Mr. Gavin Lawlor:

There is no real correlation between section 5 cases and judicial reviews, although a number of the former have been judicially reviewed. Section 5 cases, generally speaking, concern whether something is development and whether planning permission is needed. The section 5 reference, from a developer's or landowner's perspective, is used more often by homeowners in certain circumstances than it is by large-scale developers, given most large-scale developers automatically need planning permission. It tends to be at the smaller scale that this stuff becomes more important, as opposed to for the average Joe or Mary who wants to know whether he or she needs planning permission. For a normal member of the public or homeowner, the idea of having to go through the planning process is daunting and challenging. There is a significant cost to it. If someone wants to make a simple extension to a house, he or she could pay up to €10,000 in professional fees to make that application for an extension that is 1 sq. m or 2 sq. m larger than the exemption. Section 5 references are important more for the smaller scale of development rather than the larger.

There are many other complexities to the exempted development provisions in the Act, in the regulations in particular, and there is lots of grey around certain language used, say, under section 41H, where there is reference to changes to a structure that do not interfere with the character of the structure. The idea of the character of a structure is something people find difficult to get their head around.

It tends to be in those type of areas where the language is, perhaps, a little vague or not clear that one ends up with more judicial reviews. This does not tend to be an issue with section 5s.