These two amendments to the Bill were made by the Seanad at my request. They arise from difficulties which have arisen in relation to particular development proposals for which planning permission has been granted on appeal subject to the most stringent environmental and other conditions. So far as I am concerned, anybody who is dissatisfied with an appeal decision is entitled to go to the High Court to seek to have the decision quashed if he has reasonable grounds for doing so, but I do not think that a person should be entitled to obstruct a developer by threatening to take a High Court action at some future date.
Under section 82 (3) of the 1963 Act, which is being replaced by a provision of section 42 of the Bill, an appeal lies to the High Court on a question of law which arises on any appeal, and such an appeal to the High Court must be taken within three months after the giving of the decision or such longer period as the High Court may in any particular case allow. Apart altogether from this provision, the general law entitles a person at any time to apply to the High Court for an order of certiorari or a declaratory order seeking to have a particular appeal decision quashed and there is no time limit on this.
As I have said, I have no wish to deprive anybody of right to apply to the High Court seeking to have an appeal decision quashed in a case where the person considers that there are grounds for so doing, but I think it is only reasonable that, if a person wishes to exercise this right, he should initiate the proceedings within a reasonable time. It is only fair that there should be some provision to ensure that all objections to a particular development proposal can be brought to a speedy end. For this reason I put down amendments which in effect involve a reasonable regulation of the right to access to the courts to question a decision made either by a planning authority on an application for permission or by the Minister or the board in an appeal case. There are precedents for this type of provision both in English law and in our own law, for example, in the provisions of the Housing Act, 1966, dealing with the confirmation of compulsory purchase orders.
I have given a considerable amount of thought to the period which should be allowed under the proposed new provision for the initiation of proceedings in the High Court. In the interests of bringing a case to finality and enabling a worth-while development to go ahead as quickly as possible, I would like to provide for quite a short period. However, I think we must recognise that people who may have a legitimate grievance will need time to consult with their legal advisers and to weigh up the pros and cons of proceedings in the courts. Moreover, if we were to provide for an unduly short period there could, perhaps, be a danger that the entire provision might be found to be unconstitutional in that it would represent a unreasonable interference with the right of access to the High Court. In all the circumstances, I have been advised that a two-months' period would be appropriate, and I had the amendment drafted accordingly.
I should, of course, point out that even if we set a fairly limited period for applying to the High Court in a case where the validity of a permission is being challenged, a considerable delay could still result before the case would come to a hearing or judgment could be delivered. I am advised that nothing can be done about this by way of further amendment since it would not be appropriate to attempt to regulate court procedure in the Bill. I might mention, however, that once proceedings are initiated in the High Court, a developer will have some remedy because, if there is unreasonable delay on the part of the person who instituted the proceedings, an application can be made to the court for an order either directing that the statement of claim, and so on, should be lodged quickly or, alternatively, striking out the proceedings. The type of case about which I am particularly concerned is the case where a person does not actually institute proceedings but threatens to do so if and when a development commences. I am satisfied that the proposed amendment of the 1963 Act would, at least, prevent this type of situation arising in the future.
The amendments themselves are largely self-explanatory. The first proposes that the existing section 82 (3) should be redrafted to confine it to cases where points of law which arise in appeal cases may need to be referred to the High Court either by the Minister or the board. A new subsection (3A) is then being inserted to provide for the type of limitation about which I have been speaking in the case of proceedings designed to challenge the validity of a planning decision. The second amendment of section 42 is purely consequential; it takes account of the redrafting of section 82 (3) which is effected by the first amendment.
