Factual and Procedural Background
The Applicant, a litigant in person, seeks to challenge a decision of the Board made on 15 November 2023, which amended conditions 3(a) and 6 of a prior Board Order dated 23 August 2023 concerning a quarry development owned by the Notice Party at Barrettspark, Athenry, Co. Galway. The original permission related to a rock quarry, but conditions 3(a) and 6 mistakenly referred to sand and gravel extraction and imposed limits related to extraction above the water table.
The Board acknowledged clerical errors in these conditions following correspondence from the Notice Party’s planning agent, who queried the applicability of the conditions given the nature of the quarry and its operation below the water table. The Board exercised its power under section 146A(1)(b) of the Planning and Development Act 2000 to amend these conditions by deleting the reference to "sand and gravel" in condition 3(a) and substituting condition 6 with a new condition referencing the Environmental Impact Assessment Report.
The Applicant attempted to apply for leave to seek judicial review within the statutory 8-week period. However, procedural errors by the Central Office resulted in the Applicant being incorrectly directed to apply by motion on notice rather than by the usual ex parte application. This misdirection led to disputes over whether the application was made in time.
The application for leave was first opened before the court on 29 January 2024, with subsequent directions given and a hearing held on 15 April 2024. Judgment was reserved following the hearing.
Legal Issues Presented
- Whether the Applicant’s judicial review application was made within the statutory 8-week time limit, given procedural errors and directions by the Central Office.
- Whether the amendments to conditions 3(a) and 6 of the Board’s original permission constituted a lawful correction of clerical errors under section 146A(1)(b) of the Planning and Development Act 2000 or an impermissible material alteration of the development terms contrary to section 146A(2).
- Whether there are substantial grounds for judicial review based on the nature of the amendments and procedural fairness considerations, including compatibility with the European Convention on Human Rights (ECHR), particularly Article 6.
Arguments of the Parties
Applicant's Arguments
- The Applicant contends that the Central Office’s erroneous direction to apply by motion on notice, rather than ex parte, should not prejudice the timing of the application; the application should be deemed made on 5 January 2024 when the notice of motion was issued following that direction.
- The Applicant challenges the Board’s characterization of the amendments as clerical errors, arguing that the substantial change in wording of condition 6 goes beyond a mechanical or clerical mistake and constitutes a material alteration of the permission.
- The Applicant relies on the Supreme Court’s definition of clerical error in Sandy Lane Hotel Limited v Times Newspapers [2011] 3 I.R. 334, emphasizing that a clerical error must arise from a mechanical writing or copying process and not from mistaken belief or substantive error.
- The Applicant argues that the Board’s amendment fails to comply with procedural requirements and environmental assessment regulations and breaches constitutional and ECHR rights, particularly the right to a fair hearing under Article 6.
- The Applicant cites Strasbourg jurisprudence, including cases addressing the right of access to court and the impact of misinformation or inadequate procedural guidance on lay litigants, to support the contention that the application timing should be interpreted in a manner that avoids unfairly penalizing the Applicant.
Respondent's Arguments (Board)
- The Board contends that the statutory 8-week period for judicial review commenced on 15 November 2023, the date of the decision under challenge, and ended on 18 January 2024.
- The Board raises a time bar objection, asserting that the Applicant’s application was out of time if treated as an ex parte application.
- The Board maintains that the amendments to conditions 3(a) and 6 were properly made pursuant to section 146A(1)(b) to correct clerical errors.
- The Board disputes the Applicant’s characterization of the Central Office’s directions as binding or determinative of the timing of the application.
- The Board raises procedural and substantive objections to the challenge, including the sufficiency of grounds and compliance with statutory powers.
Notice Party's Arguments
- The Notice Party identified the alleged clerical errors in conditions 3(a) and 6, querying whether the conditions had been attached in error given the nature of the quarry.
- The Notice Party did not characterize the errors as mere typographical errors but suggested substantive drafting errors.
- The Notice Party supports the Board’s decision to amend the conditions to correct these errors.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Sandy Lane Hotel Limited v Times Newspapers [2011] 3 I.R. 334 |
Definition of "clerical error" as a mechanical writing or copying mistake, distinct from errors arising from mistaken belief or lack of knowledge. |
The Court applied this definition to assess whether the Board’s amendment of condition 6 was a lawful correction of a clerical error or an impermissible substantive change. |
| Pembroke Road Association v. An Bord Pleanála [2021] IEHC 545 |
Interpretation of section 146A(1)(iii) allowing correction of ultra vires conditions to facilitate operation of planning permission. |
The Court noted this precedent but clarified that the Board’s amendment in the present case was expressly made on the basis of a clerical error under subsection (i), not under (iii). |
| O'Neill & anor v An Bord Pleanála [2020] IEHC 356 |
Recognition that delays caused by court office errors in judicial review applications should not penalize unrepresented litigants. |
The Applicant relied on this case to argue that the Central Office’s misdirection should not cause the application to be out of time. |
| Clonres CLG v. An Bord Pleanála [2021] IEHC 303 |
Court’s duty to uphold laws and constitutional principles even if not pleaded by parties. |
The Court referenced this to justify autonomous consideration of ECHR obligations despite absence of explicit party argument. |
| Casey v. Minister for Housing & Others [2021] IESC 42 |
Judicial engagement with legal issues of own motion in interests of justice and correctness. |
The Court cited this principle in its active assessment of ECHR compatibility and procedural fairness. |
| European Court of Human Rights cases (e.g., Zubac v. Croatia, Gajtani v. Switzerland, Assunção Chaves v. Portugal, Clavien v. Switzerland) |
Right of access to court under Article 6 ECHR requires practical and effective opportunity to challenge decisions; misinformation or lack of proper information by authorities may violate this right. |
The Court applied these principles to hold that treating the Applicant's application as out of time due to Central Office errors would violate Article 6 rights. |
Court's Reasoning and Analysis
The Court examined the procedural history and found that the Central Office erroneously directed the Applicant, a litigant in person, to apply by motion on notice rather than by the correct ex parte procedure. The Court recognized that the Applicant complied with the official direction and issued the notice of motion on 5 January 2024, within the 8-week statutory period.
The Court held that it would be unjust and a breach of the Applicant’s rights, including under Article 6 of the ECHR, to disregard the Central Office’s direction and treat the application as out of time. The Court emphasized the duty to interpret statutory time limits in a manner compatible with the right of access to court, especially for unrepresented litigants given misinformation or inadequate guidance.
Regarding the substantive challenge, the Court analyzed the Board’s power under section 146A of the Planning and Development Act 2000 to correct clerical errors. It applied the Supreme Court’s definition of clerical error from Sandy Lane Hotel and found that the amendment to condition 6 represented a significant change in wording and substance, going beyond a mere mechanical or clerical error. This raised substantial grounds for judicial review, including that the amendment might constitute a material alteration contrary to section 146A(2).
The Court noted that the amendment to condition 3(a) was likely within the scope of a clerical correction.
In exercising its discretion, the Court acknowledged the prejudice to the Notice Party but emphasized that judicial review is an equitable remedy and that procedural fairness and access to justice must be preserved. The Court also encouraged the Applicant to consider legal representation given the complexity of planning law.
Holding and Implications
The Court GRANTED leave to apply for judicial review on limited grounds and reliefs. Specifically:
- Leave is granted limited to reliefs including quashing the Board’s amendment of condition 6 and related declarations, excluding relief related to condition 3(a).
- The Applicant is directed to file an amended statement of grounds within two weeks, refining the grounds to focus on the alleged unlawful amendment under section 146A(1)(b)(i) and section 146A(2) of the Planning and Development Act 2000.
- The Applicant must issue an originating notice of motion within four weeks returnable on 10 June 2024.
- The question of costs is reserved.
The Court’s decision ensures that the Applicant’s right of access to court is protected despite procedural errors by court staff, reinforcing the principle that litigants should not be prejudiced by official misinformation. It also clarifies the limits of the Board’s power to correct clerical errors under the Planning and Development Act 2000, highlighting that substantive alterations require proper procedure and may be subject to judicial review.
No new precedent was established beyond the application of existing principles to the facts; the decision primarily addresses fairness in procedural timing and the scope of statutory correction powers.