In Devils Glen Equestrian Centre Limited v Wicklow County Council [2010] IEHC 356 the High Court repeated what has been settled law for almost 25 years, namely that (a) judicial review can only be used in very limited circumstances to challenge a planning decision and (b) the courts have set a very challenging threshold for success even if judicial review is a possible remedy.
The particular facts of the case related to an all weather gallops constructed at an equestrian centre in Wicklow. The local planning authority issued an enforcement notice and the operator sought to challenge this by way of judicial review. At issue was whether the work needed planning permission.
Section 5 of the Planning and Development Act 2000 sets out a procedure whereby one may seek a ruling from the local planning authority and then An Bord Pleanála (the planning appeals board) as to whether development is exempt. In O’Connor v Kerry County Council [1988] ILRM 660, Costello J had stated that if:
“a person on whom the enforcement notice is served objects to the notice on the ground that the development is exempted development, it seems to me that he has a remedy in that he may apply to the Planning Board to determine the question. When matters of a technical nature are involved, as arises here, it is not appropriate that the Court should be asked to determine whether or not the development that is in issue is exempted or not”.
In the more recent case of Flynn Machine & Crane Hire Limited v Wicklow County Council [2009] IEHC 285, O’Keeffe J summarised the very high standard which an applicant must satisfy to be successful in a judicial review application:
“The decisions, the subject matter of this application are in general not amenable to judicial review unless the person attacking the decision can demonstrate a clear departure … from the statutory remit. Furthermore the onus falls on an applicant to establish that the respondent has no relevant material before it to support its decision, and in default of the applicant so establishing, this court cannot reach a conclusion that the decision is irrational”.
The applicant in the Devils Glen case argued that the lack of any power on the part of An Bord Pleanála to set aside enforcement proceedings as part of the Section 5 procedure meant that the applicant had to avail of the judicial review route to have an effective remedy. However the Court favoured an argument put forward by the County Council (the local planning authority) that if An Bord Pleanála decided that development was indeed exempt and the local planning authority did not to follow this by terminating proceedings, then the local planning authority would be engaged in maladministration which would be open to the judicial review remedy.
The applicant had a second argument based on a factual mistake by the local planning authority. The Court dismissed this claim because it decided there was sufficient other evidence.
In Devils Glen the applicant lost its case because if it had not used the Section 5 remedy. While one can argue about whether it is appropriate for important property rights to be determined outside of the court process, the present position is clear. Any question regarding exempted development should be decided by application to An Bord Pleanála under Section 5. A judicial review case in planning matters brings with it not only high cost but also a very high standard of proof to have any chance of success.
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