High Court refers EU Charter and Planning Act interpretation questions to CJEU for preliminary ruling.

[2025] IEHC 161

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2023.0000975]

IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT

2000 (AS AMENDED)

BETWEEN

ALEX THOMPSON AND SHAHLA THOMPSON

APPLICANTS

AND

AN COIMISIÚN PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL (BY ORDER)

RESPONDENTS

AND

X.X. AND Y.X.

NOTICE PARTIES

AND

FRIENDS OF THE IRISH ENVIRONMENT (BY ORDER) AND PROTECT EAST MEATH

LIMITED (BY ORDER)

AMICI CURIAE

(No. 4)

JUDGMENT of Humphreys J. delivered on Friday the 21st day of March 2025 (as revised

on Friday the 4th day of July 2025)

Subject-matter of the dispute

1. This request for a preliminary ruling concerns the interpretation of Articles 41 and 47 of the

Charter of Fundamental Rights of the European Union and Articles 6 and 11 of Directive 2011/92.

2. The request is being made in proceedings seeking an order quashing a development consent

granted by An Bord Pleanála (the board), the statutory predecessor of An Coimisiún Pleanála (the

commission) dated 28 June 2023 (ABP-314936-22) to grant the notice parties permission for the

sub-division of an existing site, the provision of a single story infill dwelling to the rear of the site,

amendments to the exiting boundary treatment to the side and rear of the site, the provision of two

parking spaces to serve the proposed dwelling, landscaping and a new connection to the existing

waste-water and water supply and all associated site works at a site at Howth Road, Sutton, Dublin

13 (https://www.pleanala.ie/anbordpleanala/media/abp/cases/orders/314/d314936.pdf).

Legal context

European Union law

3. Articles 41 and 47 of the Charter of Fundamental Rights of the European Union (2000/C

364/01) provide:

“Article 41

Right to good administration

1. Every person has the right to have his or her affairs handled impartially, fairly and within

a reasonable time by the institutions and bodies of the Union.

2. This right includes:

– the right of every person to be heard, before any individual measure which would

affect him or her adversely is taken;

– the right of every person to have access to his or her file, while respecting the

legitimate interests of confidentiality and of professional and business secrecy;

– the obligation of the administration to give reasons for its decisions.

3. Every person has the right to have the Community make good any damage caused by its

institutions or by its servants in the performance of their duties, in accordance with the

general principles common to the laws of the Member States.

4. Every person may write to the institutions of the Union in one of the languages of the

Treaties and must have an answer in the same language.

…

Article 47

Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has

the right to an effective remedy before a tribunal in compliance with the conditions laid down

in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent

and impartial tribunal previously established by law. Everyone shall have the possibility of

being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid

is necessary to ensure effective access to justice.”

4. Article 6 of Directive 2011/92 provides:

“1. Member States shall take the measures necessary to ensure that the authorities

likely to be concerned by the project by reason of their specific environmental responsibilities

or local and regional competences are given an opportunity to express their opinion on the

information supplied by the developer and on the request for development consent, taking

into account, where appropriate, the cases referred to in Article 8a(3). To that end, Member

States shall designate the authorities to be consulted, either in general terms or on a case-

by-case basis. The information gathered pursuant to Article 5 shall be forwarded to those

authorities. Detailed arrangements for consultation shall be laid down by the Member

States.

2. In order to ensure the effective participation of the public concerned in the decision-

making procedures, the public shall be informed electronically and by public notices or by

other appropriate means, of the following matters early in the environmental decision-

making procedures referred to in Article 2(2) and, at the latest, as soon as information can

reasonably be provided:

(a) the request for development consent;

(b) the fact that the project is subject to an environmental impact assessment procedure

and, where relevant, the fact that Article 7 applies;

(c) details of the competent authorities responsible for taking the decision, those from which

relevant information can be obtained, those to which comments or questions can be

submitted, and details of the time schedule for transmitting comments or questions;

(d) the nature of possible decisions or, where there is one, the draft decision;

(e) an indication of the availability of the information gathered pursuant to Article 5;

(f) an indication of the times and places at which, and the means by which, the relevant

information will be made available;

(g) details of the arrangements for public participation made pursuant to paragraph 5 of this

Article.

3. Member States shall ensure that, within reasonable time-frames, the following is

made available to the public concerned:

(a) any information gathered pursuant to Article 5;

(b) in accordance with national legislation, the main reports and advice issued to the

competent authority or authorities at the time when the public concerned is informed in

accordance with paragraph 2 of this Article;

(c) in accordance with the provisions of Directive 2003/4/EC of the European Parliament and

of the Council of 28 January 2003 on public access to environmental information ( 7 ),

information other than that referred to in paragraph 2 of this Article which is relevant for the

decision in accordance with Article 8 of this Directive and which only becomes available after

the time the public concerned was informed in accordance with paragraph 2 of this Article.

4. The public concerned shall be given early and effective opportunities to participate

in the environmental decision-making procedures referred to in Article 2(2) and shall, for

that purpose, be entitled to express comments and opinions when all options are open to

the competent authority or authorities before the decision on the request for development

consent is taken.

5. The detailed arrangements for informing the public, for example by bill posting within

a certain radius or publication in local newspapers, and for consulting the public concerned,

for example by written submissions or by way of a public inquiry, shall be determined by the

Member States. Member States shall take the necessary measures to ensure that the

relevant information is electronically accessible to the public, through at least a central portal

or easily accessible points of access, at the appropriate administrative level.

6. Reasonable time-frames for the different phases shall be provided for, allowing

sufficient time for:

(a) informing the authorities referred to in paragraph 1 and the public; and

(b) the authorities referred to in paragraph 1 and the public concerned to prepare and

participate effectively in the environmental decision-making, subject to the provisions of this

Article.

7. The time-frames for consulting the public concerned on the environmental impact

assessment report referred to in Article 5(1) shall not be shorter than 30 days.”

5. Article 11 of Directive 2011/92 provides:

“1. Member States shall ensure that, in accordance with the relevant national legal

system, members of the public concerned:

(a) having a sufficient interest, or alternatively;

(b) maintaining the impairment of a right, where administrative procedural law of a Member

State requires this as a precondition;

have access to a review procedure before a court of law or another independent and impartial

body established by law to challenge the substantive or procedural legality of decisions, acts

or omissions subject to the public participation provisions of this Directive.

2. Member States shall determine at what stage the decisions, acts or omissions may

be challenged.

3. What constitutes a sufficient interest and impairment of a right shall be determined

by the Member States, consistently with the objective of giving the public concerned wide

access to justice. To that end, the interest of any non-governmental organisation meeting

the requirements referred to in Article 1(2) shall be deemed sufficient for the purpose of

point (a) of paragraph 1 of this Article. Such organisations shall also be deemed to have

rights capable of being impaired for the purpose of point (b) of paragraph 1 of this Article.

4. The provisions of this Article shall not exclude the possibility of a preliminary review

procedure before an administrative authority and shall not affect the requirement of

exhaustion of administrative review procedures prior to recourse to judicial review

procedures, where such a requirement exists under national law.

Any such procedure shall be fair, equitable, timely and not prohibitively expensive.

5. In order to further the effectiveness of the provisions of this Article, Member States

shall ensure that practical information is made available to the public on access to

administrative and judicial review procedures.”

6. Article 6(1) and (9) of the Convention on Access to Information, Public Participation in

Decision-Making and Access to Justice in Environmental Matters (done at Aarhus on 25 June 1998,

entered into force 30 October 2001) (2161 UNTS 447) (the Aarhus Convention), approved on behalf

of the European Community by Council Decision 2005/370 of 17 February 2005, provides:

“1. Each Party:

(a) Shall apply the provisions of this article with respect to decisions on whether to permit

proposed activities listed in annex I;

(b) Shall, in accordance with its national law, also apply the provisions of this article to

decisions on proposed activities not listed in annex I which may have a significant effect on

the environment. To this end, Parties shall determine whether such a proposed activity is

subject to these provisions; and

(c) May decide, on a case-by-case basis if so provided under national law, not to apply the

provisions of this article to proposed activities serving national defence purposes, if that

Party deems that such application would have an adverse effect on these purposes.

…

9. Each Party shall ensure that, when the decision has been taken by the public authority,

the public is promptly informed of the decision in accordance with the appropriate

procedures. Each Party shall make accessible to the public the text of the decision along

with the reasons and considerations on which the decision is based.”

7. Article 9(3) of the Aarhus Convention provides:

“3. In addition and without prejudice to the review procedures referred to in paragraphs 1

and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in

its national law, members of the public have access to administrative or judicial procedures

to challenge acts and omissions by private persons and public authorities which contravene

provisions of its national law relating to the environment.”

Domestic law

8. Section 50(6) to (8) of the Planning and Development Act 2000 (the 2000 Act) provides

(https://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/html#SEC50):

“(6) 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)(a) applies shall be made

within the period of 8 weeks beginning on the date of the decision or, as the case may be,

the date of the doing of the act by the planning authority, the local authority or the Board,

as appropriate.

(7) [not applicable]

(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.”

9. Reference to “the Order” means Order 84 of the Rules of the Superior Courts

(https://www.courts.ie/rules/judicial-review-and-orders-affecting-personal-liberty).

10. As far as the test in the judgment of 18 October 2012, Pelati v Republika Slovenija, C-

603/10, ECLI:EU:C:2012:639, is concerned, the starting point for the running of time is

unambiguously and foreseeably set out in domestic law as being the date of the decision itself.

Under domestic law, time runs from that date even if that is not known to anyone at the time other

than to the decision-taker.

11. Order 84 rule 21(1) of the Rules of the Superior Courts which applies to judicial review

generally is consistent with the special rule in section 50(6) of the 2000 Act. It provides:

“(2) Where the relief sought is an order of certiorari in respect of any judgement, order,

conviction or other proceeding, the date when grounds for the application first arose shall

be taken to be the date of that judgement, order, conviction or proceeding.”

12. The term “proceeding” is in practice normally applied to administrative proceedings, so that

time for a challenge runs from the date of the decision rather than notification.

13. The way the domestic legislation operates (subject to any contrary requirement of EU law)

is that:

(i) if the applicant does not know of the decision at the outset of the eight weeks, but

learns of it during that period in sufficient time to be capable of bringing a challenge

before the expiry of the period, then they have the balance of the eight weeks but

no more and are not eligible for an extension of time if they fail to do so, because

that failure was not outside their control (that is the effect of the mandatory and

cumulative nature of section 50(8)(a) and (b) of the 2000 Act); and

(ii) if the applicant learns or was only capable of learning with reasonable diligence of

the decision either so late in the eight-week period that it is not possible to challenge

the decision by the end of that period, or after the expiry of that period, then not

only are they eligible for an extension of time but they should be given an extension

equivalent to a full period of eight weeks running from the date they knew or ought

to have known of the decision: see:

i. Arthropharm (Europe) Ltd v. The Health Products Regulatory Authority

[2022] IECA 109, [2022] 5 JIC 1003 (Unreported, Court of Appeal, Murray

J., 10 May 2022) (https://www.courts.ie/view/Judgments/30ce7673-a959-

48e7-a1fd-84761c3f9b87/793fc333-b735-4a12-b688-

c02a77a0c6b7/2022_IECA_109.pdf/pdf);

ii. Marshall v. Kildare County Council [2023] IEHC 73, [2023] 2 JIC 1705

(Unreported, High Court, Humphreys J., 17 February 2023)

(https://www.courts.ie/view/judgments/aefb9f12-1827-4bbe-9cb6-

684b11c9ecad/4a43e6a7-df8a-4a35-a286-

1f6e7dc3bc6e/2023_IEHC_73.pdf/pdf).

14. Section 146(5) to (7) of the 2000 Act provides

(https://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/html#SEC146):

“(5) Within 3 days following the making of a decision on any matter falling to be decided by

it in performance of a function under or transferred by this Act or under any other enactment,

the documents relating to the matter—

(a) shall be made available by the Board for inspection at the offices of the Board by

members of the public, and

(b) may be made available by the Board for such inspection—

(i) at any other place, or

(ii) by electronic means,

as the Board considers appropriate.

(6) Copies of the documents referred to in subsection (5) and of extracts from such

documents shall be made available for purchase at the offices of the Board, or such other

places as the Board may determine, for a fee not exceeding the reasonable cost of making

the copy.

(7) The documents referred to in subsection (5) shall—

(a) where an environmental impact assessment was carried out, be made available for

inspection on the Board’s website in perpetuity beginning on the third day following the

making by the Board of the decision on the matter concerned, or

(b) where no environmental impact assessment was carried out, be made available by the

means referred to in subsection (5)(b) for a period of at least 5 years beginning on the third

day following the making by the Board of the decision on the matter concerned.”

15. There is a time limit for publication of the material by making it available at the board’s

office and on the website (or by other means if the board so decides, which generally it does not –

see Reid v. An Bord Pleanála (No. 7) [2024] IEHC 27, [2024] 1 JIC 2401 (Unreported, High Court,

Humphreys J., 24 January 2024) (https://www.courts.ie/ga/view/Judgments/8ddfaf53-e3f7-4485-

a028-647afd70dba7/15984f2b-d915-4c1b-87ba-30c2f14fb784/2024_IEHC_27.pdf/pdf). In that

case it was held as follows:

‘‘102. Section 146(5) of the Planning and Development Act 2000 provides:

‘(5) Within 3 days following the making of a decision on any matter falling to be decided by

it in performance of a function under or transferred by this Act or under any other enactment,

the documents relating to the matter—

(a) shall be made available by the Board for inspection at the offices of the Board by

members of the public, and

(b) may be made available by the Board for such inspection—

(i) at any other place, or

(ii) by electronic means,

as the Board considers appropriate.’

103. Paragraph (b) sounds discretionary (‘may’) but in fact is ultimately mandatory when

one turns to sub-s. (7):

‘(7) The documents referred to in subsection (5) shall—

(a) where an environmental impact assessment was carried out, be made available for

inspection on the Board's website in perpetuity beginning on the third day following the

making by the Board of the decision on the matter concerned, or

(b) where no environmental impact assessment was carried out, be made available by the

means referred to in subsection (5)(b) for a period of at least 5 years beginning on the third

day following the making by the Board of the decision on the matter concerned.’

104. Thus the board ‘shall’ make the documents available by the means referred to in

sub-s. (5)(b) if no EIA applies. As regards the duration for which the order should be

available, since no EIA was conducted, the 5-year publication in s. 146(7)(b) applies rather

than the indefinite publication in s. 146(7)(a).

105. While the board tries to characterise the process as discretionary, that is therefore

misconceived. The ‘may’ in sub-s. (5) is qualified by the ‘shall’ in sub-s. (7). The board

could not exercise any discretion in sub-s. (5) in a way that would nullify the ‘shall’ in sub-

s. (7). In practice that means that the board ‘may’ do (5)(a) or it ‘may’ do (5)(b) but it

‘shall’ do either (a) or (b). Thus the ‘may’ can only mean ‘shall’ do one or the other of the

sub-s. (5) options. That is perfectly harmonious because the board retains a discretion —

but not a discretion to do nothing. The board completely exaggerates the difficulty of

statutory interpretation here. The harmonious reading is obvious and straightforward.”

16. Three days from a decision includes the day of the decision itself unless the context otherwise

requires – see section 18(h) of the Interpretation Act 2005

(https://www.irishstatutebook.ie/eli/2005/act/23/enacted/en/print#sec18):

“(h) Periods of time. Where a period of time is expressed to begin on or be reckoned from

a particular day, that day shall be deemed to be included in the period and, where a period

of time is expressed to end on or be reckoned to a particular day, that day shall be deemed

to be included in the period;”

17. Section 146(5) of the 2000 Act refers to 3 days “following” the decision. But “following” is

encompassed within the concept of a “period … reckoned from a particular day”. The context does

not “require” a different interpretation.

18. Article 74(1) of the Planning and Development Regulations 2001 provides

(https://www.irishstatutebook.ie/eli/2001/si/600/made/en/print#part7):

“The Board shall, as soon as may be following the making of a decision on an appeal or

referral, notify any party to the appeal or referral and any person who made submissions or

observations in relation to the appeal or referral in accordance with section 130 of the Act.”

19. This Article does not specify any time limit.

20. The first named amicus curiae has helpfully prepared a table showing how the time limits

and the basis on which they can be extended vary considerably across domestic law depending on

the type of development consent concerned:

Legislation Decision Period to Application Method and Parameters

Type apply for JR method Timing of by which JR

(JR) Notification of period may

Decision be extended

Waste Waste 2 months Motion on By notice in Order 84:

Management Licence commencing Notice writing, as soon (a) good and

Act 1996 on the as may be after sufficient

decision date the decision is reason, and

made. (b) the

circumstances

were either:

(i) outside

the control of,

or

(ii) could not

reasonably

have been

anticipated by

the applicant.

S.I. No. Waste Within three Motion ex By notice in Order 84:

821/2007 - Facility months from parte writing as soon (a) good and

Waste Permit the date when as may be after sufficient

Management grounds for making a reason, and

(Facility the decision to grant (b) the

Permit and application a waste permit circumstances

Registration) first arose under article were either:

Regulations (Order 84 16(3). (i) outside

2007 Rules of the the control of,

Superior or

Courts) (ii) could not

reasonably

have been

anticipated by

the applicant.

Planning and Planning Within the Motion ex Variety of rules (a) there is

Development Decision period of 8 parte including: good and

Act, 2000, as s. 50 (2)(a) weeks sufficient

amended beginning on S. 146 reason for

the date of If EIA carried out doing so, and

the decision - Within 3 days (b) the

following the circumstances

making of the of delay were

decision the outside the

documents shall control of the

be made applicant for

available at the the

offices of the extension.

Board and may

be made

available online.

If no EIA carried

out – Documents

shall be made

available for

inspection on the

Board’s website

in perpetuity

beginning on the

third day

following the

decision.

S. 5 Referral –

On the Board’s

website within 3

working days of

the decision

S. 169 SDZ -

publish notice of

the approval of

the scheme in at

least one

newspaper

circulating in its

area, and shall

state that a copy

of the planning

scheme is

available for

inspection at a

stated place

Planning and Roads 8 weeks Motion ex Approval of (a) there is

Development Consents beginning on parte Roads Scheme s. good and

Act, 2000, as and CPO the date on 49 Roads Act – sufficient

amended s. 50(2)(b) which notice Publish notice of reason for

PDA of the decision in one doing so, and

decision or or more (b) the

act was first newspapers circumstances

sent circulating in the of delay were

area outside the

control of the

EIA Decision s. applicant for

51 Roads Act - the extension

publish in one or

more

newspapers

circulating in the

area in which the

proposed road

development

would take

place, and in

electronic form.

Fisheries Aquaculture Within the Motion on A licensing Order 84:

Amendment Licence period of Notice authority shall, (a) good and

Act three months within 28 days of sufficient

On appeal commencing making a reason, and

and from on the date decision, cause a (b) the

Aquaculture on which the notice informing circumstances

S.I. 369/2010 Licences decision or the public of a were either:

- Aquaculture Appeal determination decision in (i) outside

(Licence Board was made respect of an the control of,

Application) application, or

(Amendment) made by the (ii) could not

Regulations authority, to be reasonably

2010. published— have been

anticipated by

(a) in one or the applicant.

more

newspapers

circulating in the

area to which

the decision

relates, and

(b) in Iris

Oifigiúil if an

environmental

impact

statement was

required

EPA Act 1992 Industrial 8 weeks Not The Agency Where the

Emissions beginning on specified shall, within 10 Court

And Licence the date on days of the considers that

which the giving of a in the

S.I. 137/2013 licence or decision publish particular

- revised a notice of its circumstances

Environmental licence is decision on its there is good

Protection granted or the website and in a and sufficient

Agency date on which newspaper reason for

(Industrial the decision circulating in the doing so.

Emissions) to refuse or district in which

(Licensing) not to grant the industrial

Regulations the licence or emissions

2013, as revised directive activity

amended licence is is or will be

made. situate.

Foreshore Act, Foreshore Within three Order 84 Publish a notice, Order 84:

1933, as Licence or months from Motion ex- in Iris (a) good and

amended Foreshore the date when parte Oifigiúil and in sufficient

Lease grounds for one or more reason, and

the newspapers (b) the

application circulating in the circumstances

first arose area where the were either:

(Order 84 foreshore (i) outside

Rules of the subject to the the control of,

Superior determination is or

Courts) situate, of the (ii) could not

determination reasonably

have been

anticipated by

the applicant.

Transport Railway Within the Motion on Publish a notice (a) there is

(Railway Order period of 8 Notice in at least 2 good and

Infrastructure) weeks newspapers sufficient

Act 2001, as beginning on circulating in the reason for

amended the date on area to which doing so, and

which the the order relates

order was of the making of (b) the

made the railway order circumstances

and of the places that resulted

where, the in the failure

period during to make the

which and the application

times at which for leave

copies thereof within the

and any plan period so

referred to provided

therein may be were outside

inspected or the control of

purchased the applicant

for the

extension.

Facts

21. The applicants are scientists, the first named applicant being an emeritus professor and the

second named applicant being a retired geneticist.

22. On 14 March 2022, the notice parties lodged the application for development consent with

Fingal County Council (the council).

23. On 28 April 2022, the council issued a request for additional information and subsequently

issued public notices in respect of additional information on 19 August 2022.

24. The council then decided to grant permission with conditions, on foot of a planning report

dated 28 September 2022.

25. On 26 October 2022, the applicants appealed to the board.

26. On 8 March 2023, the board wrote to the applicants indicating that the appeal would not be

decided within the target time-frame of 18 weeks.

27. On 22 May 2023, the respondent’s inspector carried out a site inspection.

28. On 24 May 2023, the inspector issued his report. The report contains a screening analysis

for the purposes of Directive 2011/92 and Council Directive 92/43 concluding that due to the limited

nature and scale of the project and the distance from sensitive sites and lack of connectivity thereto

it would be unlikely to have significant effects on the environment or on European sites. Accordingly:

(i) environmental impact assessment (EIA) under Directive 2011/92 was ruled out at

preliminary examination stage and no screening was required; and

(ii) appropriate assessment (AA) under Directive 92/43 was ruled out after screening.

29. On 29 May 2023, the board wrote again to the applicants indicating that the matter would

be further delayed.

30. The application was considered at a meeting of the board on 26 June 2023, at which the

board decided to grant planning permission for the development. The board direction is dated 26

June 2023.

31. The board order that is the formal decision is dated 28 June 2023.

32. The board then had a requirement to provide notification of the decision through three

specific channels:

(i) making available the file for inspection at its office within three days – that

presumably happened but it does not constitute notice because that in itself doesn’t

inform anybody of anything – such a person would have to already know that the

decision had been made;

(ii) making the papers available online or elsewhere as the board decides (and the

board’s consistent policy and practice is to do so on its website – as stated in its

published guidance on public access to decision files, noted in Reid v. An Bord

Pleanála (No. 7) [2024] IEHC 27 at para. 113) within three days (that ran from (i.e.

including) Wednesday 28 June 2023 and the time to comply expired on Friday 30

June 2023) – but compliance didn’t happen until seven days after the decision (on

Wednesday 5 July 2023); and

(iii) notifying the participants in the process as soon as may be (there is no time limit

specified in law) – notice was not sent for five days (posted to the applicants on

Monday 3 July 2023), arriving six days after the decision (received on Tuesday 4

July 2023).

33. Thus the first meaningful notice actually received by the applicants was on 4 July 2023,

which was four days after the web publication should have happened.

34. The applicants requested a hard copy of the inspector’s report and received that on 5 July

2023.

35. Following receipt of notice of the board’s decision, the applicants didn’t act with any

noticeable speed for a month, during the period 5 July 2023 to 4 August 2023, and then took the

legally misconceived step of corresponding with the board on the latter date, to ask if there was any

other basis for the decision than that disclosed on the papers they had. Dissatisfied with a mere

acknowledgement dated 15 August 2023, they wrote again on 16 August 2023 and only then decided

to seek judicial review – at that point there were only eight days left to bring the proceedings.

36. The applicants also say that they were busy during that period including due to an

unfortunate illness of a relative. But the applicants’ difficulties in no way reached the level that

would have precluded them acting within time – their real problem was that they mistakenly believed

that time ran from notification (as they effectively admit in their joint affidavit at paragraph 25).

This mistake is not attributable to the State because the domestic rules are clear and foreseeable in

providing that time runs from the date of a decision even if it has not been notified.

37. Working from the date of the decision, the eight-week period expired on 22 August 2023.

Relevant procedural history

38. The application for leave to apply for judicial review was made in domestic law (as it stood

at the relevant time) when it was opened on 23 August 2023 at a vacation sitting of the High Court.

39. On 18 December 2023, the referring court gave the applicants liberty to bring a motion

seeking an extension of time.

40. On 26 February 2024, the referring court ordered inter alia that the applicants be directed

to serve notice on the Chief State Solicitor on behalf of Ireland and the Attorney General.

41. Liberty to file a second amended statement of grounds was given on 11 March 2024, to be

filed by 20 March 2024 for the purpose of adding relevant relief against the State in relation to the

validity of the statutory scheme regarding time limits.

42. It can be noted that on 26 April 2024, domestic law was changed so that judicial review

proceedings were commenced when filed in the Central Office of the High Court and not on the

usually later date when they are moved in open court

(https://www.irishstatutebook.ie/eli/2024/si/163/made/en/print). This change did not affect

proceedings already in being, such as the present case.

43. Friends of the Irish Environment applied to join an amicus curiae, which application was

granted.

44. The referring court was of the view that the matter raised questions of the interpretation of

EU law which were necessary for it to give judgment and that it was appropriate in the circumstances

to refer these questions to the CJEU. The commission and the notice parties did not propose answers

to the draft questions. The referring court issued the initial version of the present judgment on 21

March 2025.

45. The State then provided further legal submissions which in effect amended their proposed

answer to the third question. On 6 June 2025, the State confirmed it had no further comments in

the light of the proposed re-wording of the present judgment reflecting those further submissions.

46. On 18 June 2025, An Coimisiún Pleanála substituted for the board by operation of law on

commencement of the relevant provisions of the Planning and Development Act 2024

(https://www.irishstatutebook.ie/eli/2024/act/34/enacted/en/html).

47. On 30 June 2025, Protect East Meath indicated that it was availing of the opportunity to

renew an application to be joined as an amicus curiae. On 30 June 2025, that application was

granted.

48. In the light of the foregoing the referring court issued the current (amended) version of this

judgment for reference on 4 July 2025.

49. In those circumstances the referring court is staying the proceedings and referring the

questions below to the Court of Justice for a preliminary ruling.

The first question

50. The first question is:

Do Articles 41 and/or 47 of the Charter of Fundamental Rights of the European

Union and/or Articles 6 and/or 11 of Directive 2011/92 read in the light of the

general EU law principle of legal certainty and/or of Articles 6 and/or 9 the Aarhus

Convention as approved on behalf of the European Community by Council Decision

2005/370, have the effect, in the context of a challenge (based on Directive

2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50) to

a development consent for a project where the need for environmental impact

assessment under Directive 2011/92 was rejected at preliminary examination

stage under national law corresponding to Article 4(3) of Directive 2011/92

(insofar as it provides that Member States may set thresholds or criteria to

determine when projects need not undergo either the determination under Articles

4(4) and (5), or an environmental impact assessment) and where the need for

appropriate assessment under Directive 92/43 was screened out, of requiring

either the specification in the domestic law of a Member State of a reasonably

contemporaneous, or any, time limit for each channel of notification of a decision

if domestic law provides that the time for challenge runs from the date of the

decision rather than its notification, or alternatively of requiring provision in the

domestic law of a Member State for time to run from notification in respect of any

decision where the time for any channel of notification is discretionary?

51. The applicants’ proposed answer is in the affirmative. The only position consistent with

safeguarding rights derived under EU law would be one where time begins to run from the notification

of the decision and in the event that it runs from the date of the decision, the express specification

of a compensatory mechanism if maladministration on the part of a competent authority results in

the limitation period of a party being foreshortened. There is also the added complicating factor of

the impugned legislative regime allowing a period of three days in which the competent authority

should notify, meaning different parties essentially have different limitation periods depending on

when the competent authority elect to notify.

52. The State’s proposed answer is that EU law does not mandate any specific notification

period(s) for decisions engaging Directive 2011/92, Council Directive 92/43, Directive 79/409 and/or

Directive 2008/50. However, notification periods prescribed by Member States should comply with

the principles of equivalence and effectiveness so as to conform with EU environmental law. Irish

law is consistent with those principles.

53. The first named amicus curiae’s proposed answer is that public notification of the fact of the

making of a decision for a development consent, and the making available of the reasons and

documents supporting that decision, must be done in a manner that is as prompt and accessible as

possible, which in modern terms means online publication. They have concerns about the proper

interpretation of the term “reasonably contemporaneous” used in this question.

54. The second named amicus curiae’s proposed answer is yes. The principle of effectiveness,

the principle of legal certainty and the right to an effective remedy under Article 47 of the Charter

of Fundamental Rights, read with Articles 9(2), 9(3) and 9(4) of the Aarhus Convention precludes

an undefined period or open-ended provision for discretionary notification with time running from

the date of the decision. Alternatively, if notification deadlines are not defined with certainty and/or

are entirely discretionary, time should run from the date of notification.

55. The referring court’s proposed answer is Yes. The referring court agrees that in principle

the specification of time limits is a matter within the scope of national procedural autonomy, subject

to the principles of equivalence and effectiveness. The Irish domestic time limits are equivalent as

between EU and domestic claims. However as regards effectiveness, this involves compliance with

the principle of legal certainty (see judgment of 28 January, Uniplex (UK) Ltd v NHS Business

Services Authority, C-406/08, ECLI:EU:C:2010:45), and an open-ended provision in domestic law

for discretionary notification of a decision by a particular channel (even if there are time

requirements specified for other channels), with time running from the date of the unnotified making

of the decision, is contrary to the principle of legal certainty. Thus the principle of effectiveness

requires either that time for effecting the notification of the decision be specified in law (if time runs

from the making rather than notification of the decision), or alternatively that if notification periods

are discretionary, time should run from the date of actual notice rather than from the decision.

56. The relevance of the question is that Irish law provides that time runs from the decision and

that an extension of time in circumstances such as exist here is not possible. Any interpretation of

the relevant enactments that would allow an extension or that would regard the action as being

brought within time would be contra legem. Therefore if the answer is Yes, the referring court would

be likely to be required to declare one or more of the relevant enactments invalid (either s. 50(6) or

(8)(b) of the 2000 Act or both – most likely (8)(b) only) or make another form of order with similar

effect, at least in the absence of a legislative response to such an answer.

The second question

57. The second question is:

Do Articles 41 and/or 47 of the Charter of Fundamental Rights of the European

Union and/or Articles 6 and/or 11 of Directive 2011/92 read in the light of the

general EU law principle of legal certainty and/or of Articles 6 and/or 9 the Aarhus

Convention as approved on behalf of the European Community by Council Decision

2005/370, have the effect, in the context of a challenge (based on Directive

2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50) to

a development consent for a project where the need for environmental impact

assessment under Directive 2011/92 was rejected at preliminary examination

stage under national law corresponding to Article 4(3) of Directive 2011/92

(insofar as it provides that Member States may set thresholds or criteria to

determine when projects need not undergo either the determination under Articles

4(4) and (5), or an environmental impact assessment) and where the need for

appropriate assessment under Directive 92/43 was screened out, of requiring the

domestic law of a Member State to make provision for a power, in the event that

the national authorities fail to notify a participant in the process of a decision

within the period specified in domestic law in respect of any channel of notification

so specified, to extend the limitation period for the bringing of the challenge for

such limited period as is required to compensate for the time lost between the date

on which the applicant ought to have been notified and the date on which she was

notified and/or otherwise became aware of the decision?

58. The applicants’ proposed answer is that transparency, the right to an effective remedy,

effective public participation and the principles of good administration all require that whatever time

period is prescribed for a party to the appeal or member of the public concerned to bring a judicial

review of a decision of a competent authority, this cannot be foreshortened by maladministration on

the part of the competent authority. Consequently, in the event of such maladministration arising,

European law requires that the prospective applicant should enjoy the benefit of the time period that

he or she would have had if the maladministration had not occurred. Such a provision should be

expressly set out in the domestic law of a Member State in order to make the time limits precise,

foreseeable and compliant with the principle of legal certainty. There is no decided case of the CJEU

that the applicants are aware of that would render the court’s second question acte clair.

59. The State’s proposed answer is that this question should be answered in the negative. There

is no express provision for a “compensable” extension of time in the EU legal instruments referred

to in the question, and this is a matter for national procedural autonomy. In the event that the

relevant competent authority fails to notify a participant in the process of a decision within the period

specified in domestic law in respect of any channel of notification so specified and, as a consequence,

the participant in the process was unable to challenge the decision within time, Irish law provides a

remedy in section 50(8) of the 2000 Act.

60. The first named amicus curiae’s proposed answer is that to accord with fair procedures and

to prevent unnecessary barriers to access to justice, where there are statutory time limits in public

notification of decisions and in the provision of documents relevant to the decision, and where any

delay in notification impinges on the period for access to the courts, there should be compensation

in time for the notification time lost.

61. The second named amicus curiae’s proposed answer is yes. While in principle a limitation

period may be provided in national law, such a limitation period is a limitation on the right to an

effective remedy and therefore must comply with the requirements of Article 52(1) of the Charter.

To comply with Article 47 of the Charter the limitation period must be provided for by law and respect

the essence of the right to an effective remedy and subject to the principle of proportionality, may

only be made if it is necessary and genuinely meets objectives of general interest recognised by the

Union or the need to protect the rights and freedoms of others. In the instant case, for the rules to

satisfy the requirement that the be provided for by law, they must meet the criterion or legal

certainty. It must be possible to ascertain the start and end date of the limitation period with

certainty. To avoid disproportionate effect, provision must be made for the extension of a limitation

period to compensate for time lost between the date when the applicant ought to have been notified

and the date on which the applicant was notified and/or otherwise became aware of the decision.

While an applicant can rely directly on Article 47 to apply to a court for a compensatory extension

of time, the principles of legal certainty and proportionality under Article 52(1) of the Charter

nonetheless require national law to have clear and precise rules for such an application.

62. The referring court’s proposed answer is Yes. While again at the level of principle the

procedures for extension of time fall within national procedural autonomy, the principle of

effectiveness is engaged here. The effective implementation of EU law requires that if the authorities

of a Member State are, as here, in breach of the obligation to notify a decision of EU law relevance

within a time specified in domestic law, the effects of such a breach should not fall on an applicant.

In such circumstances, an applicant should be entitled to a compensatory extension of time. The

problem with the State’s answer is that section 50(8) of the 2000 Act only benefits an applicant who

was thereby prevented from bringing the action within time, and does not benefit applicants such

as those here who were not prevented from acting within time but who simply failed to act within

that time, although they were nonetheless disadvantaged by having had a shorter period than that

provided in law.

63. The relevance of the question is that if the answer is Yes, the applicants should benefit from

an extension of time here to compensate for the default in notifying the decision within the statutory

period. However an interpretation of section 50(8)(b) of the 2000 Act that would allow such an

extension would be contra legem. Hence the effect of an affirmative answer would be that the

referring court would be likely to be required to declare section 50(8)(b) of the 2000 Act to be invalid

or make another form of order with similar effect, at least in the absence of a legislative response

to such an answer.

The third question

64. The third question is:

Do Articles 41 and/or 47 of the Charter of Fundamental Rights of the European

Union and/or Articles 6 and/or 11 of Directive 2011/92 read in the light of the

general EU law principle of legal certainty and/or of Articles 6 and/or 9 the Aarhus

Convention as approved on behalf of the European Community by Council Decision

2005/370, have the effect, in the context of a challenge (based on Directive

2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50) to

a development consent for a project where the need for environmental impact

assessment under Directive 2011/92 was rejected at preliminary examination

stage under national law corresponding to Article 4(3) of Directive 2011/92

(insofar as it provides that Member States may set thresholds or criteria to

determine when projects need not undergo either the determination under Articles

4(4) and (5), or an environmental impact assessment) and where the need for

appropriate assessment under Directive 92/43 was screened out, of precluding a

Member State from excluding by its domestic law the possibility of extension of

time to bring the challenge in circumstances where the applicant fails to show that

they could not have brought the proceedings prior to the expiry of the limitation

period even in the event that the national authorities fail to notify a participant in

the process of a decision within the period specified in domestic law in respect of

any channel of notification so specified?

65. The applicants’ proposed answer is in the affirmative. A Member State cannot employ a

valid legislative scheme in respect of limitation periods that excludes the possibility of an extension

of time to bring a challenge in circumstances where such a regime allows different parties to have

different limitation periods within which to bring a legal challenge to a decision of a planning

authority. European law also requires that a competent authority is bound to make good any adverse

harm caused to a party by a breach. However, with the facts and legislative regime arising here,

the competent authority sought to unknowingly take advantage of their late notification such was

the uncertainty surrounding the limitation period. A legislative regime that allows a competent

authority that fails to notify a party within a mandatory timeframe to raise such a point, creates an

obstacle to meaningful and accessible public participation and infringes the right of the party and

public concerned to access a review mechanism which they are entitled to under Union law. The

applicants rely on the judgment of 17 November 2016, Stadt Wiener Neustadt v

Niederösterreichische Landesregierung, C-348/15, ECLI:EU:C:2016:882 and the judgment of 7

November 2019, Alain Flausch and Others v Ypourgos Perivallontos kai Energeias and Others, C-

280/18, ECLI:EU:C:2019:928 to illustrate that a Member State is precluded from omitting to provide

an extension of time mechanism where that Member State’s legislative regime prejudices and places

a party or member of the public concerned with a less favourable and potentially much shorter period

of time within which to bring a challenge by way of judicial review without recourse to an extension

of time. Such a regime is not compatible with EU law and is acte clair.

66. The State’s proposed answer is that this question should be answered in the negative. EU

law does not preclude a Member State from excluding the possibility of an extension of time to bring

a challenge in circumstances where the applicant fails to show that they could not have brought the

proceedings prior to the expiry of the limitation period even in the event that the national authorities

fail to notify a participant in the process of a decision within the period specified in domestic law in

respect of any channel of notification so specified.

67. The first named amicus curiae’s proposed answer is that any test set by the national

authorities for the public to meet in order to justify the extension of time to bring a judicial review

because of a delay should not have unforeseen consequences. They submit that the current tests

under the 2000 Act and Order 84 are too onerous. The delay to be justified in these tests is over

the entire period allowed (eight weeks, two months or three months depending on the legislation)

and is not focused on the effect of the prejudice caused by losing time at the start due to (for

example) tardy notification procedures or at the end due to (for example) any obligation there may

be to incorporate notice of judicial review into the time allowed, where the process calls for a motion

on notice. The full time period is treated as if it is a generosity that can be comfortably trimmed at

either end as required. The question being asked in these tests is “how did you use the rest of your

time?” It has the unintended consequence of treating a statutory time limit as if it was an

overmeasure in the first place. A more reasonable test is found in the Environmental Protection

Agency Act 1992, as amended which provides for a time extension “if the Court considers that in

the particular circumstances there is good and sufficient reason for doing so”

(https://revisedacts.lawreform.ie/eli/1992/act/7/front/revised/en/html).

68. The second named amicus curiae’s proposed answer is yes. The requirement for an effective

remedy under Article 47 and a fair procedure under Article 9(4) of the Aarhus Convention read with

Article 47 of the Charter is not satisfied where the time limit may only be extended where the

applicant can show that they could not have brought the proceedings prior to the expiry of the

limitation period, even where the national authorities themselves had failed to fulfil their obligations

to notify to applicants of the decision within the period specified in national law. Where national law

provides a certain period of time in which to apply for judicial review, provision must be made to

compensate for late notification by extending the time limit so that the applicants are not prejudiced

with a shorter period than they would otherwise have, regardless of whether it would in principle

have been possible for the applicants to issue proceedings within a truncated period caused by late

notification.

69. The referring court’s proposed answer is Yes. The principle of effectiveness requires that a

court of a Member State should have discretion to extend time to compensate for a breach of

domestic law in notifying a decision of EU law relevance, even if an applicant was thereby merely

prejudiced through having less time, rather than having been unable to bring the action, i.e., that

the applicant could not satisfy the test that the failure to bring the action within time was outside

the applicant’s control. Insofar as the State respondents’ submission portrays the power to extend

time as broad and flexible, the limits of this are now acknowledged in their supplementary

submission: “the discretion conferred on the Court by section 50(8) is constrained by the second

criterion and an applicant seeking an extension of time must also demonstrate that the

circumstances were outside their control”. Insofar as the State respondents now accept that, in the

case of an application for extension of time due to delay in notification by a public authority, “the

delay in notification by the public authority would have to be weighed up against the [other relevant]

factors ... so as to enable the Court to form the view as to whether the delay in notification was the

causative factor in the failure to bring proceeding within time”, that is a valid observation at a general

level, although it is not relevant because it does not engage with the facts of the present case, in

which the failure to bring proceedings in time was only contributed to, and then only slightly, by the

delay in notification. That failure was not caused by the delay. The State respondents’

supplementary submission in effect withdraws their previous suggestion that it would be enough

that an applicant would be prejudiced (that interpretation was not tenable as it is contra legem).

Insofar as the State now argues that “the time limit rules in both Order 84 and section 50 of the

2000 Act have been interpreted in a flexible way so as to conform with EU law and ensure that a

person who wishes to challenge a decision obtains the full benefit of the limitation period from when

they become aware of a decision, and could not otherwise have been aware”, that is only correct if

the applicant becomes aware of the decision after it is too late to bring proceedings within the period.

The State submission does not take into account the distinction referred to in paragraph 13 above.

If the date of knowledge arises within the statutory period leaving enough time to bring the

proceedings then an applicant does not get the full benefit of the period, but only the balance of the

period. The State’s observation is only valid where the date of knowledge arises after it is too late

to act within the statutory period – but that is irrelevant to the present case where the applicants

did have time to so act. In short, the caselaw does illustrate flexibility but only within the statutory

criteria, and primarily only as regards the question of “good and sufficient reason” for the extension

(section 50(8)(a) of the 2000 Act). The prior requirement that the reason for the failure to bring

the proceedings prior to the expiry of the deadline was outside the applicant’s control is neither

broad nor flexible, and any interpretation to give it such a broad meaning would be contra legem.

In terms of the facts of the present case, the primary reason for the applicants’ failure to act within

time was their misunderstanding of the law, which was not a factor beyond their control. But they

were nonetheless prejudiced by not having had more time within which to act. An interpretation

that reads “outside the control of the applicant” as meaning “within the control of the applicant, but

made slightly more difficult” is not reasonably foreseeable by actors in the process including third-

party developers prejudiced by an extension of time, such as the notice parties, here, and hence is

not compatible with the principle of legal certainty.

70. The relevance of the question is that an extension of time to benefit the applicants here

would be contrary to section 50(8)(b) of the 2000 Act because the breach of notification

requirements only caused prejudice by shortening the time to act rather than preventing the bringing

of the action within time. The terms of the domestic legislation are clear and an interpretation that

would allow an extension here would be contra legem. Hence the effect of an affirmative answer

would be that the referring court would be likely to be required to declare section 50(8)(b) of the

2000 Act to be invalid or make another form of order with similar effect, at least in the absence of

a legislative response to such an answer.

Order

71. For the foregoing reasons, it is ordered that:

(i) the questions set out in this judgment be referred to the CJEU pursuant to Article

267 TFEU;

(ii) the CJEU be requested to note that apart from the anonymised notice parties, the

natural persons referred to in this judgment have requested the referring court to

inform the CJEU that they do not wish their names to be anonymised for the

purposes of the proceedings in the CJEU and therefore that they can be named by

the CJEU including by way of the publication of materials or of the judgment of that

court; and

(iii) the substantive determination of the proceedings be adjourned pending the

judgment of the CJEU, without prejudice to the determination of any appropriate

procedural or interlocutory issues in the meantime.