High Court dismisses late judicial review application where applicant failed to appeal planning consent properly and withdrew proceedings.

[2025] IEHC 18

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000448]

PHILIP GAFFNEY

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

KILSARAN CONCRETE UNLIMITED COMPANY (BY ORDER)

NOTICE PARTY

JUDGMENT of Humphreys J. delivered on Monday the 20th day of January 2025

1. The applicant objected to a planning consent granted to the notice party by the council in

September 2022. He tried to appeal that to the board, but his appeal was invalid due to his failure

to include the necessary receipt – improperly the applicant failed to disclose that to the court and I

only found out about it from the notice party. The applicant sought leave to challenge the board

decision, made in the appeal in February 2024. He withdrew that application before it was listed in

open court. He then wandered back into court in January 2025 seeking to somehow move the leave

application. There can only be one possible answer to that.

Geographical context

2. The matter relates to construction of entrance, three mass concrete storage bays and one

concrete reclaimer unit at Naul townland, Clashford, Naul, Co. Meath.

Facts

3. On 23rd September 2022, the council granted the impugned permission.

4. The applicant sought to appeal that to the board, but his appeal was declared invalid (see

https://www.pleanala.ie/en-ie/case/314881 – the applicant didn’t inform the court of this until the

notice party raised it). The reason for the invalidity was apparently because the applicant failed to

include the correct receipt for the submission to the council (so the applicant informed me after the

notice party had raised the issue of the invalid appeal). That’s his responsibility although he

implausibly sought to blame the board for not giving him more notice that he had not submitted a

correct appeal.

5. The board granted permission on appeal on 14th February 2024.

6. The eight-week period to challenge that expired on 9th April 2024.

Procedural history

7. The applicant’s grounding affidavit is as follows:

“I Philip Gaffney A Gentleman of ... in the County of Meath being eighteen years and

upwards. Being the applicant in these proceedings make oath and say as follows:

I am acting as a litigant in person in This case. I have read this statement.

So much of this statement as relates to my own acts and deeds is true, so much of it as

relates to acts and deeds of any and every person I believe to be true.”

8. The affidavit and statement were filed on 28th March 2024.

9. The applicant wrote to the regular judicial review list registrar on 28th March 2024, applying

for a date for an ex parte hearing.

10. The registrar replied on 8th April 2024 stating that the matter would be listed in the Planning

& Environment List on 13th May 2024. In fact given the need to apply in open court at the time in

order to stop the clock, the applicant should have been advised of that requirement forthwith and

facilitated in coming before a judge straight away, rather than having the matter put off to a later

date that was so far removed that his application became out of time. As an official act or omission,

that is something my side of things will have to take responsibility for, so that delay should not be

attributed to the applicant.

11. The rules of court were changed on 26th April 2024 to provide that the clock would stop on

filling of papers rather than on mentioning the matter to the court, but that didn’t apply at the time

(and the eight weeks had expired by that stage anyway).

12. The matter was administratively listed in the predecessor to the current List for hearing of

an ex parte leave application on 13th May 2024.

13. But on 7th May 2024, the applicant contacted the court to withdraw the matter. The emails

state as follows (most recent first, as usual):

“On Wed, May 8, 2024 at 12:57 PM phil gaffney <[address]> wrote:

Hi ...

Thank you for your assistance with this matter. Kind Regards

Philip

On Wed, May 8, 2024 at 11:08 AM Commercial Planning&Strategic Infrastructure

<cpsid@courts.ie> wrote:

Good morning,

This case will be deemed withdrawn. No further action is required on your part.

Kind Regards,

...

Commercial Planning & Strategic Infrastructure Development List Registrar, High Court

Prisoner Applications Registrar, High Court

An tSeirbhís Chúirteanna, Na Ceithre Cúirteanna, Cé Inns, Baile Átha Cliath 7

The Courts Service, The Four Courts, Inns Quay, Dublin 7

[contact details]

courts.ie

From: phil gaffney <[address]>

Sent: Tuesday, May 7, 2024 3:59 PM

To: Commercial Planning&Strategic Infrastructure <cpsid@courts.ie>

Subject: Ref HJR 2024448

Dear Registrar

I would like to withdraw my application for Judicial Review record number HJR 2024448

where as I know I am right and have a good case. I am simply overwhelmed by all that this

entails and my health is more important than breaches in planning.

I thank the court for your assistance with this matter.

Kind Regards

Philip

Philip Gaffney Litigant in Person”

14. The applicant has more recently produced correspondence about medical appointments on

29th and 31st May 2024.

15. On 6th January 2025, the applicant emailed the court to seek leave, and I directed that the

matter be relisted, but on notice. The email states:

From: phil gaffney <...>

Sent: Monday, January 6, 2025 12:04 PM

To: Commercial Planning&Strategic Infrastructure <cpsid@courts.ie>

Subject: Re: Ref HJR 2024448

Cyber Security Notice: This email originated from outside the organisation. Do not click links

or open attachments unless you recognise the sender and know the content is safe.

Hi ...

Happy New Year. I trust you enjoyed the Christmas break. I am looking to reactivate my

application for leave to appeal the decision. do I need to start the process all over again or

can i restart this one

Kind Regards

Philip

Philip Gaffney

Litigant in person”

16. On 13th January 2025, the matter was listed for hearing.

17. The applicant didn’t indicate any basis to reinstate the matter and had no motion or evidence

in this regard before the court. He essentially focused on the merits and sought leave and addressed

the merits in his oral submissions. The developer asked to be joined as a notice party which I

granted without objection. The applicant said that he had notified the council but they communicated

that they had not received information about it and did not get involved.

18. The applicant also asked for the DAR and complained about a number of irrelevant

procedural matters. There is no basis for access to the DAR during the course of the proceedings,

as distinct from thereafter, even leaving aside the off-the-cuff nature of the request.

19. I announced the order at the conclusion of the hearing and said that reasons would follow

later. The opposing parties didn’t apply for costs so the order was to be perfected with no order in

that regard.

20. Part of the applicant’s complaint was the alleged non-existence of the original permission.

Following the hearing on 13th January 2025, the developer sent what it said was a copy of the

original permission to the applicant:

“As discussed at today’s hearing of this matter, we attach a copy of Meath County Council

Planning Permission Ref. 80/572.”

21. The applicant replied:

“Dear …

Thank you for forwarding me the pieces of paper. They are not a valid planning permission

as I have already stated in my sworn affidavit which I gave to your barrister yesterday and

are uploaded onto the share file I also note they are not supported by a sworn affidavit by

your client which is the appropriate response in this matter.

Yours

Philip Gaffney

Litigant in Person”

22. I record this matter but don’t need to resolve it and indeed can’t do so as of now because I

wasn’t copied on the first of those emails so haven’t seen the alleged permission.

23. On 15th January 2025, the applicant emailed the registrar in the following terms:

“Hi ...

I am following up from the proceedings

I understand the courts position in relation to time and withdrawal. I want to thank the

court for giving me the opportunity. I do appreciate as a lay litigant I don't understand all

the nuances of procedures. I should say that had I been given the legal reference by the an

board pleanala before the hearing I would have been adequately prepared to respond. That

been said, we are where we are. I am looking for the order for the DARS as I requested in

court and there was no objection. I am working on a plenary action as the substantive issue

was not addressed; it was merely procedural. I need the DARS as a lay litigant has no

standing court whereas the DARS can clearly show what was argued. It will also show the

court asked Kilsaran to provide Their Planning Permission and they said they had it and they

would provide it. I am happy to lodge a motion requesting the DARS if the court feels it is

necessary however I don't want to take up any more of the courts time than is absolutely

necessary and as a self employed artist I don't need the expense.

I am at the mercy of the court

Kind Regards

Philip

Philip Gaffney

Litigant in Person”

Access to the DAR

24. It is not clear to me what the proposed plenary action is about but I don’t need to consider

that now. I requested the registrar to reply to the effect that if the other parties consented an order

for the DAR could be made on the papers, and if they didn’t, the applicant could bring a motion. It

was subsequently pointed out to the applicant that an order for the DAR would not normally be made

until 28 days from the perfection of the order. The basic point is that while there is generally access

to the DAR on provision of a plausible reason once the case is over, it isn’t generally provided during

the hearing (because that lengthens the hearing due to the DAR becoming an additional agenda

item for discussion and analysis) or during the period for invoking appellate involvement (because

that results in an expansion of that process and a manufacture of points that might not otherwise

be made based on transcript-trawling). But once that period is over the DAR is generally available

if there is any reasonable basis to ask for it.

25. Parenthetically, the logic of avoiding transcript-trawling for appeals is also applicable to

avoiding such trawling for judicial review. In O'Neill v. Director of Public Prosecutions & Ors [2025]

IEHC 8 (Unreported, High Court, 13th January 2025), Simons J. disagreed with Judge McNulty who

had refused an application for the DAR for the purposes of judicial review on the basis that the

application was a fishing expedition. While I agree with the point made by Simons J. to the extent

that if a judicial review is actually instituted, the DAR should be provided if sought so that a record

is available for the court (para. 43), and while I recognise that there was a lot of context to that

case arising from other grounds in those proceedings which might have rendered Simons J. less than

usually sympathetic to the approach taken at the trial in the District Court on this particular point,

unfortunately I would respectfully disagree that a bona fide intention to bring such proceedings at

some point in the future is enough. The problem with demanding the DAR for a proposed judicial

review is that the DAR becomes a fertile source of new grounds, not just evidence of points that the

applicant was going to make anyway. Judge McNulty’s “fishing expedition” point is fundamentally

correct, and is just as valid in that context (provided that the DAR is furnished after the judicial

review is instituted) as in the context of postponing access to the DAR of the High Court until the

appellate window has closed, but providing it at that point.

26. Judge McNulty’s point comes squarely within the logic (albeit in a different procedural

context) of the point made by the Supreme Court in People v. C.P. [2024] IESC 26 (Unreported,

Supreme Court, 20th June 2024) per O’Malley J. (Dunne, Charleton, Woulfe and Murray JJ.

concurring) at para. 7:

“Thus, the standard rule is that transcripts are not provided until grounds of appeal have

been lodged. As will be seen, the rationale for this is the prevention of the practice of

‘transcript trawling’, whereby lawyers (typically practitioners who did not act in the trial),

have meticulously combed trial transcripts for potential grounds of appeal relating to matters

that were not were not argued in the trial. However, the Court has a discretion to make an

order for the transcript where it considers it to be appropriate.”

27. For clarity, this isn’t a case of uncertainty due to conflicting High Court judgments – the

position articulated in O’Neill is per incuriam because it does not take into account the logic of the

Supreme Court decision in C.P. So of course an appellant from the Circuit Court in a criminal matter

can get the DAR – after lodging grounds of appeal; of course an appellant from the High Court can

get the DAR – after lodging the appeal or after the time for appeal has expired; and of course a

would-be judicial review applicant can get the DAR of the District or Circuit Courts – but only after

lodging the judicial review or the expiry of the time to do so. The logic is the same. Prior to that it

is a fishing expedition as Judge McNulty quite correctly said.

28. Presumably in the present case the applicant will get the DAR in due course unless some

reason emerges to the contrary. In any event I am now giving reasons for the order previously

announced.

Statement of grounds

29. The statement of grounds provides as follows:

“Applicants Description; A Gentleman acting as a litigant in Person.

Relief Sought; Certiorari Quash The decision of Bord Pleanala and Meath County Council

reference number ABP 314881-22

Mandamus to compel the performance of a duty. To compel the applicant Kilsaran unlimited

to apply for Proper planning permission for of use of the unauthorised development.

To compel Meath County Council to provide planning records including ledgers microfiche

for the year 1980 and 1987.

To compel the applicant Kilsaran unlimited to provide all paperwork and documents relating

to its acquisition of the site from P& B Connolly Limited

Prohibition Prevent action being taken. To prevent any further works on the site

Injunction to compel the taking of action. To compel the applicant to reinstate works already

carried out particularly the removal of ground and changing of ground levels which has

adversely affected my property.

A stay on the on the planning permission

Grounds upon which relief is sought

I am acting as a litigant in person in This case. That I should be granted leave to seek a

judicial review of the decision of An Bord Pleanala case ref ABP31488 l-22 on the following

grounds

The decision is contrary to law. The parent permission upon which this decision has been

granted does not exist. The plant is has been [sic] operating without planning permission

and as such is an unauthorised development under planning law.

No benefit can be obtained from an unauthorised development for the operator of such

development under planning law. The planning reference number used relates to a planning

application that was withdrawn planning reference number 80572 simply does not exist as

a planning permission.

I say and believe that I visited the offices of Meath county council over twenty years ago to

verify the planning reference number 80572 given to Naul Community Council as the

planning permission for the Plant. After extensive searching I found a file reference that

stated there was an application that had been withdrawn.

I then searched the records for any permissions in Meath that mentioned Kilsaran in case

they had been miss labelled I found 13 permissions for Kilsaran none of which related to

Naul in anyway.

I then did an extensive geographic search through the planning files to find any reference

to a concrete or ready-mix plant. I found one application that was lodged by the same

applicant as the 80572. The application number was 871056 upon further inspection it was

noted further information was requested on that application and never provided therefore

deeming the application invalid.

This number was then used by the applicant to claim they had planning permission for

another application.

All of these points I have continually raised with Meath County council and public

representatives to no avail. This should have been investigated further by an Bord Pleanala.

I also say and believe that not all the files and documents relating to this application were

provided to an Bord Pleanala by Meath County Council as requested. There are no mentions

of the microfiche files or the planning ledgers which would clearly confirm there is no existing

permission.

There is also no mention of my correspondence with Meath County council in particular the

letter of March 23 2004 when I outlined the material change of use on the site the

intensification of use all of which would require planning permission.

I also say and believe that further investigation should have been carried out in relation to

the points made when I was Chairperson of the Community Council in relation to the non-

registering of a septic tank no rates being paid for the business damage being done to a

historic bridge and the overall effect on the community not to mention this is incremental

planning as the previous application refe no. AA191263 by Kilsaran for a quarry adjacent to

the site was refused as there was no base line information for the batching plant. This is at

odds with the current decision.

I would also like to make the following points

Part of the infrastructure intended to serve the proposed development is registered in Fingal

(falls outside of the Planning Authority's area of Meath County Council the issuing authority)

1. One of the two registered abstractions serving the Kilsaran site is actually registered in

Fingal (Dublin) as per a request to the EPA for a copy of the 'EPA Abstraction Register' on

29/09/2022.

This was registered following a complaint made about abstraction from the river in 2019

Subsequently, metering indicated that more than 25m3 a day was being abstracted and

Kilsaran bore a ground water well

I understand Kilsaran's agent states that the river abstraction is only used in emergency

situations when the '[yield] is low' from the groundwater well, however, there is an argument

to be made that it is intended to serve the proposed development and as it falls outside of

the planning authority's area (registered in Dublin) then Fingal County Council should have

been notified by Meath County Council and their input sought (there is a section under the

Planning and Dev Act which lists who notified bodies are and in what

instances they apply).

an investigation of a complaint of water flowing from the site forms part of the documents.

This is a record of a past occurrence at the site, which is important in the context of the

recent collapse of the Lime Kiln and the ABP's Inspector Report which states 'an embankment

prevents surface water from flowing from the site to the Delvin River' - The embankment

clearly does not resolve this situation and may have been constructed whilst the Appeal was

active.

The Facility is not connected to the Sewer Network

Within a 2022 FOI to Uisce Eireann, the body categorically states that the Kilsaran facility is

not connected to the sewer network.

• ‘A copy of correspondence regarding a Pre-Connection Enquiry (PCE) between

Kilsaran Concrete International (Naul Concrete Batching Plant) and Irish Water regarding

the connection of the Kilsaran industrial facility at Naul, Co. Meath to the Naul Agglomeration

sewer network (/Naul WWTP).

The FOI decision-maker in Irish Water's Connection & Developer Services (CDS) section has

advised that there is no record of a Pre-Connection Enquiry for the Kilsaran industrial facility

at Naul, Co. Meath to the Naul Agglomeration sewer network.

• Confirmation of the connection of the Kilsaran Batching Plant facility at Naul (located

on the Meath side of the river) to the sewer network (Naul Agglomeration) serving Naul

Village, including a date when the facility was connected or a request to connect the facility

to the Naul Agglomeration.

There is also no record of a Connection Application for the Kilsaran industrial facility at Naul,

Co. Meath to the Naul Agglomeration sewer network on Irish Water's CDS system. I have

checked with personnel in Irish Water's Asset Operations section and can confirm that this

facility is not connected to the sewer network.

The ABP Inspector report seems to accept the applicant's claims that they are however

connected to the sewer network (and abstraction from the Delvin is in emergency

situations):

(iv) Water

Under further information, the applicant confirmed that the welfare facilities that serve the

existing concrete batching plant are connected to the public water mains and foul sewerage

system. The applicant also confirmed that water for the concrete batching plant itself is

drawn from private wells with a daily maximum abstraction rate of 60 cubic metres. If the

pumps for these wells malfunction, then the applicant is registered with the EPA to abstract

water from the River Delvin on an emergency basis only. Given this basis of operation, no

significant effect on water levels in the River ensues.

The ownership of the land covered by the permission is not clear the applicant claims the

land is unregistered Planning permission does not give you ownership or the right to exercise

the permission without clear consent from the owner.

These are just some of the points that should have been thoroughly examined by an Bord

Pleanala before granting permission and I would ask this honourable court to grant me leave

to seek a judicial review of this decision as this has and has had a material impact of the

value of my home the quality of life of my self and my family and none of these factors have

been considered by an Bord Pleanala

I would also ask the court to issue an order for discovery for planning ledgers and all relevant

documents relating to the planning application 80572 which are in the custody of Meath

County council. I would also ask the court to allow me to expand on these points once those

documents have been secured.

I thank the court for its time.”

The law

30. As stated in Delany and McGrath on Civil Procedure, 5th Ed., 2023 (Chapter 17 –

Discontinuance, Section C. - Effect of Discontinuance or Withdrawal of Proceedings), the withdrawal

of proceedings brings them to an end:

“17-27 The discontinuance of proceedings has the effect of bringing the action, including

any pending applications or appeals, to an end. [Waliszewski v McArthur and Co. (Steel and

Metal) Ltd [2015] IECA 298; Bank of Ireland Mortgage Bank v Farrington [2018] IEHC 331;

Conybeare v Lewis (1880) 13 Ch D 469.] In Egan v Fenlon, [[2021] IEHC 75 at [45].] Allen

J observed that a plaintiff who serves a notice of discontinuance ‘rings a bell which cannot

be unrung’. However, it does not follow that the proceedings cease to be in existence for all

purposes and another party may still be entitled to apply for relief to which he is entitled.

So, in Gold Reefs of Western Australia Ltd v Dawson, [[1897] 1 Ch 115.] it was held that

the service of a notice of discontinuance after a company named as co-plaintiff had brought

a motion to strike their name out of the proceedings, on the basis that their name had been

used without their authority, did not deprive the court of jurisdiction to make such an order.

Similarly, in Newcomen v Coulsen, [(1878) 7 Ch D 764.] The discontinuance of the

proceedings by a plaintiff who had obtained an interim injunction did not deprive the

defendant of the damages to which he might be entitled on foot of the undertaking as to

damages given by the plaintiff.”

31. In the case of withdrawal of a leave application, the effect of that is that an applicant cannot

simply come back at a later stage to move the leave application. The proceedings would have to be

re-entered first, and the only basis to re-enter withdraw proceedings could be in truly exceptional

circumstances and then only when there was no undue prejudice to other parties. It’s hard to

imagine what such exceptional circumstances might be outside of matters such as procurement of

the withdrawal by duress, fraud or the like. But people can be creative in the situations they get

into so there’s no point trying to be too prescriptive, but it needs to be something of that order.

32. The tight eight-week limit for judicial review of planning decisions also reinforces all of this

significantly. The notion that an applicant can withdraw an application and then wander back into

court and re-apply for leave to challenge it is totally incompatible with the whole scheme of the 2000

Act.

33. Not an exact analogy, but Indaver Ireland v. An Bord Pleanála [2013] IEHC 11 (Unreported,

High Court, Kearns P., 21st January 2013) illustrates the point that an applicant can’t play fast and

loose with the court and the parties when it comes to withdrawing proceedings. There, the applicant

only withdrew the proceedings at a late stage, imposing costs on the defence:

“26. It is clear from the background facts at paragraphs 4 – 7 that the applicant did not act

promptly and instead it acted in such a way as to allow the legal costs on behalf of the Board

and CHASE to escalate almost as if the proceedings were going to run to a full hearing and

judgment. Indaver NV prolonged the case without intending to continue them and withdrew

the proceedings at the last moment. From the facts it can be ascertained that the applicant

had no bona fide belief in the case after a certain point in time which the Court finds to be

10th September, 2012. Its conduct of the proceedings thereafter can only be seen as an

abuse of the court process and the statutory exemption from liability for costs cannot be

availed of on the findings of fact which I have made.”

34. Finally, as adverted to above, the duty to exhaust remedies includes the obligation to

correctly observe the legal conditions for such remedies. In general, failure to validly avail of appeal

processes deprives one of standing to seek judicial review. For this purpose, an invalid botched

attempt to appeal doesn’t put an applicant in a superior position to someone who doesn’t even

attempt to appeal. Making an invalid appeal by failing to include proper paperwork constitutes a

failure to exhaust remedies such as to preclude recourse to judicial review. A person who makes an

invalid appeal isn’t legally in a better position than someone who doesn’t appeal at all, and neither

person has exhausted remedies such as to entitle them to apply for judicial review. Absent

exceptional circumstances, the requirement to exhaust remedies means to actually take the

necessary steps in that regard, not to lie idle or to fail to operate the remedy properly. Either of

those routes deprives the would-be applicant of the necessary standing. Again one might add an

exceptional circumstances caveat but it doesn’t have any relevance here.

Application of the law to the facts

35. The application for leave, which was the essential focus of the applicant’s submission, must

be refused.

36. By way of context, the applicant’s understanding of the process was somewhat incomplete

as he himself acknowledged. In particular, he regarded the application as one for “leave to appeal”

from the board as referred to in his email of 6th January 2025. But judicial review is not an appeal.

37. Insofar as this is to be interpreted as meaning that he was challenging the invalidation of

his appeal to the board, no basis for this is set out in the pleaded grounds.

38. The applicant also produced a notice of motion (seeking leave for substantive reliefs) and

another affidavit but neither of these documents appear to have been filed and in any event they

don’t progress the relevant issue any further. The relevant issue is not the merits but the status of

the proceedings post-withdrawal. The proposed notice of motion doesn’t seek to re-enter the matter

but baldly simply seeks leave. That reflects the application actually moved orally and thus reflects

the order set out at the end of this judgment. The applicant appears to have served these unfiled

documents on the opposing parties rather than serving the original statement of grounds and

affidavit in my request to make his application on notice.

39. At one point in oral submissions he also seemed to be of the view that he was free to arrange

for further grounds to be introduced at some undefined later point, but that isn’t the way it works.

40. The first problem for the applicant is that the proceedings are over, having been

withdrawn, so leave can’t be sought unless the proceedings are re-entered, which they haven’t been.

Indeed the primary focus of the applicant’s submissions was even to formally apply for reinstatement

still less to acknowledge the need for that or to make a detailed case in that regard, but simply to

argue the case for the grant of leave (for example – by reading out the statement of grounds in a

manner that appeared to be fairly verbatim). However, there is no jurisdiction to grant leave unless

the withdrawal is somehow set aside.

41. The second problem is that there is in any event no basis to reinstate the proceedings.

The fact that the applicant had medical appointments in May 2024 may explain why he withdrew

them but that isn’t a basis to re-enter the proceedings. The applicant says he is now well and this

is a “material change of circumstances”. While obviously that is good to hear, it isn’t the sort of

development that comes anywhere remotely near allowing a case to be reinstated (out of time) that

has been previously withdrawn.

42. The applicant also says the developer has made a further planning application. That in itself

doesn’t provide a basis to reinstate a withdrawn case. The fact that the new application was based

on the planning history including the impugned permission doesn’t change that. A process moves

on if an unchallenged or unsuccessfully challenged decision is made. That’s the nature of any

ordered system.

43. There is also the obvious massive prejudice to the notice party which precludes the notion

that the proceedings could be allowed to spring back to life almost a year on in respect of a

permission which was ostensibly granted, not successfully challenged within time, and actually acted

upon.

44. A final problem that looms over the whole thing is that the applicant failed to exhaust

remedies by not organising himself to make a valid appeal to the board in the first place. So even

if the matter could be reinstated, leave should be refused. That however is obiter because we don’t

actually get to that point.

Summary

45. In outline summary, without taking from the more specific terms of this judgment:

(i) With limited exceptions of which a leave order is not one, an order cannot be made

in withdrawn proceedings unless the proceedings are reinstated.

(ii) Reinstatement of voluntarily withdrawn proceedings is truly exceptional and no such

exceptional circumstances arise here.

(iii) Prejudice to third parties is also a significant factor and precludes reinstatement here

even if that counterfactually was otherwise appropriate.

(iv) In any event, the duty to exhaust remedies includes the obligation to correctly

observe the legal conditions for such remedies. Making an invalid appeal by failing

to include proper paperwork constitutes a failure to exhaust remedies, legally

equivalent to not appealing at all, such as to preclude recourse to judicial review of

the board’s decision here in any event.

Order

46. For the foregoing reasons, the order made on 13th January 2025 was that the application

for leave to seek judicial review be dismissed with no order as to costs.