Planning And Judicial Review - Not The Right Remedy?

In Devils Glen Equestrian Centre Limited v Wicklow County Council [2010] IEHC 356 the High Court repeated what has been settled law for almost 25 years, namely that (a) judicial review can only be used in very limited circumstances to challenge a planning decision and (b) the courts have set a very challenging threshold for success even if judicial review is a possible remedy.

The particular facts of the case related to an all weather gallops constructed at an equestrian centre in Wicklow. The local planning authority issued an enforcement notice and the operator sought to challenge this by way of judicial review. At issue was whether the work needed planning permission.

Section 5 of the Planning and Development Act 2000 sets out a procedure whereby one may seek a ruling from the local planning authority and then An Bord Pleanála (the planning appeals board) as to whether development is exempt. In O'Connor v Kerry County Council [1988] ILRM 660, Costello J had stated that if:

"a person on whom the enforcement notice is served objects to the notice on the ground that the development is exempted development, it seems to me that he has a remedy in that he may apply to the Planning Board to determine the question. When matters of a technical nature are involved, as arises here, it is not appropriate that the Court should be asked to determine whether or not the development that is in issue is exempted or not".

In the more recent case of Flynn Machine & Crane Hire Limited v Wicklow County Council [2009] IEHC 285, O'Keeffe J summarised the very high standard which an applicant must satisfy to be successful in a judicial review application:

"The decisions, the subject matter of this application are in general not amenable to judicial review unless the person attacking the decision can demonstrate a clear departure ... from the statutory remit. Furthermore the onus falls on an applicant to establish that the respondent has no relevant material before it to support its decision, and in default of the applicant so establishing, this court cannot reach a conclusion that the decision is irrational".

The applicant in the Devils Glen case argued that the lack of any power on the part of An Bord Pleanála to set aside enforcement...