The Rule Against Collateral Attack

To what extent does it “bind up the wounds of invalidity and banish all infirmities"?

I'm sorry my post this week is a bit later than usual. There have been a number of pre-Christmas deadlines! I will take a couple of weeks off and be back here during the week commencing 6 January. I wish you all a Happy and Peaceful Christmas and New Year….

Michael

Planners will often rely upon previous planning decisions as precedents. In advocating for and then in obtaining the decision sought by their clients, planners will wish to ensure that those previous decisions are immune from attack as part of protecting, in so far as is possible, any new decision from attack.

It is often thought that such previous decisions are protected by what is referred to as the “rule against collateral attack”. What follows describes;

• the 'rule' against collateral attack

• two situations in which the 'rule' will only apply to a reduced extent

• two situations in which its application may not be straightforward

The 'Rule' Against Collateral Attack

It is the longstanding, clearly expressed and recently confirmed position that "a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision." (Finlay CJ in KSK Enterprises Ltd v ABP [1994] 2 IR 128,135 quoted by O'Moore J in Thomson v An Bord Pleanála [2024] IECA 196 para 23) (emphasis added)

(For Thomson see my post of 6 August 2024, 'Extending Time in Which to Make an Application for Judicial Review')

Section 50(2) of the Planning and Development Act 2000 ("the Act of 2000") states that "a person shall not question the validity of any decision made or other act done" by either a planning authority or An Bord Pleanála other than by an application for Judicial Review. Such application needs to be made within 8 weeks of the making of the decision questioned (s50(6)). The substance of these provisions is repeated in the Planning and Development Act 2024 ("the new Act") (s279(2), s280(3)(d) and s281(1)). Note the distinction between the judicial reference to "planning permission" and the wider statutory reference to "any decision made or other act done".

The ‘rule’ against collateral attack, “a sort of statutory suture”?

The combined effect of s50(2) and (6) has been described "as a sort of statutory suture which serves to bind up the wounds of invalidity and banish all infirmities...Such is the breadth of s50(2) that all types of legal errors – ranging from the trifling to the egregious – seem to be captured thereby." (Hogan J, Krikke v Barranafaddock SE Ltd [2022] IESC 41_2, para 16/17).

"The essence of the concept [the rule against collateral attack] is that a party who has the benefit of an administrative decision, which has not been challenged within the presecribed time limit, should not be exposed to the risk of having the validity of that decision challenged in later proceedings which seek to quash a subsequent decision on the basis that the earlier decision was invalid." (Simons J in Gardiner v Mayo CC[2024] IEHC 5 para 17)

(For more on Gardiner see my post of 29 January 2024, '"Decisions", "Grants" and "Collateral Challenge"').

In short, a challenge to decision B will not be permitted if that challenge is, in effect, a challenge to decision A in respect of which any time limit for challenge has expired. The interests of the beneficiary of decision A will be protected by the rule against collateral attack.

Collateral attack upon such an earlier decision was at the core of the Plaintiffs' case recently in Murray v Meath County Council [2024] IEHC 658. The Plaintiffs sought to set aside an Order made in s160 proceedings in the High Court and upheld in the Supreme Court which Order required them to remove an unauthorised structure from their land.

“At its core” (para 59), the Murrays case was that neither the High Court nor the Supreme Court should have made the s160 Orders “because the underlying planning decisions were wrong or invalid and...those courts would not have made [orders] if they had known the facts which show that those refusals [the earlier planning decisions] were wrong and invalid.” The Murrays questioned “the lawfulness of the planning decisions” (para 64).

“To seek to have the section 160 Orders set aside on the basis of the wrongfulness of the underlying decisions is an improper attack”. (Conor Dignam J, para 65)

Uncertainties and Limitations

In practice, the 'rule' against collateral attack is neither as strong nor as clear cut as it appears. As is apparent from a careful reading of the language of Finlay CJ (quoted above), the beneficiaries of planning decisions may not be "entirely legally protected".

Extension of Time and Fraud

There are two situations in which it is clear that much longer periods might elapse during which planning decisions will be vulnerable to challenge notwithstanding the general rule against such challenge after the expiry of the 8 week time limit.

Most obviously, the period within which an application for Judicial Review can be brought may be extended. Although the longer the extension sought the more difficult it will generally be to obtain, neither the Act of 2000 nor the new Act sets a period after which no extension is possible. The extension obtained in Thomson was of 531 days although leave to appeal against that decision to the Supreme Court has been granted ([2024] IESCDET 127).

Cases involving fraud comprise a further "very limited" exception to the general rule within which it may be possible to challenge a planning decision outside of any time limit for doing so (Sweetman v An Bord Pleanála[2018] IESC 1 para 39).

EU Law

Cases involving EU law may also present uncertainty.

At the leave stage in An Taisce v An Bord Pleanála [2019] IESCDET 231, the Supreme Court said that even if the domestic law is "reasonably well settled" (a big "if");

"it does not necessarily follow that the application of those broad principles in a particular class or category of case may not require further elucidation...This Court is not satisfied that it can safely be said at this stage that [the] overriding requirements of European Union law might not require a particular approach to the exercise of the collateral attack jurisprudence in at least some cases." (para 9) (emphasis added).

The case was heard with two other cases as McQuaid. In its substantive judgment, the Supreme Court held that the statement quoted "remains the position" ([2020] IESC 39, para 155).

Multi-stage decsions

The application of the rule against collateral attack is "complicated" where it arises in the context of multi-stage decsions (McKechnie J, An Taisce v An Bord Pleanála (McQuaid Quarries) [2020] IESC 39, para 142, and see para 145)