The High Court certified a question for appeal to the Supreme Court about how a person may establish a “substantial interest” to challenge a planning decision by judicial review, even without a financial or property interest.
The ruling, delivered by Mr Justice Clarke on 30 November 2006, concerns Thomas Harding’s proposed challenge to Cork County Council’s notice of intention to grant planning permission for an integrated tourism resort. XCES Projects Limited, then known as Kinsale Harbour Developments Limited, was the notice party.
In an earlier judgment on 12 October, the court refused Harding leave to bring the judicial review because it found he had not met the “substantial interest” threshold under section 50 of the Planning and Development Act 2000. The judge said Harding might have had sufficient interest under the traditional test, but his connection to the matter did not satisfy the more stringent statutory test. The court was not satisfied at that stage that an appeal to An Bord Pleanála would be an adequate remedy if Harding had standing.
Harding sought permission to appeal the standing decision. Under section 50(2)(f), an appeal required a High Court certificate that the decision involved a point of law of exceptional public importance and that an appeal was desirable in the public interest.
The judge declined to certify five proposed questions, finding that they concerned whether alleged failures of due process could establish or contribute to standing. That issue had not been raised as a basis for standing at the leave hearing, and the earlier judgment had addressed the alleged process concerns in considering whether an appeal would be an adequate remedy. The judge said those questions did not arise from the decision on standing.
He reformulated the remaining question as: “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 s. 50 of the Planning and Development Act, 2000 and has this court properly applied such criteria to the instant case?”
The judge found that the scope of the statutory threshold remained uncertain and had not been determined by the Supreme Court. He said clarification could affect many planning and environmental cases and provide a public benefit. The certificate permits an appeal on that question; it does not decide whether Harding had standing or determine the underlying planning challenge.