[2018] IEHC 20
THE HIGH COURT
COMMERCIAL
JUDICIAL REVIEW
[2017 No. 745 J.R.]
[2017 No. 197 COM]
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)
SC SYM FOTOVOLTAIC ENERGY SRL
APPLICANT
RESPONDENT
AND
AEOLUS WIND FARMS LIMITED
AND
ESB NETWORKS LIMITED
NOTICE PARTIES
JUDGMENT of Mr. Justice David Barniville delivered on the 24th day of January, 2018
Introduction
1. On 2nd October, 2017, the Applicant, a Romanian company, obtained leave to seek a number of reliefs by way of judicial review in respect of a decision made by the Respondent, Mayo County Council (the “Council”) on 6th June, 2017 pursuant to s. 5 of the Planning and Development Act, 2000 (as amended) (the “2000 Act (as amended)”). One of the reliefs sought by the Applicant was an extension of time to bring its application. On foot of the order of the High Court (Noonan J.) made on 2nd October, 2017, the Applicant was given leave to seek such an extension of time.
Preliminary Issue
2. On 6th November, 2017, the High Court (McGovern J.) entered the proceedings into the Commercial List on the application of the first named Notice Party, Aeolus Wind Farms Ltd. (“Aeolus”), and gave directions for the hearing of a preliminary issue as to whether the Applicant was out of time in respect of its application and for the hearing of the substantive application for judicial review in February, 2018.
3. On 13th November, 2017, on the application of Aeolus, the High Court (McGovern J.) brought forward the hearing of the preliminary issue as to whether the Applicant was out of time for bringing the proceedings and listed that issue to be heard on 6th December, 2017. The court gave the necessary directions to enable this to happen. The preliminary issue is described in both of the orders of 6th November, 2017, and 13th November, 2017, as being whether the Applicant was out of time for bringing its application for judicial review. The sequence of the directions given for the exchange of affidavits and submissions was that the Council and Aeolus were to serve their affidavits and written submissions first and that the Applicant would reply. The second named Notice Party, ESB Networks Ltd. (“ESBN”), had informed the court on 6th November, 2017, that it would not be participating in the proceedings.
4. The preliminary issue came on for hearing before me on 6th December, 2017. It seemed to me that there was no dispute between the parties that the Applicant’s application for judicial review was brought outside the eight week period provided for in s. 50(6) of the 2000 Act (as amended) and that the proceedings could only be entertained if the Applicant obtained an extension of time under s. 50(8) for bringing them. On that basis, at the outset of the hearing of the preliminary issue, I indicated my view that it was appropriate that the issue should proceed on the basis that the Applicant should go first and move its application for an extension of time for bringing the proceedings and that the Council and Aeolus should respond. The parties agreed with that suggestion. The application proceeded, therefore, as the Applicant’s application pursuant to s. 50(8) of the 2000 Act (as amended) for an extension of time to seek the reliefs sought in its amended statement of grounds dated 4th October, 2017, in respect of the Council’s decision of 6th June, 2017, pursuant to s. 5 of the 2000 Act (as amended).
5. In order to succeed in its application for an extension of time, the Applicant has to demonstrate that the requirements of s. 50(8) are satisfied. In particular, the Applicant has to persuade me that:-
Factual Background
6. Before considering the relevant statutory provisions and the legal principles governing an application for an extension of time pursuant to s. 50(8) of the 2000 Act (as amended), it is necessary at the outset briefly to sketch out the relevant factual background. It was agreed by the parties that there was very little disagreement between them on the facts and the hearing proceeded on the basis of the affidavit evidence only with no cross-examination of the deponents. It must be said, however, that there are a small number of issues of fact on which the parties are not in agreement and, where possible and where necessary for the determination of the Applicant’s application for an extension of time, I will attempt to resolve those issues but at all times I bear in mind the absence of any cross-examination of the deponents.
7. On 6th June, 2017, the Council issued a declaration under s. 5 of the 2000 Act (as amended) that a proposed development to be undertaken by Aeolus was exempt development (the “s. 5 declaration”). The proposed development consisted of the laying of underground cabling and ducting along a particular route linking an existing EirGrid substation, known as the Glenree substation, at Bonniconlon East in County Mayo and a proposed wind farm substation at Bonniconlon East which Aeolus intends to develop. Aeolus had applied to the Council for the s. 5 declaration on 20th March, 2017 (the “s. 5 application”). Planning permission for the wind farm which Aeolus intends to develop at Bunnyconnellan (the “Bunnyconnellan wind farm”) was granted by An Bord Pleanála on 13th December, 2013, subject to a number of conditions. The application for that permission was made by a number of commonage landowners who have entered into a lease agreement with Aeolus permitting it to erect, inspect and maintain a wind farm on their lands. One of the conditions of the permission granted by An Bord Pleanála was that the permission “shall not be construed as any form of consent or agreement to connection to the national grid or to the routing or nature of any such connection” (Condition 2). While the application for the s. 5 declaration described the location of the proposed development as “Bonniconlon East”, and while the application for permission for the wind farm which Aeolus intends to development described the area as “Bunnyconnellan East”, the developments are in the same area notwithstanding the different spellings.
8. A small portion of the works the subject of the s. 5 declaration was required to be undertaken on lands now owned by the Applicant and comprised in Folio 33457 of the Register, County Mayo (the “MY 33457 Lands”). The Applicant did not own the MY 33457 Lands on 20th March, 2017, when the s. 5 application was made or on 6th June, 2017, when the s. 5 declaration was made by the Council. At that stage, those lands together with adjoining lands comprised in Folio 31669 of the Register, Co. Meath (the “MY 31669 Lands”) (together “the Lands”) were owned by another company, Aeropower Wind Energy Ltd. (“Aeropower”) which had acquired them from Powercon Wind Energy Ltd. (“Powercon”) in June, 2016. The Applicant acquired the Lands on 18th July, 2017, on foot of a contract of sale it entered into with Aeropower on 4th July, 2017, that sale being completed on 18th July, 2017. The Lands (and, particular, the MY 33457 Lands) surround the Glenree substation which was constructed on lands comprised in Folio 68384F of the Register, Co. Meath owned by the ESB and are now under the control of ESBN. The MY 33457 Lands are subject to a right of way in favour of the ESB.
9. Aeolus did not inform the Council in its s. 5 application that the Lands were, at the time of the application in the ownership of another entity, namely, Aeropower. Aeolus have asserted that it is entitled to carry out the works on the Lands in order to connect its proposed Bunnyconnellan wind farm with the Glenree substation on foot of letter of undertaking dated 7th December, 2009, given by Michael Rouse on behalf of Powercon, Aeropower’s predecessor in title to the Lands, to Aeolus (the “Undertaking”). Under the terms of the Undertaking, Powercon irrevocably agreed and undertook to grant the ESB a wayleave and/or an easement in respect of a 38kV electricity line or cable as defined in s. 46 of the Electricity (Supply) (Amendment) Act, 1945 over or underground through the Lands to service the wind farm being developed on adjoining lands by Aeolus, its agents, successors or assigns, and:-
“not to object in any way to any planning application regarding the development of to (sic) the said 38kV line or any poles or cables required in connection with it”.
While some argument before me was directed to the validity and effectiveness of the Undertaking to enable Aeolus to enter and carry out works on the Lands, that is not a matter on which I need express any view on this application for an extension of time. An unsuccessful challenge to the Council’s s. 5 declaration will mean that that decision is immune from challenge but will not in itself mean that Aeolus can lawfully enter and carry out works on the Lands.
10. The circumstances in which the Applicant acquired the Lands are that on 4th July, 2017, the Applicant entered into a contract of sale with Aeropower, to purchase the Lands for €45,000.00. The Applicant was represented by Lanigan Clarke solicitors, the solicitors acting for it in these proceedings, in connection with the acquisition of the Lands. Prior to executing the contract, the Applicant’s solicitors had raised objections and requisitions on title on 29th June, 2017. They were replied to by Aeropower’s solicitors on 4th July, 2017. The replies did not refer to the declaration made by the Council on 6th June, 2017. Reply 12.1(a) stated, in response to a question as to whether any notice, certificate or order had been served on or received by Aeropower or whether Aeropower had notice of any intention to serve any notice or issue any certificate or make any order relating to the Lands or any part of them under (inter alia) the Local Government Planning and Development Acts, “Not to Vendor’s knowledge.” A series of questions were asked and replies given in para. 26 concerning the Planning Acts. The existence of the s. 5 declaration was not mentioned. However, in a letter dated 14th July, 2017, Aeropower’s solicitors stated that reply 26.10 of the replies had been amended to take account of an ongoing planning application for the development of another (unrelated) wind farm development, the Blacklough wind farm, in respect of which a decision had not by that stage been received.
11. Aeropowers’s solicitors further stated in that letter:-
“We are instructed to confirm on behalf of the Vendor that it has not received any s. 5 notification from the Local Authority for any other development on the Property.”
The Lands were transferred by Aeropower to the Applicant by deed of transfer dated the 18th July, 2017.
12. The circumstances leading to the making of the s. 5 declaration by the Council on 6th June, 2017, were as follows. The s. 5 application was made on 20th March, 2017, by Highfield Energy Services Ltd. (“Highfield”) on behalf of Aeolus. Highfield requested a declaration under s. 5 of the 2000 Act (as amended) that the proposed underground cabling and ducting described in the application was exempted development. The description of the proposed development in the s. 5 application was as follows:-
“Underground MV cabling and ducting linking existing Glenree EirGrid substation at Bonniconlon East, Bonniconlon, Co. Mayo, … and proposed Bonniconlon wind farm substation at Bonniconlon East, Bonniconlon, Co. Mayo …”.
13. The s. 5 application set out the basis on which it was considered that the proposed development was exempted development and attached various documents including an Appropriate Assessment Screening Report dated July, 2016. As noted earlier, the s. 5 application did not refer to the ownership of the Lands (which were at that stage owned by Aeropower). Nor did it refer to the Undertaking in favour of Aeolus given by Powercon, predecessor in title to the Lands. The Council requested further information on 6th April, 2017, seeking (a) an archaeological assessment of the proposed development and (b) an ecological impact assessment report. Highfield furnished the information requested on behalf of Aeolus on 17th May, 2017. The Council issued the s. 6 declaration on 6th June, 2017, recording the Council’s decision that the proposed decision consisting of the laying of the electrical grid connection along the route indicated was development and was exempted.
14. Ms. Carina Carolan, an executive planner with the Council, swore an affidavit on behalf of the Council in these proceedings on 21st November, 2017. She swore that the s. 5 declaration was entered on the planning register and exhibited a copy of the entry on the register (the printout exhibited was dated 10th November, 2017). The Council was required to enter details of the s. 5 declaration in the register by s. 5(5) of the 2000 Act (as amended). The Council was required to keep such a register and to enter in the register particulars of the s. 5 declaration by s. 7 of the 2000 Act (as amended). Ms. Carolan stated that the s. 5 declaration was not uploaded onto the Council’s website as the Council had been directed by the Data Protection Commissioner on 30th May, 2012, “not to upload a s. 5 file onto the internet”. Ms. Carolan confirmed that the register and the file itself concerning the s. 5 declaration, were at all times available for inspection “in their entirety” at the Council’s offices in Castlebar, Co. Mayo. The question as to what was entered on the register and when any such entry was made is a matter of some controversy between the parties and is potentially relevant to the Applicant’s application for an extension of time. It will be necessary for me to make certain observations in relation to the evidence on that question when considering, in particular, the Applicant’s case in respect of s. 50(8)(b) of the 2000 Act (as amended).
15. It is accepted by the Applicant that it did not carry out any planning search, whether online or by attending at the Council’s offices, prior to its acquisition of the Lands in July, 2017 and that it did not do so until 2nd August, 2017, after it discovered the existence of works adjacent to and on the Lands. The Applicant argues that even if it had done so it would not have discovered the existence of the s. 5 declaration. It relies, in particular, on the evidence of Brendan Kelly, an engineer, who swore an affidavit in support of the Applicant’s application for an extension of time on 30th November, 2017. I comment on Mr. Kelly’s evidence and on the nature and extent of the searches apparently undertaken by him later in my judgment.
16. In any event, the Applicant did not carry out any planning search prior to its acquisition of the Lands and claims that it did not know of the s. 5 declaration until 2nd August, 2017, in circumstances which are described in an affidavit sworn on its behalf by Ms. Simona Brana on 2nd October, 2017.
17. In her affidavit, Ms. Brana explained that on 29th July, 2017, a representative of the Applicant, Christian Dolea, visited the Lands for the purpose of assessing forestry and while there saw plant, machinery and ducting material on the Lands. There was no work being carried out at the time. Ms. Brana explained that Mr. Dolea noted that it appeared as if a lock had been removed or cut from the security chain used for locking the gate to the Lands. Ms. Brana stated that John Keenan, a planning consultant based in Dublin, was then retained on behalf of the Applicant and requested to investigate the construction works on the Lands.
18. Mr. Keenan (who has also sworn an affidavit in support of the Applicant’s application) attended at the Lands on 31st July, 2017, and spoke with Liam Scott of Liam Scott Construction which appeared to be the construction company carrying out the works. Mr. Scott confirmed that the works were being carried out on behalf of Aeolus. Ms. Brana explained that it was in those circumstances that the Applicant discovered that the purpose of the works was to connect the proposed Bunnyconnellan wind farm to be developed by Aeolus to the Glenree substation and that this could only be done through the Lands. Ms. Brana then explained that Mr. Keenan attended at the office of the Planning Department of the Council on 2nd August, 2017 and discovered that a s. 5 declaration had issued in respect of the works confirming that the works were exempted development.
19. Mr. Keenan described his interaction with the planning officials of the Council on 2nd August, 2017, in the affidavit which he swore and I will refer to his evidence in that regard below. Following Mr. Keenan’s visit to the Council’s offices, he re-attended at the Lands on 3rd August, 2017 and saw that the contractors had abandoned the cable route through the Lands and were carrying out works to lay the cable on adjoining lands to the north but that some of the plant, machinery and ducting remained on the Lands.
20. The Applicant then retained the services of a security firm to protect the Lands. The security personnel attended at the Lands on 5th August, 2017 and discovered an excavator digging inside the boundary of the Lands. Having being so informed, Ms. Brana informed the security personnel that all persons and equipment were to be removed from the Lands, that the gate was to be locked and that a security presence was to be maintained on the Lands. The gardaí were called and informed the contractors to remove all equipment from the Lands and not to re-enter the Lands thereafter.
21. Ms. Brana then explained that an attempt was made by a person purporting to be an engineer supervising the works to produce a copy of the Undertaking purporting to authorise the carrying out of the works on the Lands. Some interaction took place between the engineer and the security personnel engaged by the Applicant. On 7th August, 2017, the contractor requested permission to re-enter the Lands to remove the plant, machinery and ducting which had remained there. The Applicant consented to this and the plant, machinery and materials were then removed from the Lands and brought onto adjoining lands.
22. As regards the works themselves, a detailed description of the works was provided in affidavits sworn on behalf of Aeolus by Frank Ennis. In his first affidavit, which was sworn on 25th October, 2017, Mr. Ennis explained that having obtained the s. 5 declaration, Aeolus commenced works on 28th July, 2017, on the construction of the underground electrical grid connection linking the existing Glenree substation to the proposed Bunnyconnellan wind farm substation and that Aeolus had started the works in order to facilitate work which the ESBN would carry out in respect of the underground electrical connection. He explained that by the time the Applicant intervened the works were close to completion, that the only portion of the works remaining was on the Lands and that Aeolus was relying on the Undertaking to enter and carry out the works on the Lands. Those works ceased on 5th August, 2017.
23. Mr. Ennis explained that had the works not ceased at that date, they would have been completed in or about 8th August, 2017. All that would have then remained to be done for ESBN to complete the grid connection works was to install a cable through the ducts already laid, to test and retest the cable and to connect the cable to both substations for energisation.
24. In his second affidavit, sworn on 22nd November, 2017, Mr. Ennis stated that the work on the Lands had started on 26th July, 2017. On 27th July, 2017, Pentico Contracting Limited (“Pentico”), which had been appointed by Highfield on behalf of Aeolus to supply and install the underground ducting for the grid connection, commenced setting out and laying the ducting for the grid connection with trenching being commenced on 28th July, 2017 and continuing over the weekend of 29th and 30th July, 2017, and through the following week until 5th August, 2017. By that stage, Mr. Ennis explained, over 800m of duct work had been laid and approximately 120 – 130m of duct work remained to be laid to complete the connection to the Glencree substation.
25. Mr. Ennis further stated that prior to commencing those works on 27th July, 2017, Pentico carried out mobilisation works on site on 26th and 27th July, 2017, which including drawing stone and delivering plant and pipe work to the site and that this involved keeping a dumper truck and pipe work on the Lands. Mr. Ennis reiterated Aeolus’s claim to be entitled to enter onto and to carry out the works on the Lands on foot of the Undertaking. There is no dispute between the parties that the works on the Applicant’s lands ceased as of 5th August, 2017.
26. As noted earlier, the Applicant engaged the services of Mr. Keenan, a planning consultant, on 30th July, 2017. Mr. Keenan swore an affidavit in support of the Applicant’s application for leave to seek judicial review on 29th September, 2017. He explained that on 30th July, 2017, he was requested by the Applicant to investigate works which were being carried out on and adjacent to the Lands. He outlined what he saw when he attended at the Lands on 31st July, 2017. He discovered a tractor, trailer, dumper, excavator and ESB ducting and gravel on the Lands as well as workers taking materials stored on the Lands to the adjacent lands. He also referred to the discussion he had with Mr. Scott, the contractor, referred to earlier.
27. Mr. Keenan explained that he was aware that the Applicant had purchased the Lands in July 2017. He stated that a search he carried out in the planning section of the Council’s website did not reveal anything in relation to the works which were being carried out by Aeolus. He explained that he attended at the Planning Department of the Council on 2nd August, 2017, where he was seen by Ms. Mary Killoran Coyne. He asked to see the planning register and Ms. Killoran Coyne asked whether he was looking for anything specific. Mr. Keenan indicated that electricity cable was being laid on behalf of Aeolus on and beside the Lands and that there was no reference to such development on the Council’s website. Mr. Keenan stated that Ms. Killoran Coyne informed him of the s. 5 application and the s. 5 declaration made by the Council, in respect of the underground grid connection serving the wind farm to be developed by Aeolus nearby (i.e. at Bunnyconnellan East).
28. He stated that he was then presented with a copy of the s. 5 application made on behalf of Aeolus for inspection. He requested a copy of the completed application and said that he would pay the relevant fee but that this was refused. Ms. Killoran Coyne quoted and referred to s. 5(5) of the 2000 Act (as amended) to support the refusal.
29. Mr. Keenan stated that the information about the s. 5 application was not in the public domain and requested Ms. Killoran Coyne for a letter confirming why s. 5 applications were not available on the Council’s website. Ms. Killoran Coyne provided Mr. Keenan with such a letter dated 2nd August, 2017.
30. In that letter, Ms. Killoran Coyne stated that:-
“Mayo County Council cannot make such applications available on its planning website as a result of a decision by the Data Protection Commissioner in which he asked that all such details be taken down from the publicly accessible website.”
31. Ms. Killoran Coyne also provided Mr. Keenan with a copy of the Council’s letter dated 6th June, 2017, to Aeolus’s agent, Highfield, informing it of the s. 5 declaration, namely, its decision that the particular development was exempted development. Mr. Keenan exhibited a copy of that letter to his affidavit. That letter set out the Council’s decision in respect of the s. 5 application and the reasons for its conclusion that a declaration should be granted in respect of the development pursuant to s. 5 of the 2000 Act (as amended).
32. Mr. Keenan was also permitted to take photographs of plans relating to the s. 5 application and did so. Mr. Keenan stated that he asked Ms. Killoran Coyne why it appeared that the owner of the Lands which were the subject of the development had not received a copy of the Council’s s. 5 declaration and that Ms. Killoran Coyne stated that the Council had not been made aware of the identity of the owner of the Lands in the s. 5 application and that the Council had only informed the Applicant for the s. 5 declaration of its decision.
33. In any event, it is clear from Mr. Keenan’s affidavit that as of 2nd August, 2017 the Applicant was aware of the fact that the Council had issued the s. 5 declaration in respect of the development on 6th June, 2017; Mr. Keenan had obtained a copy of the Council’s letter notifying Highfield on behalf Aeolus of the s. 5 declaration and of the reasons for its decision and was aware that the owner of the Lands over which part of the development, the subject of the s. 5 declaration, was to take place had not been informed of the application or of the Council’s decision on the application.
34. In circumstances which have not been explained at all on behalf of the Applicant, the Applicant then chose to retain the services of another planning consultant, Jim Harley of Strabane, Co. Tyrone, later in August 2017. In the meantime, and before turning to the involvement of Mr. Harley, the Applicant engaged in correspondence with Aeolus and its solicitors and also with Aeropower, which had sold the Lands to the Applicant in July 2017. The Applicant’s solicitors, Lanigan Clarke, who, as noted earlier, had acted for the Applicant in connection with the purchase of the Lands in June and July 2017, wrote to Aeolus on 10th August, 2017. The letter referred to the alleged unlawful entry by persons on behalf of Aeolus on to the Applicant’s Lands and the alleged damage caused to the Lands. Importantly, for present purposes, the letter referred to the fact that the Applicant had by that stage inspected the s. 5 application made on behalf of Aeolus to the Council in respect of the proposed works and asserted that this application had only come to its attention as a result of the discovery of persons acting on behalf of Aeolus on the Lands in late July, 2017. The letter then stated that the Applicant noted that the Council “failed to notify the land owner of its decision in respect of this s. 5 application in accordance with the Planning and Development Act 2000” and stated that the Applicant believed that this was as a consequence of Aeolus’s failure to provide full disclosure in its s. 5 application in relation to the ownership of the Lands. The letter then stated:-
“Our client fully intends to seek a judicial review in respect of this s. 5 application (sic) and make representations to Mayo County Council in respect of noncompliance with same”.
The letter then sought a written undertaking from Aeolus confirming that Aeolus would immediately desist from entering onto the Lands failing which injunction proceedings would be issued. Both the Council and Aeolus placed significant weight in their submissions on the fact that as of the date of this letter, 10th August, 2017, the Applicant had inspected the s. 5 file, was aware of and had seen the s. 5 declaration and the reasons for it, was aware that the Council had failed to notify the owner of the Lands of the s. 5 application, as allegedly required by the 2000 Act (as amended), that the Applicant “fully intended” to bring judicial review proceedings in respect of the decision taken by the Council on foot of the s. 5 application and would allege noncompliance with the provisions of section 5.
35. On the same date the Applicant’s solicitors also wrote to Aeropower. In that letter, they stated that it had come to the attention of the Applicant that prior to its acquisition of the Lands, the s. 5 application had been made to the Council on behalf of Aeolus and that the Applicant had reason to believe that Aeropower had “full knowledge of this application, and associated works”. The letter observed that the Council had failed to notify Aeropower of its decision on foot of the s. 5 application in accordance with the 2000 Act (as amended) and that the Applicant believed that this was as a consequence of the failure (by Aeolus) to provide full disclosure in its s. 5 application concerning the ownership of the property the subject of the application. The letter then put Aeropower on notice of the Applicant’s intention to bring judicial review proceedings in respect of the Council’s decision. It further sought confirmation as to any dealings between Aeropower and Aeolus in respect of the Lands and confirmation as to whether or not Aeropower was aware of the s. 5 application and associated works.
36. On 14th August, 2017, Poe Kiely Hogan Lanigan, solicitors acting on behalf of Aeolus, replied to the Applicant’s solicitors’ letter of 10th August, 2017. They sought time to take further instructions and confirmed that in the meantime Aeolus would not enter on to the Lands. They also enclosed a copy of the Undertaking. On 16th August, 2017, in an exchange of emails between the Applicant’s solicitors and Aeolus’s solicitors, it was confirmed that the Applicant acquired an interest in the Lands on 4th July, 2017 (being the date of the contract of sale) and that the Applicant’s solicitors had acted for the Applicant in connection with the acquisition of the Lands.
37. Aeolus’s solicitors replied to the Applicant’s solicitors on 16th August, 2017. In their letter, they asserted that Aeolus was entitled to act on foot of the Undertaking and had entered on the Lands with the intention of carrying out preliminary works for the laying of an electric cable in accordance with the terms of the Undertaking. They contended that the Applicant was obliged to comply with the terms of the Undertaking as successors in title to Powercon and further alleged that Michael Rouse had been informed of the outcome of the s. 5 application within days of the decision of the Council on 6th June, 2017. The Applicant’s solicitors replied on 18th August, 2017. They disputed any obligation on the part of the Applicant to comply with the terms of the Undertaking and made a number of points in relation to its terms. The letter further stated that the Applicant had not been advised of the existence of an Undertaking at the time of the purchase the Lands.
38. Aeolus’s solicitors informed the Applicant’s solicitors in a further letter of 18th August, 2017 that, pending a full response to their letter of that date, Aeolus would not enter on to the Lands. Mr. Rouse sent an email to the Applicant’s solicitors on 21st August, 2017 stating that:-
“We have an overall level of general knowledge about various projects, however we had not been informed by Aeolus Windfarms Ltd. or any other party about this s. 5 application being made, or as owners of the property we did not receive any notification from Mayo County Council about their decision in respect of same, [and that] this can be verified by an inspection of the respective file at the office of Mayo County Council Planning Section, Castlebar, Co. Mayo”.
Mr. Rouse also confirmed that Aeropower did not engage in any dealings with Aeolus in respect of the Lands.
39. The Applicant’s solicitors wrote a further letter to Aeolus’s solicitors on 29th August, 2017 alleging that Aeolus had carried out unauthorised works outside the scope of the s. 5 declaration on lands owned by others comprised in Folios MY2559F and Folio MY34444. The letter put Aeolus’s solicitors on notice that it was the Applicant’s intention to bring proceedings under s. 160 of the 2000 Act (as amended) requiring Aeolus to cease the alleged unauthorised works. The letter further asserted that Aeolus was aware that the works carried out on lands adjacent to the Lands were unauthorised as Aeolus had made an application to the Council under s. 5 of the 2000 Act (as amended) for works other than those actually carried out. The letter concluded by stating:-
“It is also noted that in the s. 5 application, relating to works which materially differ from the unauthorised works carried out, your client did not disclose to Mayo County Council the identity of the then owner of our client’s property being part of the lands, which were the subject of the application, even though your client was aware of the owner’s legal interest.”
A letter in almost identical terms was sent by the Applicant to Aeolus itself on 28th August, 2017. It is not clear, and is unexplained on the evidence before me, as to why it was felt necessary for two letters in similar terms to be written on behalf of the Applicant.
40. On 7th September, 2017, Aeolus’s solicitors responded to the Applicant’s solicitors’ letter of 18th August, 2017. In that letter, Aeolus’s solicitors contended that any challenge by the Applicant to the s. 5 declaration was out of time. The point was also made that the Applicant had no locus standi to challenge the Council’s decision as it was not the owner of the Lands at the time of the decision. The letter further asserted that Mr. Rouse was informed at the time of the decision that the s. 5 declaration had been made. Finally, it was submitted that Aeolus was entitled to rely on the Undertaking to enter and carry out the works on the Lands and that the works carried out were in compliance with the terms of the s. 5 declaration.
41. It is now necessary to comment on the role of Mr. Harley. As noted earlier, Mr. Harley, another planning consultant, was engaged by the Applicant in late August 2017 in circumstances where Mr. Keenan had previously been so engaged and had made the discovery of the s. 5 declaration when he attended at the Council’s offices on 2nd August, 2017. Mr. Harley has sworn two affidavits in support of the Applicant’s application. In the first of his affidavits, which was sworn in early October 2017 for the purposes of the Applicant’s application for leave to seek judicial review, Mr. Harley stated that he was first contacted by representatives of the Applicant on 15th August, 2017 and requested to act as a planning consultant for the Applicant in respect of the Lands and the development of the Bunnyconnellan wind farm by Aeolus nearby. No reason has been given on behalf of the Applicant as to why it was felt necessary to engage the services of Mr. Harley in circumstances where Mr. Keenan had previously been engaged. While it is, of course, entirely a matter for the Applicant as to who it retains as its planning consultant, the delay brought about as a result of Mr. Harley’s engagement is a matter which I may have to consider in assessing whether an extension of time should be granted to the Applicant. Having been approached on 15th August, 2017, Mr. Harley responded on 18th August, 2017 confirming his willingness to act and setting out the terms in which he was prepared to do so. Mr. Harley was then retained by the Applicant one week later, on 25th August, 2017. It should be noted, however, that by this stage more than three weeks had passed since Mr. Keenan’s discovery of the s. 5 declaration on 2nd August, 2017 and some 25 days had passed since the eight week period provided for in s. 50(6) had expired.
42. Mr. Harley stated in his first affidavit that he advised the Applicant to obtain a copy of the s. 5 file and that an application should be made for this under the Freedom of Information Acts. A Freedom of Information Act request was made by the Applicant to the Council on 28th August, 2017 (the “FOI request”). By this stage, some 26 days had passed since Mr. Keenan’s discovery of the s. 5 declaration on 2nd August, 2017. Further, 13 days had passed since Mr. Harley was first contacted to act on behalf of the Applicant. The Council had a period of four weeks to provide the material sought on foot of the FOI request. The documentation requested was provided by the Council to Mr. Harley and received by him on 21st September, 2017. The documentation provided on foot of the FOI request was exhibited by Ms. Brana to her affidavit. The Applicant has contended that it required sight of this documentation before determining the grounds of its challenge to the s. 5 declaration and before commencing judicial review proceedings challenging the Council’s decision. Following receipt of the documentation, the Applicant’s solicitors wrote to the Council on 22nd September, 2017 stating that, subject to the review of the documentation received and the potential release of further documents, they had been instructed by the Applicant to bring judicial review proceedings in respect of the Council’s decision. The letter further stated that among the grounds which the Applicant would raise in those proceedings was the contention that the Council’s determination that the laying of the electrical grid connection along the route the subject of the s. 5 declaration was exempt development was erroneous since that connection was part of the same project as the Bunnyconnellan wind farm development to be undertaken by Aeolus which required an Environment Impact Assessment (“EIA”) and could not, therefore, be exempt development. In addition, the letter made the point that the Applicant needed to be in possession of all potentially relevant information and documentation prior to the institution of proceedings so that it could be put before the court. The letter also made the point that insofar as the Applicant might require an extension of time within which to bring judicial review proceedings, there was delay and “deliberate withholding of information” by the Council which, it was contended, amounted to “good and sufficient” reason to extend the time in circumstances where the delay was outside the control of the Applicant.
43. Prior to the commencement of the proceedings by seeking leave on 2nd October, 2017, the Applicant engaged an engineer, Brendan Kelly, on 27th September, 2017 to carry out a planning search in respect of the Lands. Mr. Kelly swore an affidavit on 30th November, 2017. He exhibited the terms of his instructions from the Applicant’s solicitors which had requested him simply to carry out a planning search in respect of the Lands. Mr. Kelly explained in his affidavit what he did. Having ascertained the location of the Lands from the Property Registration Authority website and having obtained maps of the Lands, he then used those maps to carry out a “map based search” on the Council’s website. He then attended at the Council’s offices and inspected the planning register. He noted four entries on the register affecting the lands, being three permissions granted to the ESB in 2009, 2010 and 2015 and one permission granted to Tapbury Management Ltd. on 28th August, 2017 (in respect of a grid connection development for the Blacklough wind farm). He did not discover the s. 5 declaration. He communicated the results of this search to the Applicant’s solicitors on 2nd October, 2017 and they were exhibited to his affidavit. The extent of the instructions given to Mr. Kelly and the nature and extent of his search were subjected to considerable criticism by the Council and by Aeolus at the hearing.
44. The Council and Aeolus attach much significance to the fact that as of 2nd August, 2017 Mr. Keenan had been informed of the application for and the s. 5 declaration itself, had been provided with a copy of the s. 5 application file for inspection and had been permitted to take photographs of documents contained in the file. He had also been provided with a copy of the Council’s letter of 6th June, 2017 informing Highfield, as agents for Aeolus, of the terms of the s. 5 declaration. It is also notable that as of that date, Mr. Keenan was also aware of the fact that the underground grid cable the subject of the s. 5 declaration was intended to serve the Bunnyconnellan wind farm to be developed by Aeolus nearby. It was correctly accepted on behalf of the Applicant at the hearing that the planning permission granted by An Bord Pleanála in respect of that wind farm was readily available.
45. Moreover, Mr. Ennis swore a second affidavit on behalf of Aeolus on 22nd November, 2017 outlining his visit to the Council’s Planning’s Department on 26th October, 2017 in order to check the information which was available to the public there. He explained that he asked a member of staff at the counter, Ms. Timothy, if she could show him the planning information on the public record relating to Bunnyconnellan in North East Mayo and that she asked Mr. Ennis if there was any particular planning information that he was looking for. He stated that he was looking for information in relation to a s. 5 application in Bunnyconnellan on behalf of Aeolus. Mr. Ennis explained that Ms. Timothy went to a personal computer mounted on the public counter and quickly called up the details in relation to the s. 5 declaration and showed them to Mr. Ennis on the screen. Mr. Ennis then asked Ms. Killoran Coyne, who was also present, if she could provide him with a certified copy of the information on the screen and she did so. Mr. Ennis exhibited a copy of the print-out (which bears the date of his visit, 26th October, 2017). The print-out refers to the fact of the s. 5 application and the date of that application, the date on which further information was requested by the Council and provided by Aeolus, a description of the proposed development, a comment that the route indicated was development and exempted development and the date of the s. 5 declaration on foot of that application (amongst other details). Mr. Ennis explained that Ms. Killoran Coyne informed him that this information was not available to those accessing the Council website externally as the Council had been requested by the Data Protection Commissioner not to provide it for general access. Mr. Ennis then requested a copy of the written register which was produced to him and contained information in relation to the s. 5 application, its reference number and the date on which it was entered on the written register. Mr. Ennis was also shown a separate and distinct written register at the back of the register book for s. 5 applications which also contained information in relation to the relevant s. 5 application. Mr. Ennis also requested sight of a copy of the planning file in respect of the s. 5 application which was produced to him and he was informed that, as he was representing the Applicant for the s. 5 declaration, a copy could be provided to him to take away on request. However, he was informed that unconnected parties, such as members of the public, would be provided with copies of the register entries and a copy of the s. 5 declaration itself but such persons could not be given a copy of the file itself to take away unless they were connected with the application such as the applicant for the declaration or its agents, in accordance with the instructions given by the Data Protection Commissioners. Ms. Killoran Coyne confirmed to Mr. Ennis that this information was available to the general public at the planning desk on request both for viewing in the register book itself and on the computer and that copies of the information viewed on screen were also available to any member of the public on request. In addition, the entire file in respect of an application could be accessed by a member of the public and viewed in the Council’s office for as long as was required.
46. Ms. Carolan swore an affidavit on behalf of the Council on 21st November, 2017. As noted earlier, she confirmed that the s. 5 declaration was entered on the planning register and exhibited a copy of the entry (the date of the print-out exhibited by her was 10th November, 2017, some days before she swore her affidavit). She confirmed that the s. 5 declaration was not uploaded on to the Council’s website in accordance with the Data Protection Commissioner’s instruction. She further confirmed that the register itself and the file in respect of the s. 5 application were at all times available for inspection in their entirety at the Council’s offices. She also referred to Mr. Keenan’s visit to the Council’s offices and to the access which he was afforded to the file in respect of the s. 5 application.
47. Both the Council and Aeolus criticised the instructions given to Mr. Kelly and the search which Mr. Kelly carried out on behalf of the Applicant in late September/early October 2017 having regard to what Mr. Keenan and Mr. Ennis were able to discover when they attended at the Council’s offices on 2nd August, 2017 and 26th October, 2017, respectively, and having regard to what Ms. Carolan had stated on affidavit on behalf of the Council.
The Application for Leave to Seek Judicial Review
48. An application for leave to seek judicial review in respect of the s. 5 decision was made by the Applicant to the High Court (Noonan J.) on 2nd October, 2017. The application was grounded on affidavits sworn by Ms. Brana, Mr. Keenan and Mr. Harley. The eight week period provided for in s. 50(6) of the 2000 Act (as amended), however, had expired on 31st July, 2017. By the time leave was sought to seek judicial review in respect of the s. 5 declaration, some 17 weeks had passed since the date of the decision and some nine weeks had passed since the eight week period had expired. Not surprisingly, therefore, one of the reliefs sought by the Applicant was an extension of time to bring the application for leave. The other reliefs sought were orders of certiorari quashing the s. 5 declaration and various declarations impugning the making of the s. 5 declaration by the Council on various grounds including alleged noncompliance with s. 4(4) of the 2000 Act (as amended), the failure to give any or any adequate reasons for the decision, the failure to comply with fair procedures and/or to respect the property rights of affected land owners and the failure to comply with the provisions of the Planning and Development Regulations 2001 (the “2001 Regulations”). The High Court (Noonan J.) granted leave that day to the Applicant to seek the reliefs on the grounds set out in the statement of grounds (subsequently amended on 4th October, 2017), including leave to the Applicant to seek an extension of time for making the application for leave to seek judicial review.
The Grounds for the Applicant’s Challenge to the Section 5 Declaration
49. Essentially, the Applicant’s challenge to the s. 5 declaration is based on three main grounds:-
(1) It is alleged that the Council erred in law in finding the development, the subject of the s. 5 application to be exempted development where it is part of a project which requires an EIA.
(2) It is alleged that the Council failed to comply with fair procedures and failed to respect the property rights of affected landowners (including the Applicant) by failing to notify them of the making of the application and affording them an opportunity to make submissions in relation to it.
(3) The Applicant further contends that the Council erred in failing to give any or any adequate reasons for its decision that the proposed development the subject of the s. 5 application was exempted development under the relevant provisions of the 2001 Regulations.
50. Bearing in mind these grounds of challenge and the evidence, I must now consider whether the Applicant has discharged the burden of showing that it is entitled to an extension of time under s. 50(8) of the 2000 Act (as amended). I will first consider the relevant statutory provisions. I will then consider the relevant case law and set out the applicable legal principles. I will then seek to apply those principles to the facts and set out the arguments and my conclusions on the Applicant’s application for the extension of time.
Relevant Statutory Provisions
51. The decision of the Council which the Applicant seeks to challenge in these proceedings was made pursuant to s. 5 of the 2000 Act (as amended). This is the provision under which a person may request in writing from the relevant planning authority a declaration on the question as to what, in any particular case, is or is not development or is or is not exempted development (section 5(1)). Under s. 5(2)(a), a planning authority:-
“… shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.”
52. Under s. 5(5), the details of any declaration issued by planning authority under s. 5 are required to be entered in the planning register. The planning register itself is provided for in section 7. Under s. 7(1), the planning authority is required to keep a register for the purposes of the 2000 Act (as amended) in respect of all land within its functional area and is required to make entries and corrections to the register as may be appropriate in accordance with s. 7(2) and the other provisions of the Act and the Regulations made under it. Under s. 7(2)(h), a planning authority is required to enter in the register “particulars of any declaration made by a planning authority under s. 5 …”. By virtue of s. 7(3), the planning authority is required to make the required entries to the register “as soon as may be” after the making of the decision. Under s. 7(6)(a), the register is required to be kept at the offices of the planning authority and to be open for inspection during office hours.
53. Section 4(4) of the 2000 Act (as amended) provides that a development shall not be exempted development if an EIA or an Appropriate Assessment (“AA”) of the development is required.
54. The status of a s. 5 declaration was recently considered by Haughton J. in Sweetman v. An Bord Pleanála and others [2017] IEHC 46. Having referred to the decision of the Court of Appeal in Killross v. ESB [2016] IECA 207, in which that Court held that a court could not go behind a s. 5 declaration in subsequent proceedings and could not revisit the merits of an issue which had already been determined in the s. 5 declaration, Haughton J. observed that a s. 5 declaration clearly has a status in itself. He continued:-
“It establishes that a particular development is not ‘unauthorised’, and the High Court cannot go behind that, and cannot permit a collateral attack. As the Court of Appeal found, a s. 160 application in respect of an ‘exempted’ development is bound to fail. Although not adverted to in Killross, because it did not arise, it must logically follow from s. 4(4) of the 2000 Act (which provides that a development cannot be an exempted development if an EIA or AA is required) that the High Court cannot entertain a collateral challenge to a s. 5 declaration on the basis that an EIA or AA is required. The s. 5 declaration is a matter that can only be reviewed by appeal to the Board, or by judicial review brought in time in the High Court, and after that it is beyond attack.” (per Haughton J. at para. 12.5).
55. As regards the manner in which and the time within which a s. 5 declaration can be challenged by way of judicial review, it is necessary to turn to s. 50 of the 2000 Act (as amended). Under s. 50(2), a person shall not question the validity of any decision made or other act done by a planning authority in the performance or purported performance of a function under the 2000 Act (as amended) otherwise than by way of an application for judicial review under O. 84 of the Rules of the Superior Courts. The making of a s. 5 declaration by a planning authority is clearly a decision made by it in the performance or the purported performance of a function under the 2000 Act (as amended). Therefore, if a s. 5 declaration is to be challenged by way of proceedings (leaving aside the possibility of a review by An Bord Pleanála), it can only be done by way of judicial review proceedings under Order 84.
56. The time within which to bring such a challenge is provided for in section 50(6). It provides as follows:-
“Subject to subsection (8), an application for leave to apply for judicial review under [O. 84] in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority …, as appropriate.”
57. Section 50(8) provides for the possibility of an extension of time to that eight week period. Section 50(8) provides:-
Legal Principles Applicable to Applications for Extension of Time under Section 50(8)
58. The principles to be applied in considering whether an applicant for leave to seek judicial review may obtain an extension of time for making that application are reasonably well settled and have been helpfully and comprehensively discussed and analysed in a number of recent decisions on which all the parties in these proceedings have relied.
59. The starting point for the consideration of the legal principles applicable to an application for an extension of time seek to judicially review a planning decision under s. 50(8) is the decision of Clarke J. in Kelly v. Leitrim County Council [2005] 2 IR 404. In that case, the court was dealing with an earlier version of what is now s. 50(8) of the 2000 Act (as amended) (the relevant provision then was s. 50(4)(a) of the 2000 Act). Under the provision as it then stood, the court could not extend the eight week period unless it considered that there was “good and sufficient reason for doing so”. The applicant in that case sought leave to seek judicial review of a decision of An Bord Pleanála but was outside the eight week period for bringing such an application by 19 days. The applicant argued that he had been unable to bring proceedings within the requisite time limit due to difficult personal circumstances and conflicting advice from counsel. The High Court (Clarke J.) refused to grant an extension of time. Having referred to the restricted time limits for challenging planning decisions and decisions in other areas such as public procurement and immigration and to the intention of the Oireachtas that such challenges should be brought within very short periods, Clarke J. identified a number of non-exhaustive factors which may need to be considered in deciding whether or not to extend the time for bringing proceedings in these areas. The factors identified were:-
(a) The length of time specified in the relevant statute within which the application must be made;
(b) The question of whether third party rights may be affected (and as was made clear by the Supreme Court in K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R.128, it is part of the legislative intention that a person who had obtained planning permission should within a short period of time, be in a position to know that the permission, if not challenged, was absolute);
(c) Notwithstanding (b), there is nonetheless a clear legislative policy which requires that, irrespective of the involvement of third parties’ rights, determinations of particular types should be made certain within a short period of time in order to confer certainty on certain categories of administrative or quasi-judicial decisions. Therefore, the absence of third party rights or prejudice to third parties, should not be regarded as conferring a wide or extensive jurisdiction to extend time;
(d) Blameworthiness and, particular, the extent to which the applicant concerned may be able to explain the delay;
(e) The nature of the issues involved;
(f) The merits of the case and, particular, the issue as to whether the applicant has established an arguable case (unless the court is considering the extension of time issue on a standalone basis).
60. On the particular facts of the case, Clarke J. took into account the following factors:-
(a) He found that the period involved (being eight weeks), “while short is not unduly harsh” and noted that that was particularly so where an applicant for permission may well already have the benefit of expert professional advice prior to the commencement of the time running;
(b) He noted that the nature of the decision being challenged must be taken into account (being a planning decision);
(c) He noted the absence of any significant third party rights being involved in that case;
(d) Nonetheless, Clarke J. observed that the delay of 19 days in relation to a period of 56 days (eight weeks) was significant “having regard to the necessity to bring finality to all planning matters even those that do not involve third parties”;
(e) Clarke J. noted that while some degree of explanation had been given for the fact that the application was not made within the eight week period, he regarded it as only a “partial explanation”. He concluded that no real explanation had been given for the delay.
61. The principles identified, and the factors outlined, by Clarke J. in Kelly have been considered and applied in several subsequent cases. Most relevant for present purposes are the decision of Baker J. in Irish Skydiving Club Ltd. v. An Bord Pleanála [2016] IEHC 448 and that of Haughton J. in Sweetman v. An Bord Pleanála and others [2017] IEHC 46. All parties before me relied on these cases and for that reason I now consider them in some detail.
62. In Irish Skydiving Club, the applicant sought to challenge a s. 5 declaration which had been made on 14th January, 2015. The eight week period under s. 50(6) expired on 10th March, 2015. The applicant applied for leave to seek judicial review in respect of the decision on 27th March, 2015, i.e. 17 days after the eight week period had expired. In her judgment, in which she refused to grant the extension of time sought, Baker J. noted that “the time limit is strict, and one in respect to which the power to grant an extension is to also be strictly construed” (at para. 11). She referred to a number of authorities in support of that proposition including Kelly v. Leitrim County Council. Baker J. observed that all of those judgments noted “the public policy considerations reflected in the imposition of strict and short time limits” (para. 16). On the facts, Baker J. concluded that the applicant was aware within the eight week period that the relevant s. 5 decision had been made by An Bord Pleanála and that it had within that period written to the Board asserting that it had breached the rights of the applicant in not putting it on notice of the s. 5 referral to the Board. The explanation offered for the delay in bringing the application for leave was that it was necessary for the applicant to undertake “detailed preparatory work to establish the case, and to take advice with regard to the substantive findings and whether there were ground of challenge” (para. 32). Baker J. rejected the argument that it was necessary for the applicant to understand fully the substance of the decision before time could begin to run against it. She noted that the challenge made was pleaded along “classical judicial review grounds, namely that fair procedure was not afforded and that the Board wrongly disregarded the views of its inspector” (para. 41). Baker J. held that time began to run from the date the decision was made and not from the date on which an aggrieved or potentially aggrieved party came to know of the decision. She further rejected the argument that it was not until the applicant understood the basis of the decision or had a clear picture of what it meant that time could begin to run. She pithily stated “time is linked expressly to the date of the decision”.
63. In the course of her judgment, Baker J. referred to the decision of McCarthy J. in Talbotgrange Homes Ltd. v. Laois County Council and others [2009] IEHC 535, in which the court did not accept that it was necessary for the applicant in that case to wait until it received certain information before bringing proceedings and stressed that this was particularly so given that the applicant knew that it had not been notified or consulted prior to the making of the impugned orders. Baker J. also referred to an earlier judgment of Hedigan J. in Pearce v. Westmeath County Council [2012] IEHC 300 where a delay of eight days beyond the eight week period was considered excusable but she distinguished that case on the basis that the court in that case had accepted that members of the public had been misled into believing that the decision had been made on a different date.
64. Baker J. concluded that the test which an applicant for an extension of the “strict time limits” under s. 50(6) had to meet was “cumulative and mandatory” and that the court could not extend the time unless it was satisfied that both tests were met. In that case, as in many of the cases under s. 50(8), the court considered first whether the requirements of s. 50(8)(b) had been met such that it was demonstrated that the circumstances which resulted in the failure to make the application for leave within the eight week period were “outside the control of the applicant for the extension” (i.e. the second part of the test). Baker J. held that on the facts the applicant knew of the decision within time and had threatened litigation within that period and that there was no explanation why it did not move at that stage. Therefore, the applicant had not satisfied the requirements of section 50(8)(b). In those circumstances Baker J. did not find it necessary to consider whether the first part of the test i.e. the requirements of s. 50(8)(a) had been satisfied.
65. I found this decision particularly helpful in identifying the approach which the court which I should take in considering the present application for an extension of time under section 50(8). It should be said, however, that there are some differences between the present case and Irish Skydiving Club. The principal difference is that it was established as a matter of fact that the applicant in that case was aware of the s. 5 decision within the eight week period and indeed had threatened proceedings within that period. Here, it is accepted that the Applicant was not in fact aware of the s. 5 declaration. The case made by the Council and by Aeolus is that the Applicant ought to have been aware of the decision and would have been aware of it had it carried out the necessary searches at the Council’s office and that the Applicant’s failure to do so meant that it could not satisfy the court that the circumstances that resulted in the failure to make the application for leave within the eight week period were outside the control of the Applicant. That is undoubtedly a distinction between the facts of Irish Skydiving Club and the present case. However, the principles identified and applied by Baker J. in Irish Skydiving Club and the approach taken by her in that case are of considerable assistance in resolving the present application.
66. The next case on which reliance was placed by all parties before me is the decision of Haughton J. in Sweetman v. An Bord Pleanála and others [2017] IEHC 46. In that case, one of the reliefs which the applicant was seeking was to quash certain s. 5 declarations made by Cork County Council and Kerry County Council on 6th May, 2015 and 1st April, 2015 respectively, in circumstances where the applicant became aware of those declarations in September, 2015 but did not seek leave to challenge them until September 2016. In refusing to extend time to challenge those s. 5 declarations, Haughton J. cited with approval and applied the principles in Kelly v. Leitrim County Council and Irish Skydiving Club. Haughton J. rejected an argument which had been made that the eight week period only commenced in September 2015 when the applicant first became aware of the declarations. He also endorsed the conclusion of Baker J. that the requirements in s. 50(8)(a) and (b) are “cumulative and mandatory requirements”. Significantly, Haughton J. held that the requirement of “good and sufficient reason” in s. 50(8)(a) was directed to the reasons given for the extension of time in respect of the entire period for which the extension is required and that it is not limited to any particular period of time. Haughton J. stated:-
“The applicant seeking an extension of time must therefore firstly satisfy the court that the circumstances that result in the failure to make the application for leave within the period of eight weeks were outside of his or her control. Thereafter the applicant for extension must satisfy the court that there is good and sufficient reason for an extension. This phrase requires that the reason be both ‘good’ and ‘sufficient’. Moreover it is incumbent on the applicant to satisfy the court that such good and sufficient reason encompasses the entirety of the period from the expiry of the eight weeks up to the date upon which the leave application was made in the High Court, or at any rate the date upon which the leave papers were lodged in the Central Office.” (para. 6.8)
67. On the facts of that case, Haughton J. was satisfied that the applicant had satisfied the test in s. 50(8)(b) and that the circumstances which resulted in the applicant’s failure to make the application for leave within the eight week period were outside his control. The court then went on to consider s. 50(8)(a) and again reiterated that the applicant had to demonstrate “good and sufficient reason” for the extension covering the entire period at least up to the date on which the papers seeking leave were lodged in the Central Office in September 2016. The court noted that as of September 2015 (when the applicant first became aware of the relevant decisions) the applicant was aware that the decisions related to a grid connection and that declarations of exemption had been made. The court held that the applicant also had to be taken to be aware at that time that the exemptions necessarily meant that each planning authority had determined that an EIA and AA were not required, having regard to the fact that under s. 4(4) of the 2000 Act (as amended) no development requiring an EIA or AA could be exempt development. The court held that it was incumbent on the applicant to act promptly from the time he became aware of the declarations and referred in that context to the decision of Birmingham J. in Bracken v. Meath County Council [2012] IEHC 196. In that case, the applicants had discovered that a s. 5 declaration had been made some six months earlier. Birmingham J. found that once they had learned of that declaration it was incumbent on the applicants to move “with all possible expedition” and that if they were to succeed in bringing proceedings out of time “no further time could be lost”. However, the applicants in that case did not do so. Birmingham J. found “quite unconvincing” the explanation that it was necessary to await further information before moving.
68. In Sweetman, Haughton J. noted that the applicant did request and did consider the s. 5 file of Cork County Council in October, 2015 and at that stage was, or, ought to have been in a possession of such information as might have been required to seek leave of the court to challenge the validity of its decision but did not do so. As regards Kerry County Council, it had declined to send the applicant a full copy of its file but proffered the planner’s report and there was no evidence that the applicant had taken up that offer. It also offered inspection – another offer which the applicant did not take up for “logistical/financial reasons”. Haughton J. rejected as “good and sufficient” reason the personal or financial difficulties raised by the applicant. He held that it could not have been intended by the Oireachtas that the personal circumstances proffered could amount to “sufficient” reason for extending time or for anything other than a short extension and that to decide otherwise would be contrary to the intention of the Oireachtas which “was to confine, in a manner in a manner that balances the rights of developers and planning authorities with those of objectors, the opportunity for persons to impugn the validity of planning decisions” and would also be inconsistent with the approach taken by the courts as to the “strictness of time limits, and the extension of time limits” in planning judicial review (para. 11.7). Haughton J. held that the applicant did not have “good and sufficient” reason for not commencing proceedings in the autumn of 2015 and, even if he had, those reasons would have ceased to be valid after the applicant had taken legal advice in November 2015.
69. Haughton J. also considered the question of third party prejudice, which had been adverted to by Clarke J. in Kelly v. Leitrim County Council. On the facts of Sweetman, in the absence of any challenge the work the subject of the impugned decisions had commenced in March 2016 and had progressed. Haughton J. was satisfied that there would be significant third party prejudice if the time were extended in light of the applicant’s delay having regard to the construction programme and time constraints which existed in relation to the REFIT 2 Scheme. Similar considerations arise in the present case. In those circumstances, Haughton J. was not satisfied that the applicant had made out good or sufficient reason for extending time to challenge the s. 5 decisions.
70. I should briefly mention a very recent decision merely for the purpose of noting that the court in that case adopted and applied the same principles in adjudicating on an application for an extension of time to challenge a planning decision (albeit not a decision under s. 5 of the 2000 Act (as amended)). The case is Cassidy v. Waterford City and County Council [2017] IEHC 711. In that case leave was sought and granted to the applicant to challenge a decision by the respondent to make a draft Tree Preservation Order (TPO) under the 2000 Act (as amended) some 25 days after the expiration of the eight week time limit. An application was made to set aside the grant of leave on the grounds that the application was brought outside time and that there were no grounds for an extension of the eight week period under section 50(8). Eagar J. refused the extension of time and set aside the grant of leave. He applied (inter alia) Kelly v. Leitrim County Council and Irish Skydiving Club. On the facts, he held that the applicant was aware of the decision being challenged before time had expired and indeed had written threatening to challenge the decision within the eight week time period. However, the first letter sent by the applicant’s solicitors threatening proceedings was sent after the expiry of the eight week period.
71. Eagar J. held that the applicant had failed to satisfy the second part of the test. He held that the circumstances resulting in the failure to bring the proceedings within the eight week period were not outside the applicant’s control. Having reached that conclusion, the court did not need to proceed to consider whether the applicant had met the first part of the test.
Summary of Principles Applicable to Applications for Extension of Time under Section 50(8)
72. It is possible to distil from these cases the following principles to be applied when considering an application for an extension of time under s. 50(8) of the 2000 Act (as amended):-
(1) The eight week time limit in s. 50(6) of the 2000 Act (as amended) is a strict time limit and, while the court has a discretion to extend the time in accordance with the provisions of s. 50(8), the provisions of that subsection are to be strictly construed and applied.
(2) The requirements in s. 50(8)(a) and (b) are cumulative and mandatory. It is necessary, therefore, for an applicant for an extension of time to satisfy both subparas. (a) and (b) of section 50(8).
(3) The court will generally consider first of all whether an applicant for an extension has satisfied the requirements of s. 50(8)(b) i.e. the second part of the test, under which an applicant for an extension must show that the circumstances which led to the failure to bring proceedings within the eight week time limit were outside the control of the applicant. If the applicant cannot satisfy that part of the test, then it is generally not necessary to consider whether the applicant has satisfied the first part of the test (in section 50(8)(a)).
(4) The time for challenging a planning decision covered by the s. 50 of the 2000 Act (as amended) runs from the date of the decision and not from the date on which the applicant first becomes aware of or fully understands the substance of the relevant decision.
(5) In considering whether the applicant has satisfied the requirements of the first part of the test by demonstrating that there is “good and sufficient” reason for extending the time, the reasoning offered by the applicant to demonstrate compliance with this test must relate to the entire of the period of the delay beyond the eight week period and not merely for some part of that period.
(6) To satisfy the first part of the test, an applicant for an extension of time must satisfy the requirement of showing both “good” and “sufficient” reason for the extension. In most cases if a reason is found to be “good”, it will be “sufficient” for the purposes of the first part of the test. It is hard to envisage a case where a reason will be found to be “good” but not “sufficient”. That is not to say, however, that such a case does not exist.
(7) The court will assess carefully the explanation given for the failure to apply for leave for judicial review within the eight week period. While each case must be considered on its own particular facts, the court will assess carefully and critically any explanation put forward on behalf of an applicant for an extension of time that more information or additional material was required before proceedings could be brought. Of particular relevance in considering an explanation along those lines is the nature of and the reasons for the challenge to the planning decision in question.
(8) Among the factors which may have to be considered by the court in considering an application for an extension of time under s. 50(8) are those factors listed non-exhaustively by Clarke J. in Kelly v. Leitrim County Council, including:-
(a) the length of time specified in the 2000 Act (as amended) and the delay beyond that period before the application for leave is sought to be made.
(b) Whether third party rights are affected and whether there has been any prejudice to third parties as a result of the delay by the applicant for the extension of time in making the application for leave outside the statutory period (although it is not necessary to demonstrate the prejudice in all cases).
(c) The blameworthiness or otherwise on the part of the applicant for the extension and the reasons given to explain the delay which must cover the entire period of that delay.
73. It can be seen from the short review of the leading authorities that the courts have refused extensions of time where applicants delayed for 17 days (in the case of Irish Skydiving Club), 19 days (in the case of Kelly v. Leitrim County Council), 25 days (in the case of Cassidy) and even five days (in the case of Duffy v. Clare County Council [2016] IEHC 618, a decision of Barrett J.) after the expiry of the eight week time period before applying for leave to seek judicial review. In the present case, the application for leave to seek judicial review was made some nine weeks (63 days) after the expiry of the eight week period in section 50(6).
Application of Principles and Conclusions on Application for Extension of Time
74. I will now consider the basis on which the Applicant seeks an extension of time by reference to the evidence, the statutory provisions and the legal principles discussed above.
Section 50(8)(b)
75. As is common in these types of applications I will first consider whether the Applicant has satisfied the second part of the test, namely, whether the Applicant has established that the circumstances which resulted in its failure to make the application for leave within the eight week period were “outside the control” of the Applicant under section 50(8)(b).
(a) Applicant’s Case on Section 50(8)(b)
76. The Applicant makes a simple case. It states that it was not aware of the s. 5 declaration until Mr. Keenan discovered it on 2nd August, 2017, when he attended at the Council’s offices following the discovery of works on and adjacent to the Lands in late July 2017. The Applicant relies on the fact that it purchased the Lands on foot of a contract dated 4th July, 2017 and that the sale completed on 18th July, 2017. It relies on the fact that it is accepted that the s. 5 application was not notified to the then owner of the Lands (Aeropower) at any time before the s. 5 declaration itself was made. Although there is a dispute as to whether Aeropower and, in particular, one of its directors, Mr. Rouse, was informed of the making of the s. 5 decision at the time, I do not have to resolve that dispute.
77. The Applicant also relies on the replies to the objections and requisitions on title provided to its solicitors in the course of the purchase of the Lands and to the provisions of the contract itself. Particular weight is attached to the amended replies to requisitions on title provided by Aeropower’s solicitors on 14th July, 2017 and to the statement in their letter of that date that they were “instructed to confirm on behalf of the Vendor that it has not received any s. 5 notification from the Local Authority for any other development on the Property”.
78. The Applicant accepts that no planning search was carried out prior to its purchase of the Lands. It does not dispute the expert evidence put forward on behalf of Aeolus by Patrick Sweetman, an expert conveyancing solicitor, in an affidavit sworn by him on 21st November, 2017. Mr. Sweetman stated in that affidavit that:-
79. The Applicant contends that this is what Mr. Kelly did in late September/early October 2017 after he was retained to carry out a planning search on behalf of the Applicant. He did not find the s. 5 declaration when carrying out his search. The Applicant submits, therefore, that even if it had carried out a planning search of the type described by Mr. Sweetman, it would still not have discovered the making of the s. 5 declaration. The Applicant submits that it could not have found out about the s. 5 declaration before Mr. Keenan discovered it on the 2nd August, 2017. In those circumstances, it contends that the circumstances which resulted in its failure to make the application for leave within the eight week period, which expired on 31st July, 2017, were outside its control. It submits, therefore, that the second part of the test in s. 50(8) has been satisfied.
(b) Council’s and Aeolus’s Case on Section 50(8)(b)
80. Both the Council and Aeolus submit that had the Applicant carried out the appropriate searches at the time of the acquisition of the Lands in July 2017, it would have discovered the fact of the making of the s. 5 declaration and would have been in a position to make the application for leave before the expiry of the eight week period. In those circumstances, they contend that the Applicant has failed to satisfy the second part of the test. They rely significantly on the evidence of Mr. Keenan as to what he was in a position to find when he attended at the Council’s offices on 2nd August, 2017. On his own evidence, Mr. Keenan was informed by Ms. Killoran Coyle of the s. 5 application and of the s. 5 declaration in respect of the underground grid cable serving the wind farm being developed by Aeolus nearby. He was shown a copy of the s. 5 application and permitted to inspect it. While he was not provided with a copy of the s. 5 application, he was permitted to take photographs of the contents of the application. He was also furnished with a copy of the Council’s letter to Highfield, on behalf of Aeolus, containing the Council’s notification of the s. 5 declaration and the reasons for the Council’s view that the proposed development was exempted development.
81. They point out that Mr. Keenan was able to find out these things simply by attending at the Council’s offices. They rely on Mr. Sweetman’s evidence as to the searches which they say ought to have been carried out at the time of the purchase of the Lands by the Applicant. They contend that had the Applicant carried out the appropriate searches at the time of the acquisition of the Lands in July 2017, the Applicant would have discovered precisely the same information as Mr. Keenan discovered when he attended at the Council’s offices on 2nd August, 2017. They further rely on the evidence of Ms. Carolan who swore an affidavit on behalf of the Council on 21st November, 2017 in which she swore that the declaration that the development was exempted development was entered on to the planning register and she exhibited a copy of the entry on the register (the print out being dated 10th November, 2017, prior to the swearing of her affidavit) (para. 11). Ms. Carolan further confirmed that the register and the s. 5 file (being the file containing the s. 5 application and the decision itself) were “at all times available for inspection, in their entirety” at the Council’s office (para. 13). Ms. Carolan swore that Mr. Keenan was not impeded from viewing the contents of the s. 5 file and that he had access to the documents illustrating the nature of the application and the decision made by the Council which recorded the reasons for its decision (para. 16).
82. Reliance is also placed on the affidavit sworn by Mr. Ennis on 22nd November, 2017 in which he outlined the information he was provided by the Council when he attended at the Council’s offices on 26th October, 2017. I summarised Mr. Ennis’s evidence on this issue earlier. Mr. Ennis was given a print out of the relevant entry on the register containing reference to the s. 5 decision. He was also provided with the s. 5 file for review as well as being provided with a copy of the written register which recorded the s. 5 application made on behalf of Aeolus.
83. Both the Council and Aeolus are critical of the extent of the searches undertaken by Mr. Kelly in late September 2017. In particular, they are critical of the fact that Mr. Kelly does not appear to have spoken to anyone at the counter in the Council’s office and asked whether there was any relevant application or decision concerning development at or in the vicinity of the Lands and the Glenree substation. They maintain that had the Applicant carried out the appropriate searches prior to 31st July, 2017, it would have found out precisely what Mr. Keenan found on 2nd August, 2017 and would, therefore, have been in a position to make its application for leave prior to the expiry of the eight week period.
84. The Council, in particular, relies on the nature of the case being made by the Applicant, and contends that there was no reason why that case could not have been made prior to the expiry of the eight week period.
(c) My Conclusions on Section 50(8)(b)
85. In many of the cases on extensions of time under s. 50(8) of the 2000 Act (as amended) the applicant is actually aware of the decision the subject of the challenge within the eight week period. That was so, for example, in Irish Skydiving Club and in Cassidy. In both those cases, the court held that the Applicant had failed to satisfy the second part of the test. It is necessarily more difficult to satisfy the test in circumstances where the applicant is aware of the relevant decision within the statutory period.
86. The applicant in Sweetman was not aware of the relevant decisions within the period and it was held on the facts that the applicant could not have been aware of them within that period. The applicant in Sweetman, therefore, did satisfy the second part of the test. It seems to me, however, that this case is somewhat different.
87. The Applicant, on its own admission, failed to carry out any planning search at the time of its purchase of the Lands. I accept the uncontested evidence of Mr. Sweetman that at the time of the purchase a planning search ought to have been carried out by physically attending at the Council’s offices and establishing by reference to a map showing the extent of the Lands from an inspection of the register what application, permissions, orders, notices or other entries appear on the register effecting the Lands. I am also satisfied that an online search would not be satisfactory in the context of proper conveyancing practice. Asking basis questions such as those asked by Mr. Keenan and by Mr. Ennis would also seem to me to be consistent with common sense and good practice. The Applicant fairly admitted that it did not carry out any planning search at the time of the purchase but does rely on the replies to objections and requisitions on title and on the express statement by Aeropower’s solicitors on 14th July, 2017 that Aeropower had not received any s. 5 “notification” from the Council for any other development affecting the Lands (apart from the development concerning the Blacklough wind farm). However, good conveyancing practice required the Applicant to do more than that and I accept that Mr. Sweetman’s evidence in that regard. I do not accept that a proper planning search along the lines described by Mr. Sweetman would not have disclosed all of the relevant information to enable the Applicant to form a decision to apply for and to apply for leave to seek judicial review. I accept Ms. Carolan’s evidence that the s. 5 declaration was entered on to the planning register and that the register and the s. 5 file itself was at all times available for inspection in their entirety at the Council’s offices. Ms. Carolan so swore and no application for leave to cross-examine her was sought and she was not, therefore, cross-examined on her averments. Significantly, Mr. Keenan was in a position to find out all of the relevant information when he attended at the Council’s office on 2nd August, 2017. He did so by simply asking at the counter and being shown the relevant material. He was informed of the s. 5 application and of the Council’s decision on foot of that application. He was informed that the development the subject of the application and the Council’s decision concerned an underground grid cable serving a wind farm being developed by Aeolus nearby. He was provided with the s. 5 application for inspection and permitted to take photographs of the contents of the file. He was given a copy of the Council’s letter of 6th June, 2017 setting out the terms of its s. 5 decision and the reasons for that decision. He could have asked for a print out from the register (as Mr. Ennis did when he attended subsequently).
88. In my view, the Applicant’s reliance on the search conducted after the event by Mr. Kelly following his engagement on 27th September, 2017 is misplaced. The nature of the search was plainly inadequate as is evident from the fact that Mr. Keenan (and subsequently, Mr. Ennis) was able to find out the information and to obtain the material which he did on 2nd August, 2017 whereas Mr. Kelly was apparently unable to do so in late September 2017. It appears from Mr. Kelly’s affidavit that he did not ask anyone at the public counter at the Council’s offices about any relevant decisions effecting the Lands. Ms. Carolan has confirmed on affidavit that the register and the s. 5 file itself were at all times available for inspection in their entirety at the offices of the Council. Mr. Kelly does not appear to have enquired about this or asked for inspection of this material. While the search undertaken by Mr. Kelly may have been adequate for other purposes, it would not, in my view, have amounted to compliance with good conveyancing practice in accordance with the standard identified by Mr. Sweetman, which I accept, or with common sense (as evidenced by the approach taken by Mr. Keenan and by Mr. Ennis).
89. I am also satisfied that had the information which Mr. Keenan discovered on 2nd August, 2017 been discovered at or even shortly after the time of the purchase of the Lands in July 2017, the Applicant would probably have had sufficient information to enable it to form a view as to whether it had a basis for making an application for leave to seek judicial review and making that application. As I noted earlier, the Applicant was represented by the same firm of solicitors in connection with the acquisition of the Lands as now represent it in these proceedings. Having regard to the nature of the case being made by the Applicant in respect of the s. 5 declaration being based on the three main grounds identified earlier, and having regard to the fact that there was no impediment to the Applicant finding out about the planning permission obtained in respect of the Bunnyconnellan wind farm being developed by Aeolus nearby (and it was very properly accepted on behalf of the Applicant that that permission was readily available), had the information been obtained by Mr. Keenan on 2nd August, 2017 been obtained by the Applicant at the time of the acquisition of the Lands, it would have been in possession of sufficient information to enable it to decide whether there was a sufficient basis for challenging the s. 5 decision and to make the application for leave to do so within the eight week period or within a very short period thereafter. It is my conclusion, therefore, that the circumstances in which resulted in the Applicant’s failure to make the application for leave for judicial review within the eight week period were not outside the control of the Applicant. I conclude, therefore, that the Applicant has not satisfied the second part of the test (contained in section 50(8)(b)).
90. For completeness, and in case I am incorrect in my conclusion in relation to the Applicant’s failure to satisfy the second part of the test, I will proceed now to consider whether the Applicant has satisfied the first part of the test.
Section 50(8)(a)
91. The first part of the test (in s. 50(8)(a)) requires an applicant to demonstrate that there is “good and sufficient” reason for extending the time within which to make an application for leave to seek judicial review in respect of a planning decision. Therefore, the Applicant must establish that there is “good and sufficient” reason for extending the time for it to make the application for judicial review to 2nd October, 2017, when the application was made to the High Court (Noonan J.) (that being the relevant date rather than the date of service of the motion, in circumstances where the application for leave was an ex parte application).
(a) Applicant’s Case on Section 50(8)(a)
92. The Applicant relies on various matters to demonstrate what it contends is “good and sufficient” reason for granting the extension of time under section 50(8). In particular, the Applicant relies on the following:-
(1) It first learned of the s. 5 declaration on 2nd August, 2017 when Mr. Keenan attended the Council’s offices. The Applicant relies on the fact that the Council refused to provide a copy of the full s. 5 file (comprising the s. 5 application and supporting material and so on).
(2) The Applicant is a Romanian company and acted with appropriate speed following the discovery of the s. 5 declaration.
(3) The s. 5 declaration was not published or available on the Council’s website.
(4) The s. 5 application and the decision made by the Council on foot of that application was not notified to the Applicant’s predecessors in title to the Lands, Aeropower.
(5) The Applicant alleges that Aeolus did not make full disclosure to the Council in relation to the route of the cable and, in particular, did not inform it that part of the route was over the Lands. Neither the Applicant nor its predecessors in title, Aeropower, were notified or given the opportunity to make representations in relation to the decision.
(6) The Applicant put Aeolus on notice of the fact that it intended to bring judicial review proceedings in respect of the s. 5 declaration on 10th August, 2017.
(7) During the month of August 2017, the Applicant was addressing by way of correspondence the ongoing alleged trespass on its Lands by Aeolus and there was a delay on the part of Aeolus and Aeropower in responding to correspondence during that month.
(8) The Applicant contends that it would have been inappropriate and inadvisable to bring proceedings challenging the s. 5 decision without obtaining a full copy of the file. Indeed, it is submitted that it would have been reckless to institute proceedings prior to obtaining the information sought on foot of the FOI request and prior to obtaining advise in relation to the material obtained.
(9) The Applicant contends that as a non-national company it was at a particular disadvantage and needed to take and did take active steps to obtain expert advice in relation to the s. 5 declaration. It was in that context that the Applicant contacted Mr. Harley on 15th August, 2017.
(10) The Applicant relies on the fact that it was advised by Mr. Harley to obtain a copy of the s. 5 file by way of an FOI request and that Mr. Harley commenced work for the Applicant on 25th August, 2017 and advised that the full s. 5 file be obtained. The FOI request was made on 28th August, 2017. The Applicant contends that it needed that information in order to obtain a proper understanding of the s. 5 declaration and that the proceedings could not have been formulated without sight of the material. The Applicant further contends that it would have been in breach of its duty to make full disclosure to the court on an ex parte application were it to have proceeded to make that application in the absence of the material the subject of the FOI request.
(11) The Applicant relies on the fact that the Council was informed of the Applicant’s intention to make an application for leave to seek judicial review in respect of the s. 5 declaration on 22nd September, 2017 and of the fact that it would need to seek an extension of time in respect of that application.
(12) The Applicant relies on the fact that the issues raised in the proceedings include issues of EU law and, in particular, the alleged breach of the EIA Directive.
(13) The Applicant alleges that no prejudice would be suffered by any party, including Aeolus, in circumstances where it contends that it immediately put the Council and Aeolus on notice of its possible intention to issue judicial review proceedings. The Applicant also criticises the evidence of alleged prejudice put forward on behalf of Aeolus and disputes the existence of any alleged prejudice to Aeolus or any other party.
(14) The Applicant further contends that the court should not focus exclusively on the alleged delay on the part of the Applicant (and the Applicant denies that it delayed unreasonably in making the application) but rather the court should look at all the circumstances in its consideration as to whether it should exercise its discretion to extend the time for making the application to 2nd October, 2017. The Applicant argues that the test is whether it is established that there is “good and sufficient” reason for extending the time rather than whether there was “good and sufficient reason” for the delay. Amongst the other considerations which the Applicant contends I should take into account is the alleged failure by Aeolus to set out fully the nature of its relationship with the ESB. The Applicant further contends that Aeolus improperly sought to obtain the s. 5 declaration in circumstances where it was not entitled to it having regard to the inter-relationship between the development the subject of the s. 5 declaration and the Bunnyconnellan wind farm development for which permission was granted by An Bord Pleanála. The Applicant argues that some weight should be attached to the fact that Aeolus is seeking to sell its proposed wind farm development, being the Bunnyconnellan wind farm.
(b) Council’s and Aeolus’s Case on Section 50(8)(a)
93. Both the Council and Aeolus submit that the Applicant has failed to establish “good and sufficient reason” for granting the extension sought. Similar arguments are addressed by each of them in response to the Applicant’s contentions. The Council, in particular, sought to break down the periods of delay on the part of the Applicant in to three periods. The first was the period from the end of June 2017 when the Applicant was in negotiation for the purchase of the Lands until 2nd August, 2017, when Mr. Keenan found out about and ascertained details of the s. 5 declaration at the Council’s offices. The second period of what the Council contends was “culpable delay” on the part of the Applicant was from 2nd August, 2017 until the engagement of Mr. Harley on 25th August, 2017. The third period of alleged culpable delay was from the date of Mr. Harley’s engagement on 25th August until the application for leave was made on 2nd October, 2017. The Council contends that no adequate explanation was given by the Applicant for any of these periods of delay.
94. Both the Council and Aeolus contend that as of 2nd August, 2017 the Applicant was in possession of all of the information which it needed in order to form a view as to whether proceedings should be brought and to make the application for leave. As of that date, they contend that the Applicant knew of the fact of the s. 5 declaration, had a copy of the Council’s decision (or at least the letter setting out the terms of the decision and the reasons for it), had been given an opportunity to inspect the s. 5 application file at the Council’s office, could have viewed the information on the register and obtained a print-out of that information (as Mr. Ennis had done and as Ms. Carolan had explained in her affidavit) and was aware of the permission obtained in respect of the Bunnyconnellan wind farm. Having regard to the nature of the case which the Applicant seeks to make in respect of the s. 5 declaration, both the Council and Aeolus contend that the Applicant had all of the necessary information available to it as of 2nd August, 2017 (and ought to have had that information before 31st July, 2017) and that there was no reason for any further delay thereafter. They point out that the Applicant wrote to Aeolus and Aeropower on 10th August, 2017 stating that the Applicant “fully intends” to seek a judicial review in respect of the s. 5 declaration. However, the application for leave was not made until 2nd October, 2017. They point out that notwithstanding that the Applicant had engaged a planning expert (Mr. Keenan) in late July/early August 2017, the Applicant proceeded to approach another planning expert (Mr. Harley) on 15th August, 2017 and only engaged Mr. Harley on 25th August, 2017. They note that the Applicant offered no explanation for the need to engage another planning expert or excuse for the delay caused by its decision to do so. They further dispute the contention that it was necessary for the Applicant to seek material under the Freedom of Information Acts with the further delay which that application caused.
95. Aeolus, in particular, relies on prejudice to its position as outlined in the two affidavits sworn by Mr. Ennis on 25th October, 2017 and 22nd November, 2017. The prejudice relied on includes the fact that grid connection the subject of the s. 5 declaration was almost complete by early August 2017 when the Applicant intervened, that the completion of the development was a crucial part of Aeolus’s planned Bunnyconnellan wind farm, that the proceedings have created uncertainty in respect of the development and that this is particularly significant as Aeolus is considering offers for the purchase of its interest in the Bunnyconnellan wind farm development and the proceedings will have a negative impact on those offers. Aeolus further contends that the proceedings have materially increased the risk to the viability of its Bunnyconnellan wind farm development and that further delays to the start of construction of that wind farm development would place the project at material risk of not meeting the criteria for the REFIT 2 Scheme which risks the viability of the project. Mr. Ennis estimated that Aeolus could incur a financial loss of over €100,000.00 for every month that the project is delayed in 2017 and 2018. It should be said that the Applicant has disputed the detail of the evidence put forward on behalf of Aeolus in support of its claimed prejudice. Finally, Aeolus rejects the suggestion that it did not provide sufficient information in relation to its relationship with the ESB in connection with the development the subject of the s. 5 decision.
(c) My Conclusions on Section 50(8)(a)
96. I am not satisfied that the Applicant has established that there is “good and sufficient” reason for extending the time for making the application for leave to October 2017. I agree with the Council and Aeolus that as of 2nd August, 2017 (at the latest) the Applicant was in possession of sufficient information to enable it to decide whether to bring proceedings to challenge the s. 5 declaration and the grounds on which it might do so. I have considered in this context the nature of the case which the Applicant seeks to make in order to impugn the s. 5 decision. The case is made on classic judicial review grounds. The three main grounds of attack on the s. 5 decision have been summarised earlier. Essentially, the Applicant claims that the Council should not have made the s. 5 decision in circumstances where the development is part of a project requiring an EIA; the Council failed to comply with fair procedures; and the Council did not give adequate reasons for its decision. In my judgment the Applicant had all of the necessary information to consider whether to mount could have mounted a claim making these points on or shortly after 2nd August, 2017 (at the latest).
97. Insofar as an explanation has been given for the significant delay thereafter, to 2nd October, 2017, I am unconvinced by that explanation. I draw attention again to the fact that the Applicant’s solicitors (who acted for it in the purchase of the Lands) were in a position to write to Aeolus on 10th August, 2017 stating that they “fully intend[ed]” to bring judicial review proceedings in respect of the s. 5 declaration (the letter referred to the s. 5 application but a judicial review would necessarily have been directed to the decision itself). The Applicant’s solicitors corresponded in similar terms to Aeropower on the same date. Insofar as the Applicant wished to make a case concerning the interrelationship between the development the subject of the s. 5 declaration and the permitted development by Aeolus of the Bunnyconnellan wind farm, it is clear that Mr. Keenan was aware of the Bunnyconnellan wind farm permission on 2nd August, 2017 and the applicant has accepted that there was no impediment to the Applicant obtaining information about and details of the permission granted by An Bord Pleanála in respect of that development.
98. Instead of proceeding on the basis of the information it had on or shortly after 2nd August, 2017, the Applicant engaged in the correspondence just mentioned with Aeolus and with Aeropower and engaged in further related correspondence alleging trespass. I do not believe that that correspondence explains or excuses the delay which occurred over the course of August and September 2017.
99. As regards the engagement of Mr. Harley, it was, of course, entirely a matter for the Applicant as to whether it wished to engage another planning expert. However, the engagement of Mr. Harley in circumstances where Mr. Keenan had already been engaged did lead to further significant delay. Some 23 days elapsed between the date of Mr. Keenan’s visit to the Council’s offices and the date in which Mr. Harley was engaged, on 25th August, 2017. A period of 23 days is not insignificant in the context of the statutory time period of 56 days (eight weeks).
100. Nor am I convinced by the Applicant’s contention that it was necessary for it to obtain material on foot of the FOI request before being in a position to consider and bring an application for leave to seek judicial review. As I have already found, the Applicant had sufficient information as of 2nd August, 2017 to obtain advice and to make an application for leave to seek judicial review, if so advised, at that stage. It appears to have formed the intention to do so and so informed Aeolus in correspondence on 10th August, 2017. I do not accept that it was necessary for the Applicant to obtain the information sought in the FOI request in order to satisfy its duty of full disclosure to the court on an ex parte application. The Applicant could have informed the court in that application that an FOI request had been made and that on receipt of information on foot of the request, it would be put before the court and also that it might be necessary for an application to be made to amend or expand the grounds of challenge in light of that information and that such application would be made soon as possible on receipt of the information on foot of the request. If that had been done, there could have been no conceivable basis for contending that the Applicant had failed to comply with a duty of disclosure to the court. The consequence of making the FOI request was to give rise to a further delay between 28th August, 2017, when the FOI request was made, and 21st September, 2017, when the information was obtained on foot of that request. This is another significant very period in the context of the eight week statutory period. There then followed a further short delay from 21st September, 2017 until 2nd October, 2017 when the application for leave was made.
101. Overall, therefore, the application for leave was made 17 weeks after the date of the s. 5 declaration, nine weeks (63 days) after the eight week period in s. 50(6) expired on 31st July, 2017 and more than eight weeks after Mr. Keenan discovered the information at the Council’s offices on 2nd August, 2017. This is a significant delay in the context of the statutory time period and the clear legislative policy requiring a strict time limit to challenge planning decisions. While the Applicant is correct in its submission that in considering whether to grant an extension of time within which an application for leave may be made the court does not look simply at the delay itself but must consider whether there is “good and sufficient” reason for granting the extension, the delay is significant in this case. It is particularly so when compared with delays in other cases in which extensions have been refused (17 days in Irish Sky Diving Club and 19 days in Kelly v. Leitrim County Council, for example). While each case must turn on its own facts, nonetheless a delay of nine weeks (63 days) is particularly significant.
102. While by no means determinative of the position, it is also relevant that during the entire period from July 2017 onwards, the Applicant had the benefit of a number of professional advisers of various disciplines, and in particular, legal and planning. This was not a case in which the Applicant, a Romanian company, was attending to matters on an its own on a long distance basis. It had people on the ground in Ireland including solicitors and planning consultants.
103. I am not satisfied that the fact that the Applicant’s solicitors were engaged in correspondence concerning the alleged trespass is a reason for not acting more quickly in considering and bringing an application for leave to seek judicial review.
104. Again, while it is by no means determinative in itself of the position, I am satisfied that prejudice to Aeolus will occur if an extension of time is granted. The works the subject of the development exempted by means of the s. 5 declaration were almost complete at the time the Applicant intervened in late July/early August 2017. An extension of time permitting the Applicant to bring the proceedings will further prejudice Aeolus by creating uncertainty in relation to the development and the proposed intended Bunnyconnellan wind farm development. While the Applicant has a point that Aeolus has put forward very little material in support of its claimed prejudice if the extension is granted, the information provided on affidavit (without cross-examination) is enough for me to conclude that some prejudice is very likely to be suffered. If the completion of the works is delayed by virtue of a challenge to the s. 5 declaration, then that is likely to impact adversely on the Bunnyconnellan wind farm development and any efforts by Aeolus to sell that development. A delay in completing the Bunnyconnellan wind farm development is also likely to give rise to financial loss to Aeolus and may prejudice its entitlements under the REFIT 2 Scheme. There is at least a real risk of this occurring. I should stress, however, that I am considering these factors in the context of a challenge to the s. 5 declaration. I am not taking into account in this context any uncertainty about Aeolus’s entitlement to enter the lands on foot of the Undertaking which, as noted earlier, is not an issue which arises for consideration in these proceedings.
105. In summary, I am unpersuaded by the case made by the Applicant that there is “good and sufficient” reason for extending the time for the Applicant to make its application for judicial review to 2nd October, 2017. I have considered all of the points advanced by the Applicant in support of its application and the responses by the Council and Aeolus to those points. I have considered all of the evidence and have sought to assess that evidence in the context of the applicable legal principles discussed earlier. Having done so, I have concluded that the Applicant has failed to satisfy the first part of the test in s. 50(8), namely that there is “good and sufficient” reason for granting the extension of time sought.
Conclusion on Application
106. In conclusion, therefore, I have decided that the Applicant has not satisfied the requirements of s. 50(8) of the 2000 Act (as amended). I have concluded that the Applicant has failed to establish that the circumstances that resulted in its failure to make the application for leave to seek judicial review within the eight week period were outside its control. Normally that would be sufficient to dispose of the application in circumstances where the requirements in paras. (a) and (b) of s. 50(8) are “cumulative and mandatory”. However, in the event that I am incorrect in my conclusion in relation to the Applicant’s failure to satisfy the second part of the test, I have proceeded to consider whether the Applicant has satisfied the first part of the test. I have concluded that the Applicant has not done so and, in particular, has not established that there is “good and sufficient” reason for extending the time within which to make the application for leave to seek judicial review in respect of the s. 5 declaration at issue in the proceedings.
107. In those circumstances, I refuse the Applicant’s application for an extension of time to seek the reliefs sought in its amended statement of grounds in respect of the Council decision of 6th June, 2017.
