Planning Judicial Review
Planning Judicial Review
Planning decisions of the planning authority and An Bord Pleanana are subject to Judicial Review. This is the general procedure for challenging the legality of decisions of the administration. See the chapter on Judicial Review in our Administrative Law section.
Because of the importance of planning permissions decisions in the context of land values, reviews of planning application have been particularly common in Ireland over the last forty years. There have been numerous High Court decisions on planning matters. Judicial Reviews are challenges to the legality of the decision and are not a challenge on the merits.
Because of the perceived adverse effect of planning challenges on industrial development, procedures were introduced in 1992 with a view to reducing delays in the planning process, on account of Judicial Reviews. Special Judicial Review procedures apply to challenges of the planning application.
There is an obligation on the High Court to hear planning judicial review applications as expeditiously as possible consistent with the administration of justice. There are limited grounds for appeal to the Supreme Court. The Supreme Court must similarly act as expeditiously as possible.
A planning permission is valid until quashed in Judicial Review proceedings. The proceedings do not necessarily suspend the permission. There is an eight-week period in which to commence Judicial Review proceedings. Proceedings must be issued and served within this period. The time may only be extended where there are good and sufficient reasons. This would be exceptional.
Exhaust all Appeals First
The 2022 Act makes it a precondition to a judicial review of a planning decision that the applicant has exhausted any available appeal procedures or any other administrative remedy available to him or her in respect of the decision or act concerned.
If, on an application for judicial review, the Court decides to quash a decision or other act made or done on an application for permission or approval, the Court shall, if requested by the applicant for permission or approval, remit the matter to the planning authority, the local authority or the Board, as may be appropriate, for reconsideration. This shall be subject to such directions as the Court considers appropriate unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so.
Time Limits
Generally, the position is that the applicant applies for leave for judicial review within eight weeks.
The 2010 legislation varied the time limits for challenging a judicial review. Formerly they had been a strict eight-week time limit, but this was struck down as invalid.
Leave to Challenge /Interest
The requirement for a substantial interest was introduced in the 2000 legislation.
Normally leave or consent for judicial review is obtained in a one-sided application. Under the special planning Judicial Review procedure, leave may only be granted on notice to the other party, usually the planning authority. In addition, the Court must be satisfied before permission to proceed is given to the effect that:
- the applicant has a sufficient interest;
- that the grounds are stateable and sustainable;
- that there is an arguable case;
- that the application has been made promptly; and
- that Judicial Review is the only effective remedy.
A number of interested residents’ groups and campaigners have sought to challenge planning decisions using a limited company. The courts have decided, in many such cases, that the company must itself have a substantial interest.
The fact that its shareholders or members have an interest would not generally be sufficient. Leave shall not be granted unless the applicant shows that he has participated in the planning process or that there are good and sufficient reasons for not having done so.
If leave to grant permission is granted, the matter will, in due course, proceed to a full hearing and Judicial Review challenge. The grounds for appeal to the Supreme Court are extremely limited. An appeal will only be permitted where the High Court certified that the decision involves a point of law of exceptional public importance.
Rolled-Up
The 2010 Act provides that an application for leave for judicial review may generally be made on a unilateral ex parte basis. This reversed the requirement in the 2000/ 1992 Act.
The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.
Leave Stage
The judge may hear the leave stage on an ex parte (one-sided) basis or require notification of all persons and hear the leave stage with all parties. If all parties agree or the court directs, the application for leave and the hearing of the judicial review on the merits can take place in a single hearing.
An application for leave is made by motion ex parte and shall be grounded in the manner specified in respect of an ex parte motion for leave. The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.
The Court may, on the consent of all of the parties, or where there is good and sufficient reason for so doing, and it is just and equitable in all the circumstances, treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.
Leave Stage with Parties
If the Court directs that the leave hearing is to be conducted on an inter partes (two-sided) basis, it shall be by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave—
- if the application relates to a decision made or other act done by a planning authority or local authority in the performance or purported performance of a function under the Act, to the authority concerned and, in the case of a decision made or other act done by a planning authority on an application for permission, to the applicant for the permission where he or she is not the applicant for leave,
- if the application relates to a decision made or other act done by the Board on an appeal or referral to the Board and each party or each other party, as the case may be, to the appeal or referral,
- if the application relates to a decision made or other act done by the Board on an application for permission or approval, to the Board and to the applicant for the permission or approval where he or she is not the applicant for leave,
- if the application relates to a decision made or other act done by the Board or a local authority in the performance or purported performance of a function, to the Board or the local authority concerned, and
- to any other person specified for that purpose by order of the High Court.
Remittal
The 2010 Act allows the High Court to have jurisdiction to remit the matter to the planning authority or an Bord Pleanala directing the matter to be reconsidered and to make a decision in accordance with the court’s determination.