High Court: Candidates fail to amend planning challenge to include impact on local bat population
The High Court has dismissed a request to amend a statement of reasons in a planning case involving the protection of bats under the Habitats Directive. The applicants argued, among othersthat An Bord Pleanála had not complied with the provisions of the directive and sought to amend the file to allege that there had been an incorrect transposition of the directive into domestic law.
The court held that the applicants could have invoked the issue of mistransposition when they initially sought judicial review and that there was no valid reason for this failure. The point of transposition error was held to be a new case raised by the applicants and the application was dismissed.
The claimants sought to challenge planning permission granted in April 2021 for 482 houses in Carrickmines, Dublin 18. Under the eight-week deadline for initiating judicial review proceedings in planning cases, the claimants had to apply for judicial review before June 14, 2021. Ultimately, a ex parte the application was filed on that date and the procedure was initiated.
One of the initial grounds raised by the applicant was that An Bord Pleanala failed to comply with the Habitats Directive because the approved planning permission would negatively impact the local bat population. Subsequently, the applicants sought to amend their explanatory memorandum to include an allegation that if the Commission was found not to be bound by the Habitats Directive, then there had been a mistransposition of the directive in domestic law.
Counsel for the applicants explained why this reason was not included in the initial statement of reasons. It was stated that the applicants had assumed that the Commission had agreed that it was bound by the Directive. However, the Commission had denied this point in other unrelated proceedings. As such, counsel stated that the new ground was necessary given the Commission’s anticipated position.
In delivering his judgment in the case, Judge Michael Twomey began by noting that it was unclear from the attorney’s affidavit whether the Commission’s position had in fact changed. The arguments were based on the “understanding” of the applicants rather than on a concrete position taken by the Board.
The court held that the claimants could have raised the issue of the transposition error when they first filed their statement of reasons and that no valid reason had been put forward to explain why this had not been done. The court said:
“The fact that they, or their attorney, suddenly came alive, from whatever cause, at the risk that a respondent in a judicial review might use a defense he had not previously anticipated, is not a good and sufficient reason for this failure. ”
In addition, the court held that the time limits for applications for judicial review in planning cases were very strict and that these time limits were imposed for justifiable reasons of public order.
The tribunal was convinced that the issue of transposition error amounted to a “new case” in the proceedings as it greatly expanded the scope of the case to which the defendant states had to respond. Additionally, it was noted that a new category of relief was being sought due to the new ground.
In reaching this decision, the court referred to Sweetman v. An Bord Pleanala  1 IR 277, where it was held that a request for modification submitted outside the legal deadlines could only be granted in the event of just and sufficient reason. Further, the court noted that the applicable statutory test was found in subsection 50(8) of the Planning and Development Act 2000where 1) there was reason to authorize the modification and 2) the circumstances which led to the failure to submit the application for authorization within the time so prescribed were beyond the control of the applicant for the extension.
The court also held that granting amendments after the expiration of the eight-week time limit for judicial reviews could potentially undermine the effectiveness of the eight-week time limit (McEntee vs. An Bord Pleanala (Unpublished, High Court, Moriarty J., July 10, 2015) applied). It has been noted that there are “onerous requirements” for claimants seeking time extensions in planning cases (People Over Wind, Environmental Action Alliance Ireland v An Bord Pleanála  IEHC 271).
The court concluded that there were no good and sufficient reasons not to include the new reason in the initial statement of reasons. The case simply concerned the late realization of a possible line of defense that could be adopted by the Commission. As such, this was not sufficient to allow the amendment (people above the wind took into consideration).
Furthermore, no evidence was provided showing why the allegation of mistransposition could not have been made at the initial authorization stage. As such, the failure to include the reason could not be said to be beyond the applicants’ control.
The court rejected the request to include the reason for transposition error in the explanatory memorandum. Notably, the court said that “while it is of course true that bat rights are important, it is also true that the public interest, in providing badly needed housing for the residents of this state, is equally important”. In this case, the public interest in providing housing takes precedence, the court said.