THE SUPREME Court has clarified some of the criteria upon which planning decisions may be challenged in judicial review proceedings. The clarifications came in a judgment yesterday rejecting a bid by a retired sailor to challenge permission for a €400 million tourism resort centre at the entrance to Kinsale harbour.
However, the Chief Justice, Mr Justice John Murray, criticised the "vague" and "imprecise" nature of provisions of the Planning and Development Act aimed at limiting such judicial review challenges.
The decision means Thomas Harding, Arback Heights, Kinsale, Co Cork, cannot bring a judicial review case aimed at overturning planning permission, subject to 72 conditions, from Cork County Council in October 2005 to Kinsale Development Ltd, Ballyvolane Business, Cork, to build the resort at Preghane, Ballmacus, Kinsale.
Mr Harding had claimed the development should not be permitted because of its proposed location in a scenic landscape, and a proposed natural heritage area overlooking Kinsale harbour.
The three-judge court, in separate judgments, found Mr Harding had failed to show he had the "substantial interest" in the Kinsale development required under section 50 of the Act as a precondition before leave may be granted to bring the judicial review challenge.
The case raised important issues about the construction of provisions of section 50 related to the criteria necessary to establish a "substantial interest". The High Court, while refusing leave to Mr Harding to bring the challenge, had asked the Supreme Court to consider the criteria necessary for "substantial interest" to be shown.
Mr Harding had claimed to have a "substantial interest" in the proposed resort because of its effect on the local environment and the headland, where he had family connections and visited regularly, and in vindication of his right to participate in the planning process.
In his judgment, Mr Justice Murray said the test laid down by the Oireachtas in section 50 of the Act as to what constituted "substantial interest" was "vague and lacking in precision" and that it was being left to the courts to interpret.
Not for the first time, legislation seeking to limit litigation was drawn up in "imprecise" terms likely to generate more and not less litigation for already heavily- burdened courts, he said.
Mr Justice Nicholas Kearns, in a judgment with which Mr Justice Murray and Mr Justice Joseph Finnegan agreed, ruled that Mr Harding must show he had an interest in the development which was "peculiar and personal" to him and that his interest was "significant and weighty".
Mr Justice Kearns found Mr Harding had not established a substantial interest by reason of his claimed interest in the impact of the proposed development from an environmental perspective.
He agreed with the High Court that Mr Harding had established a sufficient connection with the area and that his concerns about the development of the headland were genuine, but the test of substantial interest required more than a familial connection coupled with a pattern of visiting it as a former native and as a seafaring person.
Mr Justice Kearns earlier noted that section 50, by requiring "substantial interest" rather than the previous standard of "sufficient interest", had significantly heightened the bar for objectors or aggrieved parties who wished to take judicial review proceedings.
The 2000 Act had established "onerous conditions" and "numerous hurdles" for objectors to clear before obtaining leave, and may be seen as "expressly underscoring the public and community interest in having duly authorised development projects completed as expeditiously as possible", he said.
