McHugh v Laois County Council (Approved) [2021] IEHC 21 (01 February 2021)

APPROVED

[2021] IEHC 21

THE HIGH COURT

2020 No. 809 J.R.

BETWEEN

JOHN McHUGH

APPLICANT

AND

LAOIS COUNTY COUNCIL

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 1 February 2021

INTRODUCTION

1. This matter comes before the High Court by way of an application for leave to apply for

judicial review. The applicant in the proceedings seeks to challenge a decision of Laois

County Council which was made as long ago as January 2006.

2. The application for leave was first moved on an ex parte basis before the High Court

(Meenan J.) on 9 November 2020. Meenan J. directed that the application should be

heard on notice to the planning authority, and the application ultimately came on for

hearing before me on 28 January 2021.

3. Having heard submissions from both sides, I delivered an ex tempore ruling on that date

refusing leave to apply for judicial review on the grounds of delay and the non-joinder

of the proper respondents. In circumstances where the applicant, Mr McHugh, is a

litigant in person, I indicated that I would prepare a written judgment setting out my

reasons. The judgment was to be sent to Mr McHugh and he would then have a number

of weeks to consider same. The proceedings are to be relisted before me on 22 February

2021 to address the issue of costs, and, if necessary, to hear an application for leave to

appeal. This is in ease of the applicant, and will allow him to consider whether or not to

pursue the matter further by way of appeal (with the attendant risk on costs).

4. In the course of preparing this written judgment, I have identified an additional issue

which had not been addressed in my ex tempore ruling. The issue concerns the nature of

the time-limit which governs the application for judicial review. The fact that the

planning authority's decision had been made so long ago has the consequence that these

proceedings are subject to the "old" legislative regime, that is, as it stood prior to the

commencement of the Planning and Development (Amendment) Act 2006. This issue

does not affect the outcome of the application for leave to apply for judicial review. It

does, however, have implications for the procedure governing the making of an appeal.

I will return to address the time-limit issue at paragraph 16 below.

CHRONOLOGY OF EVENTS

5. The applicant seeks to challenge a decision set out in a letter sent to him by Laois County

Council on 3 January 2006. The term "decision" is used guardedly in this judgment,

given that the planning authority's position as set out in the letter was not final, and the

applicant was expressly invited to make submissions to the planning authority but failed

to do so.

6. The letter had been issued in the context of the registration of quarries pursuant to

section 261 of the Planning and Development Act 2000. In brief outline, this section

imposed an obligation on owners and operators to register certain quarrying activities

with the local planning authority. Thereafter, a planning authority was empowered to

impose additional controls upon existing authorised quarrying activity.

7. The effect of registration has been described as follows by the High Court (Hedigan J.)

in Frank Harrington Ltd v. An Bord Pleanála [2010] IEHC 428.

"[...] The fact the quarry was registered does not amount to a

recognition or determination that the quarry had a pre 1964 user.

Section 261 of the Planning and Development Act requires planning

authorities to register all quarries that either had no planning

permission or had planning permission greater than five years.

Section 261 (9) sets out the scope of this section and s. 261 (1)

imposes the obligation on quarry owners to notify planning

authorities and to register. There is no distinction between pre and

post 1964 quarries and there is no discretion. Planning authorities

must register such a quarry. The aim of the legislation is clearly to

try to bring all quarries pre or post 1964 with no planning permission

or quarries with planning permissions more than 5 years old into the

control net where conditions reflecting modern approaches to

quarrying may be imposed in the public interest. Nothing in the

legislation provides that such registration changes unauthorized into

authorized. Their separate status at best is that they are registered but

still unauthorized."

8. Whereas a planning authority had been obliged to register even those quarrying activities

which represented unauthorised development, the power to impose conditions or to

require a planning application subject to environmental impact assessment had been

confined to authorised quarrying activities. Relevantly, a finding, for the purposes of

section 261, that quarrying activity was authorised is not conclusive on third parties:

Pierson v. Keegan Quarries Ltd [2010] IEHC 404.

9. In order to ensure fair procedures, a planning authority was required, under

section 261(5), to notify the owner and operator of the quarry of its intentions, and to

afford an opportunity to the owner and operator to make submissions.

10. On the facts of the present case, Laois County Council had stated in its letter of 3 January

2006 that it did not intend to impose conditions on the applicant's quarry.

"In accordance with Section 261(5), notice is served that the council

does not intend to impose conditions on the operation of the current

extracted area for the following reasons;

It does not appear that the quarry was in continued operation

since pre 1964.

Submissions or observations regarding the proposals may be made

by the owner or operator of the quarry to the planning authority by

the 27/1/05. These submissions or observations shall be taken into

account by the planning authority in performing its functions under

subsection (6) or (7) of Section 261 of the Planning and Development

Act, 2001."

11. The deadline for submissions refers to a date in January 2005. This is an obvious error--

of a type which often occurs at the start of a new year--and should be read as 2006. The

planning authority can scarcely have been understood as requesting submissions to be

made at a date which had long since passed.

12. The core of the case which the applicant wishes to advance in the judicial review

proceedings is that the stated reason, i.e. that it did not appear that the quarry had been in

continuous operation since 1964, is ultra vires. It is pleaded that the reason "is not a part

of the Act, nor is there any phrase or directive in the Act, which is approximate to their

given reason".

13. With respect, this ground of challenge is misconceived. The concept of continuous use

is well known under the planning legislation. The significance of 1964 is that it is the

year during which planning control in its modern form was introduced: development

(including quarrying activity) which had commenced prior to 1 October 1964 and had

continued in a manner proportionate to that pre-1964 user enjoyed the benefit of certain

transitional provisions. (See, generally, An Taisce v. Ireland [2010] IEHC 415).

14. The letter of 3 January 2006 correctly observes the legal distinction between authorised

and unauthorised development. If and insofar as the applicant had wished to challenge

the provisional finding that his quarry had not been in continuous operation, then he

should have made a submission to this effect. The notification from Laois County

Council expressly invited submissions from the applicant. No submissions were ever

made in response to this invitation.

15. The within judicial review proceedings were instituted on 9 November 2020, that is,

almost fifteen years after the date of the impugned decision.

TIME-LIMITS AND PLANNING DECISIONS

16. Under the current version of the planning legislation, any decision made by a planning

authority in the performance or purported performance of a function under the Planning

and Development Act 2000 ("the PDA 2000") is subject to an eight week time-limit.

17. The legal position had been less clear-cut under the original version of the PDA 2000 in

that different time-limits were prescribed for various types of decisions under the

planning legislation. The eight week time-limit was principally confined to decisions

made by a planning authority on an application for planning permission. Other decisions

made by a planning authority under the PDA 2000 were subject to the time-limit

prescribed under Order 84 of the Rules of the Superior Courts.

18. This anomaly was removed by way of an amendment introduced under the Planning and

Development (Amendment) Act 2006. The effect of the amendment was that the eight

week time-limit now applies to all decisions made by a planning authority pursuant to

the PDA 2000. This amendment came into force on 17 October 2006.

19. The decision which the applicant seeks to challenge in these proceedings predates the

coming into force of this amendment (the decision is dated 3 January 2006). The decision

is of a type which, prior to the amendment, would have been subject to the time-limit

under Order 84 rather than the statutory time-limit. The judgment of the High Court

(Charleton J.) in O'Reilly v. Galway City Council [2010] IEHC 97 confirms that the

amendments introduced to the judicial review procedure by the Planning and

Development (Amendment) Act 2006 were not intended to have retrospective effect,

i.e. any decision made prior to the commencement date is subject to the "old" legislative

regime.

20. Put otherwise, legacy cases, such as the present proceedings, benefit from a form of what

is sometimes described as "grandfathering" whereby they are subject to the requirements

of the old legislative regime. The practical effect of this is that the relevant time-limit is

six months (not eight weeks), and the test for an extension of time is less onerous.

21. Notwithstanding that a decision of the type sought to be impugned in these proceedings

would be subject to an eight-week time-limit had it been made on any date after

17 October 2006, the decision in this case continues to benefit from the longer time-limit.

APPLICATION FOR AN EXTENSION OF TIME

22. As explained under the previous heading, the present proceedings represent a legacy case

and are subject to the time-limit under Order 84, rule 21 (as it stood prior to its

amendment in 2011). The relevant time-limit had been as follows

"21.(1) An application for leave to apply for judicial review shall be made

promptly and in any event within three months from the date when

grounds for the application first arose, or six months where the relief

sought is certiorari, unless the Court considers that there is good

reason for extending the period within which the application shall be

made."

23. These proceedings should, accordingly, have been instituted by 3 July 2006 at the very

latest. In the event, an application for leave was not made until 9 November 2020. The

proceedings are thus out of time by a period of in excess of fourteen years.

24. The applicant has indicated that he seeks an extension of time within which to bring these

proceedings. No proper explanation has been provided on affidavit, however, for the

inordinate delay in this case. The only affidavit filed in these proceedings is a pro forma

affidavit which verifies the statement of grounds.

25. The statement of grounds addresses the delay in brief terms, and suggests that there is

"good cause" to extend time because the case was "in the hands of solicitors" from

January 2006 until the end of 2019. This appears to be a reference to an initial

consultation with the applicant's own solicitor in January 2006, and to a prolonged

attempt by the applicant to obtain a legal aid certificate during the period 2016 to 2019.

26. Separately, it is suggested that the applicant himself had been dealing directly with the

planning authority during the period 2013 to 2014.

27. The test for granting an extension of time under Order 84 (prior to its amendment in

2011) is whether there is good reason for extending the period within which the

application shall be made.

28. The principles governing the discretion to allow an extension of time have been recently

stated by the Supreme Court in M. O'S v. Residential Institutions Redress Board

[2018] IESC 61; [2019] 1 I.L.R.M. 149. This judgment had been delivered by reference

to the current version of Order 84, which includes the additional requirement that the

delay have been due to circumstances outside the control of an applicant. The judgment

is nevertheless of relevance to a legacy case, such as the present proceedings, in that it

summarises the effect of the case law on the unamended Order 84. That summary is set

out as follows at paragraph 60 of Finlay Geoghegan J.'s judgment.

"I have concluded that the case law cited above, insofar as it applies

to the extension of the time specified under Ord.84 for the bringing

of judicial review proceedings, makes clear that the jurisdiction

which the court is to exercise on an application to extend time is a

discretionary jurisdiction which must be exercised in accordance with

the relevant principles in the interests of justice. It clearly requires

an applicant to satisfy the court of the reasons for which the

application was not brought both within the time specified in the rule

and also during any subsequent period up to the date upon which the

application for leave was brought. It also requires the court to

consider whether the reasons proffered by an applicant objectively

explain and justify the failure to apply within the time specified and

any subsequent period prior to the application and are sufficient to

justify the court exercising its discretion to extend time. The

inclusion of sub-rule (4) indicates expressly that the court may have

regard to the impact of an extension of time on any respondent or

notice party. The case law makes clear that the court must also have

regard to all the relevant facts and circumstances, which include the

decision sought to be challenged, the nature of the claim made that it

is invalid or unlawful and any relevant facts and circumstances

pertaining to the parties, and must ultimately determine in accordance

with the interests of justice whether or not the extension should be

granted. The decision may require the court to balance rights of an

applicant with those of a respondent or notice party. The judgments

cited do not, in my view, admit of a bright line principle which

precludes a court taking into account a relevant change in the

jurisprudence of the courts when deciding whether an applicant has

established a good and sufficient reason for an extension of time.

Further, the judgments cited above do not envisage any absolute rule

in relation to what may or may not be taken into account or constitute

a good reason or a good and sufficient reason. The court, in an

application for an extension of time, is exercising a discretionary

jurisdiction and in the words of Denham J. in De Roiste, `[t]here are

no absolutes in the exercise of a discretion. An absolute rule is the

antithesis of discretion. The exercise of a discretion is the balancing

of factors a judgement.'"

FINDINGS OF THE COURT

29. I have concluded that there is no "good reason" to extend time in the present case. First

and foremost, the delay in this case is inordinate. The applicant is seeking to challenge

a decision some fourteen years after the event. This is so notwithstanding that the

applicant had been on notice of the making of the decision at the relevant time. This is

not a case where, as sometimes occurs, an individual does not become aware of a decision

or the facts underlying the decision for a significant period of time. Rather, the decision

here had been delivered to the applicant by way of registered post.

30. This delay of fourteen years has to be seen in the context of a time-limit of six months.

The delay is a multiple of this. As explained by Fennelly J. in De Roiste v. Minister for

Defence [2001] IESC 4; [2001] 1 IR 190, an extremely long delay, without cogent

explanation and justification, may in itself constitute a good ground for refusing relief.

31. Secondly, there is a public interest in ensuring that there is finality in planning matters.

Members of the public, landowners and planning authorities are all entitled to order their

affairs on the assumption that a planning decision which has not been challenged within

time is valid. It would undermine legal certainty, and potentially have an adverse effect

on property rights, if a decision of a planning authority could be set aside more than a

decade after it had first been made.

32. Thirdly, the applicant has not put forward any proper or adequate explanation for the

delay. It is evident that the applicant was aware of the making of the decision at the

relevant time. It appears that he took legal advice at that time, and made an informed

choice not to challenge the decision. Even when, two years later, in 2008 the impugned

decision is alleged to have had an adverse effect on the ability of the applicant to secure

a contract, he chose not to institute proceedings. It would be unjust to allow him to do

so now more than a decade after these events.

33. Fourthly, the applicant is not entitled to rely on his dealings with the Legal Aid Board as

providing a good reason for an extension of time. The applicant does not seem to have

engaged in earnest with the Legal Aid Board until 2016. There is a reference to the

applicant having approached the Legal Aid Board initially in 2011, but no explanation

has been provided as to what the outcome of that approach was. At all events,

irrespective of whether one takes the date as 2011 or 2016, an application for judicial

review to challenge a decision from January 2006 was already hopelessly out of time by

that stage. More generally, an applicant is not entitled to rely on (alleged) difficulties in

obtaining legal representation as a reason not to comply with the time-limit for judicial

review proceedings.

34. Fifthly, there have been very significant changes to the law regulating quarrying activity

since the date of the impugned decision. In particular, as a result of amendments

introduced under the Planning and Development (Amendment) Act 2010, planning

authorities had been required to examine every quarry in their administrative area to

determine whether there had been compliance with the requirements of EU

environmental legislation. Further amendments have been made in respect of

enforcement action against unauthorised quarries. Given the legislative changes in the

interim, no decision made by a planning authority in the context of section 261 can be

said to be determinative of the planning status of a quarry.

35. Finally, in the exercise of its discretion on an application for an extension of time, the

court is entitled to have some regard to the underlying merits of the intended judicial

review proceedings. This is because what is required under Order 84 is that there be

good reason for granting an extension of time, not merely that there be a good reason for

the delay. There is no reason to grant an extension of time in the case of judicial review

proceedings which have no underlying merits. Leaving aside entirely the issue of delay,

these proceedings could not have succeeded in circumstances where the applicant failed

to avail of the invitation by Laois County Council to make submissions to it. The

planning legislation is a self-contained administrative code, and, save in exceptional

circumstances, parties are expected to exhaust their procedural rights under the

legislation before having recourse to the courts.

36. More generally, the core complaint in the judicial review proceedings appears to be based

on a misconception of the legal significance of continuous user.

VALIDITY OF THE SIX MONTH TIME-LIMIT

37. It is alleged in the statement of grounds that the time-limit under Order 84 of the Rules

of the Superior Courts is invalid. More specifically, it is alleged that the Superior Courts

Rules Committee derives its power from a series of Acts which are said to be

unconstitutional "due to the fact that they purport to give rights to" the Committee which

may impede the applicant's constitutional right of access to the courts.

38. Any challenge to the parent legislation may only be advanced in proceedings which have

been taken against Ireland and the Attorney General. Similarly, any challenge to the

validity of the Rules of the Superior Courts would have to be taken against the Superior

Courts Rules Committee and the Minister for Justice.

39. Laois County Council is the only respondent to these proceedings, and is not the legitimus

contradictor to a constitutional challenge. The proceedings are thus irregular and leave

to apply for judicial review on these grounds is refused accordingly.

ACTIONS OF LEGAL AID BOARD

40.

Any claim for relief against the Legal Aid Board is inadmissible in circumstances

where, first, it has not been joined to the proceedings; and, secondly, no attempt has

been made to identify the specific decision which it is sought to impugn.

IS LEAVE TO APPEAL REQUIRED?

41. The fact that this is a legacy case which seeks to challenge a decision from as long ago

as January 2006 appears to have the legal consequence that any judicial review

proceedings are subject to the legislative regime as it stood prior to the Planning and

Development (Amendment) Act 2006. On this analysis, a challenge to a decision made

pursuant to section 261 of the PDA 2000 was not caught by the statutory judicial review

procedure then prescribed under the unamended version of section 50 of the PDA 2000

(O'Reilly v. Galway City Council [2010] IEHC 97). Rather, any challenge was subject

to conventional judicial review under Order 84 of the Rules of the Superior Courts.

42. On this analysis, not only does the applicant have the benefit of the more generous time-

limit under Order 84, he may also be exempt from the requirement to obtain leave to

appeal to the Court of Appeal. To elaborate: the position under the current version of the

planning legislation is that the decision of the High Court on an application for leave to

apply for judicial review in a planning matter may only be appealed to the Court of

Appeal if the High Court grants leave to appeal. An application for leave to appeal falls

to be determined by reference to the statutory criteria prescribed under section 50A of

the PDA 2000.

43. If, as appears to be the position, a challenge to the decision of 3 January 2006 is properly

brought by way of conventional judicial review proceedings, then there is no requirement

for leave to appeal to the Court of Appeal.

44. The parties will be invited, on the adjourned date of 22 February 2021, to address the

court on the question of whether leave to appeal is required. If not required, then the

only issue which remains outstanding in these proceedings is the allocation of legal costs.

CONCLUSION AND FORM OF ORDER

45. The application for leave to apply for judicial review is dismissed as against Laois County

Council by reason of delay. The applicant is not entitled to an extension of time under

the pre-2011 version of Order 84, rule 21 of the Rules of the Superior Courts in

circumstances where there is no "good reason" for extending the period within which the

application for judicial review shall be made.

46. The challenges to the validity of the time-limit under Order 84, rule 21 and to the actions

of the Legal Aid Board are both inadmissible for the reasons outlined earlier.

47. These proceedings will be listed before me on 22 February 2021 at 10.30 a.m. to address

the issue of costs, and, if necessary, any application for leave to appeal to the Court of

Appeal.

Result: Extension of time refused in judicial review proceedings.

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