Judge seeks criteria for legal challenges to planning rulings

Irish Times:

The Supreme Court has been asked by a High Court judge to set out the criteria upon which the courts can decide that a person has shown the necessary "substantial interest" to allow them to bring legal challenges to planning decisions.

Mr Justice Frank Clarke said yesterday he was satisfied this point of law, which arose in proceedings related to a planned 400 million integrated tourism resort centre near Kinsale, Co Cork, was of such "exceptional public importance" that it required to be determined by the Supreme Court.

It could be reasonably said the law on the issue "stands in a state of uncertainty", the issue was arising in a significant number of cases and there would be a significant public benefit in having a Supreme Court decision on it, the judge added.

The issue relates to the constitutionally important question of the entitlement of people to have access to the courts to challenge planning and environmental decisions, the judge said. Its determination would be of benefit to both objectors and developers.

The point of law arose in proceedings in which Thomas Hard ing, a retired merchant seaman, applied for leave to the High Court to bring a challenge aimed at overturning planning permission for the Kinsale development.

The Planning and Development Act 2000 introduced a stricter requirement for such challenges, stipulating that any such challenge may only be brought by a person who has a "substantial interest".

In a judgment last month, Mr Justice Clarke ruled that Mr Harding of Ardback Heights, Kinsale, had not established the sufficient "substantial interest" to give him the necessary legal standing to bring the judicial review challenge. The judge said that, under the traditional test for legal standing, it was probable Mr Harding would have had sufficient connection with the Kinsale area to establish a sufficient interest so as to give him legal standing. However, the degree of connection with the area which Mr Harding had set out in affidavits failed to meet the more stringent test introduced in the Act.

Mr Harding then asked the judge to refer a number of questions arising from his judgment for determination by the Supreme Court. Ruling on that application yesterday, the judge said he would certify one question for determination.

That question asks: "What are the criteria by reference to which a person may be said to have a 'substantial interest' even though they do not have a financial or property interest within the meaning of Section 50 of the Planning and Development Act 2000 and has this court properly applied such criteria to the instant case?"

The case arose after planning permission was granted to Kinsale Developments Ltd for the building of the centre at Preghane, Ballmacus, Kinsale.