The Statutory Regime
An amendment to the Section grounding leave was made by the Planning and Development, Maritime and Valuation (Amendment) Bill 2022 which was signed into law by the President on 24th July 2022.
The Act made changes to the provisions relating to judicial review in (Section 50A of the Planning and Development Act 2000) which consisted of a new sub paragraph (c) in Subsection 3 and a new subsection (9)
New paragraph in Subsection 3. Requirement to have exhausted any available procedures.
The updated statutory test is that the Court shall not grant leave unless it is satisfied that
(a) There are substantial grounds for contending that the decision or act is invalid or ought to be quashed and
(i) The applicant has a sufficient interest in the matter which is the subject of the application or
(ii) Where the decision or act ..has significant effects on the environment
(c) The applicant has exhausted any available appeal procedures or any other administrative remedy available to him or her in respect of the decision or act concerned.
While the proposed changes maintain the ‘sufficient interest’ test enshrined in section 50A(3)(b), it proposes to add that the court must now be satisfied that the applicant has ‘exhausted any available appeal procedures or any other administrative remedy available to him or her in respect of the decision or act concerned’.
In Grace and Sweetman, the court held that sincerity could be demonstrated by engaging in the planning process from the beginning. This would appear to suggest that an applicant could not belatedly judicially review a decision by the local authority / an bord Pleanála and may be barred if it has declined to engage in the statutory process but how this is interpreted by the Courts will have to be seen. A review of the historical approach of the Courts is helpful.
The Old Test – ‘Substantial Interest’
Originally, the Planning and Development Act 2000 required that applicants have a ‘substantial interest’ in the development they were challenging. The Act did not define what was meant by ‘substantial interest’, leading to litigation before the issue came before the Supreme Court.
In Harding v Cork County Council, Murray CJ noted that the clear intention of the legislation was to raise the threshold applicants must meet to have standing from that of ordinary judicial review cases. Kearns J set out that in order for an Applicant to have a ‘substantial interest’, the interest must be;
- ‘peculiar and personal’ to the Applicant,
- must be of a significant nature, and
- the Applicant be directly affected by the development.
In that case, the applicant was denied leave for judicial review as there was nothing which distinguished his interest from that of any other member of the public living in the area in question.
This created an extremely high threshold for applicant’s to meet, effectively barring standing for Applicant’s with an public environmental interest.
The Current Test prior to statutory amendment – ‘Sufficient Interest’
This high threshold was quickly diluted however, and the ‘substantial interest’ test was updated in 2011 by the current ‘sufficient interest’ test.
The Supreme Court gave a much wider interpretation of the sufficient interest test in Grace and Sweetman v An Bord Pleanál than is given in ordinary judicial review applications. The idea of ‘wide access to justice’ was at the core of the Court’s reasoning. The Court held that while the general principle to have standing is that the applicant will or may be ‘adversely affected’ by the development, environmental challenges require a broader assessment, which includes taking into account the legitimate interest of the public in protecting the environment.
While this wide interpretation of ‘sufficient interest’ in Grace and Sweetman greatly opened up the categories of people who may have standing in environmental planning law cases, the court has imposed some further constraints in relation to applicants who are not directly affected. The revised considerations were that;
- The applicant be bona fide/sincere
- There be no other appropriate or alternative Applicant
- The legal issue is of such as to justify granting exceptional standing – either:
a. A case raising a novel issue of law about a measure of national impact
b. A case not of national importance but the degree of infringement is significant.
A body or organisation is be deemed to have sufficient interest under the Planning and Development Act 2000 if, for the twelve months prior to the application for judicial review, they have been pursuing aims and objective which relate to the promotion of environmental protection.
New paragraph in Subsection 9A. Requirement to have exhausted any available procedures.
Paragraph 9 empowered the Court, on application for judicial review to remit the matter to the authority for consideration subject to directions.
The revised para 9A allows an opt out for the Court where it considers, having regard to all the circumstances of the case, that it would not be lawful to do so. This grants the Court a much wider discretion and again, it will remain to be seen how the Court treat this new power and if it declines to remit matters back to the authorities for fresh consideration.