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Courts Curtail Ability to Challenge Extensions of Planning Permission
In July 2018, the Supreme Court refused to hear an appeal of a High Court judgment that a decision to extend planning permission does not require public participation. Most helpfully the High Court also held that an extension is not a development consent under the EU Environmental Impact Assessment (“EIA”) Directive, so does not have the consequential participation or assessment requirements.
This line of cases should curtail the ability to challenge planning extensions.
A ten year planning permission to build a new runway was granted at Dublin Airport in 2007. That permission was extended by Fingal County Council in 2017 for a further five years to 2022. The local residents unsuccessfully challenged the decision to extend the planning permission in the High Court. The residents were not permitted to appeal to the Court of Appeal in February 2018. In July, the Supreme Court refused the local residents’ final attempt to appeal the High Court’s decision.
One of the arguments raised by the local residents in the High Court was that the public should have an opportunity to participate in decisions to grant a planning extension. However, the Supreme Court noted the High Court’s finding that the Planning Acts do not provide for, nor require, any public consultation in that extension process. The Supreme Court also referred to the High Court’s finding that a planning extension was not a “development consent” under the EIA Directive. The High Court had rejected a similar argument that another Appropriate Assessment under the Habitats Directive was required. Thus, the planning authority is not obliged to consider the EIA directive (and / or the Habitats Directive) when deciding to extend planning permission.
The High Court re-affirmed that a planning authority, on an application for an extension, “must extend the appropriate permission, provided that the prescribed requirements are complied with”. The Supreme Court also noted the previous case law regarding the mandatory nature of the extension permission once the necessary conditions are established.