Karen Walsh: Judicial Review is a long and tricky road

Last week, I described appealing a decision of the Planning Authority to grant or refuse planning permission, which is in the news following a recent High Court case. 

Karen Walsh: Judicial Review is a long and tricky road

Cork County Council refused permission to grant planning permission to a developer, Cleanrath Windfarm Ltd, for construction of a windfarm, because it was considered that it would result in the destruction of a habitat of ecological value and have a major impact on the area.

The decision to refuse was appealed to An Bord Pleanala, and the decision to refuse was overturned.

The developer was given the go-ahead for the construction of the wind farm, situated at Cleanrath, near Inchigeelagh, in County Cork.

A couple chose to challenge the decision by An Bord Pleanala to the High Court, claiming that An Bord Pleanala failed to carry out an appropriate assessment on nearby sites.

The Cork couple sought to have the decision judicially reviewed by the High Court.

The judge ruled that the planning permission must be quashed, after finding that the process under which An Bord Pleanala had decided relevant issues, concerning compliance with two European Directives — the habitats directive and the environmental impact assessment directive – did not comply with Irish Law.

The Irish legal system has a system in place whereby the High Court is in a position to supervise the decisions of lower Courts, other tribunals and a wide range of public bodies.

Judicial review proceedings are not concerned with the merits of a case or the arguments advanced at the hearing, but rather the decision-making process. This is a very important point.

The High Court exercises its supervisory role by protecting against abuse of power by public authorities and ensuring that they act within the law.

However, it is notable that the Courts are reluctant to interfere with the decisions of specialist administrative bodies like planning authorities.

Certainly, the Courts will step in where the decision by a planning authority is unconstitutional, or not in compliance with legislative requirements.

If you wish to begin Judicial Review proceedings, you should instruct a solicitor.

Here’s a basic demonstration of four steps in the process of carrying out a judicial review:

Leave to apply:

this process requires an application to be made to the High Court seeking permission to judicially review a decision of the planning authority in question.

The application must be made within eight weeks from the date of the decision of the planning authority. Specialist legal advice should be sought to appropriately determine how the eight-week limitation applies.

Substantial interest and grounds:

The standard required for these type of judicial reviews is somewhat more stringent that an ordinary judicial review in other areas of law.

For planning judicial reviews, it is necessary that the applicant show that he or she has a substantial interest in the proceedings, but also that he or she has substantial grounds for challenging the decision.

Administrative process:

It is necessary for the party applying for judicial review to have participated in the planning process either as the applicant for the authorisation or a prescribed body, or other person who made submissions or observations in respect of the matter being litigated.

It is very important that a more appropriate remedy is not available before seeking a judicial review of a decision of the planning authority.

For example, if it is more appropriate to appeal a decision of a planning authority to An Bord Pleanala as opposed to judicial review proceedings, then leave will be refused.

The hearing of the judicial review:

A judicial review is not concerned with the merits of the decision, but focuses more on the decision-making process.

The Court is not there to rehear the matter and consider the argument advanced, but instead looks at whether there has been compliance with the statutory procedures and that a basic standard of constitutional and natural justice has been applied.

Furthermore, the only time a court will interfere with the merits of a decision is where it can be shown the decision reached is at variance with common sense and reason and is indefensible.

If you wish to begin Judicial Review proceedings, you should instruct a solicitor.

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