Judicial Review and PDA 2024

Further Change?

Despite the passage of the Planning and Development Act 2024 (“PDA 2024”) and the possible commencement of its Judicial Review (“JR”) provisions sooner rather than later, calls for further restriction of access to JR continue. This renders all the more puzzling the net effect of one change in JR to be made by the new Act.

What follows will look at;

• the calls for further change

• the existing position regarding the 'leave' requirement for Judicial Review

• the changes made by PDA 2024

• the likely effect of those changes

• a conclusion

The Calls for Further Change

Sean O'Driscoll is perhaps best known as Chair of the Council of the Economic and Social Research Institute (better known as the ESRI) whose mission is to “advance evidence-based policymaking that supports economic sustainability and social progress in Ireland.”

Mr O'Driscoll is also a member of the Government's Accelerating Infrastructure Taskforce established in May. The Taskforce assists Jack Chambers, Minister for Public Expenditure NDP Delivery and Reform, to oversee the work of his Ministry's Infrastructure Division to accelerate infrastructure development and (initially) to identify barriers to such development.

The group includes both independent members with experience of infrastructure delivery and leading officials from organisations such as the LDA and NTA. The Division has wider infrastructure expertise including staff redeployed from agencies such as ESB Networks, EirGrid and An Coimisiún Pleanála (“the Commission”).

Mr O'Driscoll is reported to have said earlier this month that the 'bar' for Judicial Review is too low.

Stephen Collins is a journalist, presently a columnist with the Irish Times and previously its political editor. In his column on 27 June, Mr Collins called for the implementation of radical measures against what he referred to the “abuse of court procedure by objectors to almost every major infrastructural project...”

Mr Collins said that proposals to remove legal obstacles from the planning system (he referred specifically to the 2020 Report of the Review of the Administration of Civil Justice chaired by The Hon Mr Justice Peter Kelly, former President of the High Court) had disappeared “into a black hole.”

(See also my post of 3 December 2024 which refers to another of Mr Collins' columns in similar vein.)

The Existing Position

The Planning and Development Act 2000 (“PDA 2000”) presently requires applicants for Judicial Review to obtain the leave (permission) of the Court in order to seek JR of a planning decision.

A person shall not question the validity of a planning decision other than by way of Judicial Review under Order 84 of the Rules of the Superior Courts (“RSC”) (s50(2) PDA 2000). Order 84 rule 20(1) RSC provides that no application for JR shall be made unless the leave of the Court has been obtained. In planning matters, the Court shall not grant leave unless it is satisfied that there are “substantial” grounds for contending that the decision concerned is invalid and that the applicant has “sufficient” interest (s50A(3) PDA 2000).

The intention of this leave requirement is to filter out cases with no realistic prospect of success in order to avoid delay for both the parties involved and the Court system.

There has been much judicial debate over the years as to the meaning of “substantial” but, in practice. The bar is relatively low. The “sufficiency” of interest has also been debated, broadly interpreted (see Grace and Sweetman v ABP [2017] IESC 10) and (arguably) expanded to allow (especially) environmental challenges (see the recent discussion in Murphy v ABP [2025] IEHC 117 and my post on same of 20 March 2025).

Perhaps these relatively 'low bar' interpretations are the cause for the concern of Messrs O'Driscoll and Collins.

What Changes Does the PDA 2024 Make?

One of the driving forces behind PDA 2024 was to reduce the extent to which Judicial Review could delay (or prevent altogether) the approval of infrastructure.

The Fianna Fail 2020 Manifesto ominously promised to “clean up the legal landscape of planning and ensure the effective operation of our planning system so that more homes can be provided in a faster manner.” (p60) At the conception of what became PDA 2024 it was stated that “the planning system must be reformed to ensure that there is certainty and stability for those providing housing in Ireland...” (Housing For All: A new Housing Plan for Ireland, September 2021, p25) (all emphasis added).

PDA 2024 makes two changes to the 'bar' for Judicial Review, to the “sufficient interest” and ‘leave’ requirements.

“Sufficient interest” and “Material effect”

An applicant will no longer have “sufficient interest” unless s/he is or may be directly or indirectly “materially affected by the matter” (s286(1), emphasis added). This requirement is mitigated by the fact that “sufficient interest' will be established where an applicant for Judicial Review has made a submission to the decision-maker “material” to a ground of challenge (s286(3)).

It is already routine for objectors to make submissions. It will become a requirement of good practice. The task for objectors will be to ensure that their submissions are “material” to (and thus facilitate) every likely ground of challenge in a possible Judicial Review. “The applicant has to put in the hard yards and think the case through...” (Humphreys J, FoIE v Government of Ireland [2023] IEHC 562 §87).

Overall, I do not consider that the apparent tightening of the requirement for “sufficient interest” is likely to significantly restrict application for Judicial Review to any significant extent.

The requirement for leave

Tightening the requirement for “sufficient interest” is, however, somewhat academic in the future filtering of applications for Judicial Review because the requirement for leave is being removed altogether (s280(4)).

What will be the Likely Effect of the PDA 2024 Changes?

Arguably, the strength of argument presently required in order to secure leave is so low that removing its requirement will make no difference save to reduce delay and release judicial resource. What is more interesting is that another change introduced by PDA 2024 has not been made stronger.

By s283(1), any party to an application for Judicial Review will be able to apply to strike out an application on the basis that the;

• applicant does not have sufficient interest

• proceedings have not been brought in time

• applicant failed to exhaust a available appeal procedure/other administrative remedy (see Mernagh v Wexford CC [2025] IEHC 306 §137/48)

• grounds pleaded disclose no arguable case

The first three grounds reflect the basis upon which a party might presently apply for the Court to set aside a grant of leave. The last is more significant.

We should remind ourselves that at present an applicant is required to establish what PDA 2000 describes as “substantial grounds” in order to obtain the required leave to apply for Judicial Review. When Part 9 PDA 2024 is commenced, an applicant will not require leave at all. Instead another party to the proceedings will be able to apply for an order striking out the applicant's proceedings.

Here's the crucial point,