High Court dismisses judicial review leave for CPO challenge due to time bar and failure to use An Bord Pleanála remedy.

THE HIGH COURT

JUDICIAL REVIEW

PLANNING AND ENVIRONMENTAL

[2025] IEHC 306

Record No. 2024 1030 JR

BETWEEN

SCOTT MERNAGH

APPLICANT

AND

WEXFORD COUNTY COUNCIL

RESPONDENT

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 29th day of May, 2025.

INTRODUCTION

1. On this application, the Applicant seeks leave to apply for judicial review to challenge two decisions of Wexford County Council (hereinafter “the Council”) relating to the compulsory acquisition of the Applicant’s lands located at Ballynagee, Laurstown, Pembrokestown and Moorfields, County Wexford, namely:

(i) the decision of the Council, dated the 9th of January, 2023, to make County Wexford Compulsory Purchase Order No. 01 of 2023 in respect of lands at Ballynagree, Laurstown, Pembrokestown and Moorfields in the County of Wexford (hereinafter the “CPO”); and

(ii) the decision of the Council, dated the 21st of June, 2023, to confirm the CPO.

2. The making and confirmation of the CPO authorised the Council to compulsorily acquire land which included 21.6171 hectares of farmland in the ownership of the Applicant:

“for the purposes of the performance of the local authority’s functions and to facilitate the development of a SETU Campus and inner relief road within County Wexford.”

3. In his proceedings, the Applicant contends, inter alia, that the CPO made and confirmed by the Council does not satisfy s. 213(3)(a) of the Planning and Development Act, 2000 (as amended) (hereinafter “the 2000 Act”) because instead of the purposes for which the CPO was stated to have been made and confirmed, the land captured by the terms of the CPO has been acquired as part of a strategic landbank and/or may now be used to create or develop a multi-purpose sports and community facilities which are not purposes specified when the CPO was made or purposes directed to the discharge of Council functions. It is contended that the CPO is ultra vires insofar as the land has been compulsorily acquired for a purpose in no way connected to the SETU campus, the contemplated inner relief road and/or ancillary function of the Council.

4. The Council contest this leave application on two grounds. Firstly, they contend that it is time barred and an extension of time should not be granted. Secondly, they maintain that the Applicant failed to exhaust the alternative remedy available to him before An Bord Pleanála in respect of the decision to make the CPO in January, 2023.

BACKGROUND

5. The Applicant is a dairy farmer who farms on lands located to the south-west of County Wexford. Following a request from the former Institute of Technology Carlow (ITC)

to assist in the identification of a suitable Wexford campus site in 2017, a site assessment report was prepared which considered 12 site options and an analysis of the merits of each of each based upon a number of criteria such as zoning; connectivity, servicing and development potential etc.

6. A site comprising land owned by the Applicant and a separate named individual scored highly as being an appropriate site location for the development of a university campus in Wexford town. Sometime around this time the Applicant became aware that the Council was interested in acquiring land from him for the proposed development of a campus for the South-East Technological University (hereinafter “SETU”). There was inter partes communication in this regard from as early as 2019, ever before the making of a CPO was pursued.

7. By letter of offer dated the 4th of April, 2022, the Council followed up on this communication by confirming a wish to voluntarily acquire certain lands from the Applicant. This letter indicated the Council’s support for the development of a campus for use by the SETU and identified some 48.5 acres of lands at Ballynagee as of interest to it for this purpose.

8. In this letter, the Applicant was advised of the existence of an “outline plan to develop an access road and to extend facilities infrastructure” and the terms of a valuation completed by the Valuation Office. The Council made a monetary offer in the sum of this valuation.

9. There may have been some without prejudice negotiation following receipt by the Applicant of this letter in April, 2022, but it is common case that there was no agreement and the Council’s offer was not accepted by the Applicant.

10. In the absence of agreement for voluntary sale of the land, on the 9th of January, 2023, the Council issued a statutory CPO Notice regarding the making of a CPO under s. 76 and the Third Schedule to the Housing Act, 1966 (as amended and extended) in respect of the Applicant’s lands at Ballynagee, Laurstown, Pembrokestown and Moorsfield, Wexford Rural, Co. Wexford.

11. The cover letter referred to a land acquisition map and schedule prepared in respect of the scheme which was said to be on display and available to view at the County Hall from the 11th of January, 2023 and confirmed that the Compulsory Acquisition would be published in the local papers on that date.

12. The CPO Notice stated that, if confirmed, the CPO would authorise the Council to acquire the land identified in the Schedule compulsorily:

“for the purposes of the performance of the local authority’s functions and to facilitate the development of a SETU campus and inner relief road within County Wexford.”

13. The lands in question were identified as Folio or Plot No. 102 comprising 2.079 ha and Folio or Plot 102A comprising 19.538 ha – this amounted to some 53.4 acres in total, an increase from the land area indicated in the letter of offer.

14. It was indicated within the CPO Notice that any submissions or objections regarding the proposed CPO could be submitted to An Bord Pleanála prior to the 27th of February, 2023. The CPO Notice further notified the Applicant that An Bord Pleanála could not confirm a CPO in respect of the lands if an objection was made in respect of the acquisition by an owner, unless the objection were subsequently withdrawn, without an oral hearing into the matter and until it has considered the objection and the report of the person who held the oral hearing. The Applicant was specifically referred to the provisions of ss. 214, 215, 215A, 215B, 215C and 218 of the 2000 Act.

15. On the 16th of January, 2023, the Council wrote to An Bord Pleanála and through this correspondence sought approval for the proposed CPO. By letter dated the 17th of January, 2023, An Bord Pleanála wrote to the Council with reference to their application for confirmation of the CPO referring to s. 216 of the 2000 Act and its powers to hold an oral hearing in respect of any application before it in accordance with s. 218 of the Act.

16. In the meantime, the Applicant engaged FBA Consultants who then made a submission dated the 18th of January, 2023, to the Council seemingly on a without prejudice basis.

I have not had sight of this submission.

17. The Council responded on the 26th of January, 2023, indicating that as previous negotiations had not been successful in agreeing a price that it was their intention to progress with its CPO. Despite this apparent break down in discussions in relation to voluntary acquisition and the Council’s confirmed intention to proceed by way of CPO, the Applicant did not make any submissions or objections regarding the proposed CPO for consideration by An Bord Pleanála.

18. On the 7th of March, 2023, An Bord Pleanála wrote under Reg. Ref CH26.315546 with reference to s. 216(1) of the 2000 Act to inform the Council that it was open to it to either confirm or refuse to certify the proposed CPO as no objections had been received by them.

19. On the 18th of April, 2023, the Council informed the Applicant that An Bord Pleanála had notified the Council that the CPO could be confirmed without modification pursuant to s. 216(1) of the 2000 Act. The Applicant was again advised that the CPO and map referred to were available to be seen at County Hall.

20. The CPO was confirmed by the Council on the 21st of June, 2023. It was recorded as Order No. 545 of 2023 which asserted that it was for the:

“….purpose of the performance of the Local Authority’s function and to facilitate the development of a SETU campus and Inner Relief road within Co.

Wexford.”

21. By Notice dated the 23rd of June, 2023, the Council furnished the Applicant with a copy of the CPO map and schedule, the cover letter dated the 7th of March, 2023 and a copy of the Confirmation Order dated the 21st of June, 2023. Within the said correspondence, it was stated that an application for judicial review of the decision of the Council under Order 84 of the Rules of the Superior Courts (hereinafter “RSC”) could be made within

8 weeks of the publication of the Notice in accordance with s.50 of the 2000 Act.

22. The Confirmation Notice was published in the Wexford People newspaper on the 28th of June, 2023.

23. On the 18th of October, 2023, following the expiry of the time allowed for challenge by way of judicial review to the confirmation of the CPO (time lapsing on the 23rd of August, 2023) the Council sent a Notice to Treat to the Applicant indicating that it sought to act upon the confirmed CPO and commence negotiations in relation to the lands. The Applicant was invited to deliver his claim and to this end he was advised to appoint a valuer to act on his behalf, with the reasonable costs of same to be met by the Council. It was further confirmed that the Council would be responsible for any reasonable legal fees incurred in the conveyancing of the lands.

24. Proposed developments were discussed in a series of interviews broadcast on radio with the Minster for Higher Education dated the 5th of October, 2023, the same Minister dated the 9th of November, 2023 and the Chief Executive of Wexford County Council dated the 16th of November, 2023. Based on the first of these radio interviews, the Applicant confirms that he became aware that the proposed SETU campus did not in fact require anything close to 50 acres of land. He claims to have become concerned to further understand the purposes for which the CPO was made. Further, on the 9th of November, 2023, the Applicant heard an interview on a radio show on “South East Radio” wherein the (then) Minister for Higher Education made a number of statements relevant to acquisition of lands for the SETU campus. The Minister stated that a new site had been secured for the SETU, that the Site encompassed over 40 acres in size and that the SETU would only take up approximately 20 acres. The Minister confirmed that it was a matter for the Council to decide how to use of the balance of the site.

25. From the content of the later broadcasts in November, 2023, the Applicant also became aware that lands were being acquired to facilitate the development of a football stadium for Wexford FC. It was reported in a newspaper article published on the 13th of November, 2023, that Wexford FC were expected to leave their existing grounds at Ferrycarrig Park and relocate to a proposed new 6000-seater stadium, to be developed on the lands being acquired by the Council. Based on this information the Applicant claims to have become concerned that lands were being acquired for purposes other than those which had been represented to him by the Council and/or that the Council may in fact have had no purpose or manner of use for a significant proportion of his land as of the time of the making and/or confirmation by the Council of the CPO.

26. It also emerged from these broadcasts, however, that in addition to the Applicant’s lands, the Council had acquired a further 55 acres of land through a receiver sale.

Indeed, the plans outlined for development land owned by the Council appeared to relate to a total of some 120 acres or more, well in excess of the CPO lands to be acquired from the Applicant.

27. Accordingly, while information available through the media as recorded in material exhibited in support of this application confirmed that the Council had acquired lands to facilitate the development of a stadium for Wexford FC, a new high technology pitch for Wexford GAA, a swimming pool, facilities for athletics and hockey, a sport campus and further educational facilities separate from the University, it is far from clear that these projects were proposed to be located on the CPO land belonging to the Applicant, as he suspects, or on other parcels of land comprised within Council owned lands in the total order of some 120 acres made up in part of land compulsorily acquired, voluntary acquisition and land swap.

28. It is the Applicant’s position in these proceedings that arising from this new information he became concerned that the Council had issued a CPO on his lands not just for the stated purpose of developing a university and road but also for other purposes not specified and/or not related to its function.

29. On the 21st of November, 2023, the Applicant’s solicitor wrote to the Council, seeking all records held by it “in respect of the proposed uses of the lands the subject of that CPO,” pursuant to the Freedom of Information Act, 2014 (as amended) (hereinafter “the FOI Act”), noting that the request was urgent because it was required to consider an “appropriate response” to the CPO.

30. The Council responded on the 28th of November, 2023, asking that the Applicant refine his request. The Applicant duly did this within an email dated the same day, differentiating 5 sub-categories of documents that he was seeking.

31. By decision dated the 14th of November, 2023 (plainly dated in error), but provided to the Applicant on the 15th of December, 2023, the Council granted a portion of the FOI request, while refusing a substantial part pursuant to s. 35(1)(a) of the FOI Act. The relevant refusal letter noted that a right of internal appeal, if sought, had to be exercised within 4 weeks. Records disclosed included:

(i) A letter from the President of the ICT to the Chief Executive of the Council dated the 11th of June, 2021 outlining the history of efforts to secure a campus for the new SETU in which reference was made to a current impasse arising from an inability to agree a sale price with the owner. She confirmed that following a review of the sites outlined with the Council’s Site Assessment and Analysis Report, it was considered that the site comprising the Applicant’s lands was “the most suitable site currently available for the development of a campus in Wexford” adding “the site not only provides sufficient land to develop a campus for the Institute of Technology Carlow in Wexford, but also ensures that there is a sufficient land bank to support the long-term development of the proposed South East Ireland Technological University.”

(ii) A letter in response dated the 30th of June, 2021, in which the Chief Executive Officer of the Council assured the president of ICT that if attempts to secure the preferred site by negotiation were unsuccessful that the were “willing to consider use of our CPO powers in this case.”

(iii) A memo from the Senior Planner to the Property Department of the Council dated the 6th of September, 2022, in which it was explained that constraints to the development of the subject lands included the fact that the lands were inaccessible without the provision of an inner relief road.

(iv) A letter from the Chief Executive of the Council to the new President of the SETU dated the 13th of September, 2022 in which the history of progress to date was outlined and reference was made to the fact that an offer had been made to the main landowner in April, 2022 but was rejected. It was confirmed that the landowner had then appointed a named auctioneer and valuer as agent in the negotiation process and the Council had obtained a valuation report directed to the need to acquire land for the campus and the proposed inner relief road on the basis of acquisition by consent of by means of CPO.

(v) A letter dated the 4th of October, 2022, confirming approval to the Council’s request to submit a revised offer to the landowners in an amount (redacted) for plot 102A (48.27 acres) but indicating that final approval would be required from the Governing Body and the HEA at the appropriate stage of the acquisition process.

(vi) A letter dated the 24th of November, 2022, wherein the Chief Executive of the Council confirmed to the President of the SETU that as “only

53.41 acres” had been identified as a requirement for the SETU campus and as it had not been possible to purchase the land by agreement, approval was sought from the President of SETU to go ahead with the CPO. It was further pointed out that an additional parcel of land was required for access to the campus site and these lands were in receivership, with the appointed receiver intending to dispose of the lands and engaged in discussion with the Council.

(vii) A letter dated the 12th of December, 2022, from the President of SETU to the Chief Executive Officer of the Council confirming SETU approval as sought to the proposed CPO of 53.41 acres subject to final approval from the Governing Body and the HEA at an appropriate stage of the acquisition project.

(viii) A memo from the Property Section of the Council dated the 16th of December, 2022, which identified that Plots 100, 101, and 102 were being obtained in order to develop an orbital road connecting the proposed SETU campus to existing roads and that more specifically, Plot 102A would be utilised to facilitate SETU campus development.

(ix) A memo to the Chief Executive Officer of the Council from the Director of Services of the Council dated the 9th of January, 2023, in relation to the proposed CPO in which the benefits for Wexford of attracting the SETU were outlined and it was noted that the proposed site meets the SETU requirements for approximately 50 acres of lands recommending approval for the commencement of the CPO process and requesting that he sign an Executive Order in this regard.

(x) A letter dated the 12th of September, 2023 from the Chief Executive Officer of the Council advising the President of SETU that the time limit for receipt of objections and/or judicial review of confirmation of the CPO had lapsed and accordingly, it was considered appropriate to serve the Notice to Treat confirming the Council’s commitment to payment of compensation to affected parties. The process was summarised and the President of the SETU was asked to confirm agreement to the Council’s intention to serve the Notice to Treat.

(xi) Notes of a meeting dated the 5th of October, 2023, in which the necessity for a “Masterplan” for the site conveyed with verification that the “inner orbital road would be development led and paid for by WCC on SETU adjoined lands. Other sections of the road would be funded by other interested parties as required.”

(xii) A heavily redacted presentation on Master Planning of SETU Campus, Schools, Housing, Sports and Community Facilities dated the 13th of November, 2023 in which reference was made to the Council having control of a 120-acre are of land within Town Boundary. Reference is also made to “Further Section 183 Disposals to SETU for Department of Education, Wexford FC for stadium” and others, including but not limited to housing, in respect of this landbank.

32. On the 21st of December, 2023, solicitors for the Applicant issued correspondence to the Council, requesting a copy of the site assessment report which had been referred to but had not been provided. Although the correspondence has not been exhibited on behalf of the Applicant, it appears that the Site Assessment and Analysis was subsequently provided to the Applicant’s solicitors on the 1st of February, 2023, in redacted format.

33. After nearly a six-week delay, by letter dated the 14th of March, 2024, the Applicant’s solicitors wrote complaining that redaction of the Site Assessment and Analysis was to such an extent that it was effectively rendered useless. They requested an unredacted or properly redacted copy.

34. In a reply dated the 29th of April, 2024, the Council stated that they stood over the original FOI decision, pointing out that the Applicant had failed to make a request for an internal review of the determination within the four weeks of the decision letter

(wrongly dated as the 14th of November, 2023 instead of December, 2023). They invited the Applicant to make a fresh FOI request if he sought to do this.

35. On the 30th of April, 2024, solicitors for the Applicant wrote to the Council again pointing out for the first time that the recommendation of the Director of Services for Economic Development Planning & Property Management upon which the Order of the 9th of January, 2023, was determined and the recommendation from the same Director of Services on which the Order of the 21st of June, 2023, was made, had not been furnished to the Applicant. The solicitors for the Applicant submitted that given the omission of such significant documentation, the situation was such that the Applicant was not able to adequately contemplate his options regarding the CPO.

36. On the 4th of June, 2024, the Council issued its response to the Applicant’s correspondence and reiterated that it maintained its original decision. It was pointed out that the Council had already disclosed the recommendation of the Director of Services to the Chief Executive dated the 9th of January, 2023 but attached a further copy. In addition, a copy of the recommendation of the Director of Service dated 20 th of June, 2023 was provided. The newly provided recommendation did not shed further light in relation to the use or purpose of the lands to be acquired. It recorded a recommendation that the Council proceed to confirm the CPO in respect of the lands “for the purpose of the Local Authority’s function and to facilitate the development of a South East Technological University campus and Inner Relief Road within Co.

Wexford.”

37. Further coverage of the proposed developments for Wexford is relied on by the Applicant. In November, 2024, after the application for leave herein had been filed, an article appeared in the Wexford People Newspaper reporting on a meeting of the Council. It was reported that the Council confirmed allocating only 7 hectares for development of the SETU. The report suggested that funding for the development had not yet been secured.

38. Although acknowledging that additional land would be required for the development of a road, the Applicant maintains that the report published in the Wexford People in November, 2024, confirms that the Council acquired more land than was required for the stated purpose of the CPO. He further contends that the Council ought to have been aware that the development of the University was speculative in the absence of confirmed funding for its development. He points to the fact that he only became aware of this information after application for leave to proceed by way of judicial review had been initiated.

PROCEEDINGS

39. An application for leave to proceed by way of judicial review was commenced by the filing of papers in the Central Office of the High Court on the 12th of August, 2024, more than eight weeks after the notification of the making of the decisions sought to be impugned in these proceedings. In circumstances where the CPO decisions which the Applicant seeks leave to challenge pre-date the institution of these proceedings by more than a year, it was immediately obvious that a time issue arose.

40. The application for leave to proceed by way of judicial review was first listed before the High Court on the 11th of November, 2024. On that day, the application was transferred to the Planning and Environmental List but was subsequently transferred back on the 18th of November, 2024.

41. In the meantime, on the 14th of November, 2024, the Applicant lodged an Amended Statement of Grounds, including a new suggested Core Ground 3, challenging the CPO on proportionality grounds.

42. On the 16th of December, 2024, Simons J. directed that the proceedings be put on notice to the Council and gave the Council liberty to file an Affidavit.

43. On the 21st of January, 2025, the Council filed a replying Affidavit.

44. On the 10th of February, 2025, the Applicant swore a further Affidavit in response.

45. On the 11th of February, 2025, a hearing date of the 15th of May, 2025 was assigned for the leave application.

46. The leave came on for hearing before me on the 15th of May, 2025 on a partially contested basis. As part of his application for leave the Applicant seeks a stay on the taking of any further steps pursuant to the impugned CPO pending the determination of these proceedings.

LEGISLATIVE FRAMEWORK

47. Section 213 of the 2000 Act provides for land acquisition by local authorities either by agreement or compulsorily “for the purpose of performing any of its functions”. Under s. 213(3)(a) the local authority may only acquire land compulsorily in respect of land not immediately required for a particular purpose if, in the opinion of the local authority, “the land will be required by the authority for that purpose in the future”.

48. Under ss. 214 and 215 of the 2000 Act, functions previously conferred on the Minister in relation to the compulsory acquisition of land by a local authority and road development were transferred to, and vested in, An Bord Pleanála.

49. Section 216(1) of the 2000 Act provides that where a CPO is made in respect of the acquisition of land by a local authority in accordance with any of the enactments referred to in s. 214(1) and (a) no objections are received by An Bord Pleanála or the local authority, as the case may be, within the period provided for making objections,

(b) any objection received is subsequently withdrawn at any time before An Bord Pleanála makes its decision, or (c) An Bord Pleanála is of opinion that any objection received relates exclusively to matters which can be dealt with by a property arbitrator, An Bord Pleanála shall, where appropriate, inform the local authority and the local authority shall, as soon as may be, confirm the order with or without modification, or it may refuse to confirm the order.

50. An Bord Pleanála has powers under s. 217C to confirm a compulsory acquisition or any part thereof, with or without conditions or modifications, or to annul an acquisition or any part thereof. Under s. 218 An Bord Pleanála is vested with a power, at its absolute discretion, hold an oral hearing in relation to the exercise of a compulsory acquisition power, the subject of a transferred function.

51. Pursuant to s.50(2)(c) of the 2000 Act, challenges to CPO are governed by s. 50 of that Act. Section 50 of the 2000 Act requires that any challenge be brought in proceedings by way of judicial review within a prescribed timeframe as follows:

“(1),(2),(3) (4) (5) (6)

(7) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(b) or (c) applies shall be made within the period of 8 weeks beginning on the date on which notice of the decision or act was first sent (or as may be the requirement under the relevant enactment, functions under which are transferred under Part XIV or which is specified in section 214, was first published).”

52. As the challenge in these proceedings was not commenced within eight weeks as required under s. 50(7) of the 2000 Act, the power of the Court to extend time under s.

50(8) of the 2000 Act is centrally relevant on this application. Section 50(8) provides:

(8) “The High Court may extend the period provided for in subsection

(6) or (7) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.

and that the applicant has a substantial interest in the matter which is the subject of the application.”

53. Section 50A of the 2000 Act makes supplemental provision for “section 50 leave”

applications. Under s. 50A(2)(b) the Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.

54. Section 50A(3)(a) of the 2000 Act provides that the Court shall not grant section 50 leave unless it is satisfied that there are substantial grounds for contending that the

decision or act concerned is invalid or ought to be quashed. Section 50A(3)(b) of the 2000 Act makes demonstration of a “sufficient interest” to the Court’s satisfaction a precondition to the grant of leave.

55. Separately, s. 50A(3)(c) (inserted by the Planning and Development, Maritime and Valuation (Amendment) Act, 2022) precludes the grant of leave unless an applicant can satisfy the Court that any available appeal procedures or any other administrative remedy available in respect of the decision or act concerned has been exhausted.

ISSUES

56. For the purposes of this leave application, and not otherwise, the Council does not contest the Applicant’s contention that substantial grounds are made out but opposes the grant of leave, as outlined above, on the basis that:

(i) the Applicant is not entitled to an extension of time pursuant to s. 50(8)

of the 2000 Act to challenge the decisions sought to be impugned.

(ii) the Applicant has failed to exhaust available alternative appeal procedures or administrative remedies available to him as required under s. 50A(3) of the 2000 Act.

57. While the Applicant acknowledges that a time issue arises, he argues that any delay was not due to failings on his behalf, but rather that the Council had misrepresented to him the purpose for which it sought to acquire the lands by CPO. The Applicant maintains he only became aware that the land was not required, or not required to the full extent of the land acquired, for the development of the SETU and ancillary inner relief road in November, 2023, when listening to radio interviews at that time. Thereafter, he claims that he properly engaged with the FOI process in a bid to establish the true factual position, receiving partial information on a drip feed basis culminating in a last letter on the 4th of June, 2023. On this basis, the Applicant claims to be entitled to an order extending time under s. 50(8) of the 2000 Act.

58. The Applicant further seeks to excuse his non-engagement with the remedy provided by the process before An Bord Pleanála by reason of the fact that he relied on a belief, based on his interactions with the Council, that the land was required exclusively for the development of the SETU and an inner relief road. He now apprehends that the land may, in fact, have been acquired as a form of landbank for use for other purposes including the development of a sports stadium to be transferred to Wexford FC.

59. The Applicant accepts that use of the land for the purpose of the development of the SETU and the inner relief road remains legitimate and he does not object in principle to this use. This is why he did not engage in respect of the An Bord Pleanála confirmation process. However, this is not his position regarding the acquisition of his land to establish a landbank for non-specified purposes. The Applicant’s general position is that he did not engage with the process before An Bord Pleanála or a timely challenge by way of judicial review because he was not aware at the material times of the possibility that his land was being acquired for purposes other than the development of the SETU and the inner relief road. In essence, the Applicant maintains that had he been aware that the Council were using compulsory acquisition powers to some other end, he would have objected both to An Bord Pleanála and by commencing judicial review proceedings in accordance with statutory time limits. As I understand it, it is the Applicant’s case that the Council’s failure to properly notify the purpose for which lands were compulsorily acquired and the amount of land required for the identified purpose meant that was denied access to a remedy which he could have availed of had he been aware of the issues which now concern him.

60. It is further pointed out on the Applicant’s behalf that there was no remedy before An Bord Pleanála in respect of the later decision confirmed in June, 2023, such that the existence of an alternative remedy is no impediment to the maintenance of these

proceedings in respect of the decision in June, 2023 to confirm the CPO. It is pointed out that this is the operative decision in any event.

DISCUSSION AND DECISION

Section 50 Leave

61. In the light of certain concessions made on behalf of the Council (strictly for the purposes of the leave application insofar as the substantial grounds test is concerned), the issues as between the parties on this application focus on whether the Applicant may be entitled to an extension of time to permit the bringing of this challenge and whether there has been compliance with s. s. 50A(3)(c) in relation to the exhaustion of any available appeal procedures or any other administrative remedy available to him or her in respect of the decision or act concerned.

62. Having regard to the prescribed test for leave, however, there remains a duty on me in considering this leave application to be satisfied that the Applicant for leave has sufficient interest and that there are substantial grounds for contending that a decision is invalid and ought to be quashed before granting leave, where the Applicant otherwise satisfies me that he is entitled to leave. I am also mindful of delay arising from piecemeal consideration of issues. Should I be overturned on some aspect of this

decision on appeal without having determined all issues relevant to the leave application, this could then result in further delay while remaining issues are determined as it could potentially require remittal for fresh consideration. The importance of expedition and avoiding unnecessary delays in these types of proceedings is all too apparent as major infrastructural development is impacted.

63. Furthermore, to the extent that I determine below that the nature and type of proceedings may be relevant to my consideration of whether “good and sufficient”

reason for an extension of time is demonstrated, it is in my view appropriate in this case to consider whether the Applicant demonstrates sufficient interest in the outcome of proceedings and substantial grounds of a type and nature which might be relied upon to justify an extension of time because these are factors which may inform my consideration of whether “good and sufficient reason” for an extension of time has been established.

Sufficient Interest

64. I am readily satisfied in this case that the Applicant has “sufficient interest” to bring a challenge to the CPO made in respect of his lands. His property rights are constitutionally protected and I have no doubt that he has a right of access to the Courts in vindication of those rights by means of challenge to the lawfulness of a CPO authorising the acquisition of that land without his consent, albeit those rights are not unlimited and may be restricted in accordance with law by, for example, the imposition of appropriate time limits and a requirement to meet a substantial grounds threshold in respect of any legal challenges.

Substantial Grounds

65. As for the substantial grounds test, it is apparent from the terms of s. 213 of the 2000 Act that the vires of the Council to acquire land compulsorily is dependent on the acquisition being for the purpose of performance of a local authority function.

66. In these proceedings, the Applicant seeks leave to argue that the Council has failed to identify a permissible purpose linked to the exercise of a council function in proceeding to make a CPO in respect of his lands. The Applicant seeks to advance this argument on the contended basis that it is now apparent and must have appeared to the Council at material times, that the Council requires less land for the performance of its identified purpose, namely the development of the SETU and an inner relief road, than the land which it is sought to be acquired compulsorily.

67. The Applicant submits that while the Council could have obtained the lands for future purposes through mutual agreement, it possessed no such statutory power to compulsorily purchase the Applicant’s lands. It is contended by the Applicant that the Council, in purporting to determine and confirm the CPO for three purposes, namely the functions of the Council, the development of the SETU campus and the inner relief

road, acted ultra vires any powers of compulsory acquisition having regard to the limits of that power as conferred by s. 213 of the 2000 Act.

68. The Applicant’s contentions (interconnected) regarding the lawfulness of the compulsory purchase of the lands in question as pleaded and as further identified on his behalf in written submissions are said to be fivefold, namely:

I. the Applicant seeks to contend that the Council lacks jurisdiction to obtain more land than is necessary to fulfil a specific purpose and identified need. Relying on the terms of s. 213 of the 2000 Act, the Applicant maintains that the Council has acted ultra vires in seeking to acquire land on a “provisional or speculative basis where there is no particular purpose for the lands being acquired.” He further argues that though there may have been an existence of a purpose for some lands, the lands designated for the purpose should have been identified to the Applicant at the requisite time and cannot be relied upon to ground the exercise of the power in respect of a larger parcel of land.

II. the Applicant seeks to argue that the Council is restricted from acquiring lands for “private purposes” that bear no relation to the functions of the Council. Insofar as there is evidence to suggest that the Council may, in fact, intend to construct a new stadium for Wexford FC and transfer the stadium to Wexford FC, on the lands the subject of the CPO, then he wishes to argue that this is ultra vires the powers of the Council. The evidence relied upon to support his contentions in this regard is drawn from media reports and extrapolated from documentation ascertained through the FOI process.

III. the Applicant seeks to argue that the impugned CPO is voided because of its uncertainty and lack of specificity where the CPO in question failed to identify the functions of the Council sought to be exercised. In addition to contending that the Council is required to specify concisely the “purposes” for which the CPO was made, the Applicant also notes the breadth and vagueness of the phrase “functions of the local

authority” and seeks to argue that language of this nature in the CPO is inadequate.

IV. the Applicant seeks to hold the Council responsible for failing to furnish substantiated reasons as to why the CPO was made also seeking to contend that the Council has fallen short by not conducting a proportionality assessment in determining to make a CPO, particularly in view of the resulting interference with his property rights. The Applicant maintains that he and the public are entitled to be provided with sufficient reasons that would permit them to comprehend why the CPO was decided in terms of the amount of land to be acquired and the purposes for which it is sought to be acquired.

V. finally, the Applicant seeks to advance a complaint in relation to representations made to him by the Council that all his lands as referred to within the CPO were necessary for the purposes of the SETU campus and the inner relief road which representations were relied upon by the Applicant and resulted in a failure on his part to engage in the statutory CPO process to challenge the making of the order.

69. As the power to acquire land compulsorily vesting in the Council is tied to the purpose and function for which it is intended to use the land, the adequacy of identification of the relevant purpose and/or function at the time of exercise of the power may be an issue which affects the lawful exercise of the acquisition power. I accept, therefore, that an alleged failure to identify a specific purpose or a particular function can raise a question of compliance with s. 213 of the 2000 Act rendering the CPO made and confirmed by the Council amenable to challenge on legal grounds in judicial review proceedings, provided that a sufficient factual or evidential basis for advancing these contentions is substantiated on affidavit grounding the proceedings.

70. As for the factual and evidential basis for these proceedings, some of the arguments the Applicant seeks to advance flow from the terms of the formal record and are adequately substantiated for leave purposes by the record confirmed in documents exhibited.

Others relate to the Council’s actual intended purpose for each part the land and the amount of land required for the realisation of that purpose and the discharge of a legitimate Council function. The case made in this regard is tentative due to a lack of concrete information. It rests in large part of media reporting, interviews with politicians and extrapolation from limited and redacted FOI documentation, supplemented by some additional material exhibited by replying affidavit on behalf of the Council.

71. It seems fair to conclude that the evidence as it currently stands does not establish that a use other than a use in the proper discharge of Council function and for the purpose declared on the face of the CPO is intended for the Applicant’s lands. Information of the type relied upon by the Applicant does little more than substantiate a concern potentially warranting further inquiry or investigation.

72. For leave purposes and anticipating that better evidence could well be available to the Court at full hearing following delivery of Opposition papers, the making of discovery, if considered necessary and relevant, and consequent upon any cross-examination which might ensue, I am satisfied that a sufficient evidential basis has been provided to ground the arguments which the Applicant wishes to pursue in these proceedings. The point contended for is not without some weight and substance and, more importantly for present purposes arises in the context of personal rights of private ownership of farmland which are constitutionally protected against unjust attack.

73. Noting the Council’s concession and having considered the papers in full to discharge the independent duty on me to be satisfied that substantial grounds for challenge by way of judicial review have been identified for the purpose of this s. 50 leave application, I would be satisfied that the statutory requirement to demonstrate substantial grounds under 50A(3)(a) of the 2000 Act is met on the case as pleaded both in law and on the basis of an adequacy of evidence before the Court to justify the grant of leave, were I otherwise satisfied that it was proper to grant leave in view of the time and alternative remedy issues which have been raised.

74. Accordingly, I will next consider in turn whether the Applicant is entitled to an extension of time and whether he has complied with s. s. 50A(3)(c) of the 2000 Act in relation to the exhaustion of any available appeal procedures or any other administrative remedy available to him in respect of the CPO process.

Extension of Time

75. A very serious issue arises in relation to time on this application. By operation of Order

84 rule 21(1A) (inserted by S.I. No. 163/2024, Rules of the Superior Courts (Order 84)

2024), time stopped running for the purpose of this leave application on the filing of the prescribed papers in the Central Office on the 12th of August, 2024. This was more than a year after time expired for the bringing of a challenge to the June, 2023 decision.

The delay in presenting an application under s. 50 of the 2000 Act is very significant and an extension of time in excess of 12 months is required in respect of the later

decision sought to be challenged.

76. To satisfy me that the Applicant is entitled to an extension of time to bring these proceedings on this contested leave application, he must meet the two-pronged test prescribed in s. 50(8) of the 2000 Act as to good and sufficient reason and circumstances resulting in failure to make the application within the prescribed period being outside the Applicant’s control. This test falls to be construed in its statutory context and in view of competing rights and interests including the Applicant’s right to access to the court in vindication of constitutionally protected property rights.

77. There was no power to extend time in the Planning and Development Act, 1963, reflecting a strong public policy interest in finality in respect of challenges to planning decisions. The rationale underpinning the prohibition of challenges against decisions where the relevant time limit for challenging the decision has elapsed was set out by the Supreme Court (per Finlay C.J.) in K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] WJSC-SC 1176, [1994] 2 I.R. 128, 135:

“…the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and

therefore presumably left in a position to act with safety upon the basis of that

decision.”

78. The introduction of a power to extend time was preceded by concerns pertaining to the constitutionality arising from the imposition of rigid and tight time-limits under the 1963 Act. In White v. Dublin City Council [2004] IESC 35, [2004] 1 I.R. 545, the Supreme Court upheld a challenge to the constitutionality of an absolute time limit under the Planning and Development Act, 1963 (as amended) in a case where the applicants, through no fault of their own, but through the unlawful act of the decisionmaker were deprived of any genuine opportunity to challenge the legality of the

decision within the permitted time, finding the inflexible time limit repugnant to Article

40.3 of the Constitution..

79. The clear legislative intention behind the inclusion of a power to extend time juxtaposed with tight time limits was to ensure that the Court on hearing an application for leave where there had been non-compliance with the prescribed restrictive time limit nonetheless should have the power to strike an appropriate balance between competing interests to protect against injustice such as, for example, the potential injustice arising from a failure to comply with notice requirements as regards the nature and extent of a proposed development, in a manner which deprived an affected person of their opportunity to object in accordance with prescribed time limits. In this way, the power to extend time in accordance with prescribed conditions, constitutes legislative acknowledgment that the constitutional right of access to the courts to vindicate rights and secure a remedy in the event of injustice done should not be made unfairly subservient to the public interest in finality or certainty in all circumstances.

80. In the more than two decades since the relevant provisions of the 2000 Act have been commenced, the principles guiding the exercise of the extension of time power now found in s. 50(8) of the 2000 Act have been the subject of considerable case-law. The Superior Courts have consistently recognised the important public policy rationale which informs the need for strict adherence to the time periods prescribed under the Act (see, for example, Mungovan v. Clare County Council [2020] IESC 17 (at para. 12);

Heaney v. An Bord Pleanála [2022] IECA 123; and Shell E & P Ireland Ltd. v. McGrath [2013] IESC 1, [2013] 1 I.R. 247 (at para. 48).

81. In Shell, Clarke J. stated:

“At least at the level of broad generality there is a significant public interest advantage in early certainty as to the validity or otherwise of such public law measures. People are entitled to order their affairs on the basis that a measure, apparently valid on its face, can be relied on. That entitlement applies just as much to public authorities. The underlying rationale for short timeframes within which judicial review proceedings can be brought is, therefore, clear and of significant weight.”

82. While K.S.K. concerned a statutory provision which did not provide for an extension of time, in Kelly v. Leitrim C.C., Clarke J. stated (at p.410) that “the broad principle referred to must be equally applicable” to section 50 of 2000 Act. By way of elucidation of this principle, in the context of s. 50, the judgment of the High Court in Sweetman v. An Bord Pleanála [2017] IEHC 46, is instructive. At para, 6.2 of his judgment Haughton J. said:

“It has also been recognised that the time limit of 8 weeks is strict and one in respect of which the power to grant an extension is also to be strictly construed……6.8 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.”

83. Thus, although the order in which the test falls to be applied may differ from that suggested in Sweetman, it is clearly established that the criteria under s. 50(8) for an extension of time are cumulative and mandatory, with the onus on the applicant for such an extension of time to establish that each limb of the test is satisfied (see further, SC SYM Fotovoltaic v. Meath County Council [2018] IEHC 20 (at para. 72(2); Irish Skydiving Club v. An Bord Pleanála [2016] IEHC 448 (at para. 49); and Cassidy v.

Waterford City and County Council [2017] IEHC 711 (at para. 39). In this respect, and illustrative of the strict approach adopted to applications for extensions of time, the following cases saw applications for an extension of time refused in the following circumstances:

(i) 1 day out of time in Casey v. An Bord Pleanála [2003] WJSC-HC 1774, [2004] 2 I.L.R.M. 296 and Marshall v. Kildare County Council [2023] IEHC 73.

(ii) 5 days in Duffy v. Clare County Council [2016] IEHC 618, O’Riordan v.

An Bord Pleanála [2021] IEHC 1 and Heaney v. An Bord Pleanála [2021] IEHC 201 & [2022] IECA 123; and

(iii) 19 days in Kelly v. Leitrim County Council [2005] 2 I.R. 40.

84. While it is apparent from the foregoing that an extension of time may be refused in cases involving minimal delays, nonetheless, the length of delay is a factor to be weighed as a consideration in deciding whether good and sufficient reasons for an extension of time has been demonstrated (see M O’S). It stands to reason that the shorter the period of delay, the easier it is to excuse that delay. The length of the delay in question in these proceedings is a weighty consideration against the grant of an extension of time, but it is not alone determinative if the Applicant can explain or excuse this delay in a manner which addresses the requirement to demonstrate both “good” and “sufficient” reason and that the failure to make the application for leave within the period of eight weeks were outside of his or her control.

85. An issue of some contention before me is the extent to which I should have regard to the merits of the Applicant’s substantive challenge to the Impugned Decisions when considering whether the criteria in s. 50(8) have been satisfied. The Council sought to press on me the fact that by not contesting, for the purpose of the leave application, that substantial grounds have been made out, they have removed any necessity to consider the merits or demerits of the Applicant’s case. Indeed, the submission went further, it was contended on behalf of the Council that I should not consider the merits. They refer me to the approach of the High Court (Barniville J.) in SC SYM Fotovoltaic (No.2)

[2018] IEHC 81 where at para. 10 it was stated:

“In the present case, in considering the applicant’s application to extend time, I did not consider the merits of the applicant’s challenge to the s. 5 declaration. I reached my conclusion on the applicant’s application to extend time based on the statutory test in s. 50(8) of the 2000 Act (as amended).”

86. It is important to contextualise this statement in SC SYM Fotovoltaic (No.2) which was made in considering a certificate application in which it was a relevant question whether the court in refusing to extend time had “determined” an application for leave.

Barniville J. (as he then was) pointed out that the High Court (Noonan J.) had already found substantial grounds for challenging the s. 5 declaration impugned in those proceedings, subject to the time issue which said time issue then came before Barniville

J. Accordingly, as a matter of fact, Barniville J. had determined the time issue on a standalone basis. In arriving at his decision on the certificate application, he distinguished his decision in SC SYM Fotovoltaic (No.2) from the decision of Haughton

J. in McDonnell v. An Bord Pleanála [2017] IEHC 366 because Haughton J. had considered the merits in determining whether good and sufficient reason to extend time had been demonstrated and concluded that a certificate was not required under s.50A(7)

of the 2000 Act to permit an appeal.

87. In addition to SC SYM Fotovoltaic (No.2) I am referred on behalf of the Council to dicta of Clarke J. (as he then was) in Kelly v. County Council of Leitrim [2005] IEHC 11, [2005] 2 I.R. 404 where he said (see p. 415):

“…. if the respondent does not wish to raise the matter (as here) then it is not necessary for the court to engage in a consideration of the merits of the case.

…If a respondent feels that the issues which would need to be canvassed in order to determine whether there is an arguable case are complex and would lead to delay then such a respondent is perfectly free to invite the court to consider the extension of time on a stand alone basis without having regard to the merits of whether there be an arguable case. As the decision will be entirely one for the respondent concerned no prejudice to such a party can take place.”

88. This statement must be understood, however, in light of the fact that in Kelly, the parties had agreed that the only issue before the Court was the question of an extension of time, with a determination of whether substantial grounds had been demonstrated deferred to a subsequent hearing, subject to the outcome on a discrete extension of time application.

There is no such agreement in this case.

89. It is noteworthy also that Clarke J. had regard to the nature of the proceedings which in Kelly were purely planning and arose in the context of a s. 5 decision as to whether development was exempt and did not have a similar character to decisions challenged in the asylum list where the court rightly takes into account the consequence (whereby the potential for serious infringement of the fundamental human rights of an application should such an applicant be excluded from making what might otherwise be a valid judicial review application) in assessing whether good and sufficient reason is demonstrated. Clarke J. clearly considered the nature of the decision being challenged as being a factor which impacted on whether the merits of the case required to be considered on an extension of time application in assessing whether good and sufficient reason was demonstrated. A CPO process involving land farmed by the Applicant raises issues of a different order to pure planning cases of the kind in contemplation in Kelly.

90. It seems to me that neither SC SYM Fotovoltaic (No.2) nor Kelly should be read as authority for the proposition the Council urges to the effect that I should not have regard to the merits on this application because they are not contesting that the substantial grounds test has been met.

91. More recent decisions from the Court of Appeal in the planning context as well as subsequent Supreme Court authority on the question of extensions of time in the asylum and immigration area reinforce me in the view that an assessment of what constitutes “good and sufficient” reason may be affected to some extent, even if limited, by the nature of the case and the consequences of the decision. I am referred on behalf of the Applicant to the decision of the Supreme Court in MO’S v. Residential Institutions Redress Board [2018] IESC 61, [2019] 1 I.L.R.M. 149 to support an extension of time based on the merits of this case, which it is contended are so strong that they weigh in favour of the grant of an extension of time.

92. Although MO’S did not arise under the 2000 Act and, as was observed subsequently in D.P.P. v. O’Brien [2021] IEHC 284, is distinguishable on the exceptional circumstances which presented in M O’S, as well as the legislative context, namely, the remedial nature of the statutory redress scheme for those who had suffered abuse in residential institutions, it is nonetheless authoritative for the proposition that a decision on whether good and sufficient reason has been demonstrated for an extension of time is a decision which must be considered in accordance with all relevant facts and circumstances, which includes the nature of the case and the strength of the legal argument sought to be advanced.

93. Consistent with the merits of the case having the potential to impact on the application of the test under s. 50(8) at least to some extent and in some cases, in Heaney, the Court of Appeal found (at para. 84) that:

“the issue of “good and sufficient reason” can and does incorporate a wide range of issues which may include the nature of the issue before the Court…the

decision of the Supreme Court in that case [MO’S] merely states that such an issue would be among the other relevant facts and circumstances to be considered ……in the absence of a situation where the underlying challenge is either unarguable or is highly meritorious based upon a change in jurisprudence, the merits of the case argument is not of any real relevance in assessing whether there is good and sufficient reason to extend the time…”

94. While I am satisfied that the nature of the issue before the Court will not often be central to the Court’s decision whether to extend time, it is a factor which can carry weight in some cases as part of the Court’s consideration of whether “good and sufficient reason”

has been demonstrated. The court must ultimately determine the extension of time application in accordance with the interests of justice in the light of what has been presented to ground the grant of an extension of time and the policy considerations which guide the exercise of the statutory discretion to extend time in accordance with the strictures imposed under s. 50(8) of the 2000 Act.

95. Heaney also endorses the view that the phrase “good and sufficient reason”

incorporates “a global consideration of relevant issues” (at para. 89) and the Court is entitled to take “a holistic view of all the relevant circumstances” (at para. 95). It is well-established on the caselaw (per Sweetman [2017] IEHC 46, Geraghty v. Leitrim County Council [2022] IEHC 730 (at paras. 83 and 88), and O’Riordan [2021] IEHC 1) that, as stated in Reidy v. An Bord Pleanála [2020] IEHC 423 (at para. 32), the concept of the requirement for “good and sufficient reason” for the extension of time:

“…implies that the applicant must not only provide a credible excuse for not bringing his or her application within the statutory eight-week period provided for under the Act, but must also provide an adequate explanation as to why they did not move until the time that they did to either institute the proceedings, or seek the extension of time within which they could do so.”

96. In other words, an applicant for an extension of time must establish that there is good and sufficient reason that the Court should extend the time down to the date upon which the applicant first sought to institute the judicial review proceedings.

97. It is also established that an applicant must demonstrate that the circumstances resulting in the delay to commence proceedings were outside of his control. In this respect, in Irish Skydiving Club, Baker J. observed (at para. 10):

“…while the court has a discretion it is required by the cumulative provisions of subs. 8 to consider not merely the interests of justice, or the interests of all of the parties, but whether the applicant for the extension can show on the facts that the delay and the reason why he or she is out of time arose from matters outside his or her control. When a delay arises from circumstances which were within the control of the applicant, the court may not extend.”

98. Further, as observed in Reidy (at para. 44), the fact that:

“the applicant may have been unaware of the making of the particular decision, or of aspects contained in that decision….are not matters that can be relied upon as grounds to justify an extension of time”.

99. Indeed, the fact that an applicant does not act when in possession of the relevant facts and information upon which they later rely in bringing the proceedings is a factor which weighs strongly against any extension of time (see Irish Skydiving Club (at para. 54);

Cassidy (at para. 43); Geraghty (at para. 81 et seq.) and SC SYM Fotovoltaic (at para.100).

100. Delay for the purposes of seeking further information has not been found acceptable as a basis for justifying an extension of time, particularly if the applicant has sufficient information to commence proceedings (see Talbotgrange Homes Limited v. Laois County Council [2009] IEHC 535 (at para. 52 et seq.) and SC SYM Fotovoltaic (at para.

100).

101. The case-law establishes that explanations for delay must be detailed – for example, a blanket contention that delay occurred due to the need to obtain legal advice is not sufficient. Furthermore, an explanation must be provided for the entire period of the delay (see Irish Skydiving Club (at paras. 32 and 51); Geraghty (at para. 88); and Glenman Corporation Limited v. Galway City Council [2023] IEHC 336.

102. In the context of allegations made by the Applicant against the Council in this case (such as dishonesty and mala fides, which are denied by the Council), it is instructive to note the approach of the High Court in Irish Skydiving Club (at para. 40):

“…the applicant has shown me no basis on which I can come to the conclusion that the Board deliberately delayed its response to correspondence from the applicant in the knowledge that time would run, and that the approach of the Board was contrived in a way to protect its decision from challenge. These assertions are extraordinary and not based on any foundation. No authority has been advanced for the proposition that the Board ought to have identified to the applicant in the course of the correspondence in February, 2015, that the time for seeking judicial review was short and fast approaching its statutory limit.

The applicant was under no legal disability.”

103. Applying the principles identified above as emerging from the case-law, I propose to deal with each element of the cumulative, mandatory test consecutively.

Good and Sufficient Reasons

104. I approach the application of the s. 50(8) test in this case mindful of the fact that the Applicant is a farmer and landowner whose property rights and livelihood are interfered with by any compulsory acquisition of his property. I am conscious that he is directly and uniquely affected by the orders he seeks to impugn and that where a legal frailty is identified with respect to the decision-making process, he is entitled, in accordance with law, to access to the Courts to seek a legal remedy. Further, the fact that the issues he raises concern an interference with personal rights, constitutionally protected and are not trivial or tenuous but substantive points, is a factor which I consider requires me to engage in close scrutiny of this application and a careful consideration of what the Applicant presents to ground his application for an extension of time but with due regard to the public policy in expedition, finality and certainty which imbue the s. 50(8)

test before deciding on whether to extend time or not.

105. The decisions sought to be challenged on this application for leave date to the 9th of January, 2023 and the 21st of June, 2023, substantially more than eight weeks prior to the filing of papers in the Central Office and outside the time prescribed under s.50(7)

of the 2000 Act. By August, 2024, the January, 2023 decision sought to be impugned had been made some 20 months earlier. In the case of the June, 2023 decision, almost

14 months had been allowed to elapse. By any measure, the delays involved are significant in the context of an eight-week statutory time limit.

106. The burden on the Applicant to satisfy me that there is good and sufficient reason to extend time is heightened by the passage of time and I would require considerable persuasion that it would be appropriate to extend time in a case involving delay of this nature. It is clearly important, however, to properly contextualise this application by setting out why the Applicant says he did not proceed to bring proceedings within the 8-week time limit and why he delayed for so long in instituting proceedings.

107. The Applicant contends that he was fundamentally misled by the Council regarding the basis for which his lands were being acquired. He maintains that when the orders sought to be impugned in these proceedings were made in January and June, 2023, his understanding from his engagement with the Council was that all of the land being acquired was for the purpose of developing the SETU and an inner relief road. The Applicant takes further issue with how the requisite facts have been made available to him. He submits that information acquired by him to ground these proceedings has only been obtained through quite a protracted correspondence process, in that the Council delayed matters and unnecessarily redacted materials.

108. If the Applicant could demonstrate a real basis for contending that the Council had deliberately sought to mislead him and had actively withheld information with the intention of hiding their real purpose in acquiring his land, then it seems to me that the ingredients necessary to exercise a power to extend time might well be present, notwithstanding the significant length of time involved in the delay in this case if the Applicant could also demonstrate that he moved without further delay once he had sufficient information to act. Therefore, his claim that information was intentionally withheld by the Council and he was misled requires further consideration.

109. The Applicant’s complaint about lack of information must be seen in the light of his own lack of engagement. Indeed, it is significant and uncontested by the Applicant, that in August, 2019 and thereafter, there was engagement between the Applicant and the Council about the possibility of his land being acquired for use within the proposed SETU campus. Following unsuccessful attempts to acquire the Applicant’s lands by agreement, the Council subsequently initiated the formal CPO process, which proceeded as follows:

(i) 9th of January, 2023: Council made the CPO and notified the Applicant of the making of the CPO;

(ii) 16th of January, 2023: Council wrote to the Board seeking approval for the CPO and alerting the Applicant to the possibility of raising objections with the Board;

(iii) 18th of April, 2023: Council notified the Applicant that the Board had stated that the CPO may be confirmed without modification in circumstances where no objections had been received;

(iv) 21st of June, 2023: by way of Chief Executive Order (ref. no. 545/2023), the Council confirmed the CPO and notified the Applicant of the confirmation of the CPO and the procedures for challenging same by way of judicial review within eight weeks of the publication of the notice of the confirmation of the CPO in the “Wexford People” newspaper on

28 June 2023;

(v) 28th of June 2023: publication of the notice of the confirmation of the CPO in the “Wexford People”;

(vi) 11th – 20th July, 2023: separately from the acquisition of the Applicant’s lands, the Council acquired an additional 55 acres of land which adjoined the Applicant’s lands; and

(vii) 18th of October, 2023: the Council sent a Notice to Treat to the Applicant.

110. Even though the CPO on its face referred to the purpose of the order as being “for the purposes of the performance of the local authority’s functions and to facilitate the development of a SETU campus and an inner relief road within County Wexford”, the Applicant at no point in the process which followed before An Bord Pleanála engaged with either An Bord Pleanála or the Council to raise queries about what those functions were and whether the order was entirely for a purpose contemplated by s. 213 of the 2000 Act. It is noteworthy that he now seeks to complain that this description lacks specificity and clarity and is ultra vires s. 213 by not identifying what is encapsulated by the phrase “the purposes of the performance of the local authority’s functions,” these words were repeated unambiguously and repeatedly in the CPO documentation. There is no reason that I can see why a complaint in relation to lack of clarity or specificity could not have been pursued at any time from January, 2023, in the first instance by seeking to interrogate what precisely was meant by “the purposes of the performance of the local authority’s functions” either directly with the Council or using the confirmation process before An Bord Pleanála. Insofar as these questions arise on the face of the documents served on the Applicant as part of the formal process, it is patently wrong for the Applicant to protest that he was misled by the Council.

111. Furthermore, the Applicant’s contention that he has been misled by false information is based on his stated belief that all his land was being acquired for the purpose of the development of the SETU and the inner relief road. This belief is not supported by the language used on the CPO. On the black and white terms of the CPO, it is clearly stated that the land was being acquired not only for the SETU and the inner relief road but also for the purpose of performance of “the local authority’s functions”. It was therefore never contended in the CPO process that all the land was being acquired for the development of the SETU or the development of the inner relief road. The language used ought to have put the Applicant on enquiry as to how much of the land under CPO was required and what other purpose for the land had been identified.

112. Even if I were to accept the Applicant’s evidence at its high point to the effect that from November 2023, because of media reports, he became “alarmed” and was concerned the Council was “simply engaged in acquiring a landbank”, the evidence adduced to substantiate this concern remains speculative as it is clear that the Council acquired other land voluntarily and the publicised development proposals are for a land area which is not solely comprised of the Applicant’s land. In any event, the Applicant’s subsequent failure to act over many months is, to my mind, damning.

113. An analysis of the material placed before the Court on Affidavit in August, 2024, demonstrates that by November, 2023, the Applicant had most of the information subsequently relied upon in finally moving in August, 2024, in one form or another.

Accordingly, if the Applicant genuinely held this belief and was alarmed, as he contends, he could have relied on the media reports to bring proceedings at that time.

In November 2023, the more recent order sought to be challenged in these proceedings was some five months old, as compared to fourteen months when he eventually acted by instituting proceedings. The lesser period of delay involved at that time when assessed in the light of new information emerging during the media interviews, provided some basis to ground an extension of time had proceedings been brought at that time, although I am not convinced that even then it would have been enough.

114. While the Applicant protests that he was engaged in pursuing further information through the FOI process during the period which followed November, 2023, the stark position established on the evidence is that he learned little new during this process and he engaged very ineffectually with that process. His failure to exhaust remedies during the FOI process by seeking an internal review and subsequently appealing to the Information Commissioner despite interrogating responses received over the course of several months is difficult to comprehend. The Applicant’s attempt to turn the Council’s reliance on the established processes under the FOI Act into evidence of the Council actively withholding information lacks merit. The Council was quite entitled to refer the Applicant to remedies under the FOI Act and to rely on the Applicant’s failure to properly engage with remedies available under the FOI Act if he were dissatisfied with information withheld. Instead, the Council furnished further copies of documentation already provided and provided additional documents upon request, despite the Applicant’s failure to pursue an internal review and an appeal to the Information Commissioner.

115. In any event, no real new information was obtained through the FOI process to explain why it was possible to take proceedings at the end of that process but not an earlier stage. In response to a question from me during the hearing, counsel was unable to unequivocally identify new information relevant to the issues in these proceedings which emerged through FOI. From my own careful review of the documentation, I see

nothing that materially adds to the Applicant’s state of knowledge from December, 2023, when the initial FOI response was received.

116. It is relevant to note that when the Council responded to the FOI Request on the 15th of December, 2023, it granted part of the FOI Request and refused part of that request.

In granting part of the request, the Council furnished documentation (as outlined at para. 31 of this judgment) on which the Applicant placed reliance in the Statement of Grounds filed eight months later on the 12th of August, 2023. Indeed, having regard to the documentation furnished to him in December 2023, the Applicant made the following assertion in his Amended Statement of Grounds:

“It is clear from the documentation that the Council…does not and did not as of the relevant time herein know how much land is required for SETU…and had identified no other particular local authority function for which the CPO was being made and subsequently confirmed by the Council…”

117. Accordingly, in this respect, the Applicant was clearly able to advance his complaints and challenge the CPO as and from December, 2023 (if not in June, 2023, notwithstanding the terms of the CPO documentation). At that time, he was aware of the media reports, had engaged solicitors and had been furnished with documentation upon which he relies in these proceedings.

118. The law is clear that it is not open to an applicant to rely on the FOI process in purporting to explain a delay in commencing proceedings and this approach was clearly rejected in SC SYM Fotovoltaic (at para. 100). Indeed, it was always open to the Applicant to institute proceedings and inform 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 as soon as possible on receipt of the information on foot of the request. If the Court considered there was insufficient evidence to ground the grant of leave but sufficient to warrant permitting the FOI process to conclude, it would have been open to the Court to adjourn the application for leave with time stopped to facilitate the production of any additional information obtained.

119. Even accepting that the Applicant could not have known that the FOI process would bear so little fruit in terms of shedding light on the purposes for which the land was acquired and what part of the land was acquired for which purpose, it is undeniable that the FOI process had come to an end before June, 2024, without the Applicant challenging the refusal to provide additional information in accordance with the FOI Act. The final documentation issued by letter dated the 4th of June, 2024, outside the FOI process. Even then, the Applicant waited another ten weeks before instituting these proceedings.

120. The requirement to establish good and sufficient reason to the date upon which the applicant applies for leave through the filing of the necessary papers in the Central Office established in the case-law, is a matter of some considerable significance in this case because, while the Applicant endeavours to present some sort of explanation for the time period to the 4th of June, 2024 on the basis that he was pursuing better information, he has nothing to offer beyond the need to seek advice and draft proceedings, from the 4th of June, 2024.

121. I put it to the Applicant’s counsel during the hearing that all the material relied upon in grounding the proceedings had been in the Applicant’s possession for more than 8 weeks prior to the filing of proceedings. This was accepted by counsel on behalf of the Applicant. It was then suggested, however, that the application has been strengthened by material obtained since the proceedings were lodged. Counsel for the Applicant went further and posited that a view might be taken that the proceedings were in fact premature or inadequately substantiated by the evidence available in August, 2024. He maintained that information obtained in November, 2024, through a further media publication and indeed through the terms of unredacted documents exhibited in the Council’s replying affidavit delivered in January, 2025, strengthened the factual and evidential basis to ground the substantive concerns articulated on behalf of the Applicant such that in reality a sufficiency of evidence for the proceedings was only established from that date.

122. A review of the case as pleaded does not support this latest contention that proceedings were exposed to a prematurity objection in August 2024 which is cured by further material exhibited since then, nor does an assessment of the information contained in media reports in November or in exhibits to the Council’s replying affidavit bear this contention out. The proposition that this additional material contained new information does not withstand scrutiny.

123. Furthermore, much of the material exhibited by the Council in its replying affidavit grounding opposition to the grant of leave was already in the possession of the Applicant, albeit in partially redacted form. In unredacted form, this documentation does not add materially to the sum of the Applicant’s knowledge or the evidential base for these proceedings. Despite careful review, I have been unable to identify anything in the information exhibited by way of the Council’s replying affidavit which expanded the evidential basis for the contentions sought to be advanced in these proceedings in any material way. The press report dating to November, 2024 does not materially expand information already in the public domain. For example, the reference to 7 hectares required for the SETU is not substantially different to the 20 acres referred to in reports already in evidence and dating to November, 2023. Although reference is made to the transfer of land to the SETU and other stakeholders, this too is not of novelty or moment recalling that the Council’s plans referred to in that piece relates to

120 acres and not just that portion compulsorily acquired from the Applicant.

124. I am satisfied that all of the information necessary to ground the case now sought to be made was available well in advance of November, 2024 and January, 2025. This is evidenced by the very fact that the application for leave was filed before that date.

Indeed, insofar as the Applicant points now to some additional newspaper reporting of plans for the land acquired in November, 2024 (after this application had been filed) as buttressing his beliefs and even allowing that they provide some, minimal, additional support, this cannot explain why proceedings were brought at leisure in August, 2024 and not with haste in November, 2023, or even when it became clear that additional facts would not be established through the FOI process or otherwise.

125. I have concluded that the Applicant does not provide an explanation as would amount to “good and sufficient reason” for failing to institute proceedings in December, 2023, or at any point thereafter prior to the 12th of August, 2024. Even if I could overlook the Applicant’s initial delay up to November, 2023, difficult as this might be to justify, it seems to me that the Applicant falls well short of establishing what might constitute good and sufficient reason to extend time thereafter in the light of the length of the delay and an assessment of the explanation for earlier inaction advanced.

126. Rather than instituting judicial review proceedings, from December, 2023, onwards, the Applicant elected to engage, through his solicitors, in correspondence with the Council in relation to the FOI Request. However, for unspecified reasons – and noting the lack of explanation on Affidavit – the Applicant did not seek an internal review of the Council’s response to the FOI Request or appeal to the Information Commissioner.

127. Whatever about the period between November, 2023 and June, 2024, when some attempt was made to obtain more information through the FOI process, it is surely fatal to the application for an extension of time that the Applicant can point to no new information acquired during this period between early June, 2024 and the 12th of August, 2024, or any event of any kind which might explain why he was in a position to bring proceedings on the 12th of August, 2024, but not in June, 2024, after the FOI process had concluded and the last piece of information was furnished.

128. Rather, against the background of engagement between the Applicant’s solicitors and the Council in relation to the FOI Request, the Applicant states on affidavit in grounding this application that, on the 4th of June, 2024, he:

“…had to consider my position, seek the Opinion of Counsel…prepare briefs and instruct the drafting of proceedings…”

129. This is clearly not a proper explanation for his delay in instituting proceedings between the 4th of June, 2024 and the 12th of August, 2024 – a period of approximately ten weeks, especially in the light of the long history to this matter.

130. Accordingly, even if the Applicant were in a position to explain and excuse his delay in moving to institute proceedings up to the 4th of June, 2024 – which I consider he has not been – no meaningful explanation or excuse which could conceivably be considered capable of evincing “good and sufficient reason” is provided for his subsequent delay between the 4th of June, 2024 and the 12th of August, 2024.

131. In circumstances where the Applicant had all of the information relied upon to bring proceedings on the 12th of August, 2024, at the latest by early June, 2024, I cannot be satisfied that it would be appropriate to extend time by a period of some 10 weeks from the date upon which he had all of the information subsequently relied upon in bringing proceedings, notwithstanding that this has the consequence for the Applicant that he may not pursue proceedings to vindicate his constitutional rights because he is out of time to do so. Given the sheer length of delay, the nature of the explanation for delay and the failure to adequately address the entirety of the delay, in this instance, the basis advanced in support of an extension of time is not good or sufficient having regard the public interest and policy considerations reflected in the scheme of the 2000 Act and the time limits imposed thereunder.

Circumstances outside the Control of the Applicant

132. While the tests are cumulative and I am satisfied that “good and sufficient reason” has not been established to ground an order extending time to permit a challenge at such a remove, for completeness, I propose to also address the second limb of the test briefly.

It also seems to me that the Applicant must fail the second limb on the test for reasons which overlap with my reasons for finding that good and sufficient reason has not been demonstrated. No credible evidence has been adduced that the circumstances that resulted in the Applicant’s failure to make the application for leave within the period between December, 2023 and the 12th of August, 2024 and, in particular between the 4th of June, 2024 and the 12th of August, 2024, were outside the control of the Applicant.

133. It seems to me that the Applicant’s argument that he was misled by the Council as to the purpose of the acquisition and the amount of land required for the purpose of facilitating the development of SETU and the inner relief road, purposes which the Applicant was satisfied to accept as legitimate, carries little weight in view of the terms of the Notice of CPO served on him in January, 2023. From the terms of the Notice it was clear that facilitating the development of the SETU and the inner relief road was not the whole purpose of the CPO. As already pointed out, on the face of the formal documentation, reference was also made to the general, non-specific purpose of the performance of the Council’s functions. This statement of purpose in broad and general terms was couched in plain English in a manner which suggested that these functions were distinct from and in addition to the development of the SETU and an inner relief road.

134. Accordingly, the point that the Applicant now seeks to make by reference to the lack of specificity and clarity as to both the Council’s function and purpose, could equally have been made in respect of the formal terms of the order notified in January, 2023.

Insofar as his rationale for not objecting to the making of the CPO was his understanding that all the land was being used only for the development of the SETU and the inner relief road, it seems to me that no proper basis has been established in evidence for any such belief. If he laboured under such a belief arising from negotiations conducted in respect of a voluntary acquisition, then the reference made to use of the land for the purpose of other Council functions once the formal CPO process was engaged ought to have dispelled any such belief and put the Applicant on enquiry, if he objected to acquisition, as to how much of the land was being used for the specific identified purposes and how much for other purposes.

135. I am satisfied that the Applicant was in possession of all the relevant facts and information relied upon in instituting these proceedings at the latest by the 4th of June, 2024 and most of the information from November/December, 2023. As apparent from the fact that proceedings were instituted without any further information in August, 2024, it is clear that the Applicant had sufficient information and knowledge to instruct solicitors to advise and to act on its behalf at the latest by the 4th of June, 2024, if not considerably earlier.

136. The evidence adduced by the Applicant to justify an extension of time falls considerably short of the dual requirements of s. 50(8) of the 2000 Act.

Failure to Exhaust Alternative Remedy

137. While perhaps not strictly necessary in view of my conclusions in relation to time, I turn now to the argument made on behalf of the Council that the Applicant is debarred from proceeding by way of judicial review to challenge the decision of the Council to make the CPO on the 9th of January, 2023, by reason of his failure to object to An Bord Pleanála in respect of this decision. It should be acknowledged that the case made in this regard was not pursued at great length, perhaps in view of the fact that the time point was a more overarching objection given that it was not contended that the alternative remedy argument did not preclude a challenge by way of judicial review to the decision to confirm the CPO in June, 2023.

138. As set out above, the Applicant maintains that he did not object to the CPO because he believed his lands were being acquired for the purposes of facilitating the SETU campus and developing an inner relief road and he had no objection to such purposes.

Rather than engage in the statutory process, the Applicant acquiesced in both the making and subsequent confirmation of the CPO by the Council, until these proceedings were issued on the 12th of August, 2024.

139. Notwithstanding the narrative now advanced by the Applicant, applying the principles identified in cases such as Eircell Limited v. Leitrim County Council [1999] WJSC-HC 2713, [2000] 1 I.R. 479 (where a breach of the principles of constitutional justice was established in respect of a decision under the 1963 Act) and more recently in cases such as Morehart v. Monaghan County Council [2024] IEHC 100, [2023] 2 JIC 2601 and Hughes v. Dublin City Council [2024] IEHC 344, having considered, in particular, the nature of the complaints now advanced in these proceedings, I am satisfied that the Applicant had a statutory remedy available to him in respect of the January, 2023

decision which he failed to exhaust as he ought to have done if he wished to subsequently be entitled to challenge that decision by way of judicial review.

140. In Hughes, Humphreys J. carefully considered the newly inserted requirement to exhaust remedies and the pre-existing position under principles developed in G. v.

D.P.P. [1994] 1 I.R. 374 (Finlay C.J.) where the Supreme Court identified exhaustion of remedies as a condition for grant of leave, or as put that the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.

141. Humphreys J. considered that the pre-existing test under G v. DPP is now “to an extent incorporated by statute in the planning context” by the terms of s.50A(3)(c) of the 2000 Act. Referring to Morehart v. Monaghan County Council he observed that the concept of exhaustion of available remedies includes remedies that an applicant could have availed of but did not.

142. Despite similarity between the pre-existing test under the RSC and the new s.50A(3)(c) of the 2000 Act test, it seems to me that the rules are not entirely the same.

The Court’s discretion is undoubtedly less under s.50A(3)(c) because the Oireachtas has mandated that leave not be granted unless the Court is satisfied that that the applicant for leave has exhausted any available appeal procedure or other administrative remedy available. The statutory test does not expressly allow for a consideration of whether the remedy is appropriate or effective or whether proceeding by way of judicial review is more appropriate.

143. Although the non-exhaustion of remedies doctrine developed under G v. DPP and the RSC, does not preclude an argument by a given applicant that he could not have availed of a particular remedy or that there was such a defect of justice as to mean that the remedy is not truly “available” or would not result in a meaningful outcome in favour of an applicant, extending this approach to the interpretation and application s.50A(3)(c) of the 2000 Act as envisaged by Humphreys J. does not avail the Applicant on the facts of this case. For this reason, it is not necessary to consider what the full implications of the new statutory test may be for the purposes of this case.

144. It is my view that the Applicant could have engaged in the statutory process on the proposed CPO as and from the date upon which it was made and sent to him, in order to raise issues which, he now purports to raise in these proceedings, including:

(i) extent of the land acquired pursuant to the CPO;

(ii) impact on his dairy farm;

(iii) purpose of the CPO; and

(iv) allegedly disproportionate nature of the CPO.

145. It would have been open to An Bord Pleanála, had objections been made, to convene an oral hearing pursuant to s. 218 of the 2000 Act to explore more fully the Applicant’s concerns and in the process to add to the sum of the Applicant’s knowledge as to what was proposed, the better to allow him to seek advice in respect of the lawfulness of the Council’s subsequent confirmation of CPO, had this occurred in the face of the Applicant’s objections. In that forum, it would have been open to the Applicant to object to the making of the CPO if he considered that it had not been demonstrated upon the further enquiry made possible through the process which included potentially an oral hearing that the power was being exercised on a basis authorised by statute or its exercise resulted in a disproportionate interference with his property rights which had not been properly considered, as he now contends.

146. It is generally established that provided remedies are genuinely available and could have resulted in an outcome of benefit to an applicant, then those remedies should be availed of rather than judicial review and it seems to me that there is no proper basis for finding that this doctrine does not apply to preclude proceedings by way of judicial review insofar as the January, 2023 decision is concerned.

147. As the Applicant could have objected to the lack of specificity or certainty in the terms of the CPO and could have raised concerns as to the proportionality of acquiring his lands without a specified purpose/function being identified as part of the confirmation process before An Bord Pleanála, I consider that the Applicant also falls at the hurdle of s. 50A(3)(c) of the 2000 Act and should not be permitted to challenge the January, 2023 decision having failed to engage in the process before An Bord Pleanála.

148. As it is common case that there is no remedy before An Bord Pleanála in respect of the later June, 2023 decision, no impediment to the maintenance of a challenge in these proceedings to that later decision arises by operation of s. 50A(3)(c) of the 2000 Act.

Accordingly, if a challenge to the June, 2023 decision were within time or if grounds were demonstrated sufficient to support an order extending time contrary to my conclusions as set out above, then I am satisfied that this later decision could be subjected to challenge by way of judicial review proceedings on the grounds identified in this case.

CONCLUSION

149. For the reasons given, although I am satisfied that the Applicant meets the sufficient interest test and has demonstrated substantial grounds within the meaning of s. 50, I am not satisfied that he meets the criteria under s. 50(8) for an order extending time for a challenge to decisions made in January and June, 2023 in respect of proceedings belatedly filed in August, 2024. He is separately disentitled to leave in respect of any challenge to the January, 2023 decision by reason of a failure to engage with the alternative remedy provided under s. 50A(3)(c) of the 2000 Act.

150. Accordingly, I must refuse leave in this case and dismiss the proceedings. I will hear the parties in relation to the form of my order and respect of any consequential matter, if required and all matters cannot be agreed. Where necessary, arrangements will be made through the assigned registrar to list this matter before me following the expiry of fourteen days from the date of electronic delivery for the purpose of final orders.