatory Authority [2022] IECA 109 as authority for the proposition that if a case is demonstrably strong, that can support an extension of time and did support an extension in the case before it.

Mr Justice Brian O’Moore, allowing the respondents’ appeal, was also satisfied that while there was undoubtedly a public interest in grants of planning permission being considered conclusive within the eight-week statutory period, there was also a public interest in having a planning regime which complies with basic concepts of integrity and that serious question had been raised by the allocation of mast appeals to Mr Hyde.

The appellant was subsequently granted leave to appeal to the Supreme Court.

The Supreme Court

Having considered the submissions of the parties, Mr Justice Woulfe was satisfied that the net issue arising in the appeal was the test for extending time to challenge a planning decision as set out in s.50(6), with the focus being on the “good and sufficient reason” limb.

The judge summarised the relevant principles, noting the strict eight-week time limit for planning judicial reviews, the broader discretion afforded to the court by the language of s.50, and the necessity to give effect to each of the words “good” and “sufficient” in the section, opining that a possible case where a reason may be considered “good” but not “sufficient” would be one where the reason may appear prima facie to be good in principle or taken on its own, but where overall that reason is insufficient having regard to other countervailing factors.

The court also had regard to authorities setting out the factors to be taken into account in the consideration of whether a good and sufficient reason to extend time exists, highlighting that while it may be important for an applicant to seek to explain an entire period of delay, a failure to do so was not per se fatal to securing an extension.

The court also highlighted Arthropharm, in which the court warned against embarking upon a detailed assessment of the merits of a case having regard to the danger that an application for an extension of time would be converted into a trial of the merits.

Mr Justice Woulfe was satisfied that the Court of Appeal was justified in granting an extension of time in circumstances where Mr Justice O’Moore had taken into account relevant factors such as the very short time limit for a judicial review challenge, any demonstrated prejudice to Eircom, the reason for the delay and the level of detail provided by the respondents in that regard, blameworthy conduct, the merits of the case and the public interest.

Noting that the essential difference between the judgments of the High Court and Court of Appeal turned on the weight each court assigned to the relevant factors, the Supreme Court was further satisfied that the Court of Appeal was correct in placing decisive weight on the public interest aspect of the proceedings having regard to the exceptional nature of the allegations being made against the appellant and having regard to the countervailing factors.

In that regard, the court found that the allegations made went far beyond the facts of one individual planning decision and involved “systemic issues about the operation of the appellant over a number of years and the integrity of the planning regime in this jurisdiction”. Mr Justice Woulfe considered this to be a prima facie good reason to extend time.

The judge then turned to the first of the countervailing factors, being the public interest in certainty and finality of decisions made by planning authorities and the appellant. 

Accepting that these were very important considerations, the court pointed out that “the Oireachtas itself has decided that these considerations are not absolute factors, which must in every case trump every other factor, by making provision for an extension of time where there is ‘good and sufficient reason’” and concluded that in this exceptional case, it was appropriate and reasonable to find that this factor was outweighed by the serious allegations of systemic failure on part of the appellant.

Mr Justice Woulfe considered the second countervailing factor concerning prejudice to the third party beneficiary of the permission granted, finding that while other matters were usually unlikely to outweigh that major consideration, the present case was unusual and exceptional in that the extent of the prejudice to Eircom was relatively minor, Eircom not having sought to build in accordance with the permission and not having participated in the proceedings.

Finally, the court did not accept that the Court of Appeal was significantly influenced by its view on the merits of the case, notwithstanding that Mr Justice O’Moore’s comments arguably could be seen as straying beyond the Arthropharm approach and overstating the position as to the consideration of the merits of the case.

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

Thomson & Anor  v An Bord Pleanála [2025] IESC 31