Gaeilge

Title:	White & anor -v- Dublin City Council & ors
Neutral Citation:	[2004] IESC 35
Supreme Court Record Number:	44, 46 & 47/03
High Court Record Number:	2000 492 JR
Date of Delivery:	06/10/2004
Court:	Supreme Court
Composition of Court:	Denham J., Murray J., Mc Guinness J., Fennelly J., McCracken J.
Judgment by:	Denham J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Denham J. Link Murray J., Mc Guinness J., McCracken J. Fennelly J. Link Murray J., Mc Guinness J., McCracken J.

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Denham J.
Murray J.
McGuinness J.
Fennelly J.
McCracken J.
BETWEENJudgment of the Court delivered on the 10th day of June, 2004 by DENHAM J.
The applicants, who are respondents on the appeal, (hereinafter “the respondents”) in the statement grounding their application for Judicial Review, claimed a declaration that section 82(3B) (a)(i) of the Local Government (Planning and Development) Act, 1963 as inserted by section 19(3) of the Local Government (Planning and Development) Act, 1992 is invalid having regard to the provisions of Article 40.3 and Article 43 of the Constitution. Their claim for Judicial Review of the decision of the first-named respondent/appellant, formerly the Mayor, Aldermen and Burgesses of Dublin, now Dublin City Council (hereinafter “the planning authority”) was commenced outside the two-month time limit allowed by that section.

Section 19(3) of the Act of 1992 inserted the following provision into section 82 of the Act of 1963:

“(3A) A person shall not question the validity of—

(a) a decision of a planning authority on an application for a permission or approval under Part IV of this Act, or

(b) a decision of the Board on any appeal or on any reference,


otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereafter in this section referred to as 'the Order').

(3B) (a) An application for leave to apply for judicial review under the Order in respect of a decision referred to in subsection (3A) of this section shall—


(i) be made within the period of two months commencing on the date on which the decision is given, and

(ii) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to—


(I) if the application relates to a decision referred to in subsection (3A) (a) of this section, the planning authority concerned and, where the applicant for leave is not the applicant for the permission or approval under Part IV of this Act, the applicant for such permission or approval,

(II) if the application relates to a decision referred to in subsection (3A) (b) of this section, the Board and each party or each other party, as the case may be, to the appeal or reference,

(III) any other person specified for that purpose by order of the High Court,


and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.

In the present case, the Court is concerned with the absolute two-month time limit imposed by the section, especially with the fact that there is no power to extend the time.

The respondents argued that, by enacting this provision, which contains an absolute and unqualified limitation period and without any provision for an extension of time in circumstances where an aggrieved person did not know and could not reasonably have known within the period that a decision had been made affecting his or her interests, the State has failed to respect and vindicate their personal and property rights.

The learned High Court judge identified the constitutional issue for determination as being:

“... whether the decision of the Oireachtas to legislate in the manner in question without the saving clause contended for on the part of the applicants was irrational such as to require this Court to strike down the impugned provision, where the failure of the applicants to bring the proceedings in question was one where the essential blame lies with the planning authority.”

Having considered the matter, he reached the following conclusion:

“The applicants’ ignorance of their rights during the short limitation period was caused by the first respondent’s own wrong-doing and the law still imposes an absolute bar unaccompanied by any judicial discretion to raise it. I am satisfied in these circumstances that there must be very compelling reasons indeed to justify such a rigorous limitation in the exercise of a constitutionally protected right. The constitutionally protected right of the applicants is the right to litigate. Against that must be balanced the constitutional right of the notice party in his property to be protected against unjust or burdensome claims. The interest of the public is twofold, namely that constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims. There is also an interest of the public in proper planning and development. The issue in this case is whether the balance contained in the impugned provision is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights. This must be determined from an objective stance.

I am satisfied that the limitation period at issue in this case, in the absence of any saver, is so restrictive as to render access to the courts impossible for persons in the position of the applicants and that as such it must be considered to be unreasonable and, therefore, unconstitutional. I am satisfied that while the imposition of a limitation period such as that at issue in these proceedings must be such as inevitably to cause some hardship, “the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed.”” [This is a citation from the judgment of the court in Tuohy v Courtney, discussed later.]

The learned High Court judge accepted the respondents’ contention and declared the provision to be repugnant to the Constitution. The second and third-named respondents/ appellants (hereinafter “the Attorney General”) have appealed against that decision.

Mr Brian O’Moore, Senior Counsel for the Attorney General relied, firstly, on the cardinal and oft-repeated principle that an Act of the Oireachtas is presumed to be constitutional. This principle applies with particular force to legislation regulating social and economic matters. He cited especially the judgment of the Court In the matter of Article 26 of the Constitution and in the matter of sections 5 and 10 of the Illegal Immigrants (Trafficking ) Bill, 1999 [2000] 2 I.R. 360 (hereinafter “the Illegal Immigrants Bill case”).

Counsel considered that the learned High Court judge had propounded for himself the correct test in the passage cited above, but that he had not applied it correctly to the particular legislation. Limitation periods inevitably entail curtailment of the right to litigate. This is justified by the need to protect defendants from stale claims. The history and function of limitation periods had been fully explained in the judgment of the Court, per Finlay C.J., in Tuohy v Courtney [1994] 3 I.R. 1. In particular, the recognition, in that case, that the promotion of certainty and finality of claims so as to permit individuals to arrange their affairs, “whether on a domestic, commercial or professional level” as a legitimate purpose of legislation clearly justifies the limitation provided by section 82(3B)(a)(i). The Oireachtas engages in a balancing exercise. It balances the respective constitutional rights to litigate and to be protected from stale claims. That is a legislative function. It can only be overruled in the event of what the learned High Court judge, quoting Finlay C.J. called “… hardship … so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed.”

The Attorney General defended the absence of a provision for extension of time, in reliance on Hegarty v O’Loughran [1990] 1 I.R. 149. Such legislation may represent a just and reasonable policy decision, which it is for the Oireachtas to take. The decision of the Court in the Illegal Immigrants Bill case showed that an extremely short limitation period --- in that case fourteen days --- could be justified by objective reasons.

Counsel for the Attorney General next outlined the legislative policy considerations. These include the need for certainty about future development, the right of developers to know at an early stage that there is a challenge, to avoid unnecessary costs in planning appeals. These were recognised by Costello J in Cavern Systems Dublin Ltd v Clontarf Residents Association [1984] I.L.R.M. 24. Despite the declaration by Costello J in Brady v Donegal County Council [1989] I.L.R.M. 282 that section 82(3B)(a)(i) was unconstitutional (a decision set aside by this Court for other reasons), the Oireachtas made the deliberate choice to re-enact the absolute time-limit in 1992. This, in itself, belies the contention that this legislative decision is irrational. The rationale was explained by Finlay C.J. in KSK Enterprises Limited v An Bórd Pleanála [1994] 2 I.R. 128 at page 135: a person who has obtained planning permission should “at a very short interval after the date of the decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge and therefore presumably left in a position to act with safety upon the basis of that decision.”

The Attorney General acknowledges that section 50 of the Planning and Development Act, 2000 permits an extension of the eight-week time limit there enacted where “there is good and sufficient reason for doing so.” This different policy choice does not, however, mean that the enactment of section 82(3B)(a)(i) was irrational. The practice of the High Court has, it is noted, been to be very strict about any such extensions.

Mr John Rogers, Senior Counsel, on behalf of the respondents supports the decision of the High Court. He says that the right of access to the courts is guaranteed by the Constitution. Section 82(3B)(a)(i) has operated to defeat the respondents in the exercise of this right. They were deprived of the opportunity to challenge a planning decision to grant permission for a materially different development from that which had been advertised. The section imposes an unreasonable restriction by not permitting any judicial extension of the time limit. The public policy objectives pursued by the legislation, namely of confining the opportunity of objecting to planning decisions and of protecting the interests of those who have obtained planning permission, could have been attained by a short limitation period combined with a provision for extension. The legislative discretion should not be exercised so as to undermine a right guaranteed by the Constitution.

The respondents relied, in particular, on the reasoning of Costello J in Brady v Donegal County Council, cited above. The decision in Tuohy v Courtney is distinguishable. It was concerned with a limitation period laid down by the Statute of Limitations, 1957 (hereinafter “the Act of 1957”) and with the balancing of the rights of plaintiffs and defendants in actions of contract and tort. It did not concern the right of access to the Courts. In private litigation, limitation periods are a matter of defence: they must be pleaded. The present case concerns the lawfulness of a decision of a public authority and, hence, the right to challenge, in the public interest, unlawful executive or administrative action. The planning code is concerned with the common good. The statutory scheme recognises that members of the public should participate.

The effect of the section is to exclude a person who did not know and could not have known that he had a cause of action during the two-month period from challenging a decision which affected him. The common good requires that there should not be an absolute time limit in respect of planning decisions.

Mr Rogers submitted that the test propounded by Costello J in the Brady case, where he had said that he “should approach the issue … … generally, (a) by considering whether the plaintiffs have shown (and the onus is on them) that the two-month limitation period is unreasonable having regard to the competing interest which the Oireachtas was required to reconcile, and in particular (b) whether the absence of a saver clause in the legislation would enable the court to lift the two-month bar in favour of a plaintiff whose ignorance of a cause of action within the two-month period was caused or contributed to by the defendant is unreasonable thus rendering the section constitutionally invalid.” Costello J also considered the earlier Supreme Court decision in Cahill v Sutton [1980] I.R. 269 and particularly some remarks of Henchy J regarding section 11(2)(b) of the Act of 1957. Henchy J had observed the absence from the section of a saver for cases where a plaintiff did not know and could not have known of the existence of his cause of action within the three-year period there provided. He remarked, at page 288, in what was clearly an obiter dictum, that “the justice and fairness of attaching…a saver [such as had been enacted in the United Kingdom]…are so obvious that the enactment by our Parliament of a similar provision would merit urgent consideration.”

In Brady, Costello J did not consider those remarks as indicating a concluded view that the section of the Act of 1957 was unconstitutional, but he found them “of considerable relevance to this case.” He went on the state:

“A fortiori, a limitation period which contains no saver of plaintiffs whose ignorance of their cause of action is attributable to the defendants’ wrong-doing would appear to be unjust and, very likely, unconstitutional.

The respondents also relied on the statement in the judgment of the Court in O’Brien v. Manufacturing Engineering Limited [1973] I.R. 334 at 366:

“It is, of course, conceivable that occasions may arise when some particular prospective litigant or injured party may have no knowledge whatever of any statutory period of limitation, whether under this Act or any other Act, and may thereby be unable to maintain his action; but the reasonableness or otherwise of a statutory provision which depends for its validity upon its reasonableness is not to be determined by the possibility that such a hypothetical case may arise but is to be examined in the general circumstances of the ordinary life of this country prevailing at the time the enactment comes into force.”

The respondents also referred to the dictum in O’Brien v Keogh [1972] I.R. 144, at 157 to the effect that the duty of a court in testing the constitutionality of a statutory provision was to do it “in as wide a manner as if the provision had been the subject of a reference under Article 26 of the Constitution…”

Consideration of the constitutionality of section 82(3B)(a)(i)

It is not contested that the right of the respondents, which are affected by the impugned provision, is correctly described as a right to litigate and, as such, a personal constitutional right. It, therefore, attracts the guarantee provided by Article 40, section 3, sub-section 1 of the Constitution that the State will, “by its laws…defend and vindicate [it].” It is not necessary to adjudicate on the respondents’ claim that it is also a property right, which benefits from the protection of Article 43 of the Constitution. Finlay C.J., delivering the judgment of the Court in Tuohy v Courtney, noted that the plaintiff, in that case, had been unable to “point to any material difference in the constitutional protection which would apply to this right to litigate if it were on the one hand considered to be exclusively an unenumerated personal right or on the other hand if it were considered to be exclusively a constitutional property right or indeed if it were considered to be both.” The Court concluded that there was no such difference and found it unnecessary to reconcile or adjudicate on some inconsistencies in the earlier case law. In this case also, it is unnecessary to go further than to state that the right claimed by the Applicants is a constitutionally guaranteed personal right.

The essential complaint which grounds the challenge to the constitutionality of the section is based on its absolute character. The Applicants claim that the absence of a power to extend the two-month time limit renders the section so unjust as to be unconstitutional. It was not argued, nor could it be, that the two-month period is, in itself, so short as to invalidate the limitation.

In the Illegal Immigrants Bill case, this Court held a two-week period not to be unconstitutional. In the legislation, there in question, there was a power to extend. It must also be remembered that the period here at issue concerns the time for bringing Judicial Review proceedings. The Rules of Court, recognising the need for certainty in relation to the status of administrative decisions, have always typically provided for limitation periods of six month or less, though accompanied by a power to extend time.

Griffin J, in his judgment in Hegarty v O’Loughran [1990] 1 I.R. 148, at 157, referred to the history in all common law-countries, for several centuries, of periods of limitation affecting the commencement of civil proceedings. Ultimately, disparate statutory limitations came to be codified in comprehensive schemes of limitation. Such is the Statute of Limitations, 1957.

The laying down of periods of limitation is a legislative not a judicial function. As has frequently been said, the making of such laws requires the legislature to balance conflicting considerations. An aggrieved person, a plaintiff, who has a legitimate civil claim against another, enjoys a legal right — a right also protected by the Constitution — to pursue his claim in the courts. If a plaintiff neglects or unduly delays in the prosecution of his claim, it may become unfair to expect the potential defendant to meet it after a very long period. Among the relevant considerations are fading memories, unavailability of witnesses, through death or for other reasons, the destruction of evidence or changes in circumstances rendering it unjust that a plaintiff should pursue a stale claim.

The task of weighing all relevant considerations and striking a balance in the form of a limitation period is quintessentially a matter for the judgment of the legislator. The correct approach for the courts to take has been authoritatively stated in Tuohy v Courtney. Finlay C.J., delivering the judgment of the Court, at page 47 of the report stated:

“It has been agreed by counsel, and in the opinion of the Court, quite correctly agreed, that the Oireachtas in legislating for time limits on the bringing of actions is essentially engaged in a balancing of constitutional rights and duties. What has to be balanced is the constitutional right of the plaintiff to litigate against two other contesting rights or duties, firstly, the constitutional right of the defendant in his property to be protected against unjust or burdensome claims and, secondly, the interest of the public constituting an interest or requirement of the common good which is involved in the avoidance of stale or delayed claims.

The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights.”

That passage, in effect restates, in the context of laws providing limitation periods, the presumption of constitutionality enjoyed by all Acts of the Oireachtas. It also sets a high standard to be met by any person impugning the constitutionality of a period of limitation.

In Tuohy v Courtney, the court was concerned with the six-year period for the commencement of actions—in that case for professional negligence against a solicitor—for financial loss. The plaintiff’s complaint resembles in one respect that made in the present case. He was unaware, until a number of years after the purchase, that he had bought a house with a seriously defective title. The Court accepted that it could “not be disputed that a person whose right to seek a legal remedy for wrong is barred by a statutory time limit before he, without fault or neglect on his part, becomes aware of the existence of that right has suffered a severe apparent injustice and would be entitled reasonably to entertain a major sense of grievance.”

Nonetheless, the Court proceeded, at page 48, to identify three principal objectives of a limitation period:

“The primary purpose would appear to be, firstly, to protect defendants against stale claims and avoid the injustices which might occur to them were they asked to defend themselves from claims which were not notified to them within a reasonable time.

Secondly, they are designed to promote as far as possible expeditious trials of action so that a court may have before it as the material upon which it must make its decision oral evidence which has the accuracy of recent recollection and documentary proof which is complete, features which must make a major contribution to the correctness and justice of the decision arrived at.

Thirdly, they are designed to promote as far as possible and proper a certainty of finality in potential claims which will permit individuals to arrange their affairs whether on a domestic, commercial or professional level in reliance to the maximum extent possible upon the absence of unknown or unexpected liabilities.”

The Court then referred once more to the balancing of conflicting considerations:

“The counter-balance to these objectives is the necessity as far as is practicable, or as best it may, for the State to ensure that such time limits do not unreasonably or unjustly impose hardship. Any time limit statutorily imposed upon the bringing of actions is potentially going to impose some hardship on some individual. What this Court must do is to ascertain whether the extent and nature of such hardship is so undue and so unreasonable having regard to the proper objectives of the legislation as to make it constitutionally flawed.”

The last sentence was cited by O’Caoimh J in the present case. The Court concluded that the absolute character of the six-year limitation period laid down by section 11, sub-section (2)(a) of the Statute of Limitations Act, 1957 did not render it unconstitutional. It observed that the “period of six years is, objectively viewed, a substantial period.” It noted the existing provisions for extension in cases of disability, part-payment, fraud and mistake, which it considered to “constitute a significant inroad on the certainty and finality provided by the Act.” It rejected one of the plaintiff’s arguments to the effect that a defendant would always be protected by the existence of the power in the courts to dismiss a claim for gross and unreasonable delay within the limitation period. It did so by reason of the extensive time-scale of such proceedings and the consequent “anxiety and uncertainty for the defendant.” Hence, it concluded, at page 50, that the legislative decision not to include provision for an extension relating to discoverability of the cause of action to be “supported by just and reasonable policy decisions…..”

This Court has more recently had to consider the constitutionality of a limitation period in its decision in the Illegal Immigrants Bill case. The Bill referred to the Court by the President pursuant to Article 26 of the Constitution provided, as does the legislation under consideration on this appeal, that judicial review was the only permitted procedure for challenge of relevant decisions. It limited to fourteen days, dating from notification of the relevant order, notifications or decisions made in respect of non-nationals. However, the fourteen-day limit was not absolute. Section 5 (2)(a) of the Bill provided that the application must “be made within fourteen days commencing on the date on which the person was notified of the decision…… [etc.]… … unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made….”

From the judgment in the Illegal Immigrants Bill case, it is clear that the remedy of judicial review is entitled to specific protection by reason of its function of permitting the courts to control the legality of State action. The referred bill concerned state decisions affecting non-nationals. The Court described the right of access to the courts of non-nationals in such a way as to cast light on the function of the courts, under the rule of law, namely that of enabling all persons to invoke the jurisdiction to review the legality of administrative decisions. At page 385 of the report, Keane C.J., delivering the judgment of the Court said:

“It would be contrary to the very notion of a state founded on the rule of law, as this State is, and one in which, pursuant to Article 34 justice is administered in courts established by law, if all persons within this jurisdiction, including non-nationals, did not, in principle, have a constitutionally protected right of access to the courts to enforce their legal rights. In Murphy v. Greene [1990] 2 I.R. 566 at p. 578 Griffin J. observed "it is beyond question that every individual, be he a citizen or not, has a constitutional right of access to the courts. Stated in its broadest terms, this is a right to initiate litigation in the courts …

It may be that in certain circumstances a right of access to the courts of non-nationals may be subject to conditions or limitations which would not apply to citizens. However, where the State, or State authorities, make decisions which are legally binding on, and addressed directly to, a particular individual, within the jurisdiction, whether a citizen or non-national, such decisions must be taken in accordance with the law and the Constitution. It follows that the individual legally bound by such a decision must have access to the courts to challenge its validity. Otherwise the obligation on the State to act lawfully and constitutionally would be ineffective.”

The Court, in dealing with the two-week, judicial-review time limit also recognized the strong public interest in certainty of decisions of administrative bodies. Keane C. J. stated, at page 392:

“There is a well established public policy objective that administrative decisions, particularly those taken pursuant to detailed procedures laid down by law, should be capable of being applied or implemented with certainty at as early a date as possible and that any issue as to their validity should accordingly be determined as soon as possible.”

In the particular circumstances of decisions affecting asylum and immigration, it concluded that there were “objective reasons” justifying “a stringent limitation of the period within which judicial review of such decisions may be sought, provided constitutional rights are respected.”

It emphasized, nonetheless, that, while it “is a matter of policy and discretion for the legislature to choose the appropriate limitation period,” nonetheless, “in exercising that discretion the legislature must not undermine or compromise a substantive right guaranteed by the Constitution such as the right of access to the courts.” In the special case of immigrants, the Court recognized the likelihood of the existence of “cases, perhaps even a very large number of cases, in which for a range of reasons or a combination of reasons, persons, through no fault of their own…….are unable to apply for leave to seek judicial review within the appeal limitation period, namely fourteen days.” The Court then said: “This is a situation with which the courts deal on a routine basis for other limitation basis.” It concluded:

“Moreover, the discretion of the court to extend the time to apply for leave where the applicant shows "good and sufficient reason" for so doing is wide and ample enough to avoid injustice where an applicant has been unable through no fault of his or hers, or for other good and sufficient reason, to bring the application within the fourteen day period. For example counsel assigned by the court have argued that the complexity of the issues, or the deficiencies and inefficiencies in the legal aid service, may prevent the applicant from being in a position to proceed with his application for leave within the period of fourteen days.”

Special considerations also affect planning decisions and the purpose of the limitation, impugned in this case, has been recognized by the courts.

The Attorney General has relied on the judgment of Costello J in Cavern Systems Dublin Ltd v Clontarf Residents Association, cited earlier. That judgment explained the object of the two-month limitation as follows:

“The object of the section was (i) to require that proceedings be instituted at a very early date to ensure that in the national interest uncertainty about future development be dispelled at the earliest possible date; and (ii) to make applicants for development permission and planning authorities aware that the legal validity of a decision was being challenged so as to give them an opportunity to apply for an adjournment of a planning appeal so as to avoid the possibility that unnecessary costs might be incurred and the time of public officials unnecessarily wasted; and to enable An Bórd Pleanála to adjourn an appeal before it if it considered it appropriate to do so during the pendency of the High Court proceedings.”

While the second of those reasons --- the existence of a planning appeal --- was clearly formulated in response to the particular facts of that case, the Court fully approves the explanation given by Costello J. Applicants for planning permission should clearly be on notice at the earliest date that is reasonably possible, if a planning decision is under challenge, but not only by reason of the possible desirability of an adjournment of an appeal hearing. Where there is no appeal, or where the decision has been made on appeal, it is not desirable that developers be left unnecessarily in a state of uncertainty about whether they can safely proceed with a development. As was stated by Finlay C.J. in KSK Enterprises Limited v An Bórd Pleanála, also cited above, a person who has obtained planning permission should “at a very short interval after the date of the decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge and therefore presumably left in a position to act with safety upon the basis of that decision.”

A number of helpful principles can be deduced from the case of Tuohy v Courtney and the Illegal Immigrants Bill case.

More lengthy limitation periods are laid down for civil actions between private persons or bodies. Their length is an important consideration when judging whether they are fair and just. It is not necessarily unconstitutional to omit a stipulation for extension of time for cases where the wrong was not reasonably discoverable within the longer time allowed. Anxiety, worry and cost for the defendant are important elements in those cases.

It is inherent in the principle of respect for the rule of law that citizens should have the right to challenge the legality of decisions, made under public law, by administrative bodies. Judicial review is the appropriate procedural vehicle for such challenges. There is a strong public interest in the certainty and finality of administrative decisions. Any attack on their validity should be made at the earliest reasonable date.

Common elements run through the two cases so far cited. The legislature has the primary function of balancing the competing considerations when specifying a limitation period. Nonetheless, there are obvious distinctions between common-law actions and applications for judicial review.

The reasoning of the Court in Tuohy v Courtney was, in some important respects particular to that case and is, to that extent, distinguishable. The Court was clearly very much influenced by the substantial period, six years, involved in that case. The protection of defendants from stale claims and the need for the courts to have before it oral evidence based on the accuracy of recent recollection and complete documentary evidence are less compelling justifications for the absence of a power to extend, where the limitation period is a mere two months. In this type of case, it is very much less likely that recollection will not be fresh or that relevant documents will not be available. If they were not, a court would be less likely to exercise a power to extend. The Court, in Tuohy v Courtney, also identified, as a third justification, the desirability of certainty in respect of claims, a matter which has been clearly identified as the prime consideration in the case of planning decisions.

The imperative of certainty in administrative decisions, both in the general sense explained in the Illegal Immigrants case, and in the particular context of planning decisions must be weighed against the equally important principle laid down in that case, that, in a state based on the rule of law, any person affected by an administrative decision, has a constitutionally protected right of access to courts to contest its legality.

It has been said that the planning code is entirely a creature of statute. In its modern form, introduced into this State in 1963, it restricts the rights of owners of land by prohibiting them from building on or developing them without the benefit of a permission granted by a public authority. The Courts have consistently interpreted the legislation as providing for a scheme for development in which the interested parties are not only the applicant for permission and the planning authority but also members of the public who may be interested in or affected by development. Hence, it is obligatory to give public notice of intended developments. A development may affect the environment generally, but is most likely to affect the amenities of those living or working closest to the proposed site. It follows that persons, such as the respondents, have a right to reasonable notice of what is proposed. Unlike non-nationals, affected by the Illegal Immigrants (Trafficking) Bill 1999, the respondents were not entitled to actual notice of an application, but only that proper public notice should be given in compliance with the statutory provisions. It is not contested that the Applicants could not reasonably have known that the Notice Party had, on foot of a requirement of the planning authority, been required to lodge substantially modified plans. The planning authority had not required any new public notice. The Court has decided that this decision was based on an incorrect interpretation by the planning authority of its discretionary power under the Regulations and that this failure was such as to undermine the validity of the planning permission. It follows that the Applicants were deprived of any reasonable opportunity to challenge the validity of the planning permission by an unlawful act of the planning authority within the two-month limit. Nonetheless, the effect of section 82(3B)(a)(i) is to deny the Applicants any opportunity to ask the High Court, even in these circumstances, to extend the time.

Counsel for the Attorney General claimed that the Oireachtas made the deliberate choice to re-enact the absolute time-limit in 1992 and urged the Court to accept that this demonstrated that the choice was not irrational. While it is legitimate for the Attorney General to rely on the re-enactment of the provision, it must, therefore, be equally relevant to note that section 50 of the Planning and Development Act, 2000 permits an extension of the eight-week time limit there enacted where “there is good and sufficient reason for doing so.” While counsel is right to say that the latter provision does not necessarily imply that section 82(3B)(a)(i) is unconstitutional, it is a useful and relevant indicator of what may be considered fair and just in such an enactment. Moreover, the Oireachtas may indeed, having regard to the considerations addressed above, be entitled to fix an absolute time limit of a short duration, such as two months, where the persons to which it applies have in fact had a full opportunity to bring proceedings within that limited period but that is not the situation here for the reasons already explained.

The Court considers that section 82(3B)(a)(i) constitutes an injustice to such an extent that in exercising its discretion to exclude any power to extend time for cases such as the present, the legislature undermined or compromised a substantive right guaranteed by the Constitution, namely the right of access to the courts. The Applicants, through no fault of their own, but through the unlawful act of the decision-maker was deprived of any genuine opportunity to challenge the legality of the decision within the permitted time. For these reasons, the Court concludes that the High Court was correct in holding that the provision in question is repugnant to Article 40 section 3 of the Constitution. It dismisses the appeal.