Peter Burke (Longford-Westmeath, Fine Gael) | Oireachtas source

The first proposed change relates to the insertion of a new provision in section 50A of the Act to provide that the court shall not grant leave to apply for a judicial review challenge unless it is satisfied that the applicant has exhausted any available appeal procedure or any other administrative remedy available to him or her in respect of the decision or act concerned. This amendment effectively means that the courts will be required to consider whether there is an adequate or other administrative remedy available to address the issue that is the subject of the challenge and, if so, should not grant leave. Therefore, this amendment will create a presumption that the issues arising from decisions of planning authorities ought to be appealed to the board in the first instance unless there are special circumstances. In effect, an appeal to the board rather than a judicial review challenge to the courts should be the default position in the first instance.

This proposed change is in line with EU law and international law under the Aarhus Convention on access to justice. In this regard, Article 11.2 of the EIA directive, which transposes the Aarhus Convention into EU law, provides that member states shall determine at what stage planning and other environmental decisions may be challenged. Article 11.4 of the directive further provides for the possibility of a preliminary review procedure before an administrative authority, which shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures where such a requirement exists under national law. This proposed change has been flagged with the European Commission, which has not raised any issue.

The second proposed change relates to the insertion of a new subsection (9A) in section 50A to provide that, if the court decides to quash a decision or other act further to a judicial review challenge, it can, on request by the planning applicant, remit the matter back to the planning authority concerned or the board for reconsideration to correct an identified error, which will enable restarting the case from the point of the process at which the error occurred, thereby avoiding the delays associated with such proceedings. One of the benefits of this proposed change is that it will enable the courts to remit the decision back to the planning authority concerned or the board, whichever the case may be, for consideration without the planning applicant having to submit a new revised planning application and start the process again from the beginning, thereby assisting in streamlining the overall planning process in respect of the development concerned. This is already happening in practice in some judicial reviews before the courts. The amendment is essentially providing a statutory underpinning to the adoption of this approach.

These proposed changes are designed to improve the efficiency of the case management procedures by which judicial review cases are handled in the courts so that cases can be more speedily addressed and rectified, thereby potentially reducing the number of judicial review cases and the time taken up in the courts dealing with such cases. On Second Stage, I referred to the judicial review changes.