Ask a solicitor: Planning was refused for my home. Can I take a judicial review?

Understand judicial review, its strict time limits, and if it's the right legal path to challenge unfair local authority decisions.

judicial review is governed by the Planning and Development Acts and is subject to stricter rules than general judicial review proceedings.

Dear Karen

I recently applied for planning permission to build a dwelling on family lands, but the application was refused by the local authority. I believe that the decision was unfair and that the process may not have been carried out properly. 

I am considering challenging the decision, but I am not sure what options are open to me or whether judicial review is appropriate. Could you explain what judicial review involves, the relevant time limits, and what I need to consider before taking this step?

Dear reader 

A refusal of planning permission can be very frustrating, particularly where significant time and expense has already been invested in preparing the application. However, it is important to distinguish between disagreeing with a decision and having valid grounds to challenge it in law.

Judicial review is a legal mechanism by which the High Court supervises the decisions of public bodies, including local authorities and An Coimisiún Pleanála. It is important to understand from the outset that judicial review is not an appeal on the merits. 

The court does not reconsider the planning application or substitute its own decision. Instead, it examines whether the decision was made in accordance with law and proper procedure.

In the planning context, judicial review is governed by the Planning and Development Acts and is subject to stricter rules than general judicial review proceedings.

The first key consideration is whether judicial review is the appropriate remedy. In many cases, where planning permission has been refused by a local authority, the correct course of action is to lodge an appeal to An Coimisiún Pleanála. 

Judicial review will generally only arise after that process has concluded, or where there is an issue with how the decision was made rather than the outcome itself.

Where judicial review is appropriate, there are strict time limits. An application must be brought within eight weeks from the date of the decision being challenged. This time limit is strictly applied, and the court will only extend it in very limited and exceptional circumstances. Prompt action is therefore essential.

The two stages of judicial reviews

Judicial review proceedings involve two main stages.

The first stage is the application for leave (permission) to bring judicial review proceedings. At this stage, the applicant must satisfy the High Court that they have a substantial interest in the matter and that there are substantial grounds for contending that the decision is legally flawed. This is a higher threshold than in many other types of proceedings.

To establish substantial grounds, it must be shown that there is an arguable case that the decision was affected by a legal error. This may include, for example, a failure to follow proper procedures, a breach of fair procedures or natural justice, a failure to consider relevant factors, or taking into account irrelevant considerations. 

It may also arise where the decision is irrational or not supported by the evidence before the decision maker.

The second stage, if leave is granted, is the full hearing of the judicial review. At this stage, the court will consider the legal arguments in detail and determine whether the decision should be quashed.

It is also important to note that, in planning judicial review cases, the applicant must generally have been involved in the planning process. This means that the person bringing the challenge must have made the original application, or have made submissions or observations during the planning process, unless exceptional circumstances apply.

If a judicial review is successful, the usual remedy is that the decision is quashed and sent back to the relevant authority to be reconsidered in accordance with law. The court does not grant planning permission itself.

Judicial review proceedings are complex, highly technical, and subject to strict procedural rules and deadlines. It is critically important to engage a solicitor with experience in planning and judicial review matters at the earliest possible stage. 

A solicitor can assess whether there are valid legal grounds to challenge the decision, ensure compliance with the strict time limits, and guide the process effectively. In many cases, input from a planning consultant or engineer will also be required to fully evaluate the basis of the refusal.

While it is understandable to feel aggrieved by a refusal, the key question is whether there has been a flaw in the decision-making process, rather than whether the decision itself was right or wrong. Careful assessment and early professional advice are essential to determine the most appropriate course of action.

Karen Walsh, from a farming background, is a solicitor practising in Walsh & Partners, Solicitors, 17 South Mall, Cork (021-4270200), and author of Farming and the Law. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

Email: [e-mail] 

Web: www.walshandpartners.ie 

While every care is taken to ensure the accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.