Friday, March 16, 2018
In an interesting judgment delivered by Mr Justice David Barniville in the High Court on 24 January 2018 in SC SYM Fotovoltaic Energy SRL v Mayo Co Council, Aeolus Wind Farms Limited and ESB Networks Limited the Court held that there was no ‘good and sufficient reason’ for a significant delay in applying for judicial review of a planning decision.
Time-limit for judicial review
In the ordinary course, an application for judicial review of a planning decision must be made within eight weeks of the decision – section 50(6) of the Planning and Development Act 2000, as amended (the 2000 Act). However, in certain limited circumstances the Court may grant an extension of time – section 50(8) of the 2000 Act.
The planning decision at issue in this case was a declaration of Mayo Co Council pursuant to section 5 of the 2000 Act, that a proposed development consisting of the laying of underground electrical cabling between an existing EirGrid substation and a proposed new windfarm substation, was exempted development. The planning decision was made on 6 June 2017 but the application for judicial review was not made until 2 October 2017, some 17 weeks later.
Extension of time
The Court held that the Applicant would have to satisfy the requirements of section 50(8) of the 2000 Act, namely that:
The Court found that the Applicant or its agents had all of the essential information on which to ground an application for judicial review on by 2 August 2017, and that the delay between 2 August and 2 October 2017 was ‘particularly significant’ when added to the statutory eight week period, and when compared with the much less significant periods of delay in other cases in which the Court has granted an extension of time.
The Court was not satisfied that the Applicant had established ‘good and sufficient’ reasons for the delay, and that the steps it took after 2 August 2017 were not necessary in order to commence the application for judicial review. Whilst the Court took account of the fact that the Applicant is a Romanian company and was therefore somewhat disadvantaged by geography, the Applicant had legal and technical advisers ‘on the ground’ acting on its behalf who were aware, or ought to have been aware, of the need to act without delay.
The works carried out under the Section 5 Declaration were almost complete by July/August 2017, when the Applicant intervened. Whilst not a determinative issue, the Court did take account of the fact that Aeolus was likely to suffer prejudice if the extension of time was granted. The construction programme would be delayed, the project might lose REFIT 2 entitlements, and the delay might adversely impact the sale of the project.
The Importance of Planning Searches
When the Applicant acquired the lands in July 2017 its solicitors raised standard requisitions on title and pre-acquisition queries, including queries regarding any planning notices or declarations. The vendor, Aeropower Wind Energy Limited, was not aware of the Section 5 Declaration because it was not notified of the application by Aeolus and was not notified of the decision by the Co Council. The Applicant’s solicitor did not take the further step of carrying out a planning search, which would have involved a physical search of the planning register held at the planning authority’s office.
Mayo Co Council was obliged under the 2000 Act to register the details of the Section 5 Declaration in the planning register, and it gave evidence in the proceedings that it did so, though there appears to have been some dispute as to precisely when this occurred. In any event, as no search was done by the Applicant’s solicitor, the Applicant was not made aware of the Section 5 Declaration when it acquired the lands.
The Court emphasised that its refusal of an extension of time simply means that Aeolus is entitled to the benefit of the Section 5 Declaration that planning permission is not required for the underground cable. It does not follow that Aeolus is entitled to enter on to the Applicant’s lands for that purpose. Aeolus is relying on an undertaking granted by the Applicant’s predecessor in title, however there is a dispute between the parties on that issue, which was not a matter for the Court in these proceedings.