In recent years a staggering number of judicial review challenges have been brought against decisions of An Bord Pleanála (the Board), with an unusually high proportion being successful in overturning such decisions. The new Planning and Development Bill (the Bill) seeks to bring about certain changes to the judicial review process, including the introduction of statutory timelines and the prohibition of companies taking judicial review proceedings where they have been registered for less than one year.

It remains to be seen whether the Bill will shut the door on judicial reviews or, more precisely, on unmeritorious judicial reviews.

Judicial Review under the current Planning and Development Act 2000

In order to evaluate the judicial review provisions of the Bill, it is helpful to first recap how judicial review operates under the Planning and Development Act 2000, as amended (the 2000 Act).

Judicial review differs from an appeal to the Board. In the case of an appeal to the Board the planning merits of the decision of the local authority are reviewed. In the case of a judicial review challenge, the Court is restricted to considering whether the planning authority or the Board acted within its powers. The Court may declare a decision ultra vires but it cannot substitute its own decision for that of the Board. While it is possible to judicially review a decision of a local authority, such challenges are rare, given the appeal mechanism to the Board. This means that the majority, if not all, judicial review challenges are against decisions of the Board.

In order to take a judicial review challenge an applicant must establish substantial grounds and have a sufficient interest in the subject matter, by way of prior participation in the planning process, or be able to show that there were good and sufficient reasons for not participating in the planning process.

Substantial grounds

Leave will 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. Accordingly, the Courts should only intervene in circumstances where:

• the Board has failed to take relevant considerations into account;
• the Board has taken irrelevant matters into consideration;
• the Board has acted “irrationally” – the term “irrational” has a particular meaning in law. It means that the decision-maker has reached a decision which no reasonable decision-maker could have reached, on the basis of the information before it; or
• the Board has failed to give reasons or sufficient reasons for its decision.

Sufficient interest and participation in the planning process

It is not sufficient for an applicant merely to prove there would be an impact on their land or other legal or financial interest – the applicant must have a personal interest. Such an interest can be established by way of prior participation in the planning process. This means that anyone making a submission on a planning application can establish a sufficient interest. However, the Supreme Court has held that a person who has a sufficient proximity, having regard to the nature of the development and any amenity in the location of the development (which might potentially be impaired), will have standing even without participation.

8 week time limit

An application for judicial review must be made within eight weeks of the decision or act of the Board. The High Court has a discretion to extend this period if it considers that there is a good and sufficient reason for doing so and the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.

Remedies – quashing of decision and remittal

Almost invariably, the remedy in judicial review proceedings is an order quashing the decision of the Planning Authority or the Board, as the case may be. The decision can be remitted back to the Board to make the decision again, on a sound basis.

Costs protection

The costs of proceedings are generally entirely at the discretion of the judge and usually the successful party will be awarded its costs – costs usually ‘follow the event’.

This is not the case where a challenge is brought to a decision by the Board that gives effect to the EIA Directive, Articles 6(3) or 6(4) of the Habitats Directive, the Strategic Environmental Assessment Directive or the Industrial Emissions Directive. In those cases, Section 50B of the 2000 Act provides that no order will be made against any applicant who brings such judicial review proceedings.

There have been a number of recent cases before the Court on whether costs protection would apply in various circumstances. The Supreme Court recently clarified the position in Heather Hill. This case centred on a judicial review challenge which included certain grounds that were “environmental” in nature and others which were not. The Supreme Court held that all costs in such proceedings are protected under Section 50B.

The challenges of the current judicial review system

There are a number of challenges or pitfalls with this system:

• Judicial review proceedings are the only proceedings for which you require permission of the Court in order to launch litigation. It is designed to be a valve by which the Courts root out unmeritorious challenges, but in reality it is very rarely the case that leave to apply for judicial review is refused.
• The application for leave is currently not made on notice to the other parties. This means that neither the Board nor the notice party developer is usually entitled to participate in the leave application hearing. Developers feel that they do not have any chance to ‘cut off at the pass’ a judicial review challenge that may be entirely without merit. Many feel that by the time they get to engage in the process at all, they are starting from two goals down.
• It is often very difficult to even establish whether judicial review proceedings have been issued against a project. This is because of a practice that has developed whereby applicants/challengers will simply go into Court and make an application to “stop the clock”, meaning it can be very difficult to establish whether judicial review proceedings have issued or even whether leave has been granted. This is particularly the case where the “clock has been stopped” at the end of July, or during August and September when the Courts are closed.
• There are significant delays involved in the judicial review process. Even with the advent of the High Court Commercial Planning and Strategic Development List, any judicial review is likely to take a minimum of 9-12 months to be determined. There is also ample opportunity for applicants/challengers to delay and slow the process down. If you factor in the possibility of an appeal or a referral to the Court of Justice in Luxembourg, often the viability of the whole project can be called into question because of a judicial review challenge.

Reform of judicial review under the Bill

The Bill introduces a number of reforms to the current judicial review procedure:

• The Bill makes provision for the ability to go back and amend a planning permission at any time within 8 weeks from the date of the decision (or act done or failure to perform function) or at any time after issuing of proceedings, to correct any error of law or fact contained in the decision or perform any function concerned. This would allow the decision-maker to engage with the Court to obtain directions so that the original decision-making process can be saved and timelines preserved.
• Applications for leave must be on notice. Where no respondent or notice party has indicated to the Court that it is opposing leave, leave will be deemed to be granted. Whilst overall, this is a welcome amendment, it will only be beneficial where the Court properly engages in the question of substantial grounds during the leave stage. If not, the application for leave has the potential to simply slow matters down.
• “Substantial grounds” is now defined as where there “is a reasonable prospect of relief being granted”. The Courts will have to engage in whether there is real substance to a ground. The Court can only grant leave where there is a reasonable prospect that the applicant will be successful in their challenge. This may finally be a check on the number of judicial reviews taken or at least reduce the number of grounds being argued by an applicant.
• “Sufficient interest” is now defined as where the applicant “is or may be directly or indirectly materially affected by the matters to which the application relates”. Again, as this means applicants will have to be materially affected in order to be granted leave, it is hoped it would reduce the number of judicial reviews.
• In terms of timelines and case management, a decision on the leave application must be delivered not later than 3 weeks after hearing. The Bill also sets time periods for the management of the proceedings, for example for the delivery of opposition papers and further affidavits. Judgment must be delivered no later than 8 weeks from the conclusion of the matter, and any consequential orders must be made within 3 weeks of delivery of judgement.
• The Court may direct that any error found by it in any part of the decision-making process be corrected without declaring invalid or quashing the remainder of the decision.
• There is no right of appeal to the Court of Appeal under the Bill and parties must instead obtain leave to appeal to the Supreme Court.

What impact will the changes to judicial review procedure have?

In summary, under the Bill:

• The test for leave will be stricter;
• There will be tighter timelines for the running and determination of cases;
• There will be more flexibility for Planning Authorities and the Board to fix errors and for the Court in terms of remedies which stop short of quashing planning decisions; and
• Generous costs protection rules are here to stay.

The judicial review rules will be rebalanced and there are some provisions which will make judicial reviews more difficult to bring. However the Bill does not introduce the type of radical reform that many developers and stakeholders would like to see.

The Bill is currently undergoing pre-legislative scrutiny and will progress through the Oireachtas in the coming months. There have been concerns raised in respect of the reforms to the judicial review process on the exclusion of residents’ associations bringing judicial review challenges and curtailments to public participation in the decision making process. Political disagreement could delay the implementation of the Bill and potentially lead to the watering down of the proposed reforms.

Our Environmental and Planning Team are tracking the Bill as it moves through the legislative process and will be providing further updates to this post.

For further information on this topic, please contact Alan Roberts, Partner,  Kristen Read, Senior Associate, or any member of A&L Goodbody’s Environmental and Planning team.