High Court: Applicants fail to amend planning challenge to include impact on local bat population

About this case:

• Citation:
  [2022] IEHC 18
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Michael Twomey

The court ruled that the applicants could have pleaded the mis-transposition issue when they originally applied for judicial review and there was no good reason explaining this failure. It was held that the mis-transposition point was a new case being raised by the applicants and refused the application.

Background

The applicants sought to challenge a planning permission granted in April 2021 for 482 homes in Carrickmines, Dublin 18. Under the eight-week time limit for bringing judicial review proceedings in planning cases, the applicants were required to apply for judicial review by 14 June 2021. Ultimately, an ex parte application was made on this date and the proceedings commenced.

One of the original grounds raised in the applicant was that An Bord Pleanala failed to comply with the Habitats Directive because the approved planning permission would negatively affect the local bat population. Subsequently, the applicants sought to amend their statement of grounds to include a claim that, if it was held that the Board was not bound by the Habitats Directive, then there was a mis-transposition of the Directive to domestic law.

The applicants’ solicitor explained the reason for not including this ground in the original statement of grounds. It was stated that the applicants had assumed that the Board agreed that it was bound by the Directive. However, the Board had denied this point in other, unrelated proceedings. As such, the solicitor stated that the new ground was necessary in light of the anticipated position of the Board.

High Court

Delivering judgment in the case, Mr Justice Michael Twomey began by noting that it was unclear from the solicitor’s affidavit if the position of the Board had in fact changed. The averments were based on the “understanding” of the applicants rather than on a concrete position adopted by the Board.

The court held that the applicants could have raised the issue of mis-transposition when they first filed their statement of grounds and there were no good reasons offered for why this was not done. The court stated:

Further, the court held that the time limits for judicial review applications in planning cases were very strict and that these limits were imposed for justifiable reasons of public policy.

The court was satisfied that the mis-transposition issue amounted to a “new case” in the proceedings as it significantly expanded the scope of the case that the State respondents had to answer. Further, it was noted that a new category of relief was sought as a result of the new ground.

In reaching this decision, the court referred to Sweetman v. An Bord Pleanála [2008] 1 I.R. 277, where it was held that an amendment application brought outside the statutory time limits could only be granted where there was good and sufficient reason. Further, the court noted that the applicable statutory test was found in section 50(8) of the Planning and Development Act 2000, where 1) there was good and sufficient for allowing the amendment and 2) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.

The court also held that the granting of amendments after the expiry of the eight-week time limit for judicial reviews could potentially undermine the effectiveness of the eight-week limit (McEntee v. An Bord Pleanála (Unreported, High Court, Moriarty J., 10th July 2015) applied). It was noted that there were “onerous requirements” on applicants who sought extensions of time in planning cases (People Over Wind, Environmental Action Alliance Ireland v. An Bord Pleanála [2015] IEHC 271).

The court concluded that there were no good and sufficient grounds for failing to include the new ground in the original statement of grounds. The case merely involved the late realisation of a potential line of defence which might be adopted by the Board. As such, this was not sufficient to allow the amendment (People over Wind considered).

Further, no evidence was provided which showed why the mis-transposition claim could not have been made at the original leave stage. As such, it could not be said that the failure to include the ground was outside the control of the applicants.

Conclusion

The court rejected the application to include the mis-transposition ground in the statements of grounds. Notably, the court stated that “while it is of course true that the rights of bats are important, it is also the case that the public interest, in providing badly needed housing for residents of this State, is also important”. In this case, the public interest of the provision of housing took precedence, the court said.