Ireland / High Court of Ireland / [2025] IEHC 161
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Ireland / High Court of Ireland / [2025] IEHC 161
Key facts of the case:
The applicants on 14 March 2022, lodged an application for development consent with Fingal County Council. The board order that is the formal decision is dated 28 June 2023. The first meaningful notice received by the applicants was on 4 July 2023 which was four days after the web publication should have happened. Following receipt of the hard copy of the inspector's report on 5 July 2023, the applicants did not act with any speed for a month (from 5 July to 4 August 2023). On 4 August 2023, they wrote to the board asking if there was any other basis for the decision beyond what was disclosed in the papers they had received. The board responded with a mere acknowledgement dated 15 August 2023. Dissatisfied with this acknowledgement, the applicants wrote again on 16 August 2023 and only then decided to seek judicial review, leaving only eight days remaining to bring proceedings. The applicants stated they were busy during that period including due to an unfortunate illness of a relative. The judicial review proceeding opened on 23 August 2023. Friends of the Irish Environment and Protect East Meath joined as an amicus curiae. The court referred the below questions to the Court of Justice for a preliminary hearing.
- Do EU Environmental law and Article 41 and 47 from the Charter have a requirement for Member States under domestic law to provide a specification of a reasonable time limit for each channel of notification for a decision , if domestic law provides that time runs from date of decision not date of notification, can it alternatively challenged in respect of any decisions where the notification time is discretionary ?
- Do EU Environmental law and Articles 41 and 47 of the Charter require Member States under domestic law to provide for a power to extend the limitation period for bringing judicial review proceedings in circumstances where the national authorities fail to notify a participant of a decision within the period specified in domestic law for any channel of notification? Must such an extension compensate for the time lost between the date on which the applicant ought to have been notified and the date on which they were notified and/or otherwise became aware of the decision? Do EU Environmental law and Article 41 and 47 from the Charter have a requirement for Member States under domestic law for an extension of time where the applicant fails to show they could not bring proceedings prior to the expiry limitation period.
The judgment was initially delivered on 21 March 2025 and was revised on 4 July 2025. The revision was made to incorporate further legal submissions from the State which effectively amended their proposed answer to the third question. The case remains pending before the CJEU with no further developments reported since the referral in July 2025.
Key legal question of the case:
The High Court considered whether the applicants were prejudiced by their misunderstanding of domestic law regarding when time begins to run for judicial review, whether from the date of the decision itself or from the date of notification.
The High Court also considered whether the applicants' prejudice was outside their control, and held that it was not.
The High Court further sought to determine the appropriate procedure and any compensatory mechanism that should apply when a statutory body breaches its duty to notify applicants within the specified timeframe.
The High Court ultimately referred three questions to the CJEU concerning procedural law and the fundamental rights under Articles 41 (right to good administration) and 47 (right to an effective remedy and to a fair trial) of the EU Charter as they apply to EU environmental law. The core tension arises from two facts: first, the applicants mistakenly believed that time ran from the date of notification, even though domestic rules clearly and foreseeably provide that time runs from the date of the decision itself, regardless of whether notification has occurred. Second, the board failed to provide notification within the timeframe required by domestic law, which was three days from the decision date.
Outcome of the case:
The High Court referred the three questions to the CJEU for a preliminary hearing to determine whether the statutory body/board breached their duty and acted in a maladministration and whether the applicants ascertained an effective remedy and fair trial.
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Paragraphs referring to EU Charter
1. This request for a preliminary ruling concerns the interpretation of Articles 41 and 47 of the Charter of Fundamental Rights of the European Union and Articles 6 and 11 of Directive 2011/92.
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Legal Context
European Union Law
3. Articles 41 and 47 of the Charter of Fundamental Rights of the European Union (2000/C 364/01) provide:
"Article 41
Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.
2. This right includes:
– the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
– the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
– the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.
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Article 47
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."
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The First Question
50. The first question is:
Do Articles 41 and/or 47 of the Charter of Fundamental Rights of the European Union and/or Articles 6 and/or 11 of Directive 2011/92 read in the light of the general EU law principle of legal certainty and/or of Articles 6 and/or 9 the Aarhus Convention as approved on behalf of the European Community by Council Decision 2005/370, have the effect, in the context of a challenge (based on Directive 2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50) to a development consent for a project where the need for environmental impact assessment under Directive 2011/92 was rejected at preliminary examination stage under national law corresponding to Article 4(3) of Directive 2011/92 (insofar as it provides that Member States may set thresholds or criteria to determine when projects need not undergo either the determination under Articles 4(4) and (5), or an environmental impact assessment) and where the need for appropriate assessment under Directive 92/43 was screened out, of requiring either the specification in the domestic law of a Member State of a reasonably contemporaneous, or any, time limit for each channel of notification of a decision if domestic law provides that the time for challenge runs from the date of the decision rather than its notification, or alternatively of requiring provision in the domestic law of a Member State for time to run from notification in respect of any decision where the time for any channel of notification is discretionary?
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54. The second named amicus curiae's proposed answer is yes. The principle of effectiveness, the principle of legal certainty and the right to an effective remedy under Article 47 of the Charter of Fundamental Rights, read with Articles 9(2), 9(3) and 9(4) of the Aarhus Convention precludes an undefined period or open-ended provision for discretionary notification with time running from the date of the decision. Alternatively, if notification deadlines are not defined with certainty and/or are entirely discretionary, time should run from the date of notification.
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The second question
57. The second question is:
Do Articles 41 and/or 47 of the Charter of Fundamental Rights of the European Union and/or Articles 6 and/or 11 of Directive 2011/92 read in the light of the general EU law principle of legal certainty and/or of Articles 6 and/or 9 the Aarhus Convention as approved on behalf of the European Community by Council Decision 2005/370, have the effect, in the context of a challenge (based on Directive 2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50) to a development consent for a project where the need for environmental impact assessment under Directive 2011/92 was rejected at preliminary examination stage under national law corresponding to Article 4(3) of Directive 2011/92 (insofar as it provides that Member States may set thresholds or criteria to determine when projects need not undergo either the determination under Articles 4(4) and (5), or an environmental impact assessment) and where the need for appropriate assessment under Directive 92/43 was screened out, of requiring the domestic law of a Member State to make provision for a power, in the event that the national authorities fail to notify a participant in the process of a decision within the period specified in domestic law in respect of any channel of notification so specified, to extend the limitation period for the bringing of the challenge for such limited period as is required to compensate for the time lost between the date on which the applicant ought to have been notified and the date on which she was notified and/or otherwise became aware of the decision?
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61. The second named amicus curiae's proposed answer is yes. While in principle a limitation period may be provided in national law, such a limitation period is a limitation on the right to an effective remedy and therefore must comply with the requirements of Article 52(1) of the Charter. To comply with Article 47 of the Charter the limitation period must be provided for by law and respect the essence of the right to an effective remedy and subject to the principle of proportionality, may only be made if it is necessary and genuinely meets objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. In the instant case, for the rules to satisfy the requirement that the be provided for by law, they must meet the criterion or legal certainty. It must be possible to ascertain the start and end date of the limitation period with certainty. To avoid disproportionate effect, provision must be made for the extension of a limitation period to compensate for time lost between the date when the applicant ought to have been notified and the date on which the applicant was notified and/or otherwise became aware of the decision. While an applicant can rely directly on Article 47 to apply to a court for a compensatory extension of time, the principles of legal certainty and proportionality under Article 52(1) of the Charter nonetheless require national law to have clear and precise rules for such an application.
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64. The third question is:
Do Articles 41 and/or 47 of the Charter of Fundamental Rights of the European Union and/or Articles 6 and/or 11 of Directive 2011/92 read in the light of the general EU law principle of legal certainty and/or of Articles 6 and/or 9 the Aarhus Convention as approved on behalf of the European Community by Council Decision 2005/370, have the effect, in the context of a challenge (based on Directive 2011/92, Council Directive 92/43, Directive 79/409 and/or Directive 2008/50) to a development consent for a project where the need for environmental impact assessment under Directive 2011/92 was rejected at preliminary examination stage under national law corresponding to Article 4(3) of Directive 2011/92 (insofar as it provides that Member States may set thresholds or criteria to determine when projects need not undergo either the determination under Articles 4(4) and (5), or an environmental impact assessment) and where the need for appropriate assessment under Directive 92/43 was screened out, of precluding a Member State from excluding by its domestic law the possibility of extension of time to bring the challenge in circumstances where the applicant fails to show that they could not have brought the proceedings prior to the expiry of the limitation period even in the event that the national authorities fail to notify a participant in the process of a decision within the period specified in domestic law in respect of any channel of notification so specified?
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68. The second named amicus curiae's proposed answer is yes. The requirement for an effective remedy under Article 47 and a fair procedure under Article 9(4) of the Aarhus Convention read with Article 47 of the Charter is not satisfied where the time limit may only be extended where the applicant can show that they could not have brought the proceedings prior to the expiry of the limitation period, even where the national authorities themselves had failed to fulfil their obligations to notify to applicants of the decision within the period specified in national law. Where national law provides a certain period of time in which to apply for judicial review, provision must be made to compensate for late notification by extending the time limit so that the applicants are not prejudiced with a shorter period than they would otherwise have, regardless of whether it would in principle have been possible for the applicants to issue proceedings within a truncated period caused by late notification.
69. The referring court's proposed answer is Yes. The principle of effectiveness requires that a court of a Member State should have discretion to extend time to compensate for a breach of domestic law in notifying a decision of EU law relevance, even if an applicant was thereby merely prejudiced through having less time, rather than having been unable to bring the action, i.e., that the applicant could not satisfy the test that the failure to bring the action within time was outside the applicant's control. Insofar as the State respondents' submission portrays the power to extend time as broad and flexible, the limits of this are now acknowledged in their supplementary submission: "the discretion conferred on the Court by section 50(8) is constrained by the second criterion and an applicant seeking an extension of time must also demonstrate that the circumstances were outside their control". Insofar as the State respondents now accept that, in the case of an application for extension of time due to delay in notification by a public authority, "the delay in notification by the public authority would have to be weighed up against the [other relevant] factors ... so as to enable the Court to form the view as to whether the delay in notification was the causative factor in the failure to bring proceeding within time", that is a valid observation at a general level, although it is not relevant because it does not engage with the facts of the present case, in which the failure to bring proceedings in time was only contributed to, and then only slightly, by the delay in notification. That failure was not caused by the delay. The State respondents' supplementary submission in effect withdraws their previous suggestion that it would be enough that an applicant would be prejudiced (that interpretation was not tenable as it is contra legem). Insofar as the State now argues that "the time limit rules in both Order 84 and section 50 of the 2000 Act have been interpreted in a flexible way so as to conform with EU law and ensure that a person who wishes to challenge a decision obtains the full benefit of the limitation period from when they become aware of a decision, and could not otherwise have been aware", that is only correct if the applicant becomes aware of the decision after it is too late to bring proceedings within the period. The State submission does not take into account the distinction referred to in paragraph 13 above. If the date of knowledge arises within the statutory period leaving enough time to bring the proceedings then an applicant does not get the full benefit of the period, but only the balance of the period. The State's observation is only valid where the date of knowledge arises after it is too late to act within the statutory period - but that is irrelevant to the present case where the applicants did have time to so act. In short, the caselaw does illustrate flexibility but only within the statutory criteria, and primarily only as regards the question of "good and sufficient reason" for the extension (section 50(8)(a) of the 2000 Act). The prior requirement that the reason for the failure to bring the proceedings prior to the expiry of the deadline was outside the applicant's control is neither broad nor flexible, and any interpretation to give it such a broad meaning would be contra legem. In terms of the facts of the present case, the primary reason for the applicants' failure to act within time was their misunderstanding of the law, which was not a factor beyond their control. But they were nonetheless prejudiced by not having had more time within which to act. An interpretation that reads "outside the control of the applicant" as meaning "within the control of the applicant, but made slightly more difficult" is not reasonably foreseeable by actors in the process including third-party developers prejudiced by an extension of time, such as the notice parties, here, and hence is not compatible with the principle of legal certainty.
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Paragraphs referring to EU Charter (original language)