High Court dismisses application to set aside leave due to failure to meet statutory judicial review time limits.

APPROVED [2025] IEHC 386

THE HIGH COURT

JUDICIAL REVIEW

2024 1185 JR

BETWEEN

TELSTAR INVESTMENTS LTD

APPLICANT

AND

DUBLIN CITY COUNCIL

RESPONDENT

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 July 2025

INTRODUCTION

1. This judgment is delivered in respect of an application to set aside the grant of leave in judicial review proceedings. The set aside application is advanced on the basis that the proceedings should have been pursued by way of statutory judicial review under the Planning and Development Act 2000, rather than by way of conventional judicial review under Order 84 RSC. It is said that this supposed procedural misstep is significant in circumstances where the time- NO REDACTION REQUIRED limit, and the legal threshold for the grant of an extension of time, are both stricter in the case of statutory judicial review.

2. For ease of exposition, the shorthand “statutory judicial review” will be used throughout this judgment to distinguish the special procedure prescribed under sections 50 and 50A of the Planning and Development Act 2000 from the conventional judicial review procedure under Order 84 RSC. Strictly speaking, the special procedure is a hybrid procedure: proceedings are subject to the provisions of Order 84 as modified by the PDA 2000. The shorthand used in this judgment should not be misunderstood as implying that the special procedure is exclusively statutory in nature.

COMPULSORY PURCHASE PROCEDURE

3. To assist the reader in understanding the discussion which follows, it is necessary to describe briefly the procedure prescribed for the compulsory acquisition of land under the Derelict Sites Act 1990. The first step in the procedure requires the local authority to give notice of its intention to acquire the particular derelict site compulsorily. Two forms of notice are prescribed: (i) public notice by way of publication in one or more newspapers circulating in the local authority’s functional area, and (ii) individual notice by way of the service of a written notice on every owner, lessee and occupier of the land (except tenants for a month or a period less than a month).

4. The next procedural step depends on whether or not an “objection” to the proposed compulsory acquisition is submitted. If no objection is submitted, then the local authority may itself confirm the proposed compulsory acquisition by making a vesting order. If, conversely, an objection is submitted, then the proposed compulsory acquisition may only be confirmed by An Bord Pleanála. Put otherwise, the making of an objection triggers a requirement for the local authority to apply to An Bord Pleanála for consent pursuant to section 16 of the Derelict Sites Act 1990. This ensures that, in the case of objection, the decision on whether or not to confirm the compulsory acquisition is made by a decisionmaker independent of the acquiring authority. (The confirming authority had, originally, been the Minister for the Environment, but this function has since been transferred to An Bord Pleanála by virtue of section 214 of the Planning and Development Act 2000).

5. The right to submit an objection is created under section 16(1) of the Derelict Sites Act 1990 as follows:

“Any of the persons upon whom notices of the proposed

compulsory acquisition of a derelict site have been served

may, within the time and in the manner specified in the

notices, submit to the local authority an objection to the

proposed compulsory acquisition referred to in the notice.”

6. As appears, the class of person entitled to object is defined by reference to service rather than ownership or occupation. The sense of the legislation seems to be that the only persons entitled to object are those identified in the preceding section, i.e. every owner, lessee and occupier of the land (except tenants for a month or a period less than a month).

7. The final step of the procedure prescribed under the Derelict Sites Act 1990 is the making of a vesting order. Section 18 provides that a vesting order shall operate to vest the derelict site to which it relates in the local authority in fee simple, free from encumbrances and all estates, rights, titles and interests of whatsoever kind, on the vesting date. The vesting date cannot be earlier than twenty-one days after the making of the order.

8. The statutory intent of staying the effect of a vesting order for a period of at least twenty-one days is not entirely clear. The length of time coincides with the timelimit previously prescribed for legal challenges to compulsory acquisitions under Section 78 of the Housing Act 1966. This ensured that a vesting order under that legislation would not become effective until after the time-limit for legal challenge had expired. The twenty-one day time-limit under the Derelict Sites Act 1990 does not achieve a similar purpose. It mirrors neither the three month time-limit under Order 84 nor the eight week time-limit under the PDA 2000.

PROCEDURAL HISTORY

9. These proceedings have their genesis in the compulsory acquisition of two structures at Parnell Street, Dublin (“the lands” or “the property”). The lands had been in the ownership of the applicant for judicial review, Telstar Investments Ltd (“the Applicant”). The compulsory acquisition has been carried out pursuant to the Derelict Sites Act 1990.

10. It is common case that the Applicant had been properly served with notice of the Local Authority’s intention to acquire the lands compulsorily. Crucially, the Applicant did not file an objection pursuant to section 16 of the Derelict Sites Act 1990. In the absence of an objection, the Local Authority was enabled to effect the compulsory purchase without the necessity of approval from An Bord Pleanála.

11. There is some suggestion in the affidavits filed on behalf of the Applicant that the receipt of an architectural impact assessment report in March 2024 should have been treated by the Local Authority as entailing an implicit objection to the then proposed compulsory acquisition. With respect, there is no merit to such a suggestion. The notice of intention and the covering letter clearly explained the procedure by which the proposed compulsory acquisition could be objected to. The person to which any objection was to be addressed was expressly identified. There is nothing in the content of the architectural impact assessment report which comes close to a formal objection. Moreover, if the Applicant’s directors had genuinely believed that the company had made a formal objection to the proposed compulsory acquisition, one would have expected that the Applicant would have subsequently queried why the matter had not been referred to An Bord Pleanála.

12. The vesting order was executed on 11 April 2024. The vesting date was to be

10 May 2024. Notice of the making of the vesting order was given on 24 April 2024. It is apparent from the affidavits that the Applicant’s architect became aware of the making of the vesting order the following day.

13. The solicitor acting on behalf of the Applicant wrote to the Local Authority on

3 May 2024 to complain that steps had been taken to give effect to the compulsory acquisition by way of the making of a vesting order. The Local Authority made a substantive response to this correspondence, through the office of the law agent, on 9 May 2024. The letter, in relevant part, reads as follows:

“[…] the relevant statutory notice under Section 15 of the

1990 Act was served on your client on 16th February 2024

(copy enclosed), so your client would have been on notice

that the local authority was taking the appropriate steps in

accordance with its statutory functions. A notice was also

published in the Irish Independent on 16th February 2024.

As no objection was received from your client, on or before

the 22nd of March 2024, which is provided for under

Section 16 of the 1990 Act, the Council then proceeded to

vest the property in accordance with Section 17 of the 1990

Act.

You should note that the Council’s function in relation to

dangerous buildings is a separate statutory function which

obliges the local authority to take steps if a structure ‘is or is likely to be dangerous to any person or property’. The Council’s function in relation [to] Building at Risk is also a separate statutory function.

While it is noted that your client’s architect has been in

contact with the Council’s Conservation Section, that

engagement does not constitute a response to the statutory

notices served on your client under the Derelict Sites

legislation.

As all notices were lawfully served under the provisions of

the 1990 Act, and no objections were received from your

client, the property will vest in the Council in accordance

with its statutory functions.”

14. The Applicant has since sought to characterise the law agent’s letter of 9 May 2024 as a “decision” to refuse to repeal the vesting order. The principal relief sought in these proceedings is an order of certiorari quashing this supposed “decision”. Time began running for the purpose of obtaining such relief from the date upon which the letter had been received by email, i.e. 9 May 2024. It will be necessary to consider, in due course, the events which occurred subsequent to 9 May 2024 as part of the court’s assessment of whether to extend time. Rather than duplicate that exercise here, however, it is proposed to jump ahead slightly in the chronology to the date of the institution of these proceedings. I will return to the intervening events at paragraphs 53 to 70 below.

15. The Applicant filed a statement of grounds and verifying affidavits on

24 September 2024 in the Central Office of the High Court. Counsel on behalf of the Applicant moved an ex parte application for leave to apply for judicial review the following day (25 September 2024). The leave application was advanced on the assumption that the proceedings were subject to the three month time-limit governing conventional judicial review under Order 84 RSC. Even on this assumption, it had been necessary for the Applicant to seek an extension of time in circumstances where the proceedings sought to set aside a “decision” made more than three months earlier.

16. The order granting leave to apply for judicial review formally records an extension of time. This is subject to a proviso that same is “without prejudice” to any issues, including issues in relation to time-limits, which the respondent might wish to raise at the substantive hearing. Put otherwise, the leave judge had granted an extension of time de bene esse while expressly preserving the entitlement of the respondent to re-agitate the issue at the substantive hearing.

17. On 23 October 2024, the Local Authority’s law agent wrote to complain that leave to apply for judicial review had been obtained under an incorrect basis. Following an exchange of correspondence between the parties, the Local Authority issued a motion seeking to set aside the grant of leave. The Applicant filed a counter motion which seeks, in effect, to obtain leave and an extension of time pursuant to the statutory judicial review procedure. This motion was filed without prejudice to the Applicant’s contention that most of the reliefs sought are properly available by way of conventional judicial review.

KEY DATES IN CHRONOLOGY

16 February 2024 Notice of intention to acquire the lands

22 March 2024 Deadline for submitting an objection

11 April 2024 Vesting order executed

24 April 2024 Notice of making of vesting order

25 April 2024 Applicant’s architect became aware of vesting order

3 May 2024 Applicant’s solicitor’s letter

9 May 2024 Local Authority’s letter: “property will vest”

10 May 2024 Vesting Date

21 June 2024 Applicant’s pre-planning submission

3 July 2024 LA’s letter: pre-planning cannot be facilitated

3 July 2024 Eight week time-limit expires

24 July 2024 Local Authority officials seek possession

2 August 2024 Local Authority issues demand for possession

24 September 2024 Judicial review papers filed in Central Office

25 September 2024 Ex parte application for leave (Order 84)

21 November 2024 Local Authority files motion to set aside leave

13 December 2024 Applicant files motion seeking leave under PDA 2000

26 June 2025 Hearing of both motions

DISCUSSION AND DECISION

OVERVIEW

18. It is proposed to address the issues arising on the two motions in the following sequence. First, the nature of the jurisdiction to set aside the grant of leave will be considered. Secondly, the question of whether these proceedings are subject to statutory judicial review or conventional judicial review will be addressed. Thirdly, the question of whether an extension of time should be granted will be addressed. Of course, the resolution of this third issue will depend, to a significant extent, on the outcome of the second issue. This is because the timelimit, and the threshold for an extension of time, are stricter in relation to statutory judicial review.

JURISDICTION TO SET ASIDE THE GRANT OF LEAVE

19. It is well established that the High Court has an inherent power to set aside any order which has been obtained on an ex parte basis. This principle has recently been reaffirmed by the Supreme Court in M.D. v. Board of a Secondary School [2024] IESC 11. Collins J. summarised the position as follows: where an order is made ex parte that immediately and materially affects another party, the affected party is entitled to apply to have the order set aside. Whether the party seeking to set aside bears the onus will depend on the nature and effect of the ex parte order. In the case of an interim injunction, for example, the party that obtained the ex parte order must satisfy the court that the order should continue in force by showing that, if the court was being asked to make that order for the first time, it would be appropriate to do so.

20. Save in certain contexts, an application for leave to apply for judicial review is generally heard ex parte. In principle, therefore, it is open to a respondent, having been served with papers, to file a motion seeking to set aside leave if they consider it has been granted improperly. Where a party seeks to set aside leave, they bear the onus of showing that leave should not have been granted. See, generally, Adam v. Minister for Justice [2001] IESC 38, [2001] 3 IR 53 and Gordon v. Director of Public Prosecutions [2002] IESC 47, [2002] 2 IR 369.

21. In Sweetman v. An Bord Pleanála [2017] IEHC 46, the High Court (Haughton J.) described the onus on a respondent, who seeks to set aside leave in a planning case on the grounds of delay, as follows:

“Accordingly I have come to the conclusion that a court may

set aside an order granting leave to seek judicial review in a

planning case where time was extended where the delay of

itself is significant or egregious, and particularly where the

delay has led to actual prejudice. However, the court accepts

the overarching principle that an order to set aside should not

be made unless the leave was one which plainly should not

have been granted. The court also accepts that this is a

jurisdiction that should be exercised sparingly for the reason

advanced by McGuinness J. in Adam.”

22. The case law indicates that the set aside jurisdiction should be exercised sparingly. There is both a principled and pragmatic reason for this.

23. As to principle, the threshold governing an application for leave to apply for judicial review is a modest one, either an arguable case (conventional judicial review) or substantial grounds (statutory judicial review). The fact that leave has been granted merely signifies that this threshold has been met. The assessment of the leave threshold is somewhat subjective: the leave judge is not making a final determination of a legal issue but taking a preliminary view of the merits. Accordingly, it will often be difficult for a respondent to demonstrate that the leave judge erred in law in deciding that the threshold had been met.

24. As to pragmatism, the pursuit of an application to set aside leave would, if commonly adopted, result in systemic delay. It would eventuate in there being, in effect, three hearings in relation to any judicial review proceedings: the ex parte leave application, the contested set aside application, and the substantive hearing. It is usually more expeditious to cut to the chase and to have the proceedings determined on their merits, at the substantive hearing, rather than to reagitate the question of whether the leave threshold has been met at an interlocutory hearing.

25. It follows, therefore, that parties will not ordinarily bring an application to set aside merely because it is said that the leave threshold of arguable grounds or substantial grounds, respectively, has not been met. Crucially, however, the complaint made in the present case is qualitatively different. Here, it is said that the judicial review proceedings have been pursued in breach of the statutory requirement to adopt a particular form of procedure. This complaint goes to the very heart of the judicial review proceedings. In effect, it is said that the judicial review proceedings are misconceived and/or irregular. This is not a case, therefore, where another judge is being asked to second-guess the decision of the leave judge. Rather, it is said that in circumstances where the decision to grant leave had been made by reference to the incorrect criteria, the grant of leave should be set aside.

26. The circumstances of the present case are analogous to those of Goonery v. Environmental Protection Agency [1999] IEHC 15 (Unreported, High Court, Kelly J., 15 July 1999). There, leave was set aside in circumstances where it had been obtained in breach of the version of the statutory judicial review procedure then in force. Leave had been obtained ex parte notwithstanding that, under the statutory procedure then in force, a leave application had to be made on notice to the other parties.

27. In summary, this is not an application to set aside leave on the basis that the leave threshold has not been met. Rather, the complaint is more fundamental and alleges that leave has been granted by reference to the incorrect procedure. The requirements to be met on a leave application are more onerous under the statutory judicial review procedure. In particular, the threshold is that of “substantial grounds” and the time-limit is eight weeks rather than three months.

28. For the reasons explained under the next heading, these proceedings are caught by the statutory judicial review procedure. The failure to observe that procedure represents a significant irregularity. It is certainly significant enough to justify the setting aside of the grant of leave. This will allow for a fresh decision to be made, by reference to the proper statutory criteria, on whether to grant or refuse leave.

STATUTORY OR CONVENTIONAL JUDICIAL REVIEW

29. The type of proceedings which are subject to the statutory judicial review procedure under the Planning and Development Act 2000 are prescribed under section 50(2). That section, in relevant part, reads as follows:

“A person shall not question the validity of any decision

made or other act done by—

[…]

(c) a local authority in the performance or purported

performance of a function conferred by an enactment

specified in section 214 relating to the compulsory

acquisition of land

[…]

otherwise than by way of an application for judicial review

under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (the ‘Order’).”

30. The judicial review procedure applies in modified form. In particular, subsections 50(6) and (7) of the PDA 2000 prescribe an eight week time-limit.

31. The Derelict Sites Act 1990 is one of the specified enactments under section 214 of the PDA 2000.

32. The principal relief sought in these proceedings is an order of certiorari setting aside what is characterised as a “decision” by the Local Authority not to repeal the vesting order.

33. A vesting order is the legal mechanism by which a local authority achieves ownership of lands subject to compulsory acquisition. If and insofar as a local authority may enjoy a power to repeal a vesting order, a decision on whether or not to repeal is, by definition, a decision “relating to” the compulsory acquisition of land. It would also appear to be a decision which is properly characterised as a “decision” made by a local authority in the performance or purported performance of a function conferred by the Derelict Sites Act 1990.

34. The Applicant disagrees with this analysis. Counsel on its behalf argues that the power to repeal a vesting order arises in consequence of the interplay between section 17 of the Derelict Sites Act 1990 and section 22 of the Interpretation Act 2005. The next step in the argument is to say that the power to repeal is one which arises under the Interpretation Act 2005 and that this takes the proceedings outside the statutory judicial review procedure. Counsel for the Applicant accepts, very properly, that the height of his side’s case is that the asserted power to repeal derives, in part at least, from both Acts.

35. To assess the correctness of this argument, it is necessary to consider the precise wording of section 22(3) of the Interpretation Act 2005:

“A power conferred by an enactment to make a statutory

instrument shall be read as including a power, exercisable in

the like manner and subject to the like consent and conditions

(if any), to repeal or amend a statutory instrument made

under that power and (where required) to make another

statutory instrument in place of the one so repealed.”

36. The term “statutory instrument” is defined as meaning, inter alia, an order made, issued, granted or otherwise created by or under an Act. The Court of Appeal, in Habte v. Minister for Justice [2020] IECA 22, [2021] 3 IR 627, observed that the “unorthodox definition” of “statutory instrument” should not be extended any further than its language requires.

37. As an aside, it should be recorded that the Local Authority contends that this section of the Interpretation Act 2005 does not apply as it would be inconsistent with the provisions of section 183 of the Local Government Act 2001 in relation to the disposal of land. It is not necessary for the purpose of resolving the set aside application for this court to reach a concluded view on whether a vesting order is capable of being repealed. Rather, this judgment has been prepared on the working assumption that such a power exists. The crucial question for the purpose of the set aside application is whether this (assumed) power to repeal is conferred by the Derelict Sites Act 1990 or by the Interpretation Act 2005.

38. The answer to this question is self-evident. The language of section 22(3) of the Interpretation Act 2005 indicates that a power to repeal is included in the power “conferred by an enactment” to make a statutory instrument. It is not a freestanding power conferred by the Interpretation Act 2005. Rather, it is a power which is to be “read” into the particular enactment which confers the power to make the relevant statutory instrument. It follows, therefore, that if and insofar as a local authority might enjoy a power to repeal a vesting order, the source of that power is the Derelict Sites Act 1990.

39. Indeed, as much is recognised by the Applicant in its statement of grounds (at paragraph E 30):

“Therefore, the power under Section 17 of the 1990 Act to

make a Vesting Order includes by reason of section 22(3) of

the 2005 the power to repeal (or amend) a Vesting Order.”

*Emphasis in the original

40. This plea recognises—correctly—that the contended-for power to repeal is included as part of the power conferred by the Derelict Sites Act 1990.

41. Returning to the wording of section 50(2) of the PDA 2000, it speaks of a function “conferred by an enactment”. This mirrors the wording employed in section 22(3) of the Interpretation Act 2005. In each instance, the “enactment” which confers the power to make and repeal a vesting order is the Derelict Sites Act 1990. It follows that the validity of a decision not to repeal a vesting order may only be questioned by way of judicial review in accordance with the special procedure prescribed under sections 50 and 50A of the PDA 2000.

42. Even if, contrary to the foregoing, this court is incorrect in holding that the power is conferred exclusively by the Derelict Sites Act 1990, this would not avail the Applicant. Even on the most strained interpretation of the legislation, the best that might ever be said is that a power to repeal is conferred by both enactments. Having regard to the wording of section 50(2) of the PDA 2000, this would still be sufficient to bring a legal challenge within the scope of the statutory judicial review procedure: the “decision” being questioned is one which has been made in the performance or purported performance of a function conferred by the Derelict Sites Act 1990. A function or power which has been conferred by the combined operation of two pieces of legislation is still a function or power which can be described as having been conferred by each of the two enactments. This is enough to trigger section 50(2) of the PDA 2000. For the avoidance of any doubt, the principal finding of this court remains that any power to repeal is exclusively conferred by the Derelict Sites Act 1990 and the alternative interpretation in this paragraph is a fallback only.

43. For completeness, it should be recorded that the Applicant sought to make much of the fact that the Local Authority has denied that it enjoys a power/function to repeal a vesting order. Whereas this is an issue which might have had to be resolved had the proceedings gone to full hearing, it is difficult to understand its relevance to the instant application to set aside leave. The centrepiece of the Applicant’s case is that the Local Authority is empowered to repeal a vesting order and that its failure to do so in the circumstances of this case was unlawful.

If there is no such power, then the Applicant’s entire case must fail. This court has been prepared to assume, in ease of the Applicant, that a power to repeal exists. The only question for determination in the application to set aside leave is whether a supposed “decision” not to repeal a vesting order is one which is subject to the statutory judicial review procedure. The fact that the Local Authority disavows any such power/function is irrelevant for the purpose of the identification of the proper form of judicial review to be adopted.

44. In summary, the nature of the relief sought in these proceedings is such that same should have been brought by way of statutory judicial review. Crucially, the governing time-limit would have been eight weeks and not three months as the leave judge had mistakenly been told.

CONSEQUENCES OF PROCEDURAL MISSTEP

45. It is necessary next to consider what are the consequences of this procedural misstep. The minimum correction required is to set aside the grant of leave. This is because leave had been granted on the mistaken understanding that the proceedings were conventional judicial review proceedings subject to Order 84 RSC. The leave judge had been requested to grant leave by reference to the incorrect threshold and the incorrect time-limit.

46. It cannot simply be assumed that the outcome of the application would have been the same had the leave judge been apprised of the proper procedure. In particular, the leave judge’s assessment of whether there were grounds for extending time would likely have been different had he known that the timelimit is eight weeks. One of the factors to be considered in deciding whether to extend time is the length of delay relative to the prescribed time-limit. A delay which is a multiple of the time-limit will be more difficult to justify than one which is merely a fraction of same. Here, the proceedings were out-of-time by a period of some eighty-three days in the context of an eight week time-limit. By contrast, the leave judge seems to have assessed a delay of forty-seven days in the context of a three month time-limit.

47. The more difficult question is whether the Applicant should be permitted to retain the benefit of the date of the institution of the proceedings. It will be recalled that the proceedings were instituted on 24 September 2024. If the delay is calculated to that date, then the proceedings are out-of-time by some 83 days. If, alternatively, time continued to run until the Applicant filed its motion on

13 December 2024 seeking leave pursuant to the statutory judicial review procedure, then the delay is 163 days.

48. Order 84 (as amended by the Rules of the Superior Courts (Order 84) 2024) indicates that an application for leave to apply for judicial review will be regarded as having been “made” when the relevant paperwork has been filed in the Central Office of the High Court. Here, the original statement of grounds is deficient in that it seeks an extension of time pursuant to the procedural rules governing conventional judicial review rather than statutory judicial review. Strictly speaking, this defect may only be remedied by the filing of an amended statement of grounds. For the purpose of the present proceedings, however, this court is prepared to assume—without conclusively deciding the point—that time stopped running against the Applicant once it filed its notice of motion seeking leave pursuant to the statutory judicial review procedure. Even on this generous interpretation, the Applicant has failed to establish grounds for an extension of time for the reasons explained under the next heading below.

APPLICATION FOR EXTENSION OF TIME

49. For the purposes of the statutory judicial review procedure, the criteria for an extension of time are prescribed as follows under section 50(8) of the PDA 2000:

“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.”

50. The criteria differ from those governing conventional judicial review. Order 84, rule 21 includes an alternative ground, namely, that the circumstances resulting in the delay “could not reasonably have been anticipated by” an applicant.

51. The threshold under section 50(8) of the PDA 2000 has been described as follows by the Court of Appeal (per Donnelly J.) in Heaney v. An Bord Pleanála [2022] IECA 123 (at paragraphs 94 to 95):

“The extension of time provisions require compliance by an

intending applicant who seeks to make an application for

judicial review out of time of a two-limbed test. There must

be good and sufficient reason for the extension, and the

circumstances that resulted in the failure to make the

application for leave within the period so provided must be

outside the control of the applicant. The onus is on an

applicant to demonstrate that their case comes within those

criteria.

In assessing good and sufficient reason, the Court is entitled

to take a holistic view of all the relevant circumstances,

which includes blame on the part of the applicant and that of

the authorities, as well as the reasons for the delay. An

applicant must engage with the reasons why the application

was not made in the time allowed as well as any delay after

the time limit expired. […]”

52. It is necessary to consider both the explanation for the failure to comply with the initial eight week time-limit and the explanation for any continuing delay thereafter up to the date of the “making” of the leave application.

53. It is proposed to consider, first, the reasons offered for the initial period of delay, i.e. the failure to move within eight weeks of the date of the receipt of the impugned decision (9 May 2024). The broad thrust of the submission made on behalf of the Applicant is that the conduct of certain officials of the Local Authority was such that it gave rise to a reasonable inference that the vesting order was not being actively pursued. Reference is made to what is described as “ongoing engagement” with, and “mixed signals” from, the officials of the Local Authority. It is also contended that the Applicant had an “objectively reasonable” belief that the matter could be resolved without litigation.

54. With respect, these contentions are simply not borne out by the documentary evidence. The Local Authority had, through its law agent, made its position perfectly clear in the letter of 9 May 2024 (cited at paragraph 13 above). No official of the Local Authority did anything within the currency of the eight week time-limit which is capable of supporting a reasonable inference that the vesting order was not being actively pursued. The specific examples relied upon by the Applicant are addressed in turn below.

55. It is asserted on behalf of the Applicant that an (unnamed) official informed an (unnamed) representative of the Applicant orally on 24 May 2024 that the conservation officer would review a submission from a “pre-planning application perspective”. There is no written record of this supposed conversation. Thereafter, on 21 June 2024, the Applicant’s architect made what is described on affidavit as a “pre-planning submission” requesting feedback on the proposed restoration of the Parnell Street properties. Tellingly, the email thread indicates that the submission was sent by reference to an email of 25 April 2024 from a named official within the Local Authority. This email predates the exchange of correspondence between the parties’ respective solicitors in May 2024. If and insofar as the Applicant may have omitted to keep its architect informed of this correspondence, same cannot be laid at the door of the Local Authority. Certainly, it cannot be said that the earlier email can be read as a retreat from the position clearly articulated in the subsequent letter of 9 May 2024.

56. Crucially, the Local Authority wrote to the Applicant’s architect in the following terms on 3 July 2024:

“Please note that we (sic) a preplanning meeting in respect

of the above cannot be facilitated at this time as Nos. 77

and 78 Parnell Street were vested in the City Council on

10th May 2024 and as such ownership of both properties rests

with the Council.”

57. Again, the Local Authority’s position on the ownership of the properties could not have been clearer. This was the last day of the eight week time-limit.

58. On 24 July 2024, officials of the Local Authority attended at the properties in an attempt to take physical possession of same. As of this date, the eight week timelimit for judicial review had already expired.

59. There is nothing in this chronology which supports a reasonable inference that the Local Authority intended to withdraw or abandon the vesting order. The letter of 9 May 2024 had expressly stated that the property would vest in the council in accordance with its statutory functions. The Local Authority’s position could not be clearer. The fact, if fact it be, that some unidentified official may have indicated that he or she would arrange for a review a pre-planning submission cannot sensibly be characterised as acquiescence on the part of the Local Authority. Moreover, the Local Authority wrote on 3 July 2024 and indicated that a pre-planning meeting could not be facilitated because ownership of the property rested with the Local Authority. If and insofar as any representative of the Applicant might previously have had any doubts as to the Local Authority’s intentions—and there was no reasonable basis for any doubt— such doubts should have been dispelled by this clear assertion of ownership. Tellingly, the Applicant did not move for judicial review within eight weeks of

3 July 2024.

60. The Court of Appeal, in Arthropharm (Europe) Ltd v. HPRA [2022] IECA 109, has explained that judicial review of decisions in the “commercial sphere” are of a kind in which the courts should usually incline to strict enforcement of the applicable time-limits and should scrutinise with particular care explanations advanced for the failure to comply with those requirements. Part of the reason for this is as follows (paragraph 102): “[…] it will also usually be the case that the considerations that may cause the courts to sympathetically incline to extend time for some categories of litigant (at least for short periods) – ignorance of legal entitlement, inability to access appropriate professional advice, a reluctance to embark upon litigation because of the exposure to legal costs it may entail, particular circumstances of personal vulnerability that rendered proceeding to court difficult and the absence of any countervailing third party interests impacted by enabling a delayed assertion of their legal rights – will not apply in such cases. It is to be expected that those who seek to challenge decisions of the kind in issue in this case will be well resourced, will have legal advice at their disposal, will be robust in their acceptance of the consequences of the risk attending any legal action and will be in a position to organise their affairs so that litigation can be rapidly brought and pursued. […]”

61. Considerations of this type pertain to the present proceedings. The Applicant is a commercial entity and seeks to reverse the compulsory acquisition precisely because it wishes to make commercial use of the properties. As is apparent from the exchange of correspondence with the Local Authority, the Applicant had the benefit of legal advice from its solicitors even prior to the commencement of the eight week period. The letter of 9 May 2024 is self-explanatory and clearly set out the Local Authority’s intention to vest the properties. Even if there had been any doubt, the Applicant’s solicitors would have been able to explain the meaning and effect of the letter to the directors.

62. In summary, there is no proper justification for the failure to move within the eight week period. Neither the “good and sufficient reason” nor the “circumstances outside the control of” criterion has been met. The Applicant, a commercial entity, had been on express notice of the position of the Local Authority since 9 May 2024. There is nothing in the conduct of the Local Authority during the currency of the time-limit which is capable of supporting a reasonable inference that the Local Authority intended to withdraw or abandon the vesting order.

63. Having regard to the findings above, it is not necessary, strictly speaking, to consider the continuing delay between the expiration of the eight week period (3 July 2024) and the filing of the motion seeking leave pursuant to the statutory procedure (13 December 2024). For completeness, however, the continuing delay is addressed below.

64. There was an incident on 24 July 2024 where officials of the Local Authority attended, briefly, at the property for the purpose of taking possession of same. The officials withdrew a short time later.

65. The Local Authority wrote to the Applicant’s solicitor on 2 August 2024 as follows:

“As previously advised, title to the above properties has now

vested in the Council in accordance with the provisions of

the Derelict Sites Act, 1990.

A recent inspection of the above properties by the Council

indicated that the properties are still in use by your clients for kitchen and storage purposes. A pool room (no. 78) and the courtyard at the rears of nos. 77 & 78 are used by the adjoining rock music venue. An inspection of the upper floors of both buildings indicated that they were in bad condition and in a state of disrepair.

I have been instructed by my client to seek possession of the

premises.

Please advise your client to remove all of its goods from the

Council’s premises before 5 pm on Thursday, 26th September

2024. If your client fails to vacate the premises before that

date the Counsel will have no option but to take possession

of both properties without further notice.”

66. The Local Authority wrote again in broadly similar terms on 17 September 2024.

67. The leave application was moved ex parte on 25 September 2024.

68. The Applicant was first notified on 23 October 2024 that the Local Authority was contesting the basis upon which leave had been obtained. A further period of some seven weeks lapsed before the Applicant issued its motion seeking leave on the correct basis.

69. Having regard to this chronology, there is no good and sufficient reason for the ongoing delay from the date of the expiration of the eight week time-limit. It would have been apparent to the Applicant’s side that the Local Authority were continuing to assert ownership of the properties, pursuant to the vesting order, and were seeking to take physical possession of same. It should have been obvious to the Applicant that the matter was urgent and steps should have been taken to institute proceedings expeditiously. No proper explanation has been provided for this additional period of delay. The overall delay is a multiple of the eight week time-limit.

70. Once notified that the Local Authority was contesting the basis upon which leave had been obtained, the Applicant should have moved promptly if it wished to attempt to correct matters. Instead, the Applicant sought to contest the Local Authority’s contention that the proceedings were subject to statutory judicial review. The delay incurred in this regard was unreasonable. Whereas the Applicant’s side appear to have overlooked, in September 2024, the requirement that any legal challenge be by way of statutory judicial review, once this procedural error was brought to their attention it should have been obvious to them that leave had been obtained on the incorrect basis.

CONCLUSION AND PROPOSED FORM OF ORDER

71. The gravamen of the Applicant’s case is that a local authority has a power to repeal a vesting order made pursuant to the Derelict Sites Act 1990. The Applicant has sought to characterise the law agent’s letter of 9 May 2024 as a “decision” to refuse to repeal the vesting order. By formulating its case as a claim for an order of certiorari quashing this “decision”, the Applicant located the legal challenge squarely within the scope of the statutory judicial review procedure under the Planning and Development Act 2000. (Paragraphs 29 to 44).

72. Leave to apply for judicial review was obtained, mistakenly, by reference to the criteria pertaining to non-statutory or conventional judicial review. For the reasons explained at paragraphs 19 to 28 and at paragraphs 45 to 48, leave must be set aside.

73. The Applicant has, belatedly, sought leave on the correct basis by way of a notice of motion filed on 13 December 2024. The first issue to be addressed on this fresh leave application is whether time should be extended. The statutory criteria for an extension of time under section 50(8) of the PDA 2000 are not satisfied. Neither the “good and sufficient reason” nor the “circumstances outside the control of” criterion has been met. The Applicant, a commercial entity, had been on express notice of the position of the Local Authority since 9 May 2024. There is nothing in the conduct of the Local Authority during the currency of the timelimit which is capable of supporting a reasonable inference that the Local Authority intended to withdraw or abandon the vesting order. Nor is there any good and sufficient reason for the continuing delay thereafter. Accordingly, the application for leave to apply for judicial review must be refused by reason of the failure to comply with the statutory time-limit and the absence of grounds for an extension of time. (Paragraphs 49 to 70).

74. Finally, it should be emphasised that the procedural error in this case was entirely innocent. There is no suggestion whatsoever that there was any deliberate nondisclosure in the making of the leave application.

75. The proceedings will be listed for submissions on the final form of order on

29 July 2025. The parties are requested to correspond, in advance of that listing, on the question of whether the proceedings are subject to the special costs rules under section 50B of the PDA 2000.

Appearances

Bernard Dunleavy SC and David Dodd for the applicant instructed by Clark Hill Solicitors LLP Esmonde Keane SC and Grainne Larkin for the respondent instructed by the Law Agent