Judicial Review, FOI and an Application Three Months Out of Time
On 12 January 2024, An Bord Pleanála granted planning permission for a 48MW data centre in County Meath. The applicant's solicitor received the notification on 15 January 2024. On 1 February 2024, the applicant submitted an FOI request to the Board for the inspector's internal notes. The records were released on 20 May 2024. Counsel was instructed on 10 June 2024 and advised that there were strong grounds to challenge the Board's failure to carry out an appropriate assessment under the Habitats Directive. The applicant filed an ex parte application for leave to apply for judicial review on 5 July 2024. The Board opposes the application, relying on Order 84 r.21 RSC and the three-month time limit. The developer has spent €2.1m on site preparation and says it will be prejudiced by any further delay. The applicant says it acted diligently and that the FOI process was necessary to establish the grounds.
1. Identify the time limit and calculate whether the application is within it.
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Order 84 r.21 requires an application for leave to apply for judicial review to be made promptly and, in any event, within three months from the date on which the grounds for the application first arose. For a challenge to a planning decision, time normally runs from the date of the decision, not from the date the applicant learns of the reasons. The decision was made on 12 January 2024. Three months expired on 12 April 2024. The leave application was made on 5 July 2024, 84 days later: 18 days remaining in April, 31 in May, 30 in June and 5 in July. The application is therefore out of time. The court has a discretion under Order 84 r.21(3) to extend time where there is good and sufficient reason for doing so, but the applicant must both explain the delay and show that it is in the interests of justice to extend. The FOI request did not automatically stop time, and the applicant could have sought leave within the three months on the grounds then known and later applied to amend.
2. Advise on the likely outcome of the extension application and the factors the court will weigh.
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The application faces a real difficulty because the delay is not short and the reason given is largely administrative. The court will ask why the applicant did not seek leave within three months and then amend its statement of grounds after the FOI material arrived. A desire to obtain counsel's opinion or to strengthen the case is not, by itself, a good and sufficient reason. Factors in the applicant's favour are that it moved within about two weeks of receiving the FOI records, the legal issue is said to be strong, and there is a public interest in ensuring that a Habitats Directive assessment was carried out. Factors against are the length of the delay, the developer's €2.1m expenditure and the prejudice from further uncertainty, and the fact that the applicant had notice of the decision on 15 January 2024. The court will also consider whether the grounds are arguable and whether an extension would cause unfair prejudice. On balance, unless the applicant can show that the grounds genuinely could not have been identified earlier, the extension is likely to be refused. Counsel should prepare an affidavit explaining the delay day by day, exhibit the FOI correspondence, and address the developer's prejudice directly.