Water Environment (Abstractions and Associated Impoundments) Act 2022

• Permanent Page URL

Chapter 6

Miscellaneous provisions relating to licences

Judicial review

56. (1) Where a point of law arises on any matter with which the Agency is concerned under section 27 , 35 , 44 , 49 , 50 or 51 , with which the Board is concerned under section 67 or with which the Minister is concerned under section 81 , the Agency, Board or the Minister may refer the point to the Court for decision.

(2) A person shall not question the validity of any decision made or other act done by the Agency under section 27 , 35 , 44 , 49 , 50 or 51 a decision made or Act done by the Board under section 67 or a decision made or other act done by the Minister under section 81 otherwise than by way of an application for judicial review under Order 84.

(3) The Agency, the Board or the Minister may, at any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (2) applies and which relates to a matter for the time being before the Agency, the Board or the Minister, apply to the Court to stay the proceedings pending the making of a decision by the Agency, the Board or the Minister in relation to the matter concerned.

(4) On the making of such an application, the Court may, where it considers that the matter before the Agency, the Board or the Minister is within the jurisdiction of the Agency, the Board or the Minister, make an order staying the proceedings concerned on such terms as it thinks fit.

(5) Subject to subsection (6), an application for leave to apply for judicial review under Order 84 in respect of a decision or other act to which subsection (2) applies (in this section referred to as an “application for leave”) shall be made within the period of 8 weeks beginning on the date of the Agency giving notice of its decision under section 27 , 35 , 44 , 49 , 50 or 51 , the Board giving notice of its decision under section 67 (3) or the Minister making an order under section 80 (4) or giving notice under section 80 (6) or, as the case may be, the date of the doing of the act by the Agency, the Board or the Minister, as appropriate.

(6) The Court may extend the period provided for in subsection (5) within which an application for leave may be made but shall only do so if it is satisfied that—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.

(7) (a) An application for leave shall be made by motion ex parte and shall be grounded in the manner specified in Order 84 in respect of an ex parte motion for leave.

(b) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.

(c) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in Order 84 in respect of an ex parte motion for leave)—

(i) to the Agency, the Board or the Minister, as the case may be, and

(ii) to any other person specified for that purpose by order of the Court.

(d) The Court may—

(i) on the consent of all of the parties, or

(ii) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,

treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.

(8) The Court shall not, on an application for leave, grant the leave unless it is satisfied that—

(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and

(b) the person applying for leave—

(i) has a sufficient interest in the matter which is the subject of the application, or

(ii) where the decision or act concerned relates to an abstraction identified in accordance with Part 5 as an abstraction which may have significant effects on the environment—

(I) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection,

(II) has, during the period of 12 months preceding the date of the application for leave, pursued those aims or objectives, and

(III) satisfies such requirements as may be prescribed under section 57 (2)(q).

(9) A sufficient interest for the purposes of subsection (8)(b) is not limited to an interest in land or other financial interest.

(10) If the Court, on an application for leave, grants the leave, no grounds shall be relied upon in the application for judicial review under Order 84 other than those determined by the Court to be substantial under subsection (8)(a).

(11) The Court may, as a condition for granting leave, require the applicant for such leave to give an undertaking as to damages.

(12) The determination of the Court of an application for leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Court of Appeal in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

(13) Subsection (12) shall not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

(14) If an application is made for judicial review under Order 84 in respect of part only of a decision or other act to which subsection (2) applies, the Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring invalid or quashing the remainder of the decision or other act or part of the decision or other act, and if the Court does so, it may make any consequential amendments to the remainder of the decision or other act or the part thereof that it considers appropriate.

(15) The Court shall, in determining an application for leave or an application for judicial review on foot of such leave, act as expeditiously as possible consistent with the administration of justice.

(16) On an appeal from a determination of the Court in accordance with subsection (12) in respect of an application for leave or an application for judicial review on foot of such leave, the Court of Appeal shall—

(a) have jurisdiction to determine only the point of law certified by the Court under subsection (12) (and to make only such order in the proceedings as follows from such determination), and

(b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice.

(17) Rules of court may make provision for the expeditious hearing of applications for leave and applications for judicial review on foot of such leave.

(18) In this section—

“Court”, where used without qualification, means the High Court (but this definition shall not be construed as meaning that subsections (8) to (11) and (14) do not extend to and govern the exercise by the Court of Appeal of jurisdiction on any appeal that may be made);

“Order 84” means Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ).