Mr. Nap Keeling:

The point is that basically everyone gets leave at the moment. Insofar as there is a threshold to get leave, it is being met routinely, particularly in the strategic infrastructure development, SID, list. What is being proposed here, for example, is rather than having to move an application for leave, which would require someone like Mr. Flynn to stand up in court, ask for leave and engage with the judge, under the proposal here, you would simply file and serve. You would lodge the papers in the central office of the High Court. There is no leave hearing unless it is contested and the default position is that there is a deemed grant of leave. Then, it is up to the developer, An Bord Pleanála or the respondent to decide if they will bother engaging at that stage. The question arises as to why you would bother, because the thresholds they have to meet are so low that they will almost certainly win anyway. In other words, you end up with a grant of leave without any application of court. The resources of the court would not have to be used for that purpose, and you would already be off and running. On one side of it, it is possible that no developer or respondent would bother engaging with leave. You would have your grant of leave and could just proceed on that basis.

The fear from previous occasions back in the early 2000s, for example, is that it would be routine to have had fully contested leave applications that would take two or three days. Then there would be almost exactly the same hearing in relation to the full hearing a number of years later. We did not have the Commercial Court back then, for a start, so it was much slower to even get on for the first hearing, let alone for the second hearing. There have been many changes since then that would suggest the same outcome would not occur.

The other issue is to stop the clock. In terms of resourcing, what often happens at the moment is someone has to make an application to a judge for the purposes of the time limit. Then you have to stop it and that gets adjourned. From that point, it might be adjourned for two or three months before the leave application can actually be heard. In this case, what would happen is instead of that happening, I would simply file papers in court before the time limit was up. I would not need a leave application and, if no one fights it, I have a deemed grant of leave, so I have bypassed all that period. That is what is intended to happen, albeit there is a check in the system whereby if the developer says, "There is no way I can let this happen. I can move in and challenge thelocus standi of that person to bring those proceedings in the first place." That is still in the system and is still allowed for, but they do not have to do it. The upside of that is probably that, if a delay arises from that, it is brought about by the developer who has challenged it and the delay affects them. Therefore, there would at least be a matching up of the decision with the delay. That is what is intended. However, as Ms Minch says, if that is what actually happens, it is possible that the initial benefit will be a reduced time period of the leave stage. After that, there will not be a big difference because, as Mr. Flynn has explained, there is a default exchange of time pleadings anyway. However, it might help in the first few months in relation to it.