Law of the Land: My planning permission was overturned - could a Judicial Review help?

In respect of Judicial Review application, the courts tend to look at the decision-making process and whether proper procedures were followed when coming to a decision.

Dear Stephen, 

I am a part-time farmer, but I also work in the construction industry and have a small business predominately taking on subcontracted plastering work on sites.

A bigger developer approached me about working together and using some of my land to build a small housing estate on it with around ten houses. Planning permission was obtained from the local council to build the houses. 

However, a number of neighbours objected, and the matter was appealed to An Bord Plenala, and the decision was overturned. We are not satisfied with the decisions, and think certain factors were not considered. What are our legal options here?

Dear Reader, 

I would advise that you should consider bringing an application for Judicial Review. 

Judicial Review is a mechanism by which an application can be made to the High Court to challenge the decision-making processes of administrative bodies and lower courts. Judicial Review applications are regularly made in respect of planning decisions.

In respect of Judicial Review application, the courts tend to look at the decision-making process and whether proper procedures were followed when coming to a decision. The court will necessarily not look at the merits of the decision itself. 

The basic principles of public decision-making are:

• The decision-maker must have authority to make the decision that affects you. If the decision-maker has the authority to make the decision, it must not go beyond the limits of its authority.
• You are entitled to fair procedures in how the decision is reached. This means that the decision-maker must not be biased and the decision-maker must give you a fair hearing. You must be given an adequate opportunity to present your case. You must be informed of the matter and you must be given a chance to comment on the material put forward by the other side.
• The decision maker must comply with all legal requirements governing the decision and its making I note you have stated that you believe that factors were not considered and I would recommend that consideration is given as to whether procedures were properly followed when coming to the decision and it would be worthwhile engaging a solicitor and getting the input of a consulting engineer/architect/planning consultant particularly if they were involved in the planning application.

You would need to engage a solicitor who would engage barristers to assist in bringing the application, and the first step is you need to apply for leave to the court to bring the application. The purpose of this is the court’s time is not been wasted on vexatious applications. As the applicant you will need to show you have genuine and substantive grounds for overturning the decision. You have to apply for leave within eight weeks of the decision for planning matters and you must have exhausted all remedies as in all appeals in respect of the decision. In your application for leave, you will set out in a Statement of Grounds the reliefs sought and the basis for the application.

In respect of Judicial Review the following reliefs that can be sought:

• Certiorari - quash a decision;
• Mandamus - compel the performance of a duty;
• Prohibition – prevent action being taken;
• Declaration – seek a judge’s declaration on the rights of the parties;
• Injunction – prevent an action being taken or to compel the taking of an action.

If leave is granted, the matter moves to a substantive hearing, where the court fully hears the application.

It is worth mentioning that there is draft legislation, the Draft Planning and Development Bill 2022, which will potentially make changes to the Judicial Review process, but this has not been made law as of yet.