Exhaustion of Remedies and Site Notice Compliance in Planning Judicial Review

Introduction

This case arose from an application by Michael and Maureen Larkin (“the applicants”) for judicial review of Roscommon County Council’s decision of 21 February 2023 granting retention permission and full planning permission to John Heneghan (“the notice party”) for additional farm structures and site works at Rathleg, Castlerea, County Roscommon. The applicants live adjacent to the farm and objected on grounds including:

Alleged invalidity of the planning application since the site notice was said to have been erected on 5 January 2023, not 18 December 2022, in breach of Article 17(1)(b) of the Planning and Development Regulations 2001 (as amended);
Proximity of an underground slurry tank to their home;
Inadequacy of the Nutrient Management Plan;
Noise, odour and visual impact;
Failure to secure written consent for structures within 100 metres of their dwelling.

The applicants twice raised these objections before the planning authority and then appealed to An Bord Pleanála, only for their appeal to be invalidated for non-compliance with the fee requirement. They thereafter sought judicial review, contending that the site-notice defect was jurisdictional and that they had no adequate alternative remedy.

Summary of the Judgment

Mr Justice Bradley refused the application for judicial review. His core findings were:

The applicants were not prejudiced in lodging detailed objections and could have appealed; they fully participated in the process.
The planning authority gave adequate reasons for its decision, both in the written report and in the schedule of conditions with express “reasons” for each condition.
The alleged site-notice defect, even if it occurred, did not deprive the council of jurisdiction since the notice ultimately was in place for the required five-week period and the applicants were aware of the application in time to object.
The statutory appeal to An Bord Pleanála was an available, effective remedy and the applicants’ error in paying the fee did not justify bypassing that route; no “exceptional circumstances” arose to warrant direct judicial review.

Analysis

Precedents Cited

State (Abenglen Properties) v Dublin Corporation [1984] I.R. 381 – alternative remedy principle.
R (Abenglen Principles) – EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] IESC 34 – exhaust appeal first;
South-West Regional Shopping Centre v An Bord Pleanála [2016] IEHC 84 – Board may review validity of an application;
Dunne v An Bord Pleanála [2006] IEHC 400 – lack of prejudice to objectors with defective notices;
Duffy v Clare County Council [2023] IEHC 430 – exceptional circumstances threshold for judicial review.

Legal Reasoning

The court examined three issues:

Reasons Requirement – The planning authority’s report and conditions included clear reasons, satisfying the judicial review duty to give adequate reasons so that the applicants could understand the basis of the decision.
Site Notice Validity – Article 17(1)(b) requires a site notice “within the two-week period” before submission; Article 20 requires it to remain for five weeks post-submission. Even accepting the applicants’ version that the notice was erected late, it was in place for the five-week period, and the applicants were not deprived of their opportunity to object. The defect was not jurisdictional.
Alternative Remedy – The statutory appeal under section 37 of the Planning & Development Act 2000 is an effective remedy, covering all validity and merits points. The applicants attempted that appeal but mishandled the fee. Absent “exceptional circumstances” (e.g., flagrant unfairness or bias), they must exhaust the appellate process before invoking judicial review.

Impact

This judgment clarifies that:

Minor or technical site-notice irregularities, without prejudice to objectors, will not invalidate planning applications;
Courts will enforce the exhaustion of statutory appeals to An Bord Pleanála before granting judicial review, absent compelling reasons;
The duty to give reasons in planning decisions is met by an express schedule of conditions with accompanying reasons and a clear planning report.

Future litigants must ensure they properly pay appeal fees and raise all objections on appeal, or else they will be confined to that process.

Complex Concepts Simplified

Site Notice Periods – You must put up a public notice: (a) “within two weeks” before applying, and (b) keep it up five weeks after applying. If objectors can still see and respond to it, a delay in the first period is generally not fatal.
Alternative Remedy Principle – If the law gives you an appeal route, you normally must use it before asking the court for judicial review. Only in rare, unfair situations will the court allow you to skip the appeal.
Reasons for Conditions – Each planning condition must have a short “reason” explaining why it is imposed. This both informs parties and satisfies the court’s duty to give reasons.

Conclusion

Larkin & Anor v Roscommon County Council establishes that:

Minor technical defects in site notices are not jurisdiction-stripping if objectors are not prejudiced;
Court-approved planning decisions need only clear reasons in a report and condition sheet;
Parties must exhaust the statutory appeal to An Bord Pleanála before seeking judicial review, unless exceptional injustice is demonstrated.

The case reinforces orderly planning processes and preserves the role of administrative appeals in resolving planning disputes.