Don’t Stand on the Sidelines – Get In There!

 

A friend asked me the other day that if a person wanted to take the granting of planning permission on review, did you have to be somehow involved in the original application? As is the case with most questions concerning planning law, I did not know the answer, but I was sufficiently confident that Section 50 of the Planning and Development Act No. 30 of 2000 (PDA 2000), which deals with the judicial review of planning permission, would hold the answer.

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First you must establish your locus standi

Of course it is important to remember that this question only becomes relevant once it is established that the applicant has standing (locus standi) or the right to participate in that particular application for review. The PDA 2000 talks of a “legitimate interest” in the matter, which the Supreme Court has interpreted as such:

“I would therefore be of the view that the question certified for this court may be answered by stating that, in order to enjoy a substantial interest within the meaning of s. 50 of the Act of 2000, it is necessary for an applicant to establish the following criteria:—

(a) That he has an interest in the development the subject of the proceedings which is “peculiar and personal” to him.

(b) That the nature and level of his interest is significant or weighty

(c) That his interest is affected by or connected with the proposed development.”

 

See also O’Brien v Dún Laoghaire Rathdown County Council [2006] IEHC 177 , where Ó Néill J. held that “passionate interest” in local planning issues was not sufficient to satisfy the standing test.

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In addition the applicant has to show that he or she has “substantial grounds”. Again, this has been interpreted by the High Court:

“… in order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned in trying to ascertain what the eventual result would be … A ground that does not stand any chance of being sustained (for example where the point has already been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether it is sound or not. If I consider a ground as such to be substantial I do not also have to say that the Applicant is confined in this argument at the next stage to those which I believe may have some merit”. (Carroll J. in McNamara v An Bord Pleanála, unreported, High Court, January 24, 1995). (my emphasis)

 

In other words, “substantial grounds” is a higher standard than prima facie grounds, which is required for leave in an ordinary judicial review. It is a higher, and tougher, fence to jump.

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The “substantial interest” and “substantial grounds” test for standing are two separate tests and must both be passed. As said by the Supreme Court:

    (1) The “substantial grounds” and “substantial interest” requirements of s.50 created two fences, not one, and an applicant who failed to establish the latter had no entitlement to obtain leave merely because he had grounds which were substantial.

(2) It was necessary for an applicant to establish an interest in the development which was peculiar and personal to him and had been so expressed, although the fact that some other party had the same or similar interest did not mean that both were excluded from having a substantial interest.

(3) The nature and level of his interest must be significant and weighty and his interest must be affected by or connected with the proposed development. Whether the interests of an applicant fulfilled those criteria was dependent on the circumstances of the particular case.

(4) The applicant’s circumstances distinguished him from no other member of the public living in or outside the relevant area. To permit the applicant to mount a challenge would undermine the clearly expressed legislative intent that the range of persons who could bring such challenges be considerably narrowed.” (my emphasis)

(Thomas Harding v Cork County Council and An Bord Pleanála and others [2008] 2 I.L.R.M. 251).

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Coming now to my friend’s specific query, namely is he allowed to join the process after the application/objection/appeal stage in order to apply for a judicial review?

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The relevant portion of Section 50 is subsections (4)(b), (c) and (d), which reads as follows:

 

“ … and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application.

(c) Without prejudice to the generality of paragraph (b), leave shall not be granted to an applicant unless the applicant shows to the satisfaction of the High Court that—

(i) the applicant—

(I) in the case of a decision of a planning authority on an application for permission under this Part, was an applicant for permission or is a prescribed body or other person who made submissions or observations in relation to the proposed development,

(II) in the case of a decision of a planning authority under section 179, is a prescribed body or other person who made submissions or observations in relation to the proposed development,

(III) in the case of a decision of the Board on any appeal or referral, was a party to the appeal or referral or is a prescribed body or other person who made submissions or observations in relation to that appeal or referral,

(IV) in the case of a decision of the Board under section 175, is the planning authority which applied for approval, or is a prescribed authority or other person who made submissions or observations under subsection (4) or (5) of that section, or

(V) in the case of a decision of the Board under Part XIV, is a local authority that proposes to acquire land or to carry out a scheme or proposed road development or is a person who made objections, submissions or observations in relation to that proposal,

or

(ii) in the case of a person (other than a person to whom clause (I), (II), (III), (IV) or (V) applies), there were good and sufficient reasons for his or her not making objections, submissions or observations, as the case may be.

(d) A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest.”     (my emphasis)

 

As a general rule, In order to have standing to apply for a judicial review of a planning decision, either by the local authority, or by ABP, one must have been involved in the planning application / objection / appeal process, either as a party, or somebody who made “objections, submissions or observations”, unless there were “good and sufficient reasons” why that person did not participate in the original planning application / objection / appeal process.

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What are good and sufficient reasons?

This phrase has been considered in a number of court decisions under the PDA 2000. Unfortunately those decisions that do involve planning law are usually looking at the same phrase earlier on in Section 50, where the applicant for judicial review fails to make the application for judicial review within the stipulated eight weeks, and is now seeking an extension of that time limit. The courts interpret this time limit very strictly, in line with the public policy requirement that people who have been granted planning permission should be allowed to act on that as soon as they can, without undue delay.

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The use of the phrase is different in our current scenario, where the applicant is not late as such, but is rather entering the process for the first time, not having previously participated. In this context the phrase comes later in Section 50, as we have seen.

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I managed to find one decision on point: Deerland Construction Limited v Westmeath County Council [2006] IEHC 420. Here the applicant for judicial review had failed to make observations during the initial planning application. Unfortunately, he did not have any excuses as to why he did not do so!

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In dealing with this, the High Court held as follows:

 

“I am quite satisfied that the Court could not consider this material, sworn to at paragraph 6 of that affidavit, as a good and sufficient reason for not making objections and submissions on the part of the Applicant to Westmeath County Council within the meaning of Section 50(4)(c)(ii). To do so would dilute the statutory language and the legislative intent to a point where it would be meaningless and leave the judicial review procedure open to abuse.

The thrust of the legislative intent over recent years in respect of judicial review in  planning matters is clear. It was referred to by Macken J in Harrington v An Bórd Pleanála, 26th July 2005, where she said:

‘As has been stated in several cases consideration of the legislative scheme makes it clear that the Oireachtas intended that Section 50 be stricter than the equivalent section of the earlier local Government Planning and Development Act 1992 which itself adopted a stricter set of criteria applicable to challenges to the grant of planning permissions than previously existed. This is because there is in place an extensive statutory scheme under which members of the public may object to the original grant before a  planning authority and may also appeal to and be heard by an independent appeal body, namely the Board. To that appeal scheme the Statute also provides for the nomination of certain designated parties who have an to ensuring wide ranging representation in  planning matters from diverse interests Groups.’

Later she observed:

‘The foregoing extracts relevant to the issues in these proceedings demonstrate clearly that the Oireachtas has now adopted an evermore stringent set of obligations which must be met before the High Court should permit an Applicant to commence judicial review proceedings to challenge the validity of  planning permissions.’

Similar observations were made by Clarke J in Harding v Cork County Council 12th October of this year, where he said:

‘It is clear, therefore, that the 2000 Act introduced a stricter set of criteria than had been in place under the 1992 Act and those authorities which stem from the period when that latter Act was in force need to be viewed against that background.’

To approach the case, as I am invited to by the Applicant, would defeat that legislative policy as well as run counter to the wording of the Act. The gist of the Applicant’s argument is that I should overlook the failure to give any reason for not making objection to Westmeath County the development plan thereby triggering the statutory procedure which would enable the Applicant to make observations on that question.

I am unable to accept that approach. It upends the statutory scheme and involves me doing what ought not to be done.”

 

In other words, the “ends justify the means” is not a good and sufficient reason for not engaging in the planning application process from the beginning. Even where it might be clear (to you) that the application should never have been granted, that does not excuse you from hanging back and not participating, thinking you can jump in and kill the whole thing at the end.

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In the decision of Luke Moriarty v South Dublin County Council [2006] IEHC 109, the applicant sought to justify his non-participation in the planning application procedure on the basis that he had previously objected successfully to an almost identical application by the same developer. This previous participation actually counted against him as the Court said that he should have been, “if anything, on a higher state of alert than an ordinary member of the public but this cannot be held to give him a greater right than such ordinary member of the public. Accordingly, no  good and  sufficient reasons have been demonstrated.”.

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That is the lesson we need to take from this. If you are unhappy about a planning application, get in there and object as soon as you can, even if you have done it before against the same developer. Section 50 imposes deliberately strict and very tight qualifying criteria, which are similarly strictly interpreted by the courts. From a practical viewpoint, there are very few second chances (if any).

 

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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One Response to Don’t Stand on the Sidelines – Get In There!

  1. Pingback: Don’t Stand on the Sidelines – Get In There! | ajmarciniak

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