Section 50(8) of the Planning and Development Act 2000

The High Court may extend the eight week period within which to judicially review a decision made or other act done by a planning authority if it is satisfied that:

• There is good and sufficient reason for doing so
• The circumstances that resulted in the failure to make the application for leave within the eight week period were outside the control of the applicant for the extension

In October 2017, the applicant in Fotovoltaic Energy Srl v Mayo County Council 2017/745 JR was allowed to seek a judicial review of a decision made by Mayo County Council on 6 June 2017 under section 5 of the Planning and Development Act 2000. Mayo County Council’s decision was a declaration under section 5 of the Planning and Development Act 2000, as amended, that a proposed development to be undertaken was an exempt development, also known as a Section 5 Declaration. The development concerned consisted of a grid connection to a permitted wind farm.

One of the reliefs sought by Fotovoltaic was an extension of time to bring the judicial review of the Section 5 Declaration.

Grounds for Challenging the Section 5 Declaration

Essentially, the applicant's challenge to the Section 5 Declaration was based on three main grounds:

1. Fotovoltaic alleged that the Council made an error in law in determining that the development was an exempted development where it was part of a project which requires an environmental impact assessment
2. It was alleged that the Council failed to comply with fair procedures and failed to respect the property rights of affected landowners, including those of Fotovoltaic, because the Council failed to notify them of the making of the application. As a result, the Council failed to afford them an opportunity to make submissions in relation to the application
3. Fotovoltaic further contended that Mayo County Council failed to give any adequate reasons for its decision that the proposed development was exempted development

Legal Principles Applicable to Applications For Extension of Time Under Section 50(8)

The eight week time limit within which to judicially review a decision of a Planning Authority is a strict time limit. While the court has discretion to extend the time the circumstances in which it will do so must be strictly construed and applied.

The factors which the court may consider include:

• The delay beyond the eight week period before the application for leave is brought
• Whether third party rights are affected and whether there has been any prejudice to third parties as a result of the delay by the applicant in applying for the extension of time
• The blameworthiness or otherwise on the part of the applicant for the extension and the reasons given to explain the delay which must cover the entire period of that delay

Application of Principles to the Present Case

The Court considered whether Fotovoltaic had established that the circumstances which resulted in its failure to make the application for leave within the eight week period were outside its control under section 50(8)(b).

Fotovoltaic argued that it was not aware of the Section 5 Declaration until it was discovered on 2 August 2017, upon attending the Council's offices, following the discovery of works on the lands in late July 2017.

The Court went on to consider whether the first limb of the test had been met, namely whether the applicant could show “good and sufficient" reason for extending the time.

Fotovoltaic relied on various matters in arguing this limb, namely that Mayo County Council did not provide a copy of the full file when it attended at its offices. It also argued that the Section 5 Declaration was not published or available on the Council’s website, and that it as a Romanian company, acted with appropriate speed following the discovery of the Section 5 Declaration.

The Court found that 2 August 2017 was the latest date possible that Fotovoltaic had sufficient information to enable it to decide whether or not to bring proceedings. Notwithstanding this, an application for leave was not made until 2 October 2017, in excess of eight weeks later.

The High Court concluded that Fotovoltaic had not satisfied the requirements of section 50(8) and had failed to establish that the circumstances that resulted in its failure to make the application for leave to seek judicial review within the eight week period were outside its control.

The Court also noted that normally that would be sufficient to dispose of the application in circumstances where the requirements in paragraphs (a) and (b) of section 50(8) are "cumulative and mandatory". However, the Court went on to consider whether the applicant satisfied the first part of the test and concluded that the applicant has not done so and, in particular, had not established that there was "good and sufficient" reason for extending the time.

Conclusion

There have been a number of cases recently where leave to judicially review a planning authority decision has been granted after the eight week period has elapsed. The potential for the extension of the eight week period can lead to uncertainty and significant prejudice to developers who rely on these decisions. This case provides a welcome summary of the factors which the High Court will consider in deciding whether to extend the time.

For more information on judicial reviews of planning decisions, contact a member of our Construction team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.