Croft v Dublin City Council [2025] IEHC 656: Mandatory Removal and Replacement of Site Notices after Invalid Planning Applications

1. Introduction

Croft v Dublin City Council [2025] IEHC 656 is a High Court planning judicial review decision (Humphreys J.) that clarifies and sharpens the legal consequences of non‑compliance with site notice requirements under the Irish planning code, in light of EU and Aarhus public participation norms.

The case arises from a large‑scale residential development (LRD) comprising 268 student accommodation bedspaces and a café proposed for Church Lane and Swords Road, Santry, Dublin 9. The developer’s first application was declared invalid because the newspaper notice omitted key statutory wording about the right to make submissions. Dublin City Council then issued a notice under article 26(5) of the Planning and Development Regulations 2001 (“the 2001 Regulations”) requiring the removal of the site notices and making clear that any re‑lodged application would require fresh newspaper and site notices.

The developer did not remove the site notices and, crucially, did not erect new ones when lodging a fresh, valid application the following day. The applicant, Mr Ian Croft, who lives in the area, says he relied on the original site notices and Council email correspondence, believed the application was invalid and over, and was not aware that a second application had been made until he saw a commercial property listing in January 2025 advertising the site as having full planning permission.

Mr Croft (unrepresented) challenged the planning permission on the basis that:

• the failure to remove the original site notice and erect a fresh one for the second application breached the 2001 Regulations; and
• this breach actually disadvantaged him by shutting him out of the public participation process and depriving him of the ability to make submissions and appeal.

The key legal issues were:

• Whether article 26(5) of the 2001 Regulations imposes a mandatory requirement to remove site notices when an application is invalidated, entailing a requirement for a new site notice for any fresh application;
• Whether non‑compliance with the site‑notice regime can deprive a planning authority of jurisdiction to grant permission under s. 34(1) of the Planning and Development Act 2000;
• How to distinguish between technical, “ius tertii” participation errors and errors which cause real prejudice to the particular applicant;
• Whether time for judicial review under s. 50(6)–(8) of the 2000 Act should be extended in circumstances where the applicant’s late discovery of the permission was caused by defective site‑notice practice, viewed through the lens of EU law and the Aarhus Convention.

Dublin City Council ultimately conceded certiorari. The notice party developer, faced with the prospect of a CJEU reference on the time‑extension issue and the judge’s clear provisional views, did not continue to contest the proceedings. The court nonetheless delivered a detailed written judgment to explain the legal basis for quashing.

2. Summary of the Judgment

2.1 Orders made

The High Court ordered:

• An extension of time under s. 50(8) of the 2000 Act to allow the judicial review to be brought in January 2025, outside the usual eight‑week period from the decision of 30 September 2024;
• An order of certiorari quashing the permission granted by Dublin City Council on 30 September 2024 (reg. ref. LRD6053/24‑S3A) for the Santry student accommodation development;
• Costs: Mr Croft is entitled to recover out‑of‑pocket expenses and outlay from the Council, subject to adjudication if necessary, and otherwise no order as to costs (in effect, no adverse costs order against the unrepresented applicant or the developer).

2.2 Core legal holdings

The judgment establishes or confirms several important principles:

1. Mandatory removal and replacement of site notices after invalidation
   An article 26(5) notice requiring removal of site notices following invalidation is not a mere suggestion. It is a mandatory requirement within the meaning of the “permission regulations” which must be complied with before a new application can validly proceed. Once an invalid application is made:
   • the original site notice must be removed; and
   • any subsequent valid application must be preceded by the erection of a new site notice (with a new date of erection) in compliance with arts. 17 and 19.
2. Non‑compliance is jurisdictional under s. 34(1)
   Because the removal requirement under art. 26(5) is part of the “requirements of the regulations”, the failure to remove the original notice and erect a fresh one meant:
   • the application was not made “in accordance with permission regulations”; and
   • not all requirements of the regulations were complied with within the meaning of s. 34(1)(a)–(b) of the 2000 Act.
   Accordingly, Dublin City Council lacked jurisdiction to grant the permission.
3. Distinction between technical/iustertii complaints and real prejudice
   The court emphasises a key distinction:
   • Technical breaches of participation/notification requirements that do not adversely affect the particular applicant (pure ius tertii complaints) will generally merit declaratory relief at most, and often no relief; but
   • Breaches that actually disadvantage the applicant in exercising public participation rights are proper grounds for quashing (certiorari).
   Here, the evidence that Mr Croft was misled by the continued presence of the invalid site notice and thereby prevented from participating is accepted and uncontroverted. This is not “harmless error” or de minimis.
4. Onus to prove harmlessness lies with the decision‑maker
   Following H.A. v Minister for Justice, once a legal error is established, the burden lies on the respondent to show it was harmless. That burden was not discharged.
5. Pleadings: “acceptable clarity” not perfect citation
   The court re‑affirms that judicial review statements of grounds are not required to cite every precise statutory article so long as the legal complaint is made with acceptable clarity. Mr Croft’s omission of express references to arts. 17 and 19 did not invalidate his core complaint: that a fresh site notice with a new date should have been erected.
6. Time extension, Aarhus and EU law
   While the time extension issue was not ultimately fought to conclusion (because the notice party ceased to oppose it), the court:
   • sets out a structured approach to s. 50(8) extensions, emphasising that when an applicant learns of a decision late due to a breach of notification obligations, the failure to act in time can be “outside [their] control” and provide a “good and sufficient reason” for an extension;
   • indicates a strong provisional view, informed by EU Charter, the EIA Directive and the Aarhus Convention, that time‑limits should be interpreted in a manner facilitating access to justice where defective public participation causes the delay;
   • records draft questions it would have referred to the CJEU had the objection been pursued, concerning how EU law constrains national time‑limit rules when public participation rights are compromised.
7. Limited discretion to refuse relief in EU environmental matters
   Referring to recent CJEU authority (A and Others, C‑24/19), the court notes that once a breach of EU law is established, the scope for discretionary refusal of relief is “extremely limited”. Any argument to decline to quash on discretionary grounds was considered acte clair against the developer.

3. Factual and Procedural Background

3.1 The planning applications

• 31 July 2024: Site notices (white background) erected at four locations (two on Swords Road, two on/near Church Lane) advertising the developer’s intention to apply.
• 1 August 2024: First planning application lodged (LRD6053/24‑S3) for an LRD with 268 student bedspaces and a café.
• 6 August 2024: Dublin City Council issues an invalidation letter under article 26(5):
  • application declared invalid because the newspaper notice omitted the statutory sentence about the right to make submissions within five weeks;
  • explicitly requests removal of site notices erected for this invalid application;
  • clarifies that any re‑lodged application must have:
    • a newspaper notice published within two weeks of re‑lodgement; and
    • a site notice erected within two weeks of re‑lodgement.
• 7 August 2024:
  • Developer lodges a second, substantively identical application (LRD6053/24‑S3A) with a corrected newspaper notice (Irish Daily Star) including the full statutory wording; and
  • does not remove the original site notices and does not erect new ones. The same physical notices, erected on 31 July 2024 for the invalid application, are relied upon.
• 13 August 2024: The Council inspects and photographs the site notices; validation follows. Other third‑party observers make submissions on LRD6053/24‑S3A.

3.2 Mr Croft’s interactions with the Council

• Mr Croft had become aware of the first application and wished to make an observation.
• On 7 August 2024 (at 20:12) he emails the planning department, querying what “invalid” means and whether he should continue preparing his observation.
• On 8 August 2024 the Council replies:
  • if the application is invalid, he cannot submit an observation on it;
  • he should “wait for if/when a new application is lodged” and then make an observation;
  • points him to the online planning portal to search for new applications.
• Later that day, the Council provides a link to the reason for invalidation hosted on the portal and explains that the invalidation reason is usually uploaded under the “conditions” tab.
• Importantly, Mr Croft states (and the court accepts):
  • he routinely relies on physical site notices rather than the portal to track planning activity;
  • he did not regularly check the online portal and was under no legal obligation to do so;
  • he assumed, due to the invalidation and continued display of the original site notices, that the project had stalled and no new application had been lodged.

3.3 Grant of permission and late discovery

• 30 September 2024: Dublin City Council grants permission (subject to 26 conditions) under reg. ref. LRD6053/24‑S3A. Condition 4 reduces the bedspaces from 268 to 221.
• A first‑party appeal is briefly lodged and then withdrawn, and a final grant issues around 25 November 2024.
• 15 January 2025: An Irish Times commercial property article advertises the Santry site for sale for €7.5m, describing it as having “full planning permission”. Reading this, Mr Croft discovers for the first time that a permission actually exists.
• 22 January 2025: Within a week of that discovery, he issues judicial review proceedings.

3.4 Procedural developments in the High Court

• February 2025: Leave granted; developer joined as notice party. The Council accepts that the proceedings benefit from costs protection under s. 50B of the 2000 Act.
• Pleadings & amendment:
  • Mr Croft’s original statement of grounds incorrectly focused on art. 19(4) (yellow background for a subsequent application within six months) and alleged that a new site notice was required for the second application.
  • At hearing in May 2025, the court holds that art. 19(4) is inapplicable (because the first application was never “valid”) and allows Mr Croft to amend to rely specifically on article 26(5) and the need for a fresh notice.
  • Nolan J. grants the amendment on 26 May 2025.
• Hearings: The substantive hearing takes place on 1 October 2025, after earlier listing attempts were derailed by court pressure.
• Draft judgments and confidentiality:
  • Humphreys J. circulates a draft judgment on 21 October 2025; some limited information apparently leaks via a private residents’ Facebook group.
  • The judgment sets out in detail the rules of engagement for draft judgments, emphasising that they are not public and may not be disseminated beyond the legitimate purposes of the litigation, citing Attorney General v Crosland (No. 2) [2021] UKSC 58
  • This leads to a restatement of procedural directions guarding the confidentiality of draft judgments.
  • A second draft judgment issues exceptionally on 17 November 2025; judgment is delivered on 28 November 2025.
• EU law issue and concession:
  • Humphreys J. indicates a willingness to refer questions to the CJEU on how EU law and Aarhus influence the extension‑of‑time analysis.
  • In light of that, and the Council’s concession of error, the developer considers she cannot meaningfully continue the defence and does not pursue the time objection.
  • The court nonetheless records the provisional CJEU questions it would have posed, before ultimately granting an extension of time and certiorari.

4. Legal Framework

4.1 Domestic planning legislation and regulations

The core domestic provisions are:

• Planning and Development Act 2000 (“the 2000 Act”)
  • s. 34(1): A planning authority may grant permission only where:
    • (a) the application is made “in accordance with permission regulations”; and
    • (b) “all requirements of the regulations are complied with”.
    If those conditions are not met, the authority has no power to grant permission.
  • s. 50(6),(8): Provides an eight‑week time limit for judicial review of planning decisions, and a narrow jurisdiction to extend time only where:
    • there is “good and sufficient reason” for doing so; and
    • the circumstances resulting in delay were “outside the control” of the applicant.
• Planning and Development Regulations 2001 as amended
  • Article 17: Requires that within two weeks before making a planning application, the applicant must:
    • publish a newspaper notice (art. 18); and
    • erect a site notice in accordance with art. 19.
  • Article 19: Sets out the form and positioning of site notices (Form No. 1, white background, location on/near entrances, visibility, content including text about public’s right to inspect and make submissions, and the date of erection). Article 19(4) requires a yellow background for a subsequent application within 6 months where the first application was valid. The court holds that art. 19(4) does not apply if the first application was invalid.
  • Article 20: Requires the site notice to be maintained for five weeks from the date of receipt of the application and removed by the applicant after the planning decision is notified.
  • Article 26(3)–(5): Governs the treatment of invalid planning applications.
    • If important requirements (arts. 18, 19(1)(a), 22, etc.) are not complied with, the application “shall be invalid” (art. 26(3)).
    • Where, on inspection of the land, the planning authority considers that the requirements of arts. 17(1)(b), 19 or 20 have not been met, the application “shall be invalid” (art. 26(4)).
    • For an invalid application, article 26(5) requires the authority, “as soon as may be”, to:
      • inform the applicant that the application is invalid and cannot be considered;
      • indicate which requirements were not complied with; and
      • “request the applicant to remove the site notice or notices”.

4.2 Judicial review time limits

• Section 50(6) of the 2000 Act: eight‑week time limit runs from the date of the decision, not from notification or discovery.
• Order 84, rule 21(2) RSC (general JR rule): for certiorari, the date when grounds first arose is “the date of that judgement, order, conviction or proceeding”. “Proceeding” is applied by analogy to administrative decisions.

The court synthesises domestic case law (notably Arthropharm (Europe) Ltd v HPRA and Marshall v Kildare County Council) into a two‑scenario approach:

1. If the applicant learns of the decision within the eight weeks in sufficient time to bring proceedings, but does not, an extension will not normally be available.
2. If the applicant learns of the decision only so late that it is not possible to file within eight weeks (or learns after the period has expired), and this lateness is outside their control, then:
   • they are eligible for an extension; and
   • they should generally receive an extension equivalent to a full eight weeks from the date of knowledge.

4.3 EU law: Charter, EIA Directive and Aarhus Convention

The judgment places the domestic rules in the context of EU law and the Aarhus Convention.

• Charter of Fundamental Rights of the EU
  • Article 41: right to good administration.
  • Article 47: right to an effective remedy and a fair trial, including access to a tribunal within a reasonable time.
• Directive 2011/92/EU (EIA Directive)
  • Article 6: requires effective public participation, including notification “by public notices or by other appropriate means” of the application, the EIA process and the means for the public to submit comments.
  • Article 11: requires Member States to provide “wide access to justice” for the “public concerned” to challenge the substantive or procedural legality of decisions subject to public participation provisions.
• Aarhus Convention
  • Article 6: public participation in decisions on specific activities, including prompt information to the public and access to reasons for the decision.
  • Article 9(3): requires access to administrative or judicial procedures to challenge acts or omissions by private persons or public authorities that contravene environmental law.

While the development here was subject only to EIA and AA screening (both negative), the decision nonetheless constitutes “environmental decision‑making” to which the public participation and access‑to‑justice guarantees apply. That context colours the interpretation of both the planning regulations and the judicial review time‑limit regime.

5. The Court’s Legal Reasoning

5.1 Technical public participation breaches vs real prejudice

At the very outset, Humphreys J. draws an important conceptual line:

• Some breaches of public participation or notification requirements may not adversely affect the specific applicant. Save in “catastrophic” cases (e.g. total absence of public notice), these are “ius tertii” or “academic technicalities” and will generally:
  • attract no relief, or at most;
  • a declaration that the law was breached, without quashing.
• By contrast, where the breach does disadvantage the applicant in a tangible way (for example by shutting them out of participation, depriving them of appeal rights, or materially misleading them), it is a “genuinely proper ground for certiorari”.

The judgment is clear that:

• Courts do not quash on mere technicalities.
• There must be “a point of genuine substance that makes a real difference to an objective interest that warrants protection”.

In this case, the core breach – failing to remove the invalid site notice and failing to erect a fresh one – is found to have actually misled Mr Croft and deprived him of the opportunity to participate and appeal. This situates the case firmly in the “substantive prejudice” category.

5.2 Construction of article 26(5): “request” as mandatory

Article 26(5) provides that for an invalid application the planning authority shall:

• inform the applicant that the application is invalid and cannot be considered;
• indicate what requirements were not complied with; and
• “request the applicant to remove the site notice or notices”.

The Council complied with the form of article 26(5) by issuing an invalidation letter that explicitly required removal of the site notices and the use of new notices for any re‑lodged application. But the substance of the obligation was not fulfilled, because:

• the old notices were never removed; and
• no new notices were erected for the second application.

A key interpretive move is the court’s view that the seemingly soft word “request” must be read in its statutory context as an imperative. Humphreys J. draws an analogy with the constitutional formula that judges are appointed “on the advice of the Government”: that “advice” is not optional; it is binding.

Accordingly:

• The Council is not entitled to treat compliance with its article 26(5) notice as optional. It has an obligation to ensure compliance; and
• The developer likewise has a legal duty, not a choice, to remove the invalid site notice.

5.3 Necessity of a fresh site notice for a new application

Once the original application is invalidated and the original site notice is required to be removed, the logic of the regulatory scheme is that any fresh application must be preceded by a new site notice:

• Article 17(1)(b) requires notice “within the period of 2 weeks before the making of a planning application”.
• Form No. 1 (Schedule 3) requires the “date of erection of site notice” to be inserted.

Once the old notice must be removed, it cannot validly serve as the notice for the future application. A new notice must be erected, with a new date, within the applicable two‑week window.

The court emphasises the practical and purposive rationale:

• If the old notice remains up when the first application is invalidated, someone who knows of the invalidity but sees the same notice still displayed will rationally assume that there is no new application. This is “totally misleading”, and in fact misled Mr Croft.
• The purpose of requiring removal of the old notice is to “reset” the public’s understanding and ensure that any new application is positively signalled through a new notice.

The court thus rejects the developer’s argument that because the notice was originally erected within two weeks of the second application, it should “count” for both. That argument is inconsistent with:

• the mandatory nature of art. 26(5); and
• the requirement in Form No. 1 for a date of erection reflective of the live application.

5.4 Article 19(4): yellow site notices and “valid” first applications

Article 19(4) provides that if a valid planning application has been made, and a subsequent application is made within six months for substantially the same site, the subsequent site notice must be on a yellow background.

Humphreys J. holds that this provision has no application where the first application was invalid:

• The text refers expressly to “where a valid planning application is made … and a subsequent application is made …”.
• Here, the first application was invalid, so the statutory precondition for art. 19(4) was not met.

Thus, the relevant failure was not a failure to use a yellow notice under art. 19(4), but a failure to comply at all with the basic obligation to remove the old notice and erect a fresh, valid notice under arts. 17, 19 and 26(5).

5.5 Jurisdictional consequence under s. 34(1): Keleghan and Marshall

Section 34(1) of the 2000 Act provides that a planning authority may only grant permission where:

• the application is made “in accordance with permission regulations”; and
• “all requirements of the regulations are complied with”.

The judgment relies on two earlier authorities to support the view that non‑compliance with the notice requirements goes to jurisdiction:

(a) Keleghan v Corby and Dublin Corporation (1976) 111 I.L.T.R. 144

• McMahon J. quashed a permission where the planning notice failed to disclose access changes integral to the development.
• He emphasised that applications must comply with statutory requirements, then found in s. 26 of the 1963 Act (the precursor of s. 34(1)).
• Failure to do so rendered the permission invalid.

(b) Marshall v Arklow Town Council [2004] 4 I.R. 92

Peart J. dealt with a situation where:

• the planning authority had a practice of random site inspections (80–90% coverage);
• no inspection took place during the relevant five‑week period for the application in question; and
• as a result, the authority failed to detect the absence of a required site notice.

He held:

• the site‑notice requirement is a “very important requirement” to ensure that people likely to be affected have notice and a right to object;
• article 26(4) (then as now) requires that when, on inspection, the authority considers that site‑notice requirements are not met, the application “shall be invalid”;
• the authority is obliged to carry out an inspection during the five‑week period, not at its leisure thereafter;
• non‑compliance with article 26(4) meant the application was invalid and section 34(1) was not satisfied; accordingly, the planning authority had no power to grant permission and its decision was void.

Humphreys J. adopts this reasoning and applies it to article 26(5):

• Compliance with the article 26(5) removal requirement is part of the “requirements of the regulations”;
• Because the old notice was not removed and no fresh notice erected, the application for LRD6053/24‑S3A was not made in accordance with permission regulations and not all requirements were complied with;
• Therefore, Dublin City Council lacked jurisdiction to grant the permission, so certiorari must follow (subject to time and discretion).

5.6 Harmless error and burden of proof

Referring to H.A. v Minister for Justice [2022] IECA 166, the judgment reiterates that once a legal error is established, the onus lies on the decision‑maker (or defending party) to show that:

• the error did not in fact prejudice the applicant; and
• it is therefore “harmless” and should be disregarded in the exercise of discretion.

Applying this:

• The developer and Council did not (and realistically could not) discharge that burden.
• Mr Croft’s evidence that:
  • he relied on the site notice;
  • he understood the original application to be invalid and was told to await a new application; and
  • he did not routinely check the online portal and had no obligation to do so
  was unrebutted and accepted.
• He lost the opportunity to:
  • make observations at Council level; and
  • thereby secure locus standi to appeal to the planning commission (formerly An Bord Pleanála) and to challenge the merits if necessary.

The argument that his objections were broadly represented by other objectors is rejected as speculative and inadequate; it does not cure the specific loss of his individual procedural rights.

5.7 Pleadings, amendments and “acceptable clarity”

The case also addresses the standard of pleading in judicial review, especially for self‑represented litigants.

• Mr Croft originally anchored his complaint in articles 19 and 20 and referred to the yellow‑notice requirement in art. 19(4). At hearing it became clear this was the wrong provision.
• The court allowed an amendment to focus instead on article 26(5) and the need for a fresh site notice, dropping the art. 19(4) point.

More importantly, the court rejects the notion that a pleading must list “chapter and verse” of every relevant statutory provision. Relying on Eco Advocacy v An Bord Pleanála [2023] IEHC 713, Humphreys J. reiterates that:

• The real question is whether the point being made is “acceptably clear” from the statement of grounds;
• Exact statutory citations are not required if the legal point arises “by necessary implication” from the pleaded facts and contentions;
• In this case, the grounds expressly stated that:
  • a fresh site notice with a new date should have been erected for the new application; and
  • the failure to do so deprived the applicant and the community of their participatory rights.
  Even without naming articles 17 and 19, those are the obvious provisions engaged.

The court therefore treats the case as not limited to article 26(5) alone. The failure to erect a fresh site notice sits squarely within the art. 17/19 framework, which is “totally obvious by necessary implication”.

5.8 Discretion and proportionality

The developer argued that quashing the permission would be disproportionate in light of the scale of the project and the commercial stakes (a €7.5 million sale).

Humphreys J. responds in robust terms:

• The case 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 obtained despite two breaches of planning regulations that actually shut out the applicant from participation;
• It is “not the law that the size of a proposed transaction or development overwhelms the need for the right to public participation to have been afforded in accordance with law”;
• While commercial considerations are relevant in some contexts (e.g. case management priorities), the court must “hold the scales equally” and be vigilant to protect “less powerful stakeholders” and their procedural environmental rights.

In EU environmental law matters, the judgment notes, discretion to decline relief is “extremely limited” following CJEU jurisprudence such as A and Others (C‑24/19). Once an EU‑law‑related procedural breach that materially prejudices public participation is established, declining to quash will seldom be lawful.

5.9 Extension of time and EU law

Although the time‑extension issue was not fully argued to conclusion, the court sets out its approach and drafts questions it would have referred to the CJEU.

(a) Domestic test under s. 50(8)

The first limb is whether failure to apply within eight weeks was due to circumstances “outside the control” of the applicant. Only if that is met does the court consider whether there is a “good and sufficient reason” to extend time.

The core factual issue was whether Mr Croft’s ignorance of the decision was outside his control, given that:

• he relied on physical site notices and had been told the first application was invalid;
• the Council had properly told him to await any new application;
• but the site notices were never removed or replaced, giving him no visual cue that a new application had been made; and
• while an online portal existed, he did not routinely check it and had no legal duty to do so.

The judgment makes clear that if a person is actually misled by a breach of site‑notice requirements, and thereby fails to discover a decision in time, that lateness can indeed be “outside [their] control”.

Once that is accepted, the second limb (“good and sufficient reason”) is inevitably met, and Arthropharm suggests the applicant should get a full eight weeks from the date of knowledge. The court therefore grants an extension to cover the date of initiation of the proceedings.

(b) EU law dimension and proposed CJEU questions

The judgment proposes (but ultimately does not send) a reference asking, in essence:

1. Whether Articles 41 and 47 of the Charter, Articles 6 and 11 of the EIA Directive and Articles 6 and 9 of Aarhus require national courts to interpret time‑extension provisions in favour of granting an extension where delay in bringing proceedings is causally linked to a breach of domestic law on public notification (here, failure to remove an invalid site notice and erect a fresh one for the new application).
2. Whether the answer changes where the competent authority knew or should have known of the breach but failed to secure compliance.
3. Whether the existence of other channels of information (such as an online portal) affects that answer when:
   • the domestic law expressly provides for multiple and independent channels of notification including site notices; and
   • one of those channels was breached in a way that actually impaired access to justice.

This underscores a broader theme: time limits cannot be applied in a manner that neutralises the very public participation rights they are meant to regulate, especially where the applicant’s delay is itself a product of unlawful defective notification.

6. Precedents and Authorities Cited

6.1 Irish planning notice jurisprudence

(a) Keleghan v Corby and Dublin Corporation (1976) 111 I.L.T.R. 144

This early planning decision established that:

• Statutory notice requirements must be complied with as part of the application process;
• Substantial defects in notice (such as omitting material information about access arrangements) vitiate the permission; and
• The planning authority’s jurisdiction is conditioned on compliance with those requirements.

In Croft, Keleghan is used to reinforce the proposition that compliance with the notice regime is not a mere formality but a precondition to a lawful grant.

(b) Marshall v Arklow Town Council [2004] IEHC 313; [2004] 4 I.R. 92

Peart J.’s detailed analysis in Marshall is heavily quoted. Key points:

• Site notices are a vital safeguard for citizens who cannot be expected to buy all newspapers every day.
• The regulations are “carefully structured” to ensure:
  • strict specifications for content, clarity and visibility;
  • maintenance of the notice for five weeks; and
  • inspection by the planning authority within that period.
• Article 26(4) is mandatory: if on inspection the authority finds non‑compliance with arts. 17 or 19, the application “shall be invalid”;
• Failure to carry out any inspection within the five‑week period constitutes non‑compliance; the application is invalid and s. 34(1) is not satisfied, so the authority has no power to grant permission.

Croft extends this logic to article 26(5) and the requirement to remove site notices after invalidation. Just as in Marshall, the failure to comply with the structured procedure for handling invalid applications undermines the lawfulness of any ensuing decision.

(c) O’Shea v Kerry County Council [2003] IEHC 51; [2003] 4 I.R. 143

O’Shea is cited for a different point: the concept of ius tertii. There, the applicant challenged the location of a site notice, but did not claim she would have seen it had it been placed differently. The court held she could not have the decision quashed on that basis: she was effectively asserting the rights of others without showing personal prejudice.

Humphreys J. uses O’Shea to:

• underline that in non‑catastrophic cases, applicants cannot quash decisions solely on the basis of putative prejudice to others; but
• distinguish Croft, where the applicant does show personal prejudice, thus moving from ius tertii into a primary rights claim.

6.2 Pleading standards: Eco Advocacy v An Bord Pleanála [2023] IEHC 713

In Eco Advocacy, Humphreys J. emphasised that:

• There is no invented standard requiring pleadings to cite every statutory subsection;
• The real test is whether the point is made with “acceptable clarity” such that the other side understands the case it has to meet;
• Trying to elevate a lack of pinpoint statutory citation into a ground for refusing to hear a plainly understood argument is improper.

That approach is applied in Croft to reject formalistic objections to Mr Croft’s pleadings.

6.3 Harmless error and procedural fairness: H.A. v Minister for Justice [2022] IECA 166

Donnelly J. in H.A. held that once a breach of fair procedures is shown, the burden is on the public authority to demonstrate that it was harmless.

Croft adopts that principle, placing the onus on the Council and developer to show that the failure to comply with site‑notice rules did not prejudice Mr Croft. No such showing was made.

6.4 Domestic procedure and fairness: O’Sullivan v HSE [2023] IESC 11; O’Sullivan v Sea Fisheries Protection Authority [2017] IESC 75

These Supreme Court decisions are invoked not for their substantive facts but for cautionary remarks:

• Courts should avoid the “serious error” of assuming that only procedures resembling a criminal trial are fair, and that anything departing from that is suspect.
• There is no entitlement to elaborate procedures at every stage; proportionality and practicality matter.

In Croft, these comments reinforce the disciplined use of the draft‑judgment procedure: parties may suggest corrections, but not reargue the case.

6.5 Time limits and extension: Arthropharm (Europe) Ltd v HPRA [2022] IECA 109; Marshall v Kildare County Council [2023] IEHC 73

These cases are used to:

• Confirm that where delay is outside an applicant’s control, and they act promptly upon discovery, they should generally receive a full equivalent time period (here, eight weeks) from the date of knowledge;
• Inform the structured approach to s. 50(8) taken in Croft.

6.6 EU case law: Pelati, A and Others, and others

• Pelati v Republika Slovenija (C‑603/10): Addresses legal certainty and the need for clear and foreseeable starting points for time limits in EU contexts. Croft notes that Irish law sets the starting point as the date of decision, subject to possible EU‑law constraints.
• A and Others v Gewestelijke stedenbouwkundige ambtenaar, C‑24/19: The Grand Chamber indicates that in environmental matters, national courts have very limited discretion to maintain decisions that conflict with EU environmental law, particularly where public participation rules are concerned. Croft relies on this to conclude that any argument to uphold the permission despite breach would be acte clair against the developer.

6.7 Draft judgments and confidentiality: Attorney General v Crosland (No. 2) [2021] UKSC 58

The UK Supreme Court’s decision is cited to justify strict limits on the circulation and publication of draft judgments. Humphreys J. reiterates that draft judgments:

• have no legal status until formally delivered;
• are confidential to the litigation; and
• may not be shared beyond the parties and their legal teams, and then only for the legitimate purposes of the proceedings.

This aspect, while procedural, may influence Irish court practice more broadly.

7. Complex Concepts Simplified

7.1 What is a site notice and why does it matter?

A site notice is a physical notice erected on or near a development site, visible from the public road, stating that a planning application is being made, describing the development, and informing the public of:

• their right to inspect the application; and
• their right to make submissions or observations within a specified period.

Under the 2001 Regulations, the site notice:

• must be erected within two weeks before the application;
• must be maintained in place for five weeks after the application is received; and
• must comply with form and visibility requirements.

Its function is to provide local, accessible notice to people who may be affected but do not routinely monitor official websites or newspapers. Especially post‑Aarhus, it is a key means to ensure effective public participation in environmental decision‑making.

7.2 “Ius tertii” (third‑party rights) complaints

A “ius tertii” complaint is one where a litigant seeks to rely on a rights violation that does not in fact affect them personally, but only affects others.

• Example: alleging a defect in a site notice’s visibility, but admitting that one never saw or would have seen the notice even if perfectly located.

Courts are reluctant to quash decisions on pure ius tertii grounds unless the defect is so fundamental that it undermines the entire process (e.g. complete absence of any public notice, creating a strong probability of systemic unfairness).

In Croft, the complaint is not purely ius tertii: Mr Croft was personally misled and disadvantaged.

7.3 Harmless error vs material error

Not every legal error warrants quashing a decision. A harmless error is one that, even if technically a breach, does not materially affect:

• the outcome; or
• the rights or interests of the applicant.

Under Irish law:

• The decision‑maker carries the burden of showing that a proven error was harmless;
• If the applicant can show real prejudice, the error is not harmless.

In Croft, the error was plainly material: it deprived the applicant of the chance to participate in the process and to appeal, and likely changed his behaviour (he did not lodge observations when he otherwise would have).

7.4 Jurisdictional error under s. 34(1)

A jurisdictional error means the public body did not have the legal power to make the decision at all.

Under s. 34(1):

• The planning authority only has power to grant permission if the application is made in accordance with the regulations and all regulatory requirements are complied with;
• If a key requirement (such as proper site‑notice compliance) is missing, the authority is acting outside its powers if it grants permission.

In that situation, the permission is not simply flawed; it is invalid for want of jurisdiction.

7.5 Aarhus Convention and public participation

The Aarhus Convention enshrines three pillars of environmental democracy:

1. Access to environmental information;
2. Public participation in environmental decision‑making;
3. Access to justice (review procedures).

In planning cases concerning environmental impacts (such as large residential schemes with EIA/AA screening), Aarhus underpins the interpretation of domestic rules:

• Public must be promptly informed of proposals;
• Reasonable time‑frames must be given for them to comment;
• They must have access to administrative or judicial remedies to enforce these rights.

Croft uses Aarhus and the EIA Directive to emphasise the importance of effective site‑notice compliance and flexible, fairness‑oriented application of time‑extension rules when those participation rights are compromised.

7.6 Extension of time and “outside the control”

Under s. 50(8), the court may only extend time if:

1. the lateness was due to circumstances “outside the control” of the applicant; and
2. there is a “good and sufficient reason” to do so.

Things that can be outside an applicant’s control include:

• not being informed of the decision because the authority or developer failed to comply with notification rules;
• being actively misled by an unlawful practice (e.g. continued display of an invalid site notice).

Where the delay is concomitant with such breaches, and the applicant acts promptly upon discovery, courts will tend to find both limbs satisfied.

8. Impact and Implications

8.1 For planning authorities

Croft significantly tightens the expectations placed on planning authorities in relation to site‑notice compliance:

• Authorities must treat article 26(5) removal requests as part of their own obligations, not just the applicant’s.
• Before validating a new application that follows an invalidation, they should:
  • verify that the old site notices have been removed; and
  • check that new notices have been erected, with correct dates and content, within the statutory window.
• Random or cursory checks that fail to detect non‑removal may, following Marshall and Croft, jeopardise the legality of any permission granted.
• Internal checklists (like Dublin City Council’s 2021 external checklist) should now be read in the light of this judgment: any resubmission after invalidation must be treated as requiring new notices.

8.2 For developers and planning agents

The judgment sends a strong signal to developers and their agents:

• Failure to adhere strictly to notice requirements – even if purely “procedural” – can destroy the permission and jeopardise commercial transactions.
• If an application is invalidated:
  • all site notices for that application must be removed; and
  • a fresh round of notices (newspaper and site) must be undertaken for any resubmission.
• Re‑using old notices or assuming that a white notice erected before the invalidation can be “carried over” is unlawful.
• Developers should build robust internal compliance checks around notice procedures, given that courts will not be sympathetic to self‑induced hardship when breaches are their responsibility.

8.3 For local communities and objectors

For members of the public:

• The judgment validates reliance on physical site notices as a primary means of tracking planning activity. There is no legal obligation to monitor online portals constantly.
• If public‑participation defects (especially in notice) actually prevent you from engaging with a planning proposal, you may be entitled to:
  • an extension of time to challenge the decision; and
  • quashing of the permission, even if the defect might be labeled “technical”.
• However, if a defect did not affect you personally, you normally cannot have the decision quashed solely on that basis unless the failure is so fundamental that it likely undermined participation for the public at large.

8.4 For environmental and EU law

Croft illustrates how Irish planning law is increasingly being read through the lens of EU public participation norms:

• Site‑notice compliance is seen as a vehicle for implementing Aarhus and EIA participation rights;
• Time‑limit rules must not be applied in a way that nullifies access to justice for those misled by unlawful notification practices;
• The scope for discretionary refusal of relief in environmental cases is narrowing, following the CJEU’s insistence on effective and dissuasive remedies for breaches of EU environmental law.

While no reference ultimately went to Luxembourg, the draft questions and the explicit reliance on CJEU caselaw suggest that future Irish cases may further integrate EU guidance on time limits, discretion and public participation.

8.5 Procedural practice: draft judgments and party engagement

Beyond planning law, Croft also has implications for High Court practice:

• It reiterates that draft judgments are:
  • confidential to the parties and their legal advisers; and
  • not to be circulated or published, even informally, beyond what is necessary for the litigation.
• It codifies the permissible scope of party comments on drafts (typographical/factual errors, redactions, suggestions as to format) and bars attempts to reargue the merits at that stage.
• These statements may form the basis for future practice directions on draft‑judgment handling.

9. Key Takeaways

• Article 26(5) is mandatory: once an application is invalidated, the planning authority must require – and the applicant must ensure – the removal of site notices. This is not optional.
• Fresh application, fresh notices: any re‑lodged application after invalidation must be preceded by a new site notice (with a new date of erection) within two weeks before the new application.
• Jurisdictional consequence: failure to comply with the notice regime means the application is not made “in accordance with” the regulations, and not all requirements are complied with; s. 34(1) is not satisfied, so the planning authority lacks power to grant permission.
• Personal prejudice matters: where defective public participation actually shuts out an applicant, courts will treat the breach as substantive, not technical, and quash the permission.
• Onus on the authority: once a breach is shown, the authority or developer must prove it was harmless; otherwise relief will generally follow.
• Pleadings need clarity, not perfection: judicial review grounds must clearly identify the complaint; they need not cite every statutory article, especially for lay litigants.
• Time limits must be EU‑law‑compliant: where late discovery of a permission is caused by defective notification, delay may be “outside the control” of the applicant, justifying an extension of time, particularly in environmental cases governed by Aarhus and the EIA Directive.
• Commercial scale is no shield: the magnitude of the development or transaction does not override the need for compliance with public participation rights.

10. Conclusion

Croft v Dublin City Council is likely to be a significant reference point in Irish planning law on the legal status and consequences of site‑notice non‑compliance, especially in the context of invalid applications followed by re‑lodged schemes.

The judgment:

• solidifies the understanding that article 26(5) removal orders are mandatory and jurisdictional in effect;
• clarifies that a fresh application after invalidation must be supported by a fresh site notice regime;
• marks a clear boundary between technical, non‑prejudicial irregularities and serious breaches that undermine individuals’ participatory rights;
• demonstrates an EU‑law‑conforming approach to time limits and judicial discretion, aligning domestic planning judicial review more closely with Aarhus and EIA principles; and
• signals to developers, authorities and communities alike that the right to public participation in environmental decision‑making is to be given real and meaningful effect, and that failures in this regard will not be brushed aside as mere formalities.

Although the final order was formally made by consent of the Council and without continued opposition by the developer, the detailed reasoning in Croft will have enduring precedential value in shaping how Irish courts, planning authorities and practitioners treat invalid applications, site‑notice practices and access to justice in environmental planning cases.