Last week O'Flynn Capital Partners, a John O'Flynn company, recently sought to have a legal challenge to a refusal by An Bord Pleanála to grant planning permission for a development in Cabinteely, Co. Dublin admitted to the Commercial Court.  The decision to refuse planning permission for O'Flynn Capital Partners to demolish 6 houses and construct 34 new houses in their stead left O'Flynn with little choice but to challenge the decision.  Dún Laoghaire-Rathdown County Council had previously granted planning permission.  

Judicial Review is the legal means by which O'Flynn can challenge the legality of a decision of An Bord Pleanála before the High Court.   Judicial review proceedings are not concerned with the merits of a case, but instead with the legality of the decision-making process.  The High Court exercises its supervisory role by protecting against abuse of power by public bodies. The High Court will never replace the decision of a specialised planning authority with its own. Instead, where there are grounds, it usually quashes or strikes out the decision and remits the decision making back to the planning authority with directions. 

Ordinarily one seeks 'leave for judicial review' of a planning decision within 8 weeks of that planning decision.   The applicant has to show they have a substantial interest in the outcome and that they have substantial grounds for challenging the decision.  Once leave is granted then a hearing date will be fixed to hear the challenge in more detail many months, if not a year or more later. 

The Commercial Court was established in 2004.   The criteria for admission to the Commercial Court list is that the dispute must be valued in excess of €1m, be between commercial parties and the subject matter of the dispute is commercial.  The advantage is the  'fast tracked' hearings that the Court ensures by way of 'no nonsense' case management.  Commercial Court actions are heard in a fraction of the time, usually within 3 - 6 months of commencement.  That of course is good news for developers who need to get planning sorted so they can build out their developments in a tight economic window.

After initial success dealing with genuine commercial disputes in those frothy years of the Celtic Tiger, from 2009 to 2016 this specialised division of the High Court spent its time awarding paper judgments against developers based on historic personal guarantees.  Now however we can see the next cycle of commercial disputes happening - in the planning cycle.  I noted six senior counsel renowned for their planning expertise in the first sitting of the new term of the Commercial Court last week.  I suspect I may be darkening the door of this Court more often.

Leman Solicitors specialise in judicial reviews of planning decisions.