High Court extends time and quashes planning decision due to developer's notice defects affecting applicant.

[2025] IEHC 656

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2025.0000089]

BETWEEN

IAN CROFT

APPLICANT

AND

DUBLIN CITY COUNCIL

RESPONDENT

AND

AIDEEN WHELAN

NOTICE PARTY

Date of impugned decision: 30 September 2024

Date proceedings commenced: 22 January 2025

Date of main hearing: 20 May 2025 & 1 October 2025

Date draft judgment circulated: 21 October 2025 & 17 November

2025

JUDGMENT of Humphreys J. delivered on Friday the 28th day of November 2025

1. There is a big difference between a breach of public participation and notification

requirements that doesn’t adversely affect a given judicial review applicant and a breach that does.

Barring some catastrophic failure in the process, the former type of essentially ius tertii complaint

normally warrants either declaratory relief only or (especially now that there has been so much

clarification in caselaw as to what the requirements are) no relief at all. The latter type is a genuinely

proper ground for certiorari. To put it another way, the former tends to be a bit of an academic

technicality (save in an unusual case of some really fundamental failure in public notice

requirements) whereas typically the latter genuinely affects rights that the court should protect.

Contrary to an extraordinarily popular delusion these days, courts don’t tend to quash things on the

basis of mere technicities. There has to be a point of genuine substance that makes a real difference

to an objective interest that warrants protection. Bearing that distinction in mind, planning caselaw

going back 50 years has emphasised the importance of compliance with statutory provisions on

public notification. The criticality of such matters has been supercharged by the right of public

participation under the Aarhus Convention, now incorporated in EU law. The developer here

published a defective newspaper notice with the effect that her application was declared invalid. The

defect, rather forebodingly, was the omission of wording about public participation in the decision-

making process. The council then wrote to the developer in accordance with the Planning and

Development Regulations 2001 (S.I. No. 600 of 2001) to have the site notice taken down in respect

of the invalid application. The developer then made the second and fatal error in failing to do that.

Instead, a fresh application was made without erecting a fresh site notice. There is no evidential

explanation for that. The applicant’s evidence that he relied on the site notice and was unaware of

there being a fresh application has not been displaced. It is perhaps prudent to emphasise one thing

– this matter is not about a €7.5 million sale being put at risk over a typographical error that made

no difference. It is about a permission that was obtained despite two breaches of planning

regulations that on the evidence had the actual cumulative effect of disadvantaging the applicant

and shutting him out of the process. Among other consequences, not participating at council level

meant he would have been ineligible to appeal the grant of permission. That isn’t harmless error, it

isn’t de minimis and it isn’t something that should be ignored as a matter of discretion. It is not the

law that the size of a proposed transaction or a proposed development overwhelms the need for the

right to public participation to have been afforded in accordance with law. While commerciality is

relevant to the court’s consideration in many situations, including to the right to have proceedings

advanced at pace where parties so request, the court, if it is to hold the scales equally at all as

between the various interests involved in this area, must also be vigilant to protect the procedural

rights of less powerful stakeholders in the planning process, including giving real and meaningful

effect to the right to public participation in environmental decision-making, and to wide access to

justice in environmental matters, as enshrined in the Aarhus Convention and in EU law. The council

has conceded certiorari and, in the circumstances outlined below, the developer is not in a position

to continue to defend the proceedings. The purpose of this judgment is therefore to explain why I

am satisfied to make the order sought by the applicant. I appreciate that 20 pages and 15,000

words to explain an unopposed order will seem like overkill, but the notice party has requested

written reasons, and one has to lean towards facilitating such a request, all other things being equal.

Geographical context

2. The notice party sought permission as follows:

“Planning permission for development of a Large-scale Residential Development (LRD) at a

c. 0.24 ha site on lands at Church Lane and Swords Road, Santry, Dublin 9.

The proposals comprise the demolition of existing buildings and structures on site and the

construction of a mixed-use development comprising a single block including 268 no.

purpose-built student accommodation bedspaces and café.

The development will consist of:

- Demolition of existing buildings and structures on site (c. 1,476 sq.m)

- Construction of 268 no. purpose-built student accommodation bedspaces (251 no.

standard rooms, 5 no. studios and 12 no. accessible rooms) across a single block ranging in

height from 5 storeys (17.25 metres above ground level) to 8 storeys (26.19 metres above

ground level) to parapet height, with plant enclosure at roof level (total height 27.95

metres), accessed from Swords Road and Church Lane.

- Café unit at northwest corner (c. 71 sq.m) at ground floor with outdoor seating area

adjacent to northern and western elevations accessed from Church Lane, enclosed with

reconstructed stone wall at Swords Road elevation.

- Provision of c. 631 sq.m of student amenities and services at ground floor level

consisting of gym, library, coworking space, games area, reception and lobby, laundry,

office/ admin, refuse and parcel rooms.

- Provision of c. 891 sq.m of external amenity space comprising central courtyard and

roof terraces at fifth, sixth and seventh floor levels.

- A total of 332 no. bicycle parking spaces: 122 no. internally at ground floor level

(accessed from Church Lane and central courtyard), 202 no. within split-level sheltered

bicycle store in the southern part of the central courtyard, 4 no. serving the café at northern

elevation and 4 no. located adjacent to the main entrance at the western elevation to Swords

Road.

- Landscaping, planting and seating along the northern elevation at Church Lane, with

reconfigured public footpath.

- Plant, ESB substation and refuse store accessed from eastern elevation at Church

Lane.

- Access via double height archway from Swords Road at southwest corner of the site,

with hard landscaping.

- All associated infrastructure, landscaping, open space, PV panels (roof level),

green/blue roof, access, lighting and works to facilitate the proposed development.

The development may be used for short-term temporary tourist accommodation outside the

normal academic year in accordance with the definition of student accommodation set out

in Section 13 of the Planning and Development (Housing) and Residential Tenancies Act

2016.”

3. The application documents were also available at www.churchlanelrd.ie (not currently

online).

Facts

4. Dublin City Council's published external checklist, adopted in February 2021, (downloadable

at https://www.dublincity.ie/sites/default/files/2021-02/external-checklist-february-2021.doc)

states that where an application is deemed invalid, any resubmission must be accompanied by new

and compliant notices.

5. A site notice (placed at four locations) was erected on 31 July 2024.

6. On 1 August 2024, the notice party made an application to the council for the proposed

development, under reference LRD6053/24-S3. That planning application was invalidated by the

council by way of a letter dated 6 August 2024. The reason for the invalidation of the application

was that the newspaper notice for the application was missing part of the statutory wording, namely

the words “and a submission or observation in relation to the application may be made to the

authority in writing on payment of the prescribed fee within the period of 5 weeks beginning on the

date of receipt by the authority of the application” were missing from the newspaper notice.

7. A notice was issued under art. 26(5) of the 2001 regulations by the council in relation to the

original invalid application. The letter explicitly required removal of the original site notice and

confirmed that any re-lodged application must include a new site notice and newspaper notice, both

dated within two weeks of submission. The evidence in relation to this letter is as follows:

“22. On 6th August 2024 (5 days after the submission of the first planning application)

the Council wrote to the Notice Party pursuant to the provisions of Article 26(5) (a copy of

which is at TAB 1 to ‘BP1’). The said Notice under Article 26(5) states, inter alia, as follows:

‘I wish to inform you that the above planning application is invalid and cannot be considered

by this Planning Authority. Set out below are the requirements of the Planning &

Development Regulations 2001 (as amended) that have not been complied with.

You are hereby requested to remove the site notice(s) erected or fixed in respect of the

above application.

I return herewith the planning application including all particulars, plans, drawings and

maps.

Arrangements are being made to refund the planning fee in respect of this application to

you.

Please note that any resubmitted planning application must be accompanied by the

appropriate fee, the required number of particulars, plans, drawings, maps, etc, a newspaper

notice, which must have been published not more than TWO WEEKS prior to the date of re-

lodgement. Also, please note that any resubmitted planning application must be

accompanied by a copy of site notice, which must have been erected not more than TWO

WEEKS prior to date of re-lodgement.

Any planning application resubmitted must be in full accordance with the Planning &

Development Regulations 2001 (as amended), and Dublin City Council reserves the right to

declare such resubmitted application invalid if all the requirements are not complied with.

In order to facilitate the validation of this application the applicant is advised on resubmission

to quote the previous invalid planning application number or enclose a copy of this letter

with the resubmitted application

[…]

REQUIREMENTS NOT COMPLIED WITH

1. Part of the statutory wording is missing from the Newspaper Notice.

‘and a submission or observation in relation to the application may be made to the authority

in writing on payment of the prescribed fee within the period of 5 weeks beginning on the

date of receipt by the authority of the application.’

Note: The applicant is advised that the Planning Registry Section (Block 4, Ground Floor,

Civic Offices, Wood Quay, Dublin 8) have retained 3 boxes of drawings and reports pending

resubmission or collection. Please contact the Planning Registry Section 01 22 23114 to

confirm.”

8. It is common case that the site notice was not so removed.

9. A newspaper notice, namely the newspaper notice that was published in the Irish Daily Star

on 7 August 2024 (which contained the correct statutory wording), was lodged with the relevant

planning application (bearing reference LRD6053/24-S3A).

10. The second planning application, which bears reference LRD6053/24-S3A, for precisely the

same development as LRD6053/24-S3, was lodged with the respondent on 7 August 2024, that

application was validated by the respondent and the newspaper notice submitted as part of that

application contained the correct statutory wording (i.e. it contained the statutory wording that had

been missing from the newspaper notice submitted with the previous application under reference

LRD6053/24-S3). In short, in substance, the same planning application was made for the same

large-scale residential development (LRD), but with a newspaper notice that contained the correct

wording.

11. The application included an environmental impact assessment (EIA) screening report

concluding that an EIAR was not required:

https://webapps.dublincity.ie/PublicAccess_Live/Document/ViewDocument?id=3830716A5A2611E

F8183005056B85853 and

https://webapps.dublincity.ie/PublicAccess_Live/Document/ViewDocument?id=3830716C5A2611E

F8183005056B85853.

12. An appropriate assessment (AA) screening report considered that stage 2 AA was not

required:

https://churchlanelrd.ie/data/files/Other%20Reports/Appropriate%20Assessment%20Screening%

20Report.pdf (currently offline).

13. In response to an email received from the applicant (sent on 7 August 2024 at 20.12 pm)

regarding the invalidation of the planning application bearing reference LRD6053/24-S3, the

respondent’s Planning & Property Development Department, by email to the applicant, sent at

9.55 am on 8 August 2024, informed the applicant that (i) if the application he was interested in

making a submission on had been declared invalid he would be unable to make a submission on it;

(ii) he was advised to wait for if/when a new application is lodged which he could then submit an

observation on; and (iii) he was advised that in relation to new planning applications that he could

search for them online at a link to the respondent’s website provided in that same email (namely a

link to the Citizen Portal Planning page through which planning observations by third parties can be

submitted online and which also contains a direct link to the ‘search application’ of the respondent’s

website).

14. The applicant’s email of 7 August 2024 states:

“From: Ian croft <…>

Sent: 07 August 2024 20:12

To: Planning <planning@dublincity.ie>

Subject: Planning Reference: Church Lane LRD6053/24-S3

A chara,

I note from the planning portal that the above planning application has been declared invalid.

Would you be able to advise what this means as I am unsure if it is necessary to continue

with my observation at this point. Many thanks.

Best regards

Ian”

15. The respondent’s first email of 8 August 2024 states:

“From: Planning <planning@dublincity.ie>

Sent: Thursday, August 8, 2024 9:55:27 AM

To: 'Ian croft' <…>

Subject: RE: Planning Reference: Church Lane LRD6053/24-S3

Hi Ian,

If an application that you were interested in submitting an observation on has been declared

invalid,

You are unable to submit an observation on it.

I would advise that you wait for if/when a new application is lodged,

Which you could then submit an observation on.

You can search for new applications online via the link below.

https://planning.agileapplications.ie/dublincity

Kind regards,

…

Planning & Property Development Department

Civic Offices ¦ Block 4 ¦ Floor 3 ¦ Wood Quay ¦ Dublin 8

E: planning@dublincity.ie

An Roinn Pleanála & Forbairt Maoine

Oifigí Na Cathrach ¦ an Ché Adhmaid ¦ Bloc 4 ¦ Urlár 3 ¦ Baile Átha Cliath 8

E: planning@dublincity.ie”

16. The applicant’s email of 8 August 2024 states:

“From: Ian croft <…>

Sent: 08 August 2024 15:23

To: Planning <planning@dublincity.ie>

Subject: Re: Planning Reference: Church Lane LRD6053/24-S3

Hi …,

Thanks for the update. Appreciate that, it is good know. Would the reason why the planning

application be declared invalid be information that could become available to the public on

the dashboard within the current list of documents? Thanks again

Best regards

Ian

Sent from Outlook for Android”

17. The final email of 8 August 2024 states:

“From: Planning <planning@dublincity.ie>

Sent: Thursday, August 8, 2024 3:32:02 PM

To: 'Ian croft' <…>

Subject: RE: Planning Reference: Church Lane LRD6053/24-S3

Hi Ian,

If an application is declared invalid,

The reason usually is uploaded to the website under the conditions tab.

Please see the below link to the reason for invalidation.

Citizen Portal Planning (agileapplications.ie)

Kind regards,

…

Planning & Property Development Department

Civic Offices ¦ Block 4 ¦ Floor 3 ¦ Wood Quay ¦ Dublin 8

E: planning@dublincity.ie

An Roinn Pleanála & Forbairt Maoine

Oifigí Na Cathrach ¦ an Ché Adhmaid ¦ Bloc 4 ¦ Urlár 3 ¦ Baile Átha Cliath 8

E: planning@dublincity.ie”

18. It is the case that channels other than inspection of site notices were available – as the

foregoing correspondence pointed out to the applicant. As regards the search application page on

the respondent’s website, following the making of the application bearing reference LRD6053/24-

S3A, had the applicant, for example, typed the reference “LRD6053/24-S3” into the ‘Planning

Reference’ box, or “Church Lane” into the ‘Location’ box, or the notice party’s name “Aideen Whelan”

into the ‘Applicant’ box, a search by any of those terms would have and continues to return the

result of producing a link to both application LRD6053/24-S3 and to the subsequent application

bearing reference LRD6053/24-S3A. At all material times the relevant planning application (bearing

reference LRD6053/24-S3A) was available (and remains available) for inspection on the

respondent’s website (at https://planning.agileapplications.ie/dublincity/application-

details/162941).

19. It is common case that site notices had been erected at four locations in connection with the

invalid application. One of the site notices was positioned on Church Lane, one of the site notices

was on a pillar at the end of Church Lane, and the other two site notices were on the Swords Road.

Each site notice was on a white background.

20. It is also common case that the same site notice was availed of for LRD6053/24-S3 and

LRD6053/24-S3A. The notices relied on for the permission now impugned were erected in

connection with the original invalid application and prior to the take-down notice from the

respondent, and it is common case that the developer did not take down the original site notices as

required by that notice.

21. The respondent inspected the site notices at around 2 pm on 13 August 2024, and

photographs were taken and exhibited.

22. Third-party observers made observations on the relevant planning application LRD6053/24-

S3A (including Santry Forum, but there is no evidential basis to conclude that the applicant’s

evidence as to his unawareness is incorrect). The respondent received five third-party observations

on the relevant application for permission.

23. The decision of the respondent, dated 30 September 2024 (reg. ref. LRD6053/24-S3A), was

to grant planning permission, subject to 26 conditions to the notice party for a proposed development

comprising a LRD (consisting, inter alia, of the demolition of existing buildings and structures on site

and the construction of a mixed-use development comprising a single block including 221 purpose-

built student accommodation bedspaces and café) at a c. 0.24 ha site on lands at Church Lane and

Swords Road, Santry, Dublin 9. The planning application had sought permission for 268 bedspaces

but Condition 4 of the respondent’s decision, which relates to the omission of the fourth floor of the

development, will result in the omission of 47 bedspaces, therefore reducing the number of

bedspaces in the permitted development to 221.

24. A first-party appeal was lodged with the board on or about 1 November 2024 by the notice

party (seeking the omission of Condition 4), however that appeal was withdrawn on or about 7

November 2024, and thereafter, a final grant of permission was issued by the respondent on or

about 25 November 2024.

25. A news article relating to the development was published in the Irish Times on 15 January

2025 (https://www.irishtimes.com/property/commercial-property/2025/01/15/santry-site-for-

with-planning-permission-for-a-student-scheme-for-75m/). The applicant’s evidence that he was

not aware of the application up to that point, which has not been rebutted and which I accept, is

(emphasis added):

“7. I also note that I, like many members of the public, rely on physical site notices to

stay informed of planning activity. It is well documented in my submissions that I do

not routinely check the online planning portal and that no obligation exists for me to do so.

I was never placed on notice of the second application through proper channels.

8. I discovered the planning permission on 15 January 2025 when I viewed a property

listing which stated the site had ‘full planning permission.’ I prepared and submitted my

original Grounding Affidavit on 22 January 2025, within one week of that discovery.”

Procedural history

26. The applicant, appearing pro se, filed his statement of grounds and verifying affidavit on 22

January 2025. The applicant was granted leave to apply for judicial review on 17 February 2025

(by order perfected on 19 February 2025), without prejudice to any point the opposing parties could

have made, and the developer, Aideen Whelan, was joined as a notice party to the proceedings.

27. The applicant served and uploaded to ShareFile a supplemental affidavit on 3 March 2025.

By email dated 7 March 2025, the respondent confirmed it accepted that the present proceedings

are covered by s. 50B of the Planning and Development Act 2000 (the 2000 Act). (The applicant

had served a motion dated 14 February 2025 seeking costs protection).

28. The originating notice of motion was filed on 10 March 2025, and the matter came before

the court on 24 March 2025, when it was assigned a hearing date of two hours on Tuesday 20 May

2025, and was then adjourned to 12 May 2025 for callover to allow filing of statements of opposition

and closing of the pleadings and delivery of written submissions and preparation of a statement of

case in accordance with a schedule of directions proposed by the respondent and agreed to by the

applicant and notice party developer. The respondent filed its statement of opposition and two

affidavits on 17 April 2025. The notice party developer filed its statement of opposition and an

affidavit on 23 April 2025. The applicant filed a replying affidavit on 25 April 2025.

29. The applicant filed written submissions on 6 May 2025. The matter was called over on 12

May 2025. The respondent filed written submissions on 15 May 2025. The case was listed for

hearing at 9.30 am (two hours) on 20 May 2025.

30. At an early stage in that hearing there was an objection to the extent to which the applicant’s

point under art. 26 of the 2001 regulations was pleaded. In essence, the applicant pleaded that

there should have been a new site notice following the invalidation of the original notice, but relied

in his statement of grounds on the wrong articles of the 2001 regulations (phrasing the claim in

terms of arts. 19 and 20 instead of 26). I did outline to the parties that the fact that there was such

an acute pleading issue wasn’t totally clear to me in advance. Had this been clearer at an earlier

stage the question of amendment could have been discussed in a less pressurised manner and

addressed in advance. At the hearing the applicant also clarified that he was not pursuing the point

about the yellow site notice (art. 19(4)).

31. On the question of whether the applicant’s point now being made was acceptably clear from

the original pleadings, I ruled that the answer to that has to be No. The original pleading only makes

a point relating to arts. 19 and 20 in terms that focused on whether the notice should be on a white

or yellow background. Therefore if the art. 26(5) point was to be pursued it had to be by way of

amendment. The applicant said he wanted to “resubmit” (i.e., amend) the statement of grounds to

include the art. 26 basis for the proposition that the original notice should have been removed.

32. While it was argued that the question of extension of time should be dealt with before

amendment, I determined that in the circumstances that would be a meaningless exercise given

that the extension only arises where we know what point the applicant wants to make, so the

amendment needs to be at least considered first.

33. Insofar as other objections were raised, I considered that those matters could be dealt with

at the hearing. The developer also objected on the grounds of prejudice, but insofar as delay would

cause prejudice, I considered that that was arguably attributable to default on the developer’s side:

(i) the developer/ her servants or agents failed to publish a valid newspaper notice

conforming to the legislation;

(ii) this inevitably led to the invalidation of the application thus causing or contributing

to the situation we are now dealing with whereby the applicant contended that he

was prejudiced having wanted to engage with the original application; and

(iii) the applicant argued (which I didn’t need to decide at that point, and the respondent

didn’t want it decided then in any event) that there was also breach of art. 26(5) in

not removing the original site notice.

34. In the circumstances I considered that the prejudice of delay was, at that stage, arguably

sufficiently of the developer’s own making (i.e., including the developer’s servants or agents) as not

to be an overwhelming reason against allowing the question of amendment to be considered in an

orderly fashion.

35. Accordingly on 20 May 2025, I gave the applicant liberty to bring a motion grounded on an

explanatory affidavit seeking an amendment dropping the art. 19(4) point and adding the art. 26(5)

point. That did not prejudice the right of the opposing parties to oppose the application on any

grounds they might have advanced at the liberty-to-issue-the-motion stage. It was explained that

the affidavit needed to exhibit an amended statement of grounds with strike-through and underlining

and explain not including the point originally.

36. The opposing parties requested a formal notice of motion which was directed. The developer

asked for the earliest return date which was Monday 26 May 2025.

37. On that date, the amendment application was listed before Nolan J., who heard the

amendment application and allowed the amendment.

38. The matter returned to the List to Fix Dates on 30 June 2025. The notice party asked for

the earliest date, which was provided by listing the matter on Monday 14 July 2025 at the end of

the list rather than being given a regular hearing date. Unfortunately due to pressure of business

the matter was not reached on that date and was adjourned for hearing to 29 September 2025, with

supplemental written submissions being permitted. The attempt to shoehorn the case into a Monday

list rather than wait for a more regular hearing date was thwarted for a second time on the latter

date but the case was accommodated as soon as possible thereafter on Wednesday 1 October 2025

and heard then, with all parties being commendably economical.

39. Judgment was reserved at the end of that hearing. I would like to record my thanks to the

applicant and all of the lawyers involved for their unfailingly courteous, professional (in the case of

the lawyers) and helpful assistance. As I have previously sought to make clear, insofar as any points

advanced are not being accepted in this or any other given judgment, that is solely to do with the

inherent merits of such points and is no reflection on those conveying or instructed to convey such

points, a distinction that most certainly should be, and I believe generally is in fact, self-evident to

all concerned.

40. On 21 October 2025, a draft of the present judgment was sent to the parties to give an

opportunity to identify any errors. The applicant appears to have misunderstood the need to keep

a draft judgment under wraps, and may have incorrectly let some information slip on a private

residents’ Facebook group, which is something to avoid for future reference. While a draft sets out

the court’s thinking (subject to limited error-correcting submission) it does not have any status until

judgment is delivered. The applicant has thus indirectly achieved a small but important footprint in

the sands of procedure, in the sense that this little faux pas has resulted in a tightening of the

wording in draft judgments in that regard, something that may also have to be considered at wider

practice direction/guidance level in due course.

41. Following correspondence between the parties a second draft of the present judgment was,

exceptionally, circulated to parties on 17 November 2025.

42. The rules of engagement in such a situation are that the draft is without prejudice to the

right of the court ultimately to issue a judgment in whatever form or with whatever content it

considers appropriate.

43. Any comments must be emailed to the relevant judicial assistant and uploaded to ShareFile

in writing within 7 days or by the mention date whichever first occurs and should not be to reargue

the substance (submissions to that effect will be disregarded) but are confined to matters such as:

(a) informing the court as to whether a formal judgment is required, and if so on what

issues;

(b) informing the court as to whether a judgment might be oral or written or partly in

both modes;

(c) any typographical, factual or legal errors in the decision;

(d) any redaction of personal information that the party wishes to request;

(e) in the event that the court proposes to place pivotal reliance on any authority or

material not previously adverted to, as opposed to where such material merely

reinforces a point that the court was making in any event, any comment as to why

such material should not lead to the proposed conclusion; identifying points that the

court proposes to address but that the parties consider it unnecessary to address;

(f) requesting the court to decide a point that, while unnecessary to decide, is one the

party considers could beneficially be decided;

(g) identifying significant procedural, factual or legal points that the party considers that

the court was required to address but has not addressed or not provided reasons

for; and

(h) any other suggestions as to the wording (as opposed to substance) of the decision

if the proposed wording causes any significant issue for a party for any identified

reason.

44. It is then entirely a matter for the court as to whether to list the matter for mention, or

whether to simply give judgment with or without amendment to respond to any such comments or

for any other reason that appears appropriate to the court. Any judgment may be given without

further notice following the expiry of the specified period, whether comments are made or not. That

period will not be extended save in exceptional circumstances. All parties involved are requested to

positively confirm to the court the position including if they have no observations on the draft

legitimately falling within the foregoing parameters. Overall the draft judgment procedure is a

concession which parties can engage with but must do so with immediate dispatch, discipline and

focus – it is not the opening of a new phase of the litigation that gives rise to “an entitlement to

elaborate procedures at every point” (to use a phrase of O’Donnell C.J. (Dunne, Charleton and Baker

JJ. concurring) in O’Sullivan v. HSE [2023] IESC 11 (Unreported, Supreme Court, 10 May 2023) at

para. 39); and still less should the procedure invite the perhaps “serious error, to which lawyers are

prone, to approach any such case on the tacit assumption that only procedures which approximate

to a criminal trial are fair, and anything which departs from that is somehow dubious" (O’Donnell J.

in O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75, [2017] 3 I.R. 751, [2018] 1

I.L.R.M. 245, 780).

45. For the avoidance of doubt, draft judgments are not public domain materials and, while they

can be shared between the lawyers concerned and their clients, they are not intended for publication

(indeed given their lack of status it is impracticable to refer to them, even in the context of

considering such drafts in other litigation, until the judgment is formally issued) or for any other

transmission save for the legitimate purposes of the litigation. Therefore anyone with information

as to the text, content or proposed outcome of any draft is required not to transmit such information

to others save solely by way of private transmission for the legitimate purposes of the litigation and

subject to a similar restriction on any recipient (see Attorney General v. Crosland (No. 2) [2021]

UKSC 58, [2022] 1 W.L.R. 367, [24/01/2022] T.L.R. 1 which discusses why restriction on publication

of draft judgments is in the interests of the administration of justice). The contents of this paragraph

constitute an immediately effective direction of the court to the parties and anyone having notice of

the draft judgment with effect from the date of circulation of the draft.

46. The mention date to review matters following the foregoing was to be 24 November 2025

and a modest clarification (which I have endeavoured to address in para. 69) was suggested by the

notice party.

Relief sought

47. The reliefs sought in the statement of grounds are as follows:

“1. An order for leave to apply for judicial review, challenging the decision of Dublin City

Council to approve planning application LRD6053/24-S3A.

2. An order of Certiorari, quashing the decision to grant planning permission for

LRD6053/24-S3A.

3. An extension of the statutory time limit for bringing judicial review proceedings due

to exceptional circumstances, including late discovery caused by procedural irregularities.

4. Any other relief this Honourable Court considers just and appropriate.

5. An undertaking by the Applicant to comply with any directions of this Honourable

Court, including the provision of further documentation or participation in a formal hearing,

as required.”

Grounds of challenge

48. The grounds of challenge are as follows:

“1. Failure to Post a New Site Notice:

o The original planning application (LRD6053/24-S3) was deemed invalid by Dublin

City Council.

o The subsequent application (LRD6053/24-S3A) relied on the same site notice

without erecting a new one, in breach of Articles 19 and 20 of the Planning and Development

Regulations 2001 (as amended), specifically Article 19(4), which states:

"Where a planning application is made in respect of any land or structure, and a subsequent

application is made within 6 months from the date of making the first application in respect

of land substantially consisting of the site or part of the site to which the first application

related, in lieu of the requirements of sub-article (1)(b), the site notice shall be inscribed or

printed in indelible ink on a yellow background and affixed on rigid, durable material and be

secured against damage from bad weather and other causes."

• The subsequent application (LRD6053/24-S3A) relied on the same site notice

without erecting a new one, in breach of Article 26(5) of the Planning and

Development Regulations 2001 (as amended), which provides that where a planning

application is deemed invalid, the planning authority shall notify the applicant in

writing and request the removal of any site notice erected under Article 17(1)(b).

• The Applicant contends that a fresh site notice should have been erected for the new

application, with a new date, regardless of whether the content was the same, in

order to provide proper and transparent public notice and allow for public

participation.

• The failure to erect a new site notice deprived the Applicant and the community of

their statutory right to be informed of, and to participate in, the planning process.

o The Applicant asserts that Dublin City Council failed to ensure compliance with this

statutory requirement, resulting in the community, including the Applicant, being deprived

of their statutory right to be informed of and participate in the planning process.

2. Late Discovery of Approval:

o The Applicant only became aware of the planning approval through a news article

published on 15th January 2025 in the Irish Times which was offering the site for sale with

Full Planning Permission.

o This delay resulted directly from the procedural flaws outlined above, which

undermined public transparency and prevented timely objections.

3. Comparison to Similar Applications:

o Other planning applications in the area have usually seen higher numbers of

observations, highlighting the lack of public awareness in this case due to the absence of a

new site notice.

4. Breach of Natural Justice:

o The procedural irregularities violated principles of natural justice by denying the

Applicant and the local community a fair opportunity to object or participate in the planning

process.”

Relevant statutory provisions on planning applications

49. Article 17 of the 2001 regulations (substituted by art. 8 of S.I. No. 685 of 2006 Planning and

Development Regulations 2006) requires notice within the two weeks in advance of a planning

application:

“17. (1) The planning authority shall, when issuing a notice under section 32D of the Act,

send its record of the section 247(1A) LRD consultation and the section 32C LRD meeting

concerned to the prospective LRD applicant. An applicant shall within the period of 2 weeks

before the making of a planning application—

(a) give notice of the intention to make the application in a newspaper in accordance with

article 18, and

(b) give notice of the intention to make the application by the erection or fixing of a site

notice in accordance with article 19.

(2) Where the last day of the 2 week period referred to in sub-article (1) is a Saturday,

Sunday, a public holiday (within the meaning of the Organisation of Working Time Act 1997

(No. 20 of 1997)), or any other day on which the offices of the planning authority are closed,

the application shall be valid if received on the next following day on which the offices of the

planning authority are open.

(3) The requirement of sub-article (1)(b) shall not apply in relation to a planning application

for development consisting of the construction or erection by an electricity undertaking of

overhead transmission or distribution lines for conducting electricity, or development

consisting of the construction or erection by any statutory undertaker authorised to provide

a telecommunications service of overhead telecommunications lines.”

50. The art. 17 notices don’t involve a planning reference number – they are notices of intention

to apply. In isolation that suggests that as long as a valid application is lodged within two weeks of

the notice it doesn’t matter if an invalid notice is so lodged. But that reads the provision in isolation

from art. 26(5).

51. Article 19 of the 2001 regulations (as substituted by art. 8 of S.I. No. 685 of 2006 Planning

and Development Regulations 2006) provides (emphasis added):

“Site Notice.

19. (1) A site notice erected or fixed on any land or structure in accordance with article

17(1)(b) shall be—

(a) in the form set out at Form No. 1 of Schedule 3, or a form substantially to the like effect,

(b) subject to sub-article (4), inscribed or printed in indelible ink on a white background,

affixed on rigid, durable material and secured against damage from bad weather and other

causes, and

(c) subject to sub-article (2), securely erected or fixed in a conspicuous position on or near

the main entrance to the land or structure concerned from a public road, or where there is

more than one entrance from public roads, on or near all such entrances, or on any other

part of the land or structure adjoining a public road, so as to be easily visible and legible by

persons using the public road, and shall not be obscured or concealed at any time.

(2) Where the land or structure to which a planning application relates does not adjoin a

public road, a site notice shall be erected or fixed in a conspicuous position on the land or

structure so as to be easily visible and legible by persons outside the land or structure, and

shall not be obscured or concealed at any time.

(3) Where a planning authority considers that the erection or fixing of a single site notice is

not sufficient to comply with the requirements of subarticles (1) and (2), or does not

adequately inform the public, the authority may require the applicant to erect or fix such

further site notice or notices in such a manner and in such terms as it may specify and to

submit to the authority such evidence as it may specify in relation to compliance with any

such requirements.

(4) Where a valid planning application is made in respect of any land or structure,

and a subsequent application is made within 6 months from the date of making the

first-mentioned application in respect of land substantially consisting of the site or part

of the site to which the first-mentioned application related, in lieu of the requirements of

sub-article (1)(b), the site notice for the subsequent application shall be inscribed or printed

in indelible ink on a yellow background and affixed on rigid, durable material and be secured

against damage from bad weather and other causes.”

52. What can be said immediately is that art. 19(4) does not apply here because there was no

valid first planning application.

53. Form No. 1 in sch. 3 (substituted by art. 99(a) of S.I. No. 296 of 2018 European Union

(Planning and Development) (Environmental Impact Assessment) Regulations 2018) (subsequently

amended by the European Union (Planning and Development) (Renewable Energy) Regulations

2025 (S.I. No. 274 of 2025) and then by reg. 5 of the European Union (Planning and Development)

(Renewable Energy) (No. 2) Regulations 2025 (S.I. No. 426 of 2025), but that doesn’t affect the

present case) was as follows:

“Form no. 1 Article 19

Site notice

NAME OF PLANNING AUTHORITY1

SITE NOTICE

I, ...........................................2, intend to apply for permission/retention permission

/outline permission/permission consequent on the grant of outline permission (Ref. No. of

outline permission)3 for development at this

site................................................................................. 4

The development will consist/consists5 of ..................................................................6

The planning application may be inspected, or purchased at a fee not exceeding the

reasonable cost of making a copy, at the offices of the planning authority during its public

opening hours.

A submission or observation in relation to the application may be made in writing to the

planning authority on payment of the prescribed fee, €20, within the period of 5 weeks

beginning on the date of receipt by the authority of the application, and such submissions

or observations will be considered by the planning authority in making a decision on the

application. The planning authority may grant permission subject to or without conditions,

or may refuse to grant permission.

Signed:.......................................................................... 7

Date of erection of site notice.....................................8”

54. The notes to the form (as amended most recently by art. 7 of S.I. No. 655 of 2023 Planning

and Development (Amendment) (No. 3) Regulations 2023) are as follows:

“Directions for completing this notice

1. The name of the planning authority to which the planning application will be made should

be inserted here

2. The name of the applicant for permission (and not his or her agent) should be inserted

here

3. Delete as appropriate. The types of permission which may be sought are—

(a) permission,

(b) retention permission,

(c) outline permission,

(d) permission consequent on the grant of outline permission. If this type of

permission is being sought, the reference number on the planning register of the

relevant outline permission should be included

4. The location, townland or postal address of the land or structure to which the application

relates should be inserted here

5. Delete as appropriate. The present tense should be used where retention permission is

being sought

6. A brief description of the nature and extent of the development should be inserted here.

The description should include—

(a) where the application relates to development consisting of or comprising the

provision of houses, the number of houses to be provided. ‘Houses’ includes

buildings designed as 2 or more dwellings or flats, apartments or other dwellings

within a building,

(b) where the application relates to the retention of a structure, the nature of the

proposed use of the structure and, where appropriate, the period for which it is

proposed to retain the structure,

(c) where the application relates to development which would consist of or comprise

the carrying out of works to a protected structure or proposed protected structure,

an indication of that fact,

(d) where an environmental impact assessment report or Natura impact statement

has been prepared in respect of the planning application, an indication of that fact

(e) where the application relates to development which comprises or is for the

purposes of an activity requiring an integrated pollution control licence or a waste

licence, an indication of that fact,

(f) where a planning application relates to development consisting of the provision

of, or modifications to an establishment within the meaning of Part 11 of these

Regulations (Major Accidents Directive), an indication of that fact,

(g) where the application is accompanied by an opinion on unconfirmed details an

indication of that fact.

7. Either the signature of the applicant or the signature and contact address of the person

acting on behalf of the applicant should be inserted here

8. The date that the notice is erected or fixed at the site should be inserted here”

55. Article 20 (substituted by art. 8 of S.I. No. 685 of 2006 Planning and Development

Regulations 2006) provides:

“In addition to the requirements of article 17(1)(b), a site notice shall be maintained in

position on the land or structure concerned for a period of 5 weeks from the date of receipt

of the planning application by the planning authority, shall be renewed or replaced if it is

removed or becomes defaced or illegible within that period and shall be removed by the

applicant following the notification of the planning authority decision under article 31.”

56. Article 26 of the 2001 regulations (as amended most recently by art. 5 of S.I. No. 655 of

2023 Planning and Development (Amendment) (No. 3) Regulations 2023) provides (emphasis

added):

“Procedure on receipt of planning application.

26. (1) On receipt of a planning application, a planning authority shall consider whether the

applicant has complied with the requirements of articles 18, 19(1)(a) and 22 and, as may

be appropriate, of article 15J, 24 or 25.

(2) Where a planning authority considers that a planning application complies with the

requirements of articles 18, 19(1)(a) and 22 and, as may be appropriate, of article 24 or

25, it shall stamp each document with the date of its receipt

and—

(a) send to the applicant an acknowledgement stating the date of receipt of the application,

and

(b) if the application was accompanied by an EIAR, send to the EIA portal in electronic form

in the manner set out on the portal—

(i) a copy of the confirmation notice received in accordance with article 22(2)(ga),

(ii) the reference number of the application on the register, and

(iii) the URL to the documents placed on its website pursuant to section 38(3)(b) of

the Act.

(3) Where, following consideration of an application under sub-article (1), a planning

authority considers that-

(a) any of the requirements of articles 18, 19(1)(a) or 22 and, as may be appropriate, of

article 15J, 24 or 25 has not been complied with, or

(b) the notice in the newspaper or the site notice, because of its content or for any other

reason, is misleading or inadequate for the information of the public, the planning application

shall be invalid.

(4) Where, on inspection of the land to which the application relates, the planning authority

considers that the requirements of articles 17(1)(b), 19 or 20 have not been met, or the

information submitted in the planning application is substantially incorrect or substantial

information has been omitted, the planning application shall, notwithstanding the fact that

an acknowledgement has been sent to an applicant in accordance with sub-article (2), be

invalid.

(5) A planning authority shall as soon as may be after receipt of an invalid application-

(a) by notice in writing-

(i) inform the applicant that the application is invalid and cannot be considered by

the planning authority,

(ii) indicate which requirements of the permission regulations have not been

complied with, and

(iii) request the applicant to remove the site notice or notices erected or

fixed pursuant to article 17(1)(b).

(b) return to the applicant the planning application, including all particulars, plans, drawings

and maps, and

(c) enter an indication on the register that an invalid application has been made.

(6) Where a notice is served in accordance with subarticle (5) on an applicant, the planning

authority shall return to the applicant any fee paid with the application

(7) Sub-articles (3) and (4) shall not apply where the planning authority is satisfied that the

applicant complied with the provisions of articles 17, 18 and 19 but that any site notice

erected by the applicant has been maliciously defaced or destroyed by any person other

than the applicant.

(8) Where a notice is served in accordance with subarticle (5) on an applicant, the planning

authority shall by notice in writing—

(a) inform any person or body who has made a submission or observation in accordance

with article 29(1) of that fact and return any fee paid in respect of any such submission or

observation, and

(b) inform any body to whom notice was sent in accordance with article 28(2) of that fact.

(9) On receipt of a planning application, a planning authority shall make the planning

application available for inspection, or purchased at a fee not exceeding the reasonable cost

of making a copy at the offices of the planning authority during its public opening hours.”

Whether there was a legal breach in failure to remove the site notice and/or the failure

to erect a new notice

57. For reasons that will become apparent, there is a compelling logic in starting with the legal

merits before turning to whether time should be extended to bring the proceedings. The reason for

this is in essence:

(i) If the point has no merit, then whether time is extended or not makes no difference

to anything.

(ii) If the point has merit, then this is a case where the merits are directly relevant to

whether time is extended. This is not a case where one is saying that a dilatory

applicant should be given a chance to make what they say is an independently good

point. It is a case where the merits directly go to issues about whether delay was

outside the control of the applicant and/or there is good and sufficient reason for

extension of time.

58. The issue of whether there was a legal breach is not, in reality, a particularly complicated

one. It follows from art. 26(5) of the 2001 regulations that when an invalid application is made, the

site notice should be removed.

59. While the legislation uses the word “request”, any words in law have to be construed within

the generally imperative nature of the provision concerned. For example, judges are appointed on

the “advice” of the Government – but it isn’t mere advice. The Government’s proposal is imperative.

60. Thus when a council issues an art. 26(5) notice, that isn’t the end of their obligations. They

should also ensure that that notice is complied with by the taking down of the old site notice (which

is what the notification calls for) and by the erection of a new notice.

61. The requirement to remove the notice following an invalid application inevitably means that

when a valid application is made, there must then be a notice erected in place of the removed one.

Since the form of the notice includes the date of erection of the notice then that inevitably means

that the notice must be a new one (since the date of erection of the old notice is no longer operative

following its removal).

62. If one considers the context and intention of the regulations, they reinforce this conclusion.

The overarching context is the EU right to public participation, and the clear logic of the requirement

to remove the old notice is to alert the public concerned to the making of a new application, if one

is made, by requiring the putting in place of a new site notice.

63. Stress-testing this by asking what would happen if an old notice can remain in place results

in a clearly objectionable outcome – a person who has been made aware that the application is

invalid will have no reason, based on the continued display of the old invalid site notice, to think

anything other than that the application is at an end. That would be totally misleading – and on the

basis of the applicant’s affidavit was so misleading here. I appreciate the point that we are talking

about only a limited sub-set of the public here – those who are aware of the invalidity but unaware

of the new application – but the regulations don’t envisage that the provisions concerning public

notification can be disregarded if only a sub-set of the public would be thereby disadvantaged.

64. The inevitable conclusion is that the old site notice should have been removed and a fresh

one erected, and a planning authority in such a situation should ensure that this happens before

validating an application. The non-carrying out of these steps here meant that the process went

fundamentally wrong at that point.

65. Once we appreciate that the notice regarding removal of the invalid notice is not a mere

suggestion, it follows that the law requires such removal. That means there needs to be a new

notice. The form of the notice requires a statement of the date of erection, and a new notice

inherently must have a different and later date of erection. So it follows by inexorable logic from

the statutory scheme that a new site notice requires to be erected where a planning application has

been invalidated.

66. That is the flaw in the argument that the invalid site notice was fine because it was erected

within two weeks before the application. The notice party says:

“44. Without prejudice to the foregoing, no legal error has been identified in relation to

the site notice at all. No challenge has been brought in relation to the contents of the notice.

The Council were satisfied that the notice requirements were met, as is apparent from the

Affidavit of [the] Planner, who carried out an inspection.”

67. The problem with the notice was that it was not a new notice – that’s the critical pleaded

complaint. That complaint is correct because removal and erection of a second notice inherently

involves a new notice for the reasons outlined above.

68. Given that the failure to remove the invalid notice was an error, the onus is on the opposing

parties to show that any error was harmless: see e.g. H.A. v. Minister for Justice [2022] IECA 166,

[2022] 7 JIC 2201 (Unreported, Court of Appeal, Donnelly J., 22 July 2022) at para. 48. The onus

to do so has not been discharged here. An attempt to put the onus on the applicant to give further

details of prejudice would unfortunately misunderstand the law in this regard.

69. While also complaining about being misled by the notice himself, the applicant makes a

general argument on behalf of the public overall. But that is a ius tertii in the circumstances. In

general terms an applicant can’t have a decision quashed for an error that did not actually affect

herself (see for example O’Shea v. Kerry County Council [2003] IEHC 51, [2003] 4 I.R. 143, [2003]

9 JIC 0101 (Ó Caoimh J.) where the issue was the location of a site notice, but the applicant did not

suggest that she would have seen the notice had it been somewhere more visible). If there is some

fundamental absence of opportunity for public participation – say a site notice removed immediately

after a council’s site visit, or omitted altogether from an entrance adjoining a public road, then there

would be a case for relief on rule of law grounds, notwithstanding lack of proof of personal impact.

The logic of that is that if a problem is fundamental enough, then there is a probability rather than

a mere speculative possibility of the whole process having been compromised. But if the complaint

is something more nuanced than a catastrophic failure of notice, then a mere speculative possibility

that someone may have been disadvantaged isn’t enough, and an applicant has to show that they

themselves were affected by the breach. The applicant has done that here.

70. Insofar as there was a pleading objection in that regard, this is misconceived. The point

being made by the applicant is acceptably clear. Insofar as it is said that art. 19 is not expressly

pleaded, but if one reads the complaint in context it arises by necessary implication.

71. The applicant’s first, but crucially not only, pleaded complaint is breach of art. 26(5), which

required removal of the old notice. It axiomatically followed that if that had been complied with

then there would have had to be a new notice – something the applicant pleads expressly in the

next bullet point. The fact that the applicant hasn’t pleaded breach of art. 19(1) in relation to not

putting up a new notice doesn’t subtract anything of substance and doesn’t make the point

unacceptably unclear. Nobody could be in any doubt about the point being made by the applicant

on the existing pleadings.

72. The argument that pleadings have to cite chapter and verse in terms of statutory references

has already been rejected: Eco Advocacy v. An Bord Pleanála [2023] IEHC 713 (Unreported, High

Court, 18 December 2023) where it was described as “a fictitious standard confected by the applicant

to create an appeal – a standard which, as the developer points out, is being maintained despite the

fiction having already been exposed” (para 30). The standard is as to whether the point is acceptably

clear. To their credit, the other parties accepted that they could understand the point the applicant

was making in the second bullet point. Such an objection therefore would not have substance. The

omission of a reference to arts. 17 or 19(1) in the second bullet point of the grounds pleaded doesn’t

mean that the applicant can’t rely on that because the application of that provision is not only

acceptably clear but totally obvious by necessary implication.

73. The applicant’s pleaded case is not limited to art. 26(5). As adverted to above, he goes on

to say:

“• The Applicant contends that a fresh site notice should have been erected for the new

application, with a new date, regardless of whether the content was the same, in order to

provide proper and transparent public notice and allow for public participation.

• The failure to erect a new site notice deprived the Applicant and the community of

their statutory right to be informed of, and to participate in, the planning process.”

74. While these complaints are not accompanied by specific reference to the relevant articles of

the 2001 regulations, the references are obvious and not in doubt. The duty to erect a fresh site

notice arises under arts. 17(1)(b) and 19(1), and indeed by definition on the art. 26(5) notice being

complied with.

75. It is not the law that an applicant must provide exact statutory citations – the requirement

is to make the point with acceptable clarity. That has been done, and the other parties don’t claim

not to know under what provision there would have been an obligation to erect a fresh notice. The

objection is that that plea is not accompanied by a specific statutory reference. That is not a valid

objection if the actual point is acceptably clear. The applicant’s case, in short, is not just limited to

art. 26(5).

76. As regards the alleged disproportionality of relief, certiorari would not be disproportionate.

The process of public participation was undermined in a way that affected the applicant. It would

be disproportionate to make the applicant bear the responsibility of that by losing the opportunity

to participate in any fresh application following the potential quashing of the decision (remittal

couldn’t be lawful where the whole basis of potential certiorari is the lack of a valid site notice).

77. As regards discretion, insofar as it could be argued that the present challenge is technical in

nature, that is inherent in the fact that the applicant is challenging being shut out of the process so

inevitably the challenge will be technical in focus. As to the argument that none of this makes any

difference because Mr Croft’s objections to the development were raised by other participants in the

process, that is speculative and inadequate as a response. Had Mr Croft been aware of the

application and had the opportunity to participate he would have had additional procedural rights

such as appeal to the commission for example, let alone judicial review of the substance. So this is

not a satisfactory answer to the claim, and I deal later with whether this position is in doubt as a

matter of EU law.

78. The importance of the giving of proper notice of planning applications has been emphasised

since the early days of planning law. All of the above is reinforced (but I came to these conclusions

anyway) by two authorities that helpfully came to my attention subsequent to the hearing.

79. Firstly there is the decision in Keleghan v. Corby and Dublin Corporation (1976) 111 I.L.T.R.

144, where McMahon J. quashed a permission granted by the city council where the notice originally

given had been inadequate, the inadequacy relating in that case to the omission of reference to

access changes that would have been involved in the project. McMahon J. noted and relied on the

provisions of the relevant legislation (s. 26 of the Local Government (Planning and Development)

Act 1963) to the effect that an application for permission had to be made in accordance with the

regulations – now s. 34(1) of the 2000 Act, to which I will shortly come.

80. Secondly there is the decision of Peart J. in Marshall v. Arklow Town Council [2004] IEHC

313, [2004] 4 I.R. 92 in which he said the following about failure by a council to strictly comply with

the site notice procedures (worth quoting at length):

“It is beyond any dispute that the planning authority did not during the 5 week period

concerned carry out any inspection of the site which enabled them to be satisfied that the

site notice was in place and that it conformed to the regulations. That fact if [sic] admitted.

All we know is that on the 4th February 2004, some 12 days or so after the expiration of the

5 week period, the side notice was not in place, and that fact was reported to the appropriate

officer within the Respondent, and that he or she misinterpreted the standard form and

believed that the form showed that a site notice was in place when the inspection took place.

That misinterpretation is also a matter not in dispute.

Mr Dunne has stated that inspections are carried out on a random basis, but that between

80% and 90% of sites are in fact inspected. That means that 10% to 20% of sites do not

get inspected and there is therefore a possibility, however long the odds, that the absence

of any site notice will not be spotted before an application is granted. In those circumstances

the persons whose interests are protected by the requirement to erect a site notice have

received no protection at all. It is true that Article 17(1)(a) of the Regulations requires the

insertion in a newspaper of an intention to apply for permission, but for that to be a failsafe

method, or even a reasonable method of protecting the interests of persons likely to be

affected. It would be necessary for citizens each day to purchase a copy of each newspaper

in which such a notice might appear. It was presumably to give added protection to citizens

likely to be affected by a planning permission, that the legislature introduced the additional

safeguard of requiring a site notice to be put into position in a conspicuous manner at the

proposed site.

It follows that the requirement of having a site notice in place and in conformity with the

Regulations is a very important requirement. The purpose which it serves is a vital one, if

the intention of the legislature that each person likely to be affected by a planning decision

shall have the right to lodge an objection and have their views heard before a planning

decision is made, is to be achieved. The Regulations themselves, to which I have referred,

reflect the importance which is attached to the right of such persons to be on notice of an

intended application. Firstly in Article 17(1) there is the requirement upon the applicant for

permission to give notice in the newspaper and by the erection of the site notice. These

notices must conform to strictly defined specifications as to clarity, visibility and content, as

provided in Article 18 in respect of the newspaper notice, and as provided in Article 19(a)(b)

and (c) in respect of the site notice. Article 19(3) goes on to provide that where the authority

considers that a single site notice at a site is insufficient or ‘does not adequately inform the

public’, the authority may require further steps to be taken as set forth therein. Article 20

proceeds to state that the site notice must be in place and maintained for a period of 5

weeks from the date of the application. That is a lengthy period from which the importance

attached to the site notice can be gleaned.

Turning then to Article 26 it is apparent immediately that there are certain powers given to

or duties imposed upon a planning authority in relation to applications made to it for planning

permission. It sets out what shall happen on receipt of an application, such as sub-article

(1) which provides that each document received will be stamped with the date of its receipt,

and sub-article (2) which provides that the authority shall consider at that stage whether

the applicant has complied with the requirements as to the content of the newspaper notice

(Article 18) and whether the copy site notice submitted with the application conforms with

Form No. 1 of Schedule 3 of the Regulations (Article 19(1)(a) ), and whether the application

documentation complies with Article 22, and possibly also Articles 24 or 25.

Once the authority is satisfied that the documents comply with these requirements, it is

mandated by Article 26(2) then to send a receipt of same to the applicant. Where on the

other hand having so considered the documents, the authority considers that any of these

requirements as to the newspaper notice, the copy of the site notice intended to be erected,

or the documents generally do not comply, then it is provided that the application ‘shall be

invalid’.

Importantly for the present case, Article 26(4) then provides, as I have already set forth,

that where on inspection of the land, the planning authority considers that the requirements

of Article 17(1)(b) or 19 (the erection of an appropriate site notice, but not its maintenance

for 5 weeks which is a requirement of Article 20), have not been complied with, the

application ‘shall be invalid’, notwithstanding that it has been acknowledged pursuant to the

provisions of sub-article (2) of Article 26. It is only where the authority is satisfied, as stated

in sub-article (7) that the reason for the non-existence of the site notice on the date of

inspection is due to malicious defacing or destruction that the provisions of Article 26( 3) or

(4) shall not apply.

I have set out these provisions in some detail again in order to highlight the care which has

been taken to create a structured procedure for dealing with planning applications. Each

step is clearly set out. It is clearly envisaged that the planning authority shall (not ‘may’ or

shall to the best of its ability’ or ‘shall, as far as may be practicable’) on inspection of the

land consider whether the requirements of the Regulations as far as the site notice is

concerned have been complied with. The only matter left in some doubt is how the authority

ought to ensure that the notice has been maintained in place for the five week period and

not just for a period which happened to include the actual date of inspection. But in my

view there is no room whatsoever to conclude that, because that matter is not clearly spelt

out, there is no obligation as such to carry out an inspection at all within that five week

period. The intention is clear from the wording of the Regulations themselves and the

particular provisions to which I have referred. It is perhaps clearest in Article 26(4) of the

Regulations. If no inspection is carried out within that five week period, and that is the

admitted situation in this case, then the Decision subsequently contains a legal infirmity and

must be quashed, since there has not been compliance with provisions of s. 34(1) of the

2000 Act which provides:

‘Where —'

(a) an application is made to a planning authority in accordance with permission regulations

for permission for the development of land, and

(b) all requirements of the regulations are complied with

the authority may decide to grant the permission subject to or without conditions, or to

refuse it.’ (my emphasis)

In the instant case, ‘all requirements of the regulation’ have not been complied with, and it

follows that the interests intended and sought to be protected by the existence of these

regulations have not been protected by the planning authority. The consequences of non-

compliance with Article 26(4) are spelt out in that article—the application ‘shall be invalid.’

Since all the regulations were not complied with, this application for permission was invalid,

and it follows therefore that the Respondent had no power to make the Decision to Grant

Planning Permission dated the 18th February 2004, and I therefore grant the relief sought

at paragraph (a) in the Statement of Grounds filed herein on the 28th April 2004.”

81. Section 34(1) of the 2000 Act retains the same form at the material time for the purposes

of this case (emphasis added):

“34.—(1) Where—

(a) an application is made to a planning authority in accordance with permission

regulations for permission for the development of land, and

(b) all requirements of the regulations are complied with,

the authority may decide to grant the permission subject to or without conditions, or to

refuse it.”

82. The letter from the respondent calling on the developer to remove the site notice for the

invalid application is not a suggestion – compliance with that letter is compliance with one of the

requirements of the regulations. The application was not made in accordance with permission

regulations, and all requirements of the regulations were not complied with. Non-compliance

deprived the respondent of jurisdiction to grant the permission by reason of s. 34(1)(a) and (b) of

the 2000 Act.

83. Admittedly, the applicant didn’t expressly refer to s. 34(1), but in context I prefer to see the

section as reinforcing a legal consequence that flows from a breach that the applicant has pleaded,

so it is more in the nature of a matter that the court can take into account as part of the legal

analysis than a matter which cannot be weighed at all unless expressly adverted to in a statement

of grounds.

84. The overall conclusion is that the permission should be quashed if time is extended. As to

discretion, it is one thing to exercise discretion against relief for technical slip-ups that don’t make

much of a difference to much of anything (that type of situation is a classic case of what discretion

is designed for), but it would be generally inappropriate for that be exercised against an applicant

who was actually disadvantaged in a tangible way as a result of a breach.

85. While I appreciate this is not the conclusion they argued for, nobody could have put the case

more persuasively or effectively than the notice party’s lawyers here.

86. With the foregoing firmly in mind we can now turn to the application for the extension of

time.

Extension of time – legal context

87. The legal context for extension of time has been set out in Thompson v. An Bord Pleanála

(No. 4) [2025] IEHC 161 (Unreported, High Court, 21 March 2025) and I can repeat some of that

discussion here.

European Union law

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

364/01) provide:

“Article 41

Right to good administration

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

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

2. This right includes:

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

affect him or her adversely is taken;

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

legitimate interests of confidentiality and of professional and business secrecy;

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

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

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

general principles common to the laws of the Member States.

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

Treaties and must have an answer in the same language.

…

Article 47

Right to an effective remedy and to a fair trial

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

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

in this Article.

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

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

being advised, defended and represented.

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

is necessary to ensure effective access to justice.”

89. Article 6 of Directive 2011/92/EU of the European Parliament and of the Council of 13

December 2011 on the assessment of the effects of certain public and private projects on the

environment (the EIA directive) provides:

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

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

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

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

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

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

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

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

States.

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

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

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

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

reasonably be provided:

(a) the request for development consent;

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

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

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

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

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

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

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

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

information will be made available;

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

Article.

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

made available to the public concerned:

(a) any information gathered pursuant to Article 5;

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

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

accordance with paragraph 2 of this Article;

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

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

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

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

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

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

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

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

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

consent is taken.

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

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

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

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

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

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

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

sufficient time for:

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

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

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

Article.

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

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

90. Article 11 of the EIA directive provides:

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

system, members of the public concerned:

(a) having a sufficient interest, or alternatively;

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

State requires this as a precondition;

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

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

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

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

be challenged.

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

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

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

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

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

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

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

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

exhaustion of administrative review procedures prior to recourse to judicial review

procedures, where such a requirement exists under national law.

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

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

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

administrative and judicial review procedures.”

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

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

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

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

“1. Each Party: (a) Shall apply the provisions of this article with respect to decisions on

whether to permit proposed activities listed in annex I;

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

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

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

subject to these provisions; and

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

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

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

…

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

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

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

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

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

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

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

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

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

provisions of its national law relating to the environment.”

Domestic law

93. Section 50(6) to (8) of the 2000 Act provides:

“(6) Subject to subsection (8), an application for leave to apply for judicial review under the

Order in respect of a decision or other act to which subsection (2)(a) applies shall be made

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

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

as appropriate.

(7) [not applicable]

(8) The High Court may extend the period provided for in subsection (6) or (7) within which

an application for leave referred to in that subsection may be made but shall only do so if it

is satisfied that—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within

the period so provided were outside the control of the applicant for the extension.”

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

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

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

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

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

than to the decision-taker.

96. Order 84 r. 21(1) RSC which applies to judicial review generally is consistent with the special

rule in s. 50(6) of the 2000 Act. It provides:

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

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

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

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

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

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

is that:

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

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

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

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

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

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

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

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

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

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

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

to have known of the decision: see Arthropharm (Europe) Ltd v. The Health Products

Regulatory Authority [2022] IECA 109, [2022] 5 JIC 1003 (Unreported, Court of

Appeal, Murray J., 10 May 2022); Marshall v. Kildare County Council [2023] IEHC

73, [2023] 2 JIC 1705 (Unreported, High Court, 17 February 2023).

Application of the foregoing to the facts here

99. The first leg of the test for extension of time is whether the failure to act within eight weeks

of the decision is outside the control of the applicant. Only if that is satisfied do we go on to consider

whether there is good and sufficient reason for an extension.

100. The issue here is whether a failure to understand that a planning decision has been made is

outside an applicant’s control if the applicant has been subjectively unaware of the application due

to the lack of compliance with the site notice provisions of the regulations, even if there were other

channels of notification he could have availed of.

101. If such unawareness satisfies that test, then it axiomatically would constitute good and

sufficient reason for an extension for any proceedings brought within eight weeks of knowledge:

Arthropharm. Much of the opposing submissions regarding extension of time merely involved

plucking cases where extensions were refused out of context and attempting to hold them against

this applicant in radically different circumstances.

102. The upshot is that had the matter been contested further I would have referred it to the

CJEU. In the light of that, the notice party stated that she was not in a position to shoulder the

defence of the proceedings given the respondent’s concession and the court’s decision to consult the

CJEU. For the record, the questions of EU law regarding time that would have arisen had the

opposition to extension of time been pursued were along the following lines:

First question

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

6 and/or 11 of Directive 2011/92 read in the light of the general EU law principle

of legal certainty and/or of Articles 6 and/or 9 the Aarhus Convention as approved

on behalf of the European Community by Council Decision 2005/370, have the

effect, in the context of a challenge to a decision to authorise a project where the

need for environmental impact assessment under Directive 2011/92 was

considered and rejected at screening stage and where the need for appropriate

assessment under Directive 92/43 was screened out, that domestic law on the

extension of time to bring a challenge should be read to the extent possible in a

sense favourable to an extension of time where the failure of an applicant to

challenge such a decision within the ordinary time for such challenge was

contributed to by a failure by the developer to comply with the law of the Member

State concerned regarding any given channel of notification of the application for

such authorisation, in particular where the breach relates to a failure regarding

removal of a site notice associated with an invalid application and the erection of

a new notice for a subsequent fresh application?

Second question

If the answer to the first question is in general No, do those provisions have that

effect where the relevant competent authority of the Member State was or ought

to have been aware of facts sufficient to demonstrate the failure in compliance

with domestic law by the developer but failed to ensure compliance with the

requirements of the law of the Member State concerned regarding the relevant

channel of notification of the application for such authorisation?

Third question

If the answer to the first and/or second questions is Yes, is that answer affected

by the existence of other channels for the provision of information regarding the

making of a new application which an applicant could have availed of but did not

(for example online information), in circumstances where the domestic law of the

Member State concerned provides for independent channels of notification

including a site notice as one channel for such information, and where the domestic

legal recruitments in relation to such a channel were breached in a manner that as

a matter of fact impaired the applicant in bringing proceedings within the ordinary

time fixed by domestic law of the Member State concerned?

103. I was considering a further question on the scope of discretion in EU law matters but we

never got to the stage of parties’ submissions on it. Since the original draft judgment, my attention

has been drawn to a number of CJEU decisions (for example the judgment of 25 June 2020, A and

Others v Gewestelijke stedenbouwkundige ambtenaar van het departement Ruimte Vlaanderen,

afdeling Oost-Vlaanderen, C-24/19, ECLI:EU:C:2020:503 (Grand Chamber)) which in effect have

already given an answer to this question – the role of discretion following a breach of EU law is

extremely limited. So my current view is that any argument for the exercise of discretion is acte

clair (against the developer).

104. I appreciate that the developer was concerned at losing a potential purchaser for the site.

If one considers that as an isolated complaint, divorced from how the issue arose, that sounds

extremely weighty. However what the developer was not highlighting is that this was unfortunately

a self-induced problem due to a combination of:

(i) The initial breach of law by failing to use a correct wording for the newspaper notice

– the developer (and/or her servants or agents) is 100% responsible for that, and

the respondent commendably picked that up.

(ii) The further breach of law by or on behalf of the developer by not removing the old

site notice as stated in the notice received from the respondent – the developer

(and/or her servants or agents) is 100% responsible for that breach happening in

the first place also. The respondent commendably sent the notice about removal as

required by the permission regulations, but unfortunately the logical consequence of

that was that the new application should not have been validated unless and until

the respondent’s notice had actually been complied with.

105. It would have been unfair to the applicant to visit the consequences of the developer’s

defaults (including her servants or agents) on him for present purposes. Hardship to a party innocent

of a legal breach is generally, and is here, of greater weight than the hardship of requiring a party

to bear the interlocutory consequences of their own defaults.

106. Also, given the already-noted clear potential jurisprudential overlap with the issues to be

debated in Thompson, I would have proposed to invite the CJEU to consider joinder of the two cases

had the reference gone ahead.

107. To conclude on this and leaving counterfactual what-ifs aside, in the absence of the time

objection being pursued in the circumstances set out, I am satisfied that time should be extended

on the facts here.

Order

108. For the foregoing reasons, it is ordered, by consent of the respondent and without the notice

party pursuing an objection, that:

(i) time be extended for the bringing of the proceedings up to the date of the initiation

of the proceedings pursuant to s. 50(8) of the 2000 Act;

(ii) there be an order of certiorari quashing the decision of the respondent, dated 30

September 2024 (reg. ref. LRD6053/24-S3A), to grant planning permission subject

to 26 conditions to the notice party for a proposed development comprising a LRD

(consisting, inter alia, of the demolition of existing buildings and structures on site

and the construction of a mixed-use development comprising a single block including

221 purpose-built student accommodation bedspaces and café) at a c. 0.24 ha site

on lands at Church Lane and Swords Road, Santry, Dublin 9;

(iii) the applicant be entitled to recover, as against the respondent, such outlay and other

out-of-pocket expenses as are properly allowable in relation to these proceedings,

in accordance with the general principles governing legal costs, with such outlay and

other out-of-pocket expenses to be adjudicated in default of agreement (together

with the costs of legal costs adjudication if it arises); and

(iv) there be otherwise no order as to costs.