Thomson v An Bord Pleanala (Approved)

Factual and Procedural Background

On 25th June 2020, a developer applied to the local county council for permission to erect a telecommunications mast in a village. The council validated the application and received objections from the Applicants. A senior planner reported that the proposed mast would be visually obtrusive due to its location near dwellings and amenities, recommending refusal in line with ministerial guidelines which advise against masts in towns or villages except as a last resort.

The council refused permission on 26th November 2020. The developer appealed, arguing coverage needs and willingness to share the mast with other operators. The council and Applicants made submissions opposing the appeal. The planning board's inspector recommended refusal, but the board granted permission on 17th June 2021.

Following the decision, the Applicants considered challenging the board's decision but did not initially do so due to cost risks and other concerns. The statutory 8-week period to challenge the decision expired in August 2021. Construction began but was alleged by the Applicants to be non-compliant with the permission, leading to complaints and applications for declarations. Enforcement notices and warning letters were issued to the developer.

The Applicants investigated other similar board decisions involving the same telecommunications company and identified a pattern of permissions granted despite council refusals. They engaged with political representatives and media, uncovering concerns about the impartiality of a key board member involved in many such decisions. An internal board review was conducted but its report was not published following legal advice. The former deputy chairperson resigned amidst related allegations and prosecution.

Proceedings challenging the board’s decision were issued on 28th November 2022. The Applicants sought various reliefs including quashing the permission, declarations, investigation directions concerning file allocation and board member conduct, extension of time to apply for judicial review, and injunctions related to the mast’s re-erection.

Legal Issues Presented

1. Whether the Applicants are entitled to an extension of time to seek judicial review of the board’s decision granting permission for the telecommunications mast.
2. Whether the board’s decision was invalid due to bias or appearance of bias related to non-random allocation of files and excessive granting rates.
3. Whether the board members failed to comply with the Code of Conduct under the relevant planning legislation.
4. Whether a board member was disqualified from office due to a composition or arrangement with creditors, affecting the validity of the decision.
5. Whether the board erred in law in its interpretation of the Development Plan and Ministerial Guidelines, including adequacy of reasons for departure from policy.
6. Whether a stay or injunction should be granted preventing re-erection of the mast pending determination of proceedings.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the statutory test for extension of time under section 50(8) of the Planning and Development Act 2000, requiring (a) good and sufficient reason and (b) that circumstances causing delay were outside the applicant’s control. The court found that certain grounds (notably the alleged errors in interpretation of the Development Plan and Ministerial Guidelines) were evident at the time of the decision and thus not outside the Applicants’ control, disqualifying those grounds from extension.

For grounds relating to alleged bias, failure to comply with the Code of Conduct, and the disqualification of a board member due to creditor arrangements, the court accepted that these matters were not initially obvious and thus met the "outside control" limb. However, the Applicants became aware of relevant information by mid-2022, including statistical anomalies, board minutes, and media reports. The court held that the Applicants should have initiated proceedings within eight weeks of acquiring sufficient information, but failed to do so.

The court rejected the Applicants’ strategy of waiting for ongoing investigations and inquiries before commencing judicial review, emphasizing that waiting for admissions or further evidence does not justify delay. The court underscored the importance of legal certainty and fairness to third parties, particularly commercial interests, in upholding strict time limits.

In balancing the public interest in probity and transparency against the need for certainty, the court concluded that the Applicants’ delay was unjustified. Although the issues raised were important and meritorious, the court’s role is limited to deciding properly pleaded issues within procedural rules and time limits.

Holding and Implications

The court SET ASIDE the order granting an extension of time and leave to apply for judicial review, and REFUSED the application for extension of time and leave to apply for judicial review.

Consequently, the developer (Company A) was released from its undertaking not to proceed with the development, allowing re-erection of the telecommunications mast subject to compliance with planning permission. No new precedent was established; the decision reinforces the strict application of statutory time limits for judicial review in planning cases and the necessity for applicants to act promptly once sufficient information is available.