About this case:

• Citation:
  [2024] IEHC 5
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons warned that “a litigant cannot use proceedings directed to a subsequent act or decision as a vehicle to challenge, indirectly, an earlier decision which is itself immune from legal challenge by virtue of a statutory time-limit having expired”.

Background

The applicant challenged a grant of planning permission by Mayo County Council in respect of the continued use and operation of a limestone quarry on the basis that the quarry operator had previously carried out an unauthorised development and that the planning authority failed to comply with fair procedures in adjudicating upon the application.

The applicant lived adjacent to the quarry and had objected to the application for planning permission. He subsequently attempted to appeal the planning authority’s decision of 11 January 2023 to grant planning permission, but his appeal was rejected by An Bord Pleanála as it was not accompanied by proof that he had made an objection.

With no valid appeal at issue, Mayo County Council granted planning permission on 14 February 2023. The applicant issued judicial review proceedings on 8 April 2023, within eight weeks following the grant of planning permission, but more than eight weeks following the decision to grant permission.

The quarry operator issued a motion for the dismissal of the proceedings on grounds that the applicant was out of time to challenge the decision to grant permission, with the applicant resisting on the basis that the proceedings were properly issued in respect of the grant of planning permission.

The High Court

Mr Justice Simons set out the relevant sections of the Planning and Development Act 2000 (as amended), highlighting the distinction in the legislation between a “decision” to grant planning permission which does not authorise the carrying out of the development, and the subsequent “grant” of planning permission which crystallises the right to carry out the development once the possibility of an appeal has expired.

Noting that s.50(6) of the 2000 Act provides for an eight-week time limit for seeking leave to issue judicial review proceedings in respect of any decision or other act of a planning authority, local authority or An Bord Pleanála, the court observed that no application for an extension of time had been made in circumstances where the applicant was out of time to challenge that decision.

The court considered that whilst both sides accepted that the making of a grant of permission constituted an ‘act’ for the purpose of s.50, their disagreement focused on whether the challenge to the grant of permission implicated the earlier decision to grant permission and whether this course of action represented a collateral challenge to that decision to grant.

As to the concept of a collateral challenge, Mr Justice Simons reasoned that in essence “a litigant cannot use proceedings directed to a subsequent act or decision as a vehicle to challenge, indirectly, an earlier decision which is itself immune from legal challenge by virtue of a statutory time-limit having expired”.

Finding that the question of whether a challenge to a staged decision-making process involves a collateral challenge is one of statutory interpretation, the court stated the correct approach to be found in Sweetman v An Bord Pleanála [2018] IESC 1, [2018] 2 I.R. 250 — “to consider whether, taking the scheme as a whole and having regard to its express terms and any additional matters which can properly be implied, it can be said that it is clear that a particular question or issue is to be definitively determined at an earlier stage so that there is no possibility to have that issue or question re-opened at a later stage”.

Mr Justice Simons found it “obvious from the structure of Section 34 of the PDA 2000 that all matters of substance are to be determined at the stage of the ‘decision’ to grant planning permission. The section is directed towards the decision-making process: it prescribes the criteria to which regard must be had in deciding whether to grant or refuse planning permission. The subsequent step of making the ‘grant’ of planning permission is purely mechanical and perfunctory… Once the appeal period has expired without an appeal having been made, the planning authority does not enjoy any discretion: it cannot refuse to make the grant, nor can it change any aspect of the underlying decision to grant.”

Remarking that “the grounds upon which the act of making the grant of planning permission can legitimately be challenged are very narrow. It will be necessary to identify some legal defect in the faithful transposition of the underlying decision to grant planning permission”, Mr Justice Simons determined that all grounds pleaded by the applicant went to the validity of the underlying decision to grant planning permission.

The court noted the applicant’s acceptance that both the decision to grant and the making of a grant of planning permission each set “a separate clock running” for the purpose of s.50(5), highlighting that the “wording of the legislation does not preclude the bringing of a challenge to the grant of planning permission, but where such a challenge questions the validity of the earlier decision to grant, it must be brought within eight weeks of that decision” and that “time runs from the date of decision, not from the date of it being given legal effect by way of a formal grant of planning permission”.

Conclusion

Accordingly, the court determined that the proceedings involved an impermissible collateral challenge to an earlier decision in respect of which the applicant was out of time.

Gardiner v Mayo County Council [2024] IEHC 5