Croft v Dublin City Council (Approved)

Factual and Procedural Background

This judgment was delivered by Judge Humphreys in proceedings brought by the Plaintiff against the Defendant, with a developer joined as a notice party. The dispute concerns planning permission for a large-scale residential development at lands in The City. The notice party submitted an initial planning application which was invalidated by the Defendant because the newspaper notice accompanying that application omitted prescribed statutory wording. The Defendant issued a written notice under article 26(5) of the Planning and Development Regulations 2001 requesting removal of the site notices erected for the invalid application and stating that any resubmitted application must be accompanied by new notices dated within two weeks of resubmission. The original site notices were not removed. A fresh planning application for the same development was lodged shortly thereafter, relying on the same site notices but with a corrected newspaper notice; that application was validated and ultimately granted by the Defendant on 30 September 2024.

The Plaintiff says he relied on the site notice and was unaware of the fresh application; he discovered the grant of permission months later and brought judicial review proceedings challenging the validation and grant, seeking certiorari, an extension of time, and related relief. Leave to apply for judicial review was granted. The Defendant conceded certiorari; the notice party did not pursue an objection to extension of time and ultimately did not defend the matter further. The court gave detailed reasons explaining why it was satisfied to make the orders sought by the Plaintiff.

Legal Issues Presented

1. Whether the Defendant's article 26(5) notice required removal of the original site notice and, if so, whether the failure to remove that site notice and to erect a fresh site notice for the subsequent application breached the Planning and Development Regulations 2001.
2. Whether any breach of the notification/site‑notice rules materially disadvantaged the Plaintiff so as to justify quashing the planning decision by way of certiorari (distinguishing an ius tertii/technical breach from a breach that causes real prejudice).
3. Whether the court should extend the statutory time limit for bringing judicial review under section 50(8) of the Planning and Development Act 2000, having regard to domestic rules on time, EU law (including the Aarhus obligations and EIA Directive), and the facts that the Plaintiff was unaware of the fresh application because of the defective site‑notice situation.
4. What discretionary relief (if any) is appropriate in the circumstances, including any costs consequences.

Arguments of the Parties

Plaintiff's Arguments

• The original application was invalidated because the newspaper notice omitted statutory wording; the Defendant properly requested removal of the site notices under article 26(5).
• The notice party did not remove the original site notices and relied on them for the subsequent application; a fresh site notice with a new date should have been erected when the new application was made.
• The failure to remove the original notice and to erect a new notice deprived the Plaintiff of the statutory opportunity to be informed and to participate; he personally relied on the site notice and was not aware of the fresh application until much later.
• The Plaintiff sought extension of time on the basis that late discovery caused by the procedural irregularities constituted a good and sufficient reason under section 50(8) of the 2000 Act; he sought certiorari to quash the grant of permission.

Defendant's Position

• The Defendant accepted that certiorari was appropriate in the circumstances and conceded the remedy ultimately ordered by the court.
• The Defendant (in correspondence to the Plaintiff) explained that where an application is invalid the public cannot submit observations on it and advised that the Plaintiff should wait for a new application or use online search channels to monitor new applications.
• The Defendant accepted that the proceedings fell within section 50B of the 2000 Act for costs protection purposes.

Notice Party's Arguments

• The notice party contended that no legal error had been identified regarding the site notice contents and relied on the Defendant's inspection and validation processes.
• At interlocutory stages the notice party complained of prejudice and delay but also accepted (in later correspondence and context) that the Defendant had conceded certiorari and that it could not ultimately continue to defend the proceedings in the face of the court's reasoning.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
O'Sullivan v. HSE [2023] IESC 11	Procedural observations on draft judgments and limits on rearguing substance when commenting on drafts.	Cited to explain acceptable scope of parties' comments on draft judgments and to support procedural directions about circulation and confidentiality of drafts.
O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75	Comments on appropriate procedural standards (quotation used in context).	Quoted to illustrate the court's views on procedure and the risk of treating administrative cases as if they required criminal‑trial‑style procedures.
Attorney General v. Crosland (No. 2) [2021] UKSC 58	Authority for restricting publication of draft judgments in the interests of the administration of justice.	Relied upon to justify directions about circulation and confidentiality of the draft judgment circulated to the parties.
H.A. v. Minister for Justice [2022] IECA 166	On the onus to show that an error was harmless where a procedural/legal requirement has been breached.	Applied to state that, having found non‑compliance, the opposing parties bore the burden of showing the error was harmless; that burden was not discharged here.
O'Shea v. Kerry County Council [2003] IEHC 51	Illustration of ius tertii principle: an applicant cannot seek relief for an error that did not affect them personally.	Used to draw the distinction between breaches that injure the applicant (giving standing to seek quashing) and purely academic or third‑party errors; the court found the present breach affected the Plaintiff personally.
Eco Advocacy v. An Bord Pleanála [2023] IEHC 713	Pleadings standard: points need be acceptably clear rather than cite chapter and verse of statutory provisions.	Applied in assessing whether the Plaintiff's amended pleadings adequately raised the article 26(5) complaint and the duty to erect a new notice.
Keleghan v. Corby and Dublin Corporation (1976) 111 I.L.T.R. 144	Importance of compliance with statutory notification requirements; permission quashed where notices were inadequate.	Cited to reinforce long‑standing planning caselaw that inadequate notice can invalidate a decision and support the quashing of permission where notice obligations are not complied with.
Marshall v. Arklow Town Council [2004] IEHC 313	Importance of site notices and inspections; failure to ensure notices were in place can lead to invalidity.	Quoted at length to support the conclusion that site notices are a vital procedural safeguard and that failure to comply undermines the authority's power to grant permission.
Thompson v. An Bord Pleanála (No. 4) [2025] IEHC 161	Recent exposition on the legal context for extension of time in planning judicial review cases.	Referred to as setting out legal context for extension of time and as overlapping jurisprudentially with the issues in this case.
Pelati v. Republika Slovenija, C‑603/10, ECLI:EU:C:2012:639	Principle on the starting point for running of time and foreseeability of time limits under domestic law.	Cited to confirm that under domestic law time runs from the date of the decision itself, a point relevant to the section 50(6) time rules.
Arthropharm (Europe) Ltd v. The Health Products Regulatory Authority [2022] IECA 109	Principles on extension of time where knowledge of decision occurs late and impact on period to bring challenge.	Applied to explain that where a person learns of a decision late, an extension can be given equivalent to a fresh eight‑week period running from discovery.
Marshall v. Kildare County Council [2023] IEHC 73	Illustrates approach where a late discovery leads to extension equivalent to full period running from date of knowledge.	Used to support the approach to extension of time on the facts where the Plaintiff only discovered the grant late due to notice failings.
A and Others v. Gewestelijke stedenbouwkundige ambtenaar ... C‑24/19, ECLI:EU:C:2020:503 (Grand Chamber)	On the very limited scope of discretion after breach of EU law in environmental participation rights.	Referred to as supporting the view that discretion is extremely limited where EU public‑participation rights have been breached.

Court's Reasoning and Analysis

The court began by distinguishing between two types of procedural breaches: (i) breaches of public participation or notification requirements that do not adversely affect a particular judicial review applicant (ius tertii/academic technicalities), and (ii) breaches that actually disadvantage an applicant and thus justify certiorari. The court emphasised that mere technicality without substantive prejudice normally does not lead to quashing; there must be a genuine, tangible impact on an objective interest.

The court analysed the statutory scheme. It concluded that article 26(5) of the Planning and Development Regulations 2001 requires that where an application is declared invalid the planning authority must, in writing, request removal of any site notice erected for that invalid application. The court held that such a request is not a mere suggestion: compliance is required as part of the "requirements of the regulations" which must be met for a later validated application to be properly made in accordance with the permission regulations. The court reasoned that if an invalid application is followed by a fresh valid application, the statutory scheme logically requires a new site notice to be erected (including a fresh date of erection), because the old notice will no longer be operative for the new application.

Applying those principles to the facts, the court found that (i) the first application was invalid because the newspaper notice omitted prescribed wording; (ii) the Defendant issued the article 26(5) letter requesting removal of the original site notices and specifying the need for new notices for any resubmission; (iii) the original site notices were not removed; and (iv) the subsequent application was validated while relying on the same (not removed) site notices. The court held that this amounted to a failure in the notification process that had the cumulative effect of disadvantaging the Plaintiff who had relied on the site notice and was unaware of the new application.

The court applied the principle (citing H.A. v. Minister for Justice) that, once a breach is identified, the onus is on the opposing parties to demonstrate the breach was harmless. The court found that this onus had not been discharged. It rejected submissions that the Plaintiff's claim was merely an ius tertii complaint, noting that the Plaintiff had shown direct personal prejudice (reliance on the site notice and lack of awareness of the fresh application), and that the lack of participation also deprived him of procedural rights such as the right to appeal.

On extension of time, the court accepted the legal framework under section 50(8) of the 2000 Act (good and sufficient reason; circumstances outside the control of the applicant) and domestic jurisprudence about when extensions are appropriate. The court considered EU law (Articles 41 and 47 of the EU Charter, the EIA Directive, and the Aarhus Convention) and concluded there was a strong argument that EU law and the Convention require a favourable reading of domestic time rules where a failure of notification by the developer contributed to a claimant's inability to bring proceedings in time. The court considered that discretion is narrowly circumscribed by EU law when public participation rights are involved and noted relevant CJEU authority pointing to limited discretion after a breach. On the facts, the court concluded that the Plaintiff's unawareness caused by the notice failings was outside his control and constituted good and sufficient reason to extend time.

Finally, the court weighed discretionary considerations: although the notice party suffered commercial consequences, the court emphasised that the notice party's breaches (and/or those of her agents) caused the procedural unfairness; it would be inappropriate to visit those consequences upon the Plaintiff. The court therefore concluded that the appropriate remedy was to quash the grant of permission and to extend time for bringing the proceedings.

Holding and Implications

Holding: The court ordered that (i) time be extended under section 50(8) of the Planning and Development Act 2000 up to the date of initiation of these proceedings; and (ii) there be an order of certiorari quashing the Defendant's decision of 30 September 2024 (reg. ref. LRD6053/24-S3A) granting planning permission for the development in question. The court also ordered that the Plaintiff be entitled to recover properly allowable outlays and other out‑of‑pocket expenses from the Defendant, with such sums to be adjudicated if not agreed, and made no other order as to costs.

Implications:

• Direct effect: The planning decision granting permission was quashed and the Plaintiff's time to challenge was extended; the Defendant's grant no longer stands.
• Procedural principle reinforced: Planning authorities and applicants (developers) must ensure strict compliance with statutory notification requirements in the Planning and Development Regulations 2001, including removing site notices for invalid applications and erecting fresh notices for subsequent applications, because failure to do so can materially prejudice members of the public and render a later decision invalid.
• EU/Aarhus context: The judgment emphasises that the right to public participation in environmental decision‑making (as reflected in EU law and the Aarhus Convention) amplifies the criticality of compliance with public‑notice requirements and limits the scope for permissive discretionary relief where participation rights have been compromised.
• Precedential scope: The decision applies the law to the facts and reinforces existing authorities on the importance of site notices and the narrowness of discretion following breaches of public‑participation obligations; the court did not purport to create novel statutory provisions beyond interpreting and applying the existing regulatory and case law framework.