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No stay on judicial review proceedings pending appeal to planning board

By: James Cross BL

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High Court refuses application to stay judicial review proceedings pending appeal to An Bord Pleanála, refuses the mirror application to have the stay on the appeal proceedings vacated and allows the judicial review to proceed to hearing, on the grounds that: the statutory criteria for a stay are not met where the relevant legislation affords priority to appeal proceedings only in circumstances where the “matter ... is within the jurisdiction of” An Bord Pleanála; and the grounds of challenge advanced in the judicial review proceedings are ones which, if well-founded, taint the appeal and affect An Bord Pleanála’s jurisdiction to embark upon the appeal.

Judicial review – planning and development - application for a stay judicial review proceedings pending appeal to An Bord Pleanala – argued that the local council acted without jurisdiction in purporting to grant retention planning permission for a particular development - development sought to be retained had been carried out in breach of the requirements of the Environmental Impact Assessment Directive and the Habitats Directive, and, consequently, cannot benefit from a retention planning permission – argued that the planning status of the development can only be regulated by way of an application for “substitute consent” - two interlocutory applications which have been brought by the planning authority and the beneficiary of the planning permission - residents group are thus pursuing an application for judicial review and a statutory appeal in parallel – argued that the appeal should proceed first - which is the more appropriate forum in which the complaint, i.e. that the planning authority has acted ultra vires in granting retention planning permission, should be determined - statutory stay on judicial review proceedings - legal test to be applied is whether or not the “matter” before the planning authority or An Bord Pleanala is “within the jurisdiction of” the relevant decision-maker - legislative preference is that challenges be dealt with by way of appeal rather than by judicial review - stay application may only be brought by a planning authority, a local authority or An Bord Pleanala - beneficiary of the planning permission, is not entitled to apply for a stay - doubtful whether a planning authority can apply for a stay on judicial review proceedings in favour of an appeal which is pending before a different decision-maker - planning authority is functus officio - issued its decision to grant planning permission - certain defects which are capable of subsisting at the appeal stage - grounds upon which a planning authority’s decision might be challenged – this challenge affects the planning authority and An Bord Pleanala equally and which the board is incapable of correcting – grounds of challenge – planning authority has argued that any breach of the EIA Directive might be remedied now by An Bord Pleanala carrying out an EIA as part of its determination of the appeal - alternative interpretation of “jurisdiction” - appeal might undermine statutory prohibition - confusion as to whether the statutory prohibition on entertaining an application for retention planning permission in respect of development which had been carried out in breach of the relevant requirements of the EIA Directive and the Habitats Directive extends to An Bord Pleanala - application to lift stay upon an bord Pleanala - An application for a stay upon judicial review proceedings may only be brought by a planning authority, a local authority or An Bord Pleanala - the party most immediately affected by the judicial review proceedings, namely the beneficiary of the planning permission, does not have standing to make an application - developer has brought an application to have a stay, which had been imposed at the leave stage and restrains An Bord Pleanala from determining the appeal vacated - Oireachtas has put in place an express statutory provision which seeks to regulate the conduct of parallel appeal proceedings and judicial review proceedings - Priority is to be given to appeal proceedings only in circumstances where the “matter is within the jurisdiction of” An Bord Pleanala - the grounds of challenge, if well-founded, would have the consequence that the appeal is not within An Bord Pleanala’s jurisdiction - application to stay the judicial review proceedings is refused - the mirror-image application to have the stay on the appeal proceedings vacated also refused -

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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