Dr. Fred Logue:

The judicial review is process and substantive law. It is not just about the process. Substantive law would be, for example, compliance with the development plan or proper assessment and things like that. Legally, the board has to make the decision so it has to be given the resources. For example, as we know, the board has only recently, for the first time in its almost 40-year history, advertised for an in-house legal adviser. The question has to be asked if the lack of in-house legal advice one of the reasons. Are these accelerated timeframes another reason? Something like this, that is to be brought in, while only a few words on a page, procedurally is quite disruptive, and instead of making matters more efficient, it could probably make things worse because people would start to challenge these amendments.

There is actually not that much of what is legally significant, because where the board has wide discretion, the courts will not intervene. However, where the board has no discretion, they will intervene. For example, the court is not going to intervene in such matters as a judgment on whether the massing of a development meets the development plan criteria. However, if the density is capped at 35 and the developer asks for 40 and the board grants it, that is a material change. The risk is that if the board just changes the words on the page, people will not believe that the actual decision was something that was not written down. EU law, Irish law and international law relies on written decisions and reasons for legal certainty. The idea that if the board changes its mind or identifies a mistake after the fact or somebody takes a judicial review that triggers a textual change, that is orthogonal to legal certainty. It means a board decision cannot be trusted. What about the decisions that are not challenged? Does it mean they are trustworthy if they have never been amended because a judicial review has never been taken?

Like many of the issues in the Bill, we need to understand the real reason this has been proposed. Why does quash and remit not work? As I said to Deputy Ó Broin, it is because quash and remit puts it back into the board’s procedure. This amendment today is after the board’s procedure. It has made a decision, it says that is its decision, it is going to publish it, its members have signed it and put the board’s seal on it, and then eight weeks later it can say it made a mistake. That is not consistent with good administration. It will actually encourage poor decision-making. Often developers get wind of a judicial review. The possibility remains that a developer will be anxious that a judicial review might be in preparation. It might start reviewing the decision and might go to the board or write a letter. I have seen it happen on planning files that have been decided where the developer has written in saying a mistake has been made on their application and asking if it can be fixed. There are many ways of looking at it but it now involves the developer, or any member of the public, in reviewing a decided decision and trying to get it changed. It blurs the lines between the board’s procedure and the court’s procedure. The board can now intervene in a court procedure and have it stayed while it tries to fix its decision. It takes away discretion from the judge who is in charge of his own procedure, and there is already a solution to the problem through quash and remit. The question again is, what is wrong with quash and remit?