When does the clock stop running for planning judicial reviews?

Executive Summary

In Heaney v An Bord Pleanala, the High Court took the opportunity to clarify when time stops running for the purpose of an application for leave to apply for judicial review. The critical event which stops time running is moving the application before the High Court, rather than submitting or filing the judicial review papers. This case is a reminder of the strictness of the 8 week period within which a planning judicial review challenge must be brought. It also confirms that where an extension of time is sought from the Court, which is discretionary, the applicant must demonstrate both the existence of a "good and sufficient" reason for this being allowed, and that there were circumstances outside of their control which account for the delay. 

Facts

The Applicant, Ms Heaney, sought to challenge An Bord Pleanala's (the Board) decision to grant her neighbour (the Notice Party) permission for certain works at his farm in Clare. The Board raised a preliminary objection that the Applicant’s proceedings were too late (i.e. the 8 week period, from the date of the planning decision, within which judicial review challenges must be brought, had already expired).  

Time-line

The Board granted planning permission to the Notice Party on 27 September 2018. The Board wrote to the Applicant's agent the following day and this letter was received on 1 October 2018. The Applicant, acting as a lay-litigant, lodged judicial review papers in the High Court offices on 22 November 2018 (1 day after the 8 week period expired), before moving her application in court on 26 November 2018 (5 days after the 8 week period expired). The Court was required to determine whether the Applicant's application was out of time, and if so, whether the Court should extend time under s.50 of the Planning and Development Act 2000, as amended (the 2000 Act).

When does the time limit start and stop for the purpose of planning judicial review applications? 

The Court re-stated that under s.50 of the 2000 Act, time starts to run on the date when the relevant decision is made, not on the date when a person first learns of it. In this case, time began to run on 27 September 2018. 

The Court acknowledged a divergence in earlier High Court decisions as to when exactly time stops running. In McDonnell v. An Bord Pleanála¹, Haughton J held that an application for leave to apply for judicial review was not “made” for the purposes of s.50A(2) of the 2000 Act until the matter was moved before the High Court. A different approach was adopted by Humphreys J in McCreesh v. An Bord Pleanála², where it was held that the submission of papers in advance of the making of the ex parte application for leave to seek judicial review, was the critical event which stopped time running and constituted the date on which the application for an extension of time should be judged. 

The Court adopted the approach of Haughton J. In reaching his conclusion, Barr J was guided by the Supreme Court decision in Reilly v. The Director of Public Prosecutions³. This held that an application to the court made by motion ex parte could not be said to be made until it was actually moved in court. 

In so holding, the Court has clarified that time only stops running for the purposes of s.50 of the 2000 Act, when the application for leave to seek judicial review is moved before the High Court. This meant that the Ms Heaney was 5 days out of time in bringing her application to challenge the Board's decision. 

The Court was also asked to consider whether there was a justification for allowing an extension of time.  

Time-limits under the 2000 Act

Section 50(6) of the 2000 Act prescribes a period of 8 weeks within which an application for leave must be made. This period may be extended if an applicant can demonstrate that there is (i) a good and sufficient reason for doing so, and (ii) if the circumstances which resulted in the delay were outside of the control of the applicant. The onus is on the party seeking the extension of time to show that there is “good and sufficient” reason why an extension of time should be granted. 

Request for an extension of time refused

While the Court expressed sympathy for Ms Heaney, who was acting as a lay litigant, it refused to permit an extension of time. It noted that she did not give any explanation as to why she did not bring her application within the eight-week period (i.e. on or before 21 November 2018). Ms Heaney knew of the decision from 1 October 2018, but she did not explain what prevented her from making the application in time in the intervening period, or what the circumstances were which were beyond her control to explain why she was late in making the application. The fact that this was only a short delay was not relevant.

Conclusions

After some difference of judicial opinion, this case provides clarity on when time stops. The lodgment of judicial review papers is not sufficient to stop the clock. Time only ceases to run on the date when an application for leave to apply for judicial review is moved before the High Court. It is another reminder that even where the delay is relatively short, the requirements of s.50 of the 2000 Act impose a high bar for an applicant to satisfy. 

For more information please contact Alison Fanagan, consultant or Mark Thuillier, associate or any member of the Environmental & Planning team.

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[1] [2017] IEHC 366

[2] [2016] IEHC 394

[3] [2016] IEHC 394

Date published: 13 April 2021