High Court grants preliminary reference to CJEU on EU law time limits for judicial review applications.

[2025] IEHC 41

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 BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL (BY ORDER)

RESPONDENTS

AND

KATHY O’DONNELL AND BARRY O’DONNELL

NOTICE PARTIES

AND

FRIENDS OF THE IRISH ENVIRONMENT

AMICUS CURIAE

(No. 3)

JUDGMENT of Humphreys J. delivered on Friday the 31st day of January 2025

1. This everyday dispute about a domestic development consent has raised significant

procedural questions of EU law. The question now is to make a decision on whether to refer those

issues to Luxembourg and, if so, to provide for procedural directions to facilitate a separate formal

judgment for reference.

Judgment history

2. In Thompson v. An Bord Pleanála (No. 1) [2024] IEHC 101 (Unreported, High Court, 26th

February 2024), I held that, leaving aside arguments based on EU law, the proceedings were one

day late and that the statutory provision for extension of time was not satisfied. I directed the

applicants to put the State on notice of their claim that the legal framework as to time within which

to apply for judicial review was contrary to EU law.

3. In Thompson v. An Bord Pleanála (No. 2) [2024] IEHC 639 (Unreported, High Court, 8th

November 2024), I invited further submissions on identified questions of EU law.

4. For present purposes the issue is the giving of procedural directions to enable the matter to

be progressed. As will be seen, I am deciding to do that by way of preliminary reference.

Procedural history

5. The procedural history is set out in the No. 2 judgment. As that judgment makes clear, the

applicants accepted the general principle of time running from the date of the decision, with

qualifications in limited circumstances.

6. Following that, the parties were invited to make further submissions. A submission from the

applicants was received on 15th November 2024. Paragraph 3 of that submission is rather vaguely

worded and the State interprets that as potentially attempting to revisit the arguments made at the

hearing. That would be impermissible and inappropriate. It’s one thing for a party to make

concessions and narrow its case as matters proceed, or to seek a formal amendment of pleadings,

as long as that is arguable, duly explained and doesn’t cause irremediable prejudice. But to allow a

party to simply change its mind and try to expand its case mid-stream, after other parties have

relied on that and after complex forensic steps have been put in place, would unleash procedural

chaos and would be totally unacceptable. The critical point here is that core grounds 7 and 8 of the

third amended statement of grounds only argue for the limited qualifications, not for an invalidity in

the general principle of time running from a decision. So I prefer to interpret the applicants’

submissions in a sense compatible with the pleadings and not as a wholly impermissible attempt to

muddy the waters and improperly extend their case by stealth.

7. On 25th November 2024, I allowed a drafting amendment to the applicants’ statement of

grounds. I also directed that if any party wished to propose an amicus curiae they were at liberty

to do so.

8. On 2nd December 2024, Protect East Meath appeared with the applicants’ support to seek

to be added as an amicus. Unfortunately I had to refuse that application, primarily because such an

application would need to have been made with sight of the papers, which it wasn’t. Had the papers

been studied, the proposed amicus would have realised that the argument they wanted to make,

namely that time should run from notification of the decision, was never made by the applicants and

so could not be made by an amicus. The precise argument set out in the proposed amicus’ letter of

28th November 2024 was:

“Our client would be of the view that time limits ought to run from the date of notice and

not from the date of the decision, in particular where the competent authority has discretion

over when to issue notices.”

9. It is the words “in particular” that are the problem. That implies that time running from

notification is not confined to cases where notification periods are discretionary. That is an argument

that was simply never made by the applicants. They accepted the general rule of time running from

the date of the decision, but proposed a much narrower nuance in certain limited circumstances.

The argument implied here by the amicus is inconsistent with and contrary to the submissions

actually made.

10. To permit the scope of the case to be expanded by an amicus would be unfair to opposing

parties, apart from creating procedural mayhem. Indeed even to permit an amicus to get involved

on a limited basis when they had already expressed a preference to make more unbounded

arguments could be a potentially perilous exercise. The moral of the story for future reference is

that any would-be amicus should obtain the papers (from the party proposing that they be added),

study those papers, and ensure that their proposed contributions don’t go beyond what the parties

actually argued.

11. A submission from the State was uploaded on 6th December 2024.

12. The matter was then listed on 9th December 2024, at which stage a second application by

a proposed amicus was made on behalf of Friends of the Irish Environment. The matter was then

adjourned to 13th January 2025 for this to be considered.

13. Following further adjournment, on 27th January 2025, Friends were added as an amicus

without objection and judgment was reserved.

14. One final procedural point is that the applicants were not named in the statement of grounds

with a first name and surname each as would be required, so I am going to amend the title to reflect

the correct format (Alex Thompson and Shalala Thompson rather than Alex and Shalala Thompson).

Reference to the CJEU

15. The identified questions are ones of interpretation of EU law rather than merely application

of such law, and the answers are not acte clair. The answers are necessary to enable the court to

give judgment. Therefore the questions meet the criteria for reference. As a matter of discretion I

consider it appropriate to refer these questions in all of the circumstances.

Procedural directions

16. Certain procedural directions are appropriate having regard inter alia to the standard terms

in Eco Advocacy CLG v. An Bord Pleanála [2021] IEHC 265, [2021] 5 JIC 2704 (Unreported, High

Court, 27th May 2021) format with some modifications set out in the order below. I also propose

to set a mention date to confirm that all is in order with the reference. The parties having made

submissions in the context of a proposed reference, there is no particular need for another round of

that before we finalise the judgment for reference, which will be delivered separately. A deadline

for the amicus' submissions has already been set when that party was joined.

Order

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

(i) amendment of title: the title of the proceedings be amended to reflect the

individual first and surnames of both applicants;

(ii) reference in principle: the questions already identified be in principle referred to

the CJEU under art. 267 TFEU in accordance with a judgment for reference to be

issued separately;

(iii) amicus to bear own costs: in line with Eco Advocacy, the amicus bear their own

costs throughout, in the Irish courts and in Luxembourg, and not have any liability

for the costs of any other participant in the proceedings, and be involved on a

written-submissions-only basis unless otherwise ordered;

(iv) CJEU contact sheet: within seven days, the parties be required to complete the

CJEU contact sheet set out in guidance notes to Practice Direction HC126 specifying

whether any natural persons referred to wish their names to be anonymised for the

purposes of the CJEU proceedings and judgment, and submit that sheet to the List

Registrar copying the relevant judicial assistant;

(v) other redactions: within seven days from the formal judgment for reference, each

party be required to advise the List Registrar as to whether any natural persons

mentioned in the judgment other than the parties in the title (whose positions should

be specified in the contact sheet) wish their names to be anonymised for the

purposes of the CJEU proceedings and judgment;

(vi) papers for CJEU: the document management party be required to prepare a draft

contents page of documents for the CJEU and to agree this with the other parties or

apply to the court in default of agreement; this should include:

(a) all relevant pleadings/ affidavits/ exhibits/ other documents; and

(b) all relevant judgments/ orders in the case including the formal order for

reference when perfected and the final judgment for reference when

delivered;

(c) this should not include cases or other authorities, especially where these

are already cited in the judgment for reference;

(d) once the contents page is agreed, it is then the function of the document

management party to prepare electronic versions for the CJEU as follows:

1. all files should be in PDF format not exceeding 30 MB;

2. the judgment for reference should be a single standalone PDF

clearly identified as such; that PDF should be sent in a form (which

should be final but may be unsigned) that preserves the

hyperlinks and not as a scanned picture of the signed version;

3. all other documents should be bundled together in a single PDF

(or more than one if required to comply with the 30MB file size

limit); and

4. the completed form of the contact details of the parties in the

form attached to guidance notes to Practice Direction HC126;

(e) once prepared, the PDFs should be sent to the List Registrar by email or

file sharing link, and for this purpose parties should not use password

protected file transfers, this process to be completed within 28 days from

the date of the judgment for reference;

(vii) information for the referring court: once the matter is formally referred, the

parties should liaise to ensure that the referring court is copied with all submissions

including those of member states and EU institutions, and the Advocate General’s

opinion, when permitted to do so by the rules of procedure of the CJEU, and to copy

the referring court with relevant notifications such as regarding the date of any oral

hearing, any opinion of the Advocate General, the date of delivery of the judgment

and the judgment itself;

(viii) costs: all costs to date be reserved; and

(ix) review of arrangements for reference: The matter be listed for mention on 10th

March 2025.