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Cite as: [2021] IEHC 21

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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
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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
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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.
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"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;
1.
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
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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
6
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
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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
8
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
9
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.
10

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.
11

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
12
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.
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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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