Key Contacts: Leonora Mullett – Partner |Margaret O’Leary– Senior Associate
Every challenge to a planning decision of An Bord Pleanála must be commenced with an application to the High Court for leave to apply for judicial review, and this application must be made within 8 weeks beginning on the date of the decision (subject to the omission of the Christmas period under s.251 of the Planning and Development Act, 2000, as amended (2000 Act).
The clock starts on the date that the Board Order is signed.
The 2000 Act sets a time-limit of three days by which certain information on the decision is to be made available at the Board offices and online, but has no time-limit by which notice of the decision is to be given to persons who participated in the application or appeal process.
This is now the subject of a reference to the Court of Justice of the EU (CJEU), following the judgment of the High Court delivered on Friday 21 March 2025 in Thompson & Ors v An Bord Pleanála & Ors [2025] IEHC 161.
Information about the Board decision
A person contemplating a judicial review of a Board decision can know about the decision in the following ways:
- If they participated in the application or appeal process, they are required to be notified by the Board “as soon as may be” following the decision (Article 74 of the Planning Regulations 2001);
- As a general member of the public, they are put on constructive notice of the decision when the Board publishes notice of its decisions in the “weekly list” that the Board is required to publish by the third day of the following week (Article 72 of the Planning Regulations);
- The Board publishes on its website or elsewhere (but typically on its website www.pleanala.ie) details of the decision and documents relating to the matter, within three days of the date of the decision (Section 146 of the 2000 Act); and
- The relevant documents are also made available by the Board for inspection at the Board’s offices within three days of the date of the decision (Section 146 of the 2000 Act).
Where the Board does not issue written notification of its decision to participants in the planning process in a timely manner, such persons potentially lose out on a portion of the 8-week period within which to apply for judicial review.
Extending the period for judicial review
The High Court may extend the period within which an application for leave may be made, but only where it is satisfied that:
- there is good and sufficient reason for doing so, and
- 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.
Where the Board delays issuing written notification of the decision there may be a good or sufficient reason to extend the period for leave to satisfy the first limb of the test, but the second limb would not be satisfied where the person affected by the delay was capable of applying for leave within the 8 week period, even though in practice they may have had a shorter period within which to do so. Recent case law has indicated that if the person could not have known about the decision within the JR period, or if they only learned of it so close to the deadline that they could not meet it, they will be entitled to an extension of time within which to initiate judicial review proceedings.
Facts of the case
The judicial review relates to a decision of the Board on appeal from Fingal County Council (ABP-314936-22) to grant permission for the sub-division of a residential site and provision of single storey infill dwelling on the Howth Road, Sutton, Dublin 13. The Board’s Inspector conducted a preliminary examination and determined that EIA screening would not be required, due to the limited nature and scale of the proposed development and the absence of any significant environmental sensitivity in the vicinity/ the absence of any connectivity to any sensitive location. The Inspector also screened out the requirement for Appropriate Assessment (AA).
It’s also relevant to note that the relevant class of project and threshold for EIA purposes is “construction of more than 500 dwelling units”, whereas this proposed development involves the construction of a single dwelling.
The applicant for judicial review received a copy of the Board decision eight days after it was made. They proceeded on the misunderstanding that the 8-week judicial review period ran from the date on which they were notified, not the date of the Decision. Ultimately, they have raised a challenge to the time-limits for judicial review by reference to the EU Charter and the terms of the EIA Directive.
Questions referred to the CJEU
In essence, the High Court is asking the CJEU:
- Should there be a clear time-limit for the notification of decisions to the public, where the period for judicial review runs from the date of the decision?
- Should a person be entitled to an extension of time to bring a judicial review where the decision isn’t notified within the time-limit?
- Does EU law prohibit rules that exclude an extension of time where the applicant cannot demonstrate that they could not have brought the proceedings in time, but where the competent authority has failed to notify them within the time-limit?
Notably, the Court allowed Friends of the Irish Environment join the proceedings as an amicus curiae (friend of the Court), to make submissions on these questions.
Implications
It would be very problematic for the certainty of the planning system if the time-limit for initiating a judicial review is set to run from the date on which a person receives a notice of the decision (or should have received it with potential issues around proofs in this respect as well) rather than the date of the decision itself. The certainty of the judicial review period is fundamental to proper operation of the planning code, commercial certainty, investment decisions, contractual milestones and infrastructure delivery. Potentially open-ended procedures, such as those indicated in the judgment, that would erode the certainty as to when a judicial review is no longer available, without an extension of time on the basis of the current criteria, must be avoided.
The strictness of the 8-week judicial review process has already been relaxed recently to confirm that, if the period expires on a date on which the Central Office of the High Court is closed, the application can be made on the next date on which the Office is open. In addition, it is no longer necessary to make the application before a sitting judge of the High Court. It is sufficient to file the necessary papers in the Central Office. This reduces the burden on persons proposing to apply for leave to seek judicial review.
It would be reasonable to legislate to require the decision to be notified to participants in the planning process within three working days of the decision, which combined with the weekly list and the notification on the Board website should be sufficient to ensure that the public generally and any person concerned with the particular application are on constructive notice of the decision in good time to make an application for judicial review within the time-limit.
