High Court refuses leave for judicial review and amends grounds, citing time limits and substantial grounds not met.

THE HIGH COURT PLANNING AND ENVIRONMENT

[2025] IEHC 649

RECORD NO: 2025/ 713 JR

Between:

MELISSA MOORE and YSEULT QUINN WALL

Applicants

and

AN COIMISIÚN PLEANÁLA

Respondent

and

AMBERFIELD HOMES LIMITED

Notice Party

JUDGMENT of Ms. Justice Emily Farrell delivered the 18th day of December 2025

Introduction

1. This is an application for the amendment of a Statement of Grounds prior to the grant of leave, and application for leave to seek judicial review on the original, or if amended, Amended Statement of Grounds. The Applicants did not seek to make their application for leave to seek judicial review, and then apply for an amendment of the Statement of Grounds, but rather sought the amendment in advance of the Court considering whether substantial grounds were made out. However, consideration of the case made in the Statement of Grounds is material to the application for amendment.

2. The Applicants seek to challenge the validity of a decision of An Bord Pleanála made under section 37, Planning and Development Act, 2000 on 26th March 2025. The Board decided to grant permission to the Notice Party for a development which permission authorised the omission of a house permitted by an earlier permission, the demolition of two houses and construction of 48 residential units, together with associated site works (ABP reference 319996-24). Both Applicants had participated in the planning process and appeals had been submitted on their behalf to the Board against the decision of Dún Laoghaire Rathdown County Council to grant planning permission to the Notice Party. The appeals were submitted on behalf of the Applicants by a Registered Architect and Planning Consultant, and a Planning Consultancy firm respectively. As appellants, they were notified of the impugned decision dated 26th March 2025.

3. An Bord Pleanála has since been replaced by An Coimisiún Pleanála (and is hereinafter referred to as ‘the Commission’). The title of the proceedings has been amended to refer to An Coimisiún Pleanála instead of An Bord Pleanála, by omnibus Order made the 15th September 2025.

4. Leave to apply for judicial review to challenge the planning permission granted by the Commission (ABP reference 319996-24) the subject of this application was granted in other proceedings, with the title Maughan & Anor. v. An Bord Pleanála & Ors. bearing record number 2025 687 JR, on 26th May 2025. Therefore, the decision which the Applicants seek to impugn is already under challenge.

The proceedings

5. The Statement of Grounds was filed on 20th May 2025, together with affidavits sworn by each of the Applicants. An affidavit was also sworn by Bill Hastings, an Architect and RIAI Grade 1 accredited Conservation Architect, but that affidavit was not filed. The application for leave to seek judicial review was filed by the Applicants’ then solicitor, on the last day of the eight-week period prescribed by section 50(6) of the Planning and Development Act, 2000. Accordingly, the application for leave was made on 20th May 2025, by virtue of Order

84 rule 21(1A).

6. Leave to apply for judicial review was sought on two grounds, which were particularised in the Statement of Grounds as follows:

“Core Ground 1: The Decision is invalid as the Proposed development would be wholly contrary to numerous policy objectives of the Dún Laoghaire Rathdown County Development Plan 2022-2028, particularly in relation to the potential negative impacts which the Proposed Development may have on architectural heritage. The decision also fails to have regard, or any adequate regard to the Foxrock Architectural Conservation Area Character Appraisal Report and its guiding principles for new development.

3. The Character Appraisal for the Foxrock Architectural Conservation Area (ACA)

outlines the critical importance of the landscape character to the integrity of the Foxrock ACA, which appraisal is incorporated into the CDP under policy objective HER13. Notwithstanding that much of the application site is outside the ACA, the removal of an extensive quantity of trees and landscaping at the boundary of the ACA, the amalgamation of two sites into a site within the ACA and the scale, bulk, height and intensity of development now proposed, will result in considerable negative impacts on the architectural heritage value of this part of the Foxrock Architectural Conservation Area.

Core Ground 2: The Decision is invalid as the Board has failed to adopt or apply the provisions of the CDP so as to prevent significant negative impacts arising on the residential amenity of existing neighbouring residential lands due to loss of privacy, loss of visual amenity and overbearance.

4. Due to its excessive height, scale, bulk, density and proximity to boundaries on this constrained backland site, the proposal will result in significant negative impacts on the residential amenity of existing neighbouring residential lands due to loss of privacy, loss of visual amenity and overbearance and traffic hazard. The proposed development is, therefore, considered to be contrary to the provisions of the Dun Laoghaire-Rathdown County Development Plan 2022-2028 and of statutory guidance for sustainable residential development.

5. For the above reasons the Board erred in law, misapplied the law, applied the incorrect legal test, had regard to irrelevant material, failed to have regard to relevant material, acted contrary to right reason and common sense, and acted unreasonably, and its decision is irrational, unreasonable, bad in law, ultra vires and void.”

7. The Commission was first made aware of the proceedings when it received a letter dated 17th June 2025 from the Applicants’ current solicitor, who also filed a notice of change of solicitor that day, almost 12 weeks after the Commission had made the impugned decision.

8. The application for leave to apply for judicial review came before the Court as an ex parte application on 30th June 2025. At that stage, the Respondent and Notice Party had been notified as required by the Practice Direction, but they were not formally on notice of the application for leave. Counsel for the Applicants sought to apply for leave to apply for judicial review on the grounds set out in a draft Amended Statement of Grounds.

9. The draft Amended Statement of Grounds was provided to the opposing parties on 27th June 2025, the Friday immediately prior to the application for leave. They had not previously been informed of an intention to seek leave to amend the Statement of Grounds. On 30th June 2025, the Applicants were directed to put the opposing parties on notice of the application for leave and of their application for liberty to amend the Statement of Grounds.

The position of the Respondent and Notice Party was that leave to seek judicial review on the original grounds should be refused, and that the Applicants should not be granted liberty to amend the Statement of Grounds in terms of the draft Amended Statement of Grounds.

Those applications were heard on 21st and 28th July 2025, and were opposed by both the Commission and the Notice Party.

Application to amend Statement of Grounds

10. Section 50(2) requires a decision of the Commission to be challenged by way of an application for judicial review under Order 84, subject to sections 50, 50A and 50B of the 2000 Act.

11. Two provisions of Order 84 rule 20 provide for the amendment of a Statement of Grounds.

The Applicants contend that Order 84 rule 20(4) is applicable to this application rather than Order 84 rule 23(2), which they submit applies only after leave has been granted. The Applicants accept that if it is necessary for them to demonstrate good and sufficient reason for extending time within the meaning of section 50(8) they cannot do so.

12. Order 84 rule 20(4) provides:

“(4) The Court hearing an application for leave may, on such terms, if any, as it thinks fit:

(a) allow the applicant’s statement to be amended, whether by specifying different or additional grounds of relief or otherwise,

(b) where it thinks fit, require the applicant’s statement to be amended by setting out further and better particulars of the grounds on which any relief is sought.”

13. The Applicants contend that the threshold for the grant of an amendment under Order 84 rule 20(4) is lower than that for an amendment post-leave, under Order 84 rule 23(2), which provides:

“(2) The Court may, on the hearing of the motion or summons, allow the applicant or the respondent to amend his statement, whether by specifying different or additional grounds of relief or opposition or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.”

14. The Applicants submit that they cannot be in a worse position than they would be in had leave to seek judicial review been granted before they sought to amend the Statement of Grounds. It does not necessarily follow that they are in a better position than an applicant who has satisfied the time requirements and satisfied the High Court that there are substantial grounds for contending that the impugned decision is invalid. There would be a ‘case’ to be compared with the case sought to be advanced in the amended grounds. The stage of the proceedings is a relevant matter to be considered in deciding where the interests of justice lie, particularly as prejudice may be occasioned if a late amendment is permitted.

15. Although the wording of rule 23(2) and rule 21(2) of Order 84 are somewhat different, I am satisfied that the filing of a Statement of Grounds simpliciter is insufficient to remove the need to show a good and sufficient reason for seeking to make a new case, or a substantially new case outside the period prescribed by section 50(8). While the Rules now provide for the filing of the Statement of Grounds to stop the clock, the obligation to plead with sufficient particularity remains.

16. The Applicants submit that the Court has a wider discretion under Order 84 rule 20(4) and that the restriction on the grant of an extension of time to apply for judicial review in section

50(8) is not relevant to an amendment under Order 84 rule 20(4), regardless of when it is made. They rely on the statement by O’Floinn, in Practice and Procedure in the Superior Courts, 3rd ed., Bloomsbury Professional, 2022, where he opined:

“Where leave has not yet been granted, the Court may be more inclined to permit amendment, so as to ensure that the papers reflect the case that the applicant wishes to make.”

17. There is a dearth of written judgments on applications to amend a Statement of Grounds prior to the grant of leave. I have been referred to the judgment of Nolan J. in Byrne v. An Bord Pleanála [2025] IEHC 222, in which case liberty to amend the Statement of Grounds was granted without prejudice to the Respondent’s right to challenge all issues raised, including the amendments, when the application for leave would be heard subsequently.

Nolan J. accepted that the applicant had provided an explanation or reason for the need to apply for the amendment at that time, but he left open the question whether the amendments amounted to an entirely new case (paras. 16-18).

18. As Fennelly J. noted in Keegan v. Garda Síochána Ombudsman Commission [2012] IESC 29, [2012] 2 IR 570 each application for an amendment depends on its own facts and circumstances. As Fennelly J. stated, at para. 20 “under the system of judicial review, administrative decisions may only be challenged if the requirements of the Rules of Court or of the relevant statute are met. Firstly, an applicant must make his application within the permitted time or persuade the court to make an order extending the time. Secondly, he must advance grounds at the time of his application sufficient to persuade a judge that leave should be granted to seek judicial review of the decision. As Costello J said, “the court's jurisdiction to entertain the application is based on and limited by the order granting leave.””

19. Fennelly J. stated, at para. 21, that the various dicta he had quoted “cannot be regarded as precluding and undoubtedly were not intended to preclude a court from granting leave to amend grounds, when the interests of justice require that such an order be made.” He continued by stating that that appeal was “about the grounds on which applicant, having obtained leave on specified grounds, should be allowed to expand those grounds.”

20. I am satisfied that it is appropriate to have regard to the interests of justice when considering an application to amend prior to the grant of leave, but that the manner in which this is done must have regard to the fact that leave has not been granted. To that extent, the claim already advanced is highly material. Fennelly J. considered the judgment of the Supreme Court regarding the power to extend time to initiate judicial review proceedings in Re Illegal Immigrants (Trafficking Bill) 1999 [2000] IESC 19, [2000] 2 I.R. 360 and noted that the Supreme Court regarded the power to extend time for the bringing of applications for judicial review of decisions as being necessary in order to cater for the interests of justice and to protect a constitutional right of access to the court, which considerations were also relevant to the application to amend grounds (in that case, post-leave). He stated:

“31. Persons are permitted to seek review of administrative decisions which affect them within prescribed times and on grounds in law which they propose and which the courts grant them leave to argue. The object of the system is to strike a fair balance between the certainty and security of administrative decisions and the rights of persons affected by them who wish to contest them.

32. The strict imposition of time limits is mitigated by the power of the court to permit an application outside the permitted time, provided the court is persuaded that there is good reason for the delay and that no other party is adversely or unfairly prejudiced.”

21. That the strict time limits are not mitigated by the possibility of amending a Statement of Grounds to bring an entirely or substantially new case after the expiration of applicable time limit is evident from the authorities, in particular North Westmeath Turbine Action Group v. An Bord Pleanála [2022] IECA 126, Sherwin v. An Bord Pleanála [2023] IEHC 26 and Copymoore Limited v Commissioners of Public Works in Ireland [2014] IESC 63, [2014] 2 I.R. 786. An applicant may not introduce an arguable case for the first time, without satisfying section 50(8) or Order 84 rule 21(3), as applicable.

22. In Keegan, the Supreme Court rejected the argument that an application to amend grounds made outside the prescribed time would have to satisfy a more exacting standard than would apply for an ordinary late application for leave, but Fennelly J. held that the applicant “will have to explain his delay, just as in the case of a late applicant. The court will expect him to give reasons to explain his failure to include the new proposed ground in his original application.” There is no need for the applicant to demonstrate the existence of a newly discovered fact. However, where an applicant was aware of the salient facts at all relevant times, that fact will weigh in the balance against him, without being necessarily conclusive:

per Fennelly J. at para. 35.

23. It is also appropriate to have regard to the public policy considerations of the adoption of the modified rules for judicial review in respect of decisions under the Planning and Development Act, 2000. Keegan was decided under Order 84, prior to the amendment of the circumstances in which an extension of time may be granted. In that case, the Court considered the explanation which was proffered for the failure of the applicant to advance the substantially new case which was sought to be advanced, initially: oversight on the part of the appellant’s lawyers. In Keegan, it was held that it would be unjust to visit the lawyers’ error on the appellant, although it was noted that not every suggested lawyer’s mistake will necessarily justify an amendment. Fennelly J. found that the balance of justice clearly weighed in favour of granting the amendment, having considered other factors including the absence of prejudice to the respondent and the respondent’s failure to keep the appellant informed of the relevant complaint and of the ruling that the complaint was inadmissible for several years.

24. The need to demonstrate a “good reason” for a late application for leave to apply for judicial review or to include a ground not previously pleaded is also evident from Copymoore v.

Limited v Commissioners of Public Works in Ireland [2014] IESC 63, [2014] 2 IR 786.

Charleton J. stated that two of the most important factors to be taken into account are the public interest and the conduct of the parties. In that case, he held that one point which was sought to be included had been notified to the respondent at the earliest opportunity and had been omitted from the proceedings through oversight. That point was considered to be essential to the disposal of the controversy between the parties and was “not raised unfairly, which otherwise it might be were the respondents to be notified of the point-after the time limit had elapsed”. The second point, which was found to be effectively a new point, did not arise naturally or by implication out of the existing proceedings and no reason had been advanced for failing to include that point in the Statement of Grounds. Liberty to amend was granted in respect of the first point but not the second.

25. It is well established that amendment of pleadings requires three elements – arguability, explanation and lack of irremediable prejudice: BW v. RAT [2017] IECA 296. Furthermore, the Courts have leaned against extensive reprogramming of an entire case by way of amendment (see generally O’Lone v An Bord Pleanála [2023] IEHC 136 and Sherwin v. An Bord Pleanála [2023] IEHC 26, at para. 40).

26. The jurisprudence of the Superior Courts demonstrates that an application to amend the Statement of Grounds is to be considered differently depending on the extent to which the amendments introduce a new case, or simply refine or particularise a case which has already been made. Therefore, it is necessary to consider the extent to which the amendments, which the Applicants seek to make, amount to a new case, or simply refine the case they have advanced in the Statement of Grounds.

27. There can be some flexibility in what amounts to a new case, or substantial enlargement of the case. I consider that North Westmeath Turbine Action Group and Sherwin v. An Bord Pleanála can be read in a harmonious way rather than automatically in a conflicting sense, as I have stated in Clancy & Anor v. An Bord Pleanála [2025] IEHC 528 (para. 14). In North Westmeath Turbine Action Group, the proposed amendment sought to introduce a new relief which reflected grounds already pleaded and did not require the addition of any new grounds or parties. As Collins J. noted, the State Respondents were aware of the applicant’s complaints regarding the alleged failure to properly transpose the EIA Directive and Habitats Directive before the expiration of the statutory time period and the declaratory relief sought arose directly and naturally out of the grounds on which leave had previously been granted. However, the balance of justice was found to weigh against permitting the amendment. It was open to the appellants to bring plenary proceedings, which would present the opportunity of articulating the case in clearer terms. Where a proposed amendment challenges a separate decision or introduces a ground which is not ‘reasonably related’ to the original grounds, it is necessary for the applicant to satisfy the requirement of providing a good and sufficient reason for not bringing the proceedings within time. In Coastal Concern Alliance v. Minister for Housing, Local Government & Heritage [2024] IEHC 524, Simons J. stated that an application for amendment must be approached as if it involves a late application only where a substantially new case is sought to be made.

28. In Sherwin, which also involved an application to amend the Statement of Grounds, after the grant of leave, but not to introduce a substantially new case, Humphreys J. held:

“37. The basic principle is that any given set of proceedings challenging a decision should be brought within the statutory period, and any failure to do so must be supported by good and sufficient reason. However, once such proceedings are brought, any further amendment does not require that same level of “good and sufficient reason”

but rather arguability, explanation and lack of irremediable prejudice, the overall test being the interest of justice. After all, the main purposes of the statutory period has been achieved by a prompt bringing of proceedings, even if elements of the case are refined later. In short, what counts as good and sufficient reason for an amendment is less demanding then what would count as good and sufficient reason for not bringing the action within time at all.”

29. Humphreys J. explained that this makes sense in a context where, as in North Westmeath Turbine and Keegan, the frequent explanation for an amendment is oversight by an applicant's legal advisers. He stated:

“The law must look comprehendingly on such inevitable human oversights insofar as they occur in the course of the process, but the system would be hopelessly unworkable if one were to offer equal latitude to oversights regarding the initiation of the process in the first place. Consequently, it makes complete sense to have a very high bar for the initiation of the proceedings, thus requiring good and sufficient reason for proceedings to be brought out of time, with a less extreme test of explanation (along with arguability and lack of a remedial prejudice) as regards amendments that are brought to proceedings that have been properly instituted within time in the first place.”

30. He noted that the vast majority of the public policy objectives sought to be achieved by limitation-type periods for initiating proceedings are achieved by the bringing of the proceedings within that time and stated that “A bit of refinement to the grounds or even reliefs is neither here nor there in that context and does very little injury to the public interest in expedition. Nor does it injure the need for certainty as to the status of a decision

– the status is by definition known at that point, being a decision already under challenge.”

Again, it is significant that this was a case in which the High Court had already found that there were substantial grounds for challenging the impugned decision and the proceedings had been brought within the prescribed time.

31. The Applicants submit that the draft Amended Statement of Grounds seeks to particularise or “plead out” what was implicit in original grounds. It is necessary to interrogate the grounds in the original Statement of Grounds, having regard to pleading obligations, to determine whether this submission correctly describes the amendments sought, or whether, as the Respondent and Notice Party contend, the Applicants seek to graft a new case onto a Statement of Grounds which did not plead the grounds with sufficient particularity and did not disclose substantial grounds. The requirement is that an applicant for leave to judicial review should “state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground”: Order 84 rule 23(3) RSC.

32. The fact that the Rules provide for an application to amend the Statement of Grounds either prior to, or after, the grant of leave, does not obviate or decrease the need for the Statement of Grounds to set out the nature of the claim precisely. In Alen-Buckley v An Bord Pleanála [2017] IEHC 541 Haughton J. stated “Linking new matters back to generally pleaded grounds is not permissible, nor is pointing to information which was before the Board. The court is concerned with the contents of the documents before the Board only in the context of arguments which have been correctly pleaded…”.

33. Whilst a Statement of Grounds is not a document with the same legal import as a decision of a planning authority, and is not to be read or interpreted in the same way, it is a critical document which sets the parameters and frames the issues for the purposes of the application for leave, and when leave is granted, for the jurisdiction of the Court to determine whether or not the relief sought should be granted: Casey v. Minister for Housing, Planning and Local Government & Ors. [2021] IESC 42; Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28.

34. In interpreting the Statement of Grounds which was filed in order to ascertain whether the amendments sought amount to a new case, or substantially new case, the Statement of Grounds must be regarded as including those grounds which are acceptably clear from its terms, although this does not require express enumeration of provisions of the County Development Plan, to the extent to which reliance on those provisions is acceptably clear from the Statement of Grounds. By analogy: Eco Advocacy CLG v. An Bord Pleanála (No.

4) [2023] IEHC 713; Leech v. An Bord Pleanála [2024] IEHC 599; Mount Salus Residents'

Owners Management Company Limited by Guarantee v. An Bord Pleanála & Ors. [2025] IEHC 14.

35. Holland J. held in Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2022] IEHC

7 that “if on the Grounds pleaded there is genuine ‘doubt, ambiguity or confusion’ an Applicant in Judicial Review cannot have the benefit of it” (para. 308). This was reiterated in McGowan v. An Coimisiún Pleanála [2025] IEHC 405, in which case Humphreys J. also referred to the earlier judgment in Ballyboden Tidy Towns v. An Bord Pleanála [2021] IEHC 648, stating “Recital of high-level principles does not create certiorari by osmosis – an applicant must specify a route-map connecting the particular factual problem alleged with the particular relief sought via a chain of reasoning”. The absence of a route map from the EU law provisions cited in the Statement of Grounds to the reliefs sought was also commented upon by Holland J. in Stapleton v. An Bord Pleanála & Savona [2024] IEHC

3 (para. 124).

36. However, in considering what case has already been made in the Statement of Grounds, it is not permissible to read grounds or words into the Statement if doing so would go beyond enunciating what is acceptably clear. Nor can words or concepts be read into the Statement of Grounds in order that the claim advanced therein would reach the threshold of substantial grounds, if what is acceptably clear from the terms of the Statement of Grounds would be insufficient to obtain leave. The responding parties submit that if the grounds as pleaded are not substantial grounds, any proposed amendment would amount to an entirely new case. It would follow, that if the grounds of challenge have not been identified when the time-limit in section 50(6) expires, it would be necessary to demonstrate a good and sufficient reason for extending time to bring a case which cannot otherwise be maintained.

37. Core Ground 1 in the Statement of Grounds is:

“The Decision is invalid as the Proposed development would be wholly contrary to numerous policy objectives of the Dun Laoghaire Rathdown County Development Plan 2022-2028 (the CDP). In particular, the decision fails to have regard, or any adequate regard to the Foxrock Architectural Conservation Area Character Appraisal Report and its guiding principles for new development.”

38. This is particularised as follows:

“Core Ground 1: The Decision is invalid as the Proposed development would be wholly contrary to numerous policy objectives of the Dún Laoghaire Rathdown County Development Plan 2022-2028, particularly in relation to the potential negative impacts which the Proposed Development may have on architectural heritage. The decision also fails to have regard, or any adequate regard to the Foxrock Architectural Conservation Area Character Appraisal Report and its guiding principles for new development.

3. The Character Appraisal for the Foxrock Architectural Conservation Area (ACA)

outlines the critical importance of the landscape character to the integrity of the Foxrock ACA, which appraisal is incorporated into the CDP under policy objective HER13. Notwithstanding that much of the application site is outside the ACA, the removal of an extensive quantity of trees and landscaping at the boundary of the ACA, the amalgamation of two sites into a site within the ACA and the scale, bulk, height and intensity of development now proposed, will result in considerable negative impacts on the architectural heritage value of this part of the Foxrock Architectural Conservation Area.”

39. It is not contended that the impugned decision materially contravenes the Development Plan, nor that the Commission had no jurisdiction to grant permission in material contravention thereof. Of course, the Commission is entitled to grant permission in material contravention of the applicable Plan: section 37(2) of the 2000 Act. The obligation under section 37(2)(b), which applies only where a planning authority had decided to refuse permission by reason of a material contravention of the Plan, does not arise in the instant case, as the planning authority had granted permission.

40. Even if it is established that the proposed development would be wholly contrary to such policy objectives as can be identified by inference from the terms of Core Ground 1, that would not amount to a substantial ground for contending that the decision is invalid. The key question which the Commission was required to determine was whether or not the proposed development would be in accordance with the proper planning and sustainable development of the area. That necessarily involves consideration of the proposed development in the context of the applicable Plan and an assessment of the merits of the

proposal. Insofar as this aspect of Core Ground 1 raises a ground, it is a merits-based challenge.

41. The second element of Core Ground 1 contends that the decision failed to have any, or any adequate regard to the Foxrock Architectural Conservation Area Character Appraisal Report and its guiding principles for new development.

42. The Inspector’s Report, which the Commission generally agreed with, specifically noted that the site is partly within but mostly excluded from the Foxrock Architectural Conservation Area, which surrounds it and that a Character Area Appraisal Report had been prepared for the ACA. That Report was specifically considered at section 5.4.7 and section

9.4.2 of the Inspector’s Report.

43. In identifying the grounds of appeal, the Inspector noted that the following grounds had been advanced:

– In supporting densification key considerations which constrain infill development affecting ACAS have not been considered by the Planning Authority.

– The density is excessive given impact on amenities of surrounding properties, site constraints and impact on ACA

– Development will detract from the character of the area in particular sylvan nature and Arcadian/Garden City character

– Unacceptable impact on Foxrock Architectural Conservation Area (ACA) and failure to comply with ACA Statement of Character

– Architectural Heritage Impact Assessment submitted not adequate.

44. The Inspector also considered the Response of the Notice Party to the appeal, and noted that it had engaged a Grade 1 Conservation Architect who had prepared an Architectural Heritage Impact Assessment (AHIA) in accordance with the Architectural Heritage Protection Guidelines (AHPG). The AHIA concluded the scale mass design and materiality was compatible with the area including ACA and Protected Structures.

45. At Section 9.4 of the Inspector’s Report, the Impact on ACA / character of the area, and Protected Structures was considered. The Inspector had visited the site and walked the surrounding area within the ACA. While the Inspector recommended the reduction of the height of the apartment building by the omission of floor 3 in the interests of the protection of the ACA and the RPS1972 Sexton’s House, the Commission decided not to omit floor 3.

It was satisfied that the apartment building as proposed would not adversely impact on the character or setting of the ACA. The reasons and considerations given in Board Order include:

“having regard to the location of the site partly within, but mostly outside of the Foxrock Architectural Conservation Area (ACA), and subject to compliance with the conditions set out below, it is considered that the proposed development is of a scale, form, density and design which would not detract from the character or setting of the Foxrock ACA or protected structures in the vicinity, would not seriously injure the residential amenities of property in the vicinity or the visual amenities of the area, would be acceptable in terms of traffic safety and convenience, and would be in accordance with the provisions of the Dun Laoghaire-Rathdown County Development Plan 2022-2028. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area.”

46. The contention that the Commission failed to have any regard to the Report and the principles thereof cannot be made out. It must be noted that the Commission was not required to comply with the Character Appraisal for the ACA, or the principles for new development specified therein. Insofar as it is pleaded that the Commission failed to have any adequate regard, and that the proposed development “will result in considerable negative impacts on the architectural heritage value of this part of the Foxrock Architectural Conservation Area”, this amounts to an impermissible merits-based attack on the decision.

47. Therefore, the amendments proposed to Core Ground 1, which plead for the first time, inter alia, that the Commission failed to properly consider, interpret and/or apply a number of specified provisions of the Development Plan, and that the Commission failed to comply with the statutory obligation to have regard to the provisions of the Development Plan, properly interpreted, do not merely amount to the ‘pleading out’ of that ground, nor do they express more clearly or precisely a ground which has already been advanced, whether in accordance with the Rules or otherwise.

48. The proposed amended grounds do not reflect the case which the Applicants sought to make when the Statement of Grounds was filed, but it would appear they are grounds which they wish, in retrospect, that they had made. The need for the amendment did not arise from a drafting error or failure to adequately explain the grounds the Applicants wished to rely upon, but rather from the lack of time to adequately set out the case they sought to make, or for their solicitors to identify grounds which might be advanced on their behalf. The sole explanation proffered for not including these grounds in the original Statement of Grounds is at paras. 7 and 8 of the affidavit of the solicitor who came on record for the Applicants subsequent to the passing of the time limit, subject to extension under section 50(8).

49. The same issues arise in respect of Core Ground 2 – the Commission is not obliged to “adopt or apply” the provisions of the Development Plan in the manner asserted, nor is the Commission required to prevent “significant negative impacts” on the residential amenity of existing neighbouring residential lands. Determining whether a proposed development would have negative or significant negative impacts on the residential amenity of the area necessarily involves the exercise of planning judgement. It is for the Commission to assess whether a proposed development may be consistent with the proper planning and sustainable development of the area despite the existence of any such impacts. The existence of such negative impacts, if established, does not lead to the conclusion that an impugned decision to grant permission is invalid. The Applicants plead at Core Ground 2 that the proposed development is considered contrary to the provisions of the CDP (which are not identified with precision although they may be identifiable) and of unspecified statutory guidance for sustainable residential development. Again, this is a merits-based attack on a decision which involved the application of the Commission’s expertise and planning judgement and, as such, is subject only to an unreasonableness challenge. The Commission was entitled to grant permission which did not comply with the Development Plan. I am satisfied that the grounds which are acceptably clear from Core Ground 2 as pleaded in the Statement of Grounds do not amount to substantial grounds for contending that the decision of 26th March 2025 is invalid.

50. Therefore, I am satisfied that the amendments which the Applicants seek to add to the Statement of Grounds amount to a substantially new case. None of the amendments could reasonably have been anticipated having regard to the terms of the Statement of Grounds as filed.

51. In those circumstances, it would be necessary for the Applicants to obtain an extension of time under section 50(8), which they concede they cannot do. If the amendment of the grounds were required by the interests of justice, there would be a good and sufficient reason to extend time.

52. If I am incorrect in that, and the Applicants are required only to provide an explanation for not advancing the proposed new grounds within time, as they contend, I shall consider the extent to which the Applicants have advanced an explanation.

53. The Applicants contend that an adequate explanation has been provided at paras. 7 and 8 of the solicitor’s affidavit sworn on 27th June 2025. This solicitor came on record on 17th June 2025, four weeks after the Statement of Grounds had been filed, and before the application for leave was listed for hearing on 30th June 2025. The intention to seek an amendment of the Statement of Grounds was first communicated to the Respondent and Notice Party on Friday 27th June. Neither of the Applicants has sworn an affidavit in support of the application to amend the grounds. A supplemental affidavit was sworn by Ms.

Carbery on 16th July 2025 in which she confirms that she had sworn the previous affidavit with the authority of both Applicants, but no further explanation was given for the application to amend the Statement of Grounds. Obviously, hearsay averments in an affidavit filed in support of an interlocutory application may be admissible, but it is open to the Court to determine the weight which should be afforded to such averments.

54. The Applicants’ solicitor avers:

“I am instructed by the Applicants that the additional particulars were not pleaded out in the original Statement of Grounds in circumstances where the Applicants formed the intention to institute these proceedings late in the eight-week period provided under statute within which to challenge a decision made by An Bord Pleanála. I am instructed that the Applicants were obtaining advice and considering all options to challenge the

decision, and the Applicants were strongly considering options to join with other interested parties, as the proposed development affects a number of proximate residents. The Applicants however, ultimately made a decision to proceed separately, which happened late in the eight-week period.

As a result, there was very limited time within which the solicitors then retained by the Applicants could prepare and issue the Statement of Grounds prior to the expiration of the statutory period. In those circumstances, there was insufficient time to fully plead out the particulars of the two core grounds.”

55. As submitted on behalf of the Commission

“the explanation advanced on behalf of the Applicants by Ms. Carbery does not reflect any oversight on the part of the Applicants' former solicitors. Rather, the explanation, at best, appears to suggest indecision on the part of the Applicants as to whether to challenge the Commission's Decision within the 8 week period provided by statute, or at least delay or procrastination in making that decision to challenge.”

56. In Thomson & Anor v. An Bord Pleanála [2025] IESC 31 Woulfe J. accepted the argument that the failure to provide an explanation for the entire period of the delay is not necessarily fatal, but he stated it may give rise to a presumption against the grant of an extension of time. However, in this case, I do not consider that any adequate or reasonable explanation has been given for not advancing the grounds the subject of this amendment application.

57. It has not been suggested that there was any error or oversight on the part of the Applicants’ former solicitors. It is difficult to see how that could be done without evidence in circumstances where those solicitors no longer represent the Applicants and therefore a concession could not be made in submissions, as has occurred in other cases. It would appear that the Applicants opted to challenge the impugned decision by issuing their own proceedings, rather than joining in proceedings which were issued in time and for which leave to apply for judicial review has since been granted. Undoubtedly this is a decision they were entitled to make. However, the essence of the explanation offered for the need for this application is that the Applicants ran out of time to do bring proceedings in accordance with the requirements of the Rules as modified by section 50(8). The question of time is governed by sections 50(6) and (8). The Applicants accept they cannot satisfy the conditions for an extension of time under section 50(8).

58. As the Supreme Court noted in Keegan, the system of judicial review provides that “administrative decisions may only be challenged if the requirements of the Rules of

Court or of the relevant statute are met.” Special and stricter rules have been adopted for planning, asylum and immigration and public procurement cases, for public policy reasons to which the Court must have regard.

59. While an amendment should be granted if required by the interests of justice, that would also amount to a good and sufficient reason to extend time. The intention of the Oireachtas is otherwise clear.

60. That said, in considering whether the interests of justice require, rather than permit, the grant of an amendment, it is necessary to have regard to the specific facts and circumstances, which must be viewed in the context of the statutory scheme.

61. The factors which weigh in favour of granting the amendment sought include the fact that the Applicants would be prevented from challenging a decision by the Commission on the appeals lodged by them. The Applicants submit that the amendment sought is in the interests of justice. They say:

• No change is required to the reliefs sought in the Statement of Grounds.

– This is correct.

• No new core grounds are added, but that the Applicants seek to “plead out” or provide “further particulars of existing grounds”, in a way which involves issues of law rather than new facts.

– Whilst the new grounds are added to the original core grounds, they do introduce new points which are not acceptably clear from the original grounds and do not simply elaborate or provide further particulars for grounds advanced within time.

• The new grounds are arguable:

– This is an absolute requirement of an amendment application rather than a factor which should be weighed in considering whether the interests of justice require amendment.

• The proposed new grounds will not give rise to the necessity to exchange additional affidavits or delay the progression of the litigation.

– Without the amendments, leave to apply for judicial review would be refused.

• The Applicants formed the decision to institute these proceedings ‘late in the eightweek period’ which led to insufficient time to plead the case in a manner which satisfied the Rules (and, as I have found, failed to disclose substantial grounds for contending that the impugned decision was invalid).

• Neither the Commission nor the Notice Party are prejudiced in any significant or irremediable manner

– Without the amendments, leave to apply for judicial review would be refused.

62. Section 50(2) provides that the validity of such a decision shall not be questioned “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").” This necessarily involves the filing of a Statement of Grounds which complies with the obligation to “state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground”. The clear intention of the Oireachtas is that the decision which the Applicants seek to challenge may only be challenged within the period of eight weeks, which is subject to extension if for good and sufficient reason.

63. The Applicants accept that by reason of the lateness of their decision to institute proceedings, the solicitors retained by them could not prepare and file a Statement of Grounds which fully pleaded out the particulars of the grounds they sought to rely on. They also accept that they cannot satisfy section 50(8). They were aware of all relevant facts and had access to all relevant materials for most, if not all, of the eight-week period, having been notified of the Board Order when it was made. Their appeals had been lodged by specialist advisors, and they engaged solicitors, albeit “late in the eight-week period”. For the reasons set out above, I have found that the Statement of Grounds which was filed did not demonstrate substantial grounds for challenging the decision. I do not consider that a meaningful or reasonable explanation been given for not including the proposed amended grounds before the prescribed period had ended.

64. Whilst the decision which the Applicants seek to impugn has already been challenged, and therefore the Respondent and Notice Party were made aware that this decision was being challenged within time, the grounds which the Applicants seek to advance by way of amendment had not been identified, nor notified to the responding parties, until five weeks after the time for challenging the decision had expired. If those other proceedings succeed, whether on the grounds the Applicants seek to advance or not, there would be no particular benefit or public interest in allowing the Applicants to amend the grounds in order to pursue these proceedings. Conversely, if those proceedings fail, but the Applicants might have succeeded on the amended grounds, there would be a prejudice to the Applicants, and gain for the Notice Party, and Respondent. In circumstances where I have found that they seek to advance a substantially new case, as the pleaded case does not disclose substantial grounds, this is a situation to which section 50(8) applies. The Oireachtas has mandated that a (new) challenge may only be brought to a decision of the Commission after the expiration of eight weeks if there is good and sufficient reason for extending time.

65. Furthermore, having to deal with a potentially winning point which was not originally pleaded does not constitute irremediable prejudice: Humphreys J. in Sherwin, following from Keegan. As noted above, the authorities opened to me (except Byrne, where the order was granted without prejudice) involved applications for amendment after the applicants had overcome the hurdle establishing that the application had been brought in time, and demonstrating arguable (or substantial) grounds. In this case, leave has not been granted and I am satisfied that the Statement of Grounds as filed does not disclose substantial grounds.

66. Whilst I make no finding regarding the strength of the grounds sought to be advanced, I am prepared to accept for the purposes of this application that they are substantial. However, I do not consider that the interests of justice require the amendment of the Statement of Grounds. Allowing the proposed amendment would be to circumvent the time limit in the 2000 Act and set at nought the requirement that an Applicant set out precisely the grounds on which they contend that they are entitled to the relief sought. I do not consider that the interests of justice require this, having regard to the facts and circumstances of this case.

The concept of a holding Statement of Grounds is not consistent with the Rules or sections 50, 50A and 50B of the 2000 Act.

67. Whilst noting that the appeal in Hayes & Anor v. EPA [2024] IECA 162, did not involve an application to amend the Statement of Grounds, I am reinforced in my conclusions by the dictum of Butler J. at para. 62, where she stated:

“Thus, the scope of judicial review is defined not just by the pleadings but by the fact that an applicant has been granted leave to pursue the case as pleaded, and perhaps not all of the case which they initially advanced. …. It goes without saying that any application to amend must, at a minimum, meet the threshold which applied at the initial leave stage. However, an applicant who is seeking to amend a statement of grounds to challenge a decision of the EPA will face a further difficulty arising from the fact that a statutory time limit of 8 weeks applies to the making of an application for leave to apply for judicial review in respect of such decision. Those time limits cannot be evaded by making an application outside of the time limits to substantively amend a statement of grounds issued within time.” (emphasis added)

68. I refuse the application for liberty to amend the Statement of Grounds in terms of the draft Amended Statement of Grounds.

Application for Leave to apply for Judicial Review

69. For the reasons set out above, I am satisfied that the Applicants have not established substantial grounds for contending that the decision of the Commission to grant permission to the Notice Party is invalid and I refuse the application for leave.

Application to for liberty to file Affidavit of Bill Hastings

70. In the circumstances, it is not necessary to grant liberty to file the affidavit of Bill Hastings.

The nature or extent of the documents exhibited originally was not a factor which I considered in deciding to refuse the application for liberty to amend the Statement of Grounds, or for finding that the Applicants have not established substantial grounds for contending that the impugned decision is invalid.

Order

71. The application for liberty to amend the Statement of Grounds in terms of the draft Amended Statement of Grounds is refused.

72. The application for leave to seek the reliefs at para. D of the Statement of Grounds filed the 20th May 2025, on the grounds set out at para. E thereof, is refused.

73. Liberty to file the approved draft affidavit of Bill Hastings is refused.

Emily Farrell