Minister Eoghan Murphy is seeking to reform the rules governing judicial review proceedings in order to expedite the planning process and delivery of strategic projects. The proposals are included in a General Scheme of the Housing Planning and Development Bill 2019 and the Bill is not yet published.
Judicial review (“JR”) is the process by which a legal challenge can be taken in the High Court against a decision of a public body. In order to bring JR proceedings an applicant must first obtain permission or “leave” of the court.
The proposals aim to limit access to the Courts by those seeking to challenge planning decisions and if introduced the changes will:
(i) Remove the possibility to JR decisions of a local authority which can be appealed to An Bord Pleanála.
(ii) Prevent JR proceedings being taken in relation to certain clerical, typographical and unintentional errors.
(iii) Re-introduce a requirement that applications for ‘leave to apply’ for JR be made on notice to the decision maker and the applicant for planning permission.
(iv) Increase the threshold for granting “leave” – the court must be satisfied the applicant has both substantial grounds for contending the impugned decision is invalid and have a reasonable prospect of success.
(v) The prospective applicant for JR must have a substantial (as opposed to existing “sufficient “) interest in and be directly affected by the subject of the application and must have made a submission or observation on the application (although this latter requirement can be waived).
(vi) Stricter criteria will apply to NGO’s taking judicial review proceedings or planning appeals as regards for example, how long they are established and membership numbers.
(vii) New legal cost capping arrangements to limit the costs exposure of applicants and respondents.
Delays in the delivery of housing and other key infrastructure are frequently attributed to the JR process. The changes would mean no JR proceedings could be taken against a planning decision of a local authority which is subject to an appeal to the Board. A dissatisfied party will have to appeal the planning decision to the Board and only after the determination of the Board may JR proceedings be instituted.
The requirement to put the decision maker “on notice” of the application means they will be represented at the ‘leave’ stage (as was the position prior to amendments introduced by the Planning and Development Amendment Act 2010 Act). This will allow the court to hear legal argument from the decision maker at an earlier stage in the process. This may reduce the number of cases which progress to a full JR hearing although this is not a guaranteed outcome and may only prolong the process and increase costs for all parties.
The restrictions regarding NGOs has the potential to limit the capacity of newly formed residents associations and environmental groups established to challenge a planning decision. It will be of some comfort to them that the Minister has chosen not to reduce the 8-week time limit within which an application for JR proceedings must be initiated as had previously been suggested.