45. Part 2 of the Act of 2021 is amended by the insertion of the following Chapter after Chapter 8:

“Chapter 8A

Judicial review and MSPs and DMAPs

Judicial review of matters relating to MSPs and DMAPs

33A. (1) Where a point of law arises on any matter with which a public body is concerned under this Part, the public body may refer the point to the High Court for decision.

(2) A person shall not question the validity of any decision made or other act done by a public body in the performance or purported performance of a function under this Part in relation to a MSP or DMAP otherwise than by way of an application for judicial review under Order 84.

(3) A public body 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 public body, apply to the High Court to stay the proceedings pending the making of a decision by the public body in relation to the matter concerned.

(4) On the making of such an application, the High Court may, where it considers that the matter before the public body is within the jurisdiction of the public body, 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 shall be made within the period of eight weeks beginning on the date on which—

(a) the publication requirement of section 16(1), 17(2)(a) or (b), 17(3)(a) or (b), or 18(1) is complied with in respect of the public body’s decision,

(b) the publication requirement of section 26(1)(a) or (b), is complied with in respect of the public body’s decision,

(c) the publication requirement of section 29(1) is complied with, or

(d) the public body does the act concerned,

as appropriate.

(6) The High Court may extend the period provided for in subsection (5) within which an application for leave referred to in that subsection 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) References in this section to Order 84 shall be construed as including references to the Order as amended or replaced (with or without modification) by rules of court.

Provisions supplementary to section 33A

33B. (1) In this section—

‘Court’, where used without qualification, means the High Court (but this definition shall not be construed as meaning that subsections (2) to (6) and (9) do not extend to and govern the exercise by the Court of Appeal of jurisdiction on any appeal that may be made);

‘section 33A leave’ means leave to apply for judicial review under Order 84 in respect of a decision or other act to which section 33A(2) applies.

(2) (a) An application for section 33A 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 public body concerned, and

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

(3) The Court shall not grant section 33A 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) (i) the applicant has a sufficient interest in the matter which is the subject of the application, or

(ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176 of the Act of 2000, for the time being in force, as being development which may have significant effects on the environment, the applicant—

(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, and

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

(4) A sufficient interest for the purposes of subsection (3)(b)(i) is not limited to an interest in land or other financial interest.

(5) If the court grants section 33A 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 (3)(a).

(6) The determination of the Court of an application for section 33A 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.

(7) Subsection (6) 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.

(8) If an application is made for judicial review under Order 84 in respect of part only of a decision or other act to which section 33A(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.

(9) The Court shall, in determining an application for section 33A leave or an application for judicial review on foot of such leave, act as expeditiously as possible consistent with the administration of justice.

(10) On an appeal from a determination of the Court in respect of an application referred to in subsection (9), the Court of Appeal shall—

(a) have jurisdiction to determine only the point of law certified by the Court under subsection (6) (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.

(11) Rules of court may make provision for the expeditious hearing of applications for section 33A leave and applications for judicial review on foot of such leave.”.