Planning decisions and judicial reviews

In Ireland, the planning process for major projects is governed by a number of statutes and regulations.

These include the Planning and Development Acts 2000-2015, the Strategic Infrastructure Act 2006, and the Planning and Development Regulations 2001-2015. Under these statutes and regulations, a planning authority may grant permission for a project after having considered an application made by the developer.

However, if someone feels that their rights have been infringed as a result of this decision – for example, through loss of access to their property or through damage to the environment – they may apply to have the decision reviewed by way of judicial review.

This blog explores how judicial reviews are undertaken in Ireland and what factors are taken into account by courts when making decisions about them.

What is judicial review in Ireland?

Ireland’s Constitution together with European Law  are the supreme laws of the land, and it is the role of the courts to interpret and apply the Constitution and European Law.

This process is known as judicial review. Judicial review is a vital constitutional safeguard, ensuring that laws passed by the Oireachtas (the Irish parliament) comply with the Constitution. Very often European Law is the subject of a judicial review, for example many environmental issues, such as wildlife habitats, are governed by directives from Europe.

It also provides a mechanism for individuals to challenge laws that they believe are inconsistent with their constitutional rights.

Judicial review is an essential part of Ireland’s constitutional arrangements, and it helps to ensure that the country is governed in accordance with the Constitution and European Law.

When should some planning decisions go to judicial review?

Although the overall procedure for judicial review is similar for all types of cases, there are some key differences in how planning decisions are challenged.

One difference is that the proceedings must be ‘fast-tracked’, meaning that they must be dealt with as a matter of urgency.

This is because the effects of a planning decision can often be irreversible, so it is important that any challenges are heard quickly.

Another difference is that, unlike other types of judicial review cases, the court will not automatically grant an injunction to prevent the implementation of the decision being challenged.

This is because, in many cases, it may not be possible to undo the effects of the decision if it has already been implemented.

Instead, the court will consider whether or not to grant an injunction on a case-by-case basis. These differences reflect the unique nature of planning decisions and the need to ensure that any challenges are dealt with swiftly and efficiently.

What are some of the types of planning-related judicial reviews?

If you’re unhappy with a decision made by a planning authority in Ireland, you may be able to request a review by the courts. This process is known as ‘judicial review’, and it can be used to challenge any decision that you feel was made unlawfully. Judicial review is a legal process, so it’s important to get advice from a solicitor before taking any action. There are strict time limits for requesting a review, so it’s important to act quickly. If you’re successful in your judicial review, the court may quash the decision of the planning authority and order them to make a new decision. In some cases, the court may also award damages.

If you’re thinking of requesting a judicial review, speak to a solicitor as soon as possible.

What are the costs for judicial review in planning cases?

The general rule that applies to judicial review litigation is that ‘costs follow the event’.

This means the successful party has their legal costs paid by the losing party.

However, there are some exceptions to this rule. These rules apply specifically to cases involving environmental issues, and were introduced in order to comply with an EU Directive and the UN’s Aarhus Convention.

Under these rules, the court has the discretion to award costs to either party, regardless of who is successful in the case. The court will take a number of factors into account when making a decision on costs, including the public interest in the case and the financial resources of each party. As a result, these rules provide some flexibility when it comes to awarding legal costs in environmental cases.

Ireland is a signatory to the UN’s Aarhus Convention, which obliges countries to provide alternative means for the public to challenge environmental decision-making, without the need to resort to costly and lengthy court proceedings.

In order to comply with this obligation, the Irish Government introduced Section 50B of the Planning and Development Act 2000. This section provides that, where an issue relating to the environment is raised in planning proceedings, the court may not award legal costs against an applicant, even if their claims are ultimately unsuccessful.

This is intended to remove any financial barriers that might deter members of the public from challenging unlawful development or raising environmental concerns. However, it should be noted that Section 50B does not apply in all cases – for example, it does not apply where a party is acting in contempt of court. Nevertheless, it represents a significant departure from the general rule on legal costs, and helps to ensure that environmental issues can be properly aired and addressed without fear of incurring prohibitive costs.

Who pays for judicial review in Ireland?

Judicial review is a process whereby the courts examine the lawfulness of executive or legislative action. In Ireland, it is generally the High Court that hears applications for judicial review. There is no fee for filing an application for judicial review, and legal aid may be available in some cases. However, if the case is successful, the court may order the state to pay the costs of the proceedings. If the case is unsuccessful, the applicant may be ordered to pay the state’s costs. As a result, there is no guarantee that a successful applicant will not be out of pocket after taking judicial review proceedings.

Can a judicial review end up in the supreme court?

The grounds for appealing to the Supreme Court are very limited. Appeals will only be allowed if the decision made by the lower court involves a very important point of law that affects all people.

Article by: Milan Schuster