I thank Deputy Kirk for raising this issue. Legislation on planning is the responsibility of my colleague, the Minster for the Environment, Heritage and Local Government. As the Deputy will appreciate, I cannot comment on planning matters and must, of necessity, confine my comments to the court's response to the issues raised by the Deputy.
Generally, recourse to the courts in planning cases would normally arise at the end of what is usually a lengthy administrative process and any additional delay which might arise regarding adjudication by the courts would have to be viewed in this light. It would be undesirable and probably impossible to limit access to the courts in such matters. It is certainly not an approach which I support. I am certainly prepared to look at the issue of unnecessary delay if there is delay in processing such cases in the courts but in this matter I do not believe that there is evidence of such.
The courts are, subject only to the Constitution and the law, independent in the exercise of their judicial functions and therefore it is not open to me to comment or intervene in any way regarding how a particular case was conducted or the outcome of any such proceedings. These are matters entirely appropriate for the presiding judge and it would be inappropriate for me, as Minister, to comment or intervene in such matters.
An appeal based on good grounds of a decision of a planning authority should normally be the end of the planning process. Court intervention should only be sought where there is a manifest error in the procedure that has taken place. The courts do not decide planning matters and the merits of planning decisions are not normally matters for the courts. People who believe that they can, by invoking the courts' jurisdiction, throw logs across the road of others' entitlements to develop their land should remember that they are invoking the jurisdiction of the court not on the merits of their case but purely on grounds of judicial review, which would be confined in large measure to procedural error, bias or wholly unreasonable decisions. I say this because some feel that when they are finished with the application they have opposed and the appeals procedure in which they have been unsuccessful, the next step is simply to go to the courts. The courts must be conscious that this is not a third level of appeal but that it exists purely to correct manifest error in the way in which the first two rounds of the administrative decision were made.
It should also be said that the courts do not intervene lightly – I hope not – and should not do so in any circumstance in which damages would be an adequate remedy by way of injunction or restraining order.
Those who invoke the jurisdiction of the courts, as of course, to object to everything with which they disagree at a primary and appellate level in the planning process should remember that they do so at their own expense and risk. I presume that in most of these cases – maybe I am wrong – undertakings as to damage suffered or likely to be suffered by the person affected by an injunction or undertakings to pay the damage occasioned by an injunction being wrongfully given are usually sought from the person who is looking for an injunction.
Under the Courts Service Act 1998, the Courts Service, which is responsible for the day-to-day management of the courts, is independent in the performance of its functions. As Minister, I am responsible for ensuring that the service is adequately funded and, in this respect, €92.179 million was provided to it in 2003. This represents a 5.6% increase on 2002. The funding provided allows the Courts Service to progress the implementation of its strategic plans and policies specifically in the areas of information technology and capital building programmes. I am confident that the level of funding provided for the Courts Service is adequate to maintain existing levels of service and to implement the strategic plans.
The strategic plan is designed in such a way that the courts can provide an efficient, speedy and user-friendly service for people seeking a legal remedy. The service places particular emphasis on the implementation of an IT strategy to meet the operational requirements of all offices and facilitate the provision of a high quality service for all who use the courts. The service actively assists the Judiciary in respect of all initiatives undertaken by it in relation to judicial case management. The implementation of judicial practice directions aimed at reducing waiting times in the non-jury-judicial review list in the High Court, which enables parties who are ready and willing to go to trial to obtain a speedy hearing, is a good example.
Deputy Kirk will appreciate that the allocation of the business of the High Court is a matter for the President of the High Court. With regard to the particular concerns raised by the Deputy, I understand that the president last year assigned two judges with particular expertise in the area to deal with judicial review applications relating to planning and environmental matters, with particular regard to infrastructural projects. This was done with a view to according such cases the facility of an early hearing.
As soon as the parties are ready to proceed the matter is given a date for hearing within a matter of weeks rather than months. I know there have been occasions on which parties turned up for a hearing although no judge was available. Normally, the delay in getting cases ready for hearing is largely a matter for the parties themselves. The solution to this is to apply rigorous case management to such cases, which would be a matter for the presiding judge. It is open to the trial judge to direct the timescale within which steps should be taken. The court has an effective remedy where the applicant is in default as the matter can be struck out for want of prosecution. However, where the delay is on the part of the respondent, usually a State or semi-State body, there is no effective remedy available to the judge if the timescales are not adhered to.
On delays in court proceedings generally, section 46 of the Courts and Court Officers Act 2002 provides for a register of reserved judgments. The appropriate commencement date for that section is now under consideration.
As regards judicial resources, seven additional judges were appointed under the provisions of the Courts and Court Officers Act 2002 – two High Court judges, three Circuit Court judges and two District Court judges. Furthermore, at its meeting today the Government decided to introduce legislation to provide for two additional judges of the High Court. The provision of these additional resources is assisting the objective of reducing delays generally.
With regard to a possible change of the jurisdiction of the courts, a high level working group on court jurisdiction was established last year by the Courts Service Board. This group is undertaking its task in modules. The first was criminal justice, which reported earlier this year. The group is now proceeding to examine civil jurisdiction and will, I have no doubt, as part of its work consider the issue of the desirability of a divisional structure for the High Court. That may be of relevance to the issues raised by the Deputy.
I have great sympathy for Deputy Kirk and the points he has raised. I also have great sympathy for anybody who feels, rightly or wrongly – I cannot comment on any particular case – that the courts jurisdiction is being invoked to effectively throw logs across the road when all the other procedures have been completed. However, remedies are available. The first is the vigilance of the Judiciary to stop the abuse of the system by those who effectively use the courts as an appellant structure where an appeal is no longer available. Second, undertaking as to damages where injunctions are given pending the outcome of the case should be seriously looked at in cases where people are suspected of availing of the courts procedures simply on an obstructionist basis. Third, those who go to court in circumstances where somebody else will suffer severe damage if the matter is delayed at great length or if an injunction is wrongly given, must face the consequences that this is not a free service, freely available without cost, that there will be costs to be paid by unsuccessful parties and that parties who cannot measure up to the bar or be able to fund the damage they may cause by unnecessary litigation will have serious consequences exacted from them in the event of them failing to press home their case.
I have great sympathy for the points raised by the Deputy. I cannot comment on any individual case, but the resources are available, as are the processes to reform civil procedure. However, even as things stand, there is every case for vigilance to ensure that having exhausted all the planning remedies, people do not simply resort to the courts as another stage in obstructing others from getting on with the business of developing this country for the good of all.
The Dáil adjourned at 9.15 p.m. until 10.30 a.m. on Wednesday, 1 October 2003.
