Supreme Court: Planning judicial review application brought in time where time limit expired on a Sunday

About this case:

• Citation:
  [2024] IESC 55
• Judgment:
  External link
• Court:
  Supreme Court

Delivering their judgments for the Supreme Court, Mr Justice Brian Murray and Mr Justice Maurice Collins agreed that O.122, r.3 of the Rules of the Superior Courts provided a complete answer to this issue, whereas Ms Justice Aileen Donnelly considered that a common law presumption applied in favour of the appellants.

Background

The appellants challenged a grant of planning permission by An Bord Pleanála for 21 wind turbines in Co Kilkenny by a decision made on Monday 26 September 2022.

S.50(6) of the Planning and Development Act 2000 (as amended) prescribes an eight-week time limit within which judicial review proceedings of planning decisions may be brought. This deadline can be extended, pursuant to s. 50(8) of the 2000 Act, where an application is made to and granted by the High Court. 

The appellants filed a grounding affidavit and statement of grounds on Monday 21 November 2022 and applied to the High Court that day for leave to apply for judicial review. 

Unless the eight-week period could be construed as ending on the next day that the Central Office of the High Court was open, the period during which the application could be challenged by judicial review expired on Sunday 20 November 2022.

The High Court

The appellants argued that because their deadline for initiating judicial review expired on a Sunday, a day when the Central Office is closed, there is — or should be — an extension to the next business day that the Central Office is open and capable of processing documents by analogy with expiry of formal limitation periods on days when the court offices are closed.

The High Court refused an extension of time and dismissed the leave application as being out of time, finding inter alia that the 2000 Act expressly provided for extensions of time in other sections therein, that there was no express or implied presumption in the text of the 2000 Act of a grace period in the time limit expiring on a non-working day, and that the appellants had failed to demonstrate a good and sufficient reason for extending time necessitated by circumstances that were outside of their control as per s.50(8) of the 2000 Act.

The appellants appealed to the Supreme Court.

The Supreme Court

The primary issue for the Supreme Court was whether it is within the contemplation of s.50 of the 2000 Act (and other similar sections) that where an appeal is to be taken within a particular timeframe, but same expires on a Sunday, or non-working day for the Central Office of the High Court, including a bank holiday, that the time limit extends to the next working day, such as a Monday after a Sunday or Saturday or Tuesday after a bank holiday.

Ms Justice Donnelly highlighted at the outset that the law identified in her judgment will no longer have relevance when s.281 of the Planning and Development Act 2024 is commenced, which is similar to O.122, r.3 RSC.

The judge summarised that the issue was one of statutory interpretation, noting that the plain and ordinary meaning of the words of s.50(6) were to be ascertained “in their context and having regard to the subject matter of the legislation, and the objective to be discerned”.

The judge also considered: “Central to the interpretation of s. 50(6) is whether the common law presumption that prima facie extends the time period to the day when court offices are open applies to statutory time periods for taking judicial review proceedings.”

Acknowledging that there is a need for certainty as to the statutory time limits, the court found that the presumption was consistent with the purpose of the 2000 Act as it provided certainty.

Ms Justice Donnelly explained inter alia that on days when the court offices are closed, an intended applicant cannot comply with the requirement to issue proceedings in the Central Office and that this also creates a “huge impracticality” for the commencement of proceedings that must be moved in court.

In Ms Justice Donnelly’s view, the common law exception applied as it would not be practicable to require that all planning and immigration judicial review applications must be made at a weekend or on a public holiday in order to comply with the relevant time limits, in circumstances where only a single judge is on call for urgent cases.

Ms Justice Donnelly also pointed out that the Oireachtas when considering s.281 of the 2024 Act did not consider this type of extension as undermining the objectives of expedition, finality and certainty and so it was “difficult to understand” how a construction of the 2000 Act as providing for such an extension would be consistent with those objectives.

Mr Justice Murray considered at the outset of his judgment that Poole v. O’Sullivan [1993] 1 IR 484 supports the proposition that where the institution of legal proceedings requires some action by court offices and where the last day for the institution of legal proceedings expires on a day where court offices are closed, the court should interpret the relevant period as expiring upon the next day when the court offices are open.

The judge noted O.122, r.3 of the Rules of the Superior Courts (RSC) in this regard, pointing out that in the instant case, the relevant time limit was not fixed by the RSC or by any order, but by statute.

Mr Justice Murray noted that the RSC and limitation periods “enjoy a symbiotic relationship” and that the RSC, while not being able to change limitation periods, fixes the manner in which proceedings are commenced and in practical terms affects the ease with which limitation periods can be complied with.

Finding that the relationship between s.50 of the 2000 Act and the RSC was “unusually close”, the judge highlighted that the legislature has prescribed that such proceedings must be brought under O.84 RSC which itself is governed by O.122, r.3.

Mr Justice Murray emphasised: “The provisions are aligned by reading the legislation and the Rules as congruent. The Oireachtas, in mandating the procedure specified in Order 84, must be taken to have adopted the prescription by the Rules themselves as to when that time expired.”

The judge concluded: “This is, I think, a clear example of  a  situation  in  which  the  clear  words  of s.  50(6) of  the  PDA are  necessarily conditioned in their meaning by the express adoption of the procedure provided for in Order 84 RSC” and agreed with Ms Justice Donnelly that time was extended from a dies non to the next day on which the court offices were open for judicial review applications prior to the introduction of a bespoke planning judicial review procedure, and absent provision to the contrary, the running of time was to be calculated in the same way under the new procedure.

Mr Justice Collins agreed with Mr Justice Murray that O. 122, r. 3 RSC provides “a complete answer to the time point taken by the respondents” and stated that the Oireachtas could have legislated to exclude its application to any given category of proceedings, but had not done so. 

The judge was satisfied the “proper effect” of the rule was not to amend any statutory limitation period, which would be clearly impermissible, but to provide that in special circumstances the act shall be in time if done on the next day in line with Hodgson v Armstrong [1967] 2 QB 299.

Having regard to his position, Mr Justice Collins did not see any necessity to consider whether there is a presumptive rule of construction of the kind relied upon by Ms Justice Donnelly.

Conclusion

Accordingly, the Supreme Court allowed the appeal.

Save the South Leinster Way & Anor  v. An Bord Pleanála & Ors [2024] IESC 55