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Planning Decisions and Judicial Reviews

Challenging Planning Decisions By Way Of Judicial Review

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What’s Different About Judicial Review Actions on Planning Decisions?

A special judicial review procedure applies to planning-related matters in Ireland. Applicants seeking to challenge a decision of a planning authority or An Bord Pleanála primarily use these ‘special’ procedures.

The procedures are set out in Sections 50 and 50A of the Planning and Development Act 2000.

Why Are There ‘Special’ Rules for Planning Matters?

It seems that the legislature deems planning matters to be of such public importance that special rules must apply. This may be because the successful granting of planning permission can have a major impact on land values.

What’s Special About Judicial Review Actions for Planning Matters?

Three factors, in particular, distinguish a planning-related judicial review:

  1. Judicial review actions for planning matters must issue within an 8 week time period. This time limit may be extended beyond the strict 8-week period in exceptional circumstances only. However, the length of any delay will influence a court as to whether a challenge is being legitimately pursued.
  2. Initial leave applications for planning matters are heard without representatives from the opposing side. However, a court may decide they need to be present for the initial stage in certain cases. In making this decision, the court will consider the issues involved and the potential impact of the proceedings. They may also consider if there is a ‘good and sufficient reason’ for representatives of the opposing side to attend.
  3. Planning-related judicial reviews require an applicant to show a higher standard of interest in the contested planning decision. The Planning and Development Act 2000 places specific requirements on the applicant. The applicant must have ‘substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed’. The applicant must also meet the traditional threshold of having a ‘sufficient interest’ in the relevant matter. However, an interest in land or another financial interest is not required to reach the threshold of ‘substantial interest’.

Examples of Planning-Related Judicial Reviews

Requesting a court to review a decision of a planning authority is commonplace.  This can include any of the following and more:

  • reviews of An Bord Pleanála decisions to approve Strategic Housing Developments (SHDs);
  • planning approvals that impact upon protected animal species; and
  • planning approvals that have a detrimental impact on conservation areas and protected structures.

Do Unique Rules Apply to Legal Costs When Environmental Issues Are Involved?

The general rule that applies to judicial review litigation is that ‘costs follow the event’. This means the successful party has their legal costs paid by the losing party.

However, the Planning and Development Act 2000 outlines unique rules for legal costs when environmental issues are involved. These rules come under Section 50B of the Act. They were introduced by the Irish Government to comply with an EU Directive and the UN’s Aarhus Convention.

The rules apply to applicants seeking judicial reviews involving:

– an Environmental Impact Assessment (EIA),

– a Strategic Environmental Assessment (SEA) or

– the Integrated Pollution Prevention and Control directives (IPPC)

In these cases, applicants are not held liable to pay a public body’s legal costs if they lose their case.

If you are not sure whether your case comes under these rules, you can find out before you take your actual case to court. This is provided for under Section 7 of the Environment (Miscellaneous Provisions) Act 2011. It allows a potential applicant to bring proceedings to court to determine whether their case qualifies for special cost rules.

Section 50B of the Planning and Development Act 2000 also allows for an applicant’s costs to be paid:

  • if the case is one of exceptional public importance and
  • where in the special circumstances of the case it is in the interests of justice to do so.

Are There Exceptions to this Rule on Legal Costs?

Legal costs may be ordered against an applicant, in certain cases:

  • Because the applicant’s claims are frivolous or vexatious;
  • Because of the poor manner in which the party conducted the proceedings; or
  • Where a party is acting in contempt of court.

Can My Judicial Review of a Planning Matter Reach the Supreme Court?

Any grounds of appeal to the Supreme Court are extremely limited. Such appeals will only be allowed where the decision involves a point of law of exceptional public importance.

Orpen Franks have a successful track record in achieving favourable outcomes for our clients in judicial review actions. If you have an inquiry about Judicial Reviews, please call us on +353 1 637 6200 or email daragh.odonovan@orpenfranks.ie

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