13 December 2022
Today at cabinet the Government approved a new consolidated Planning Bill on foot of the review of the Attorney General of the Planning and Development Act1, with the changes to the Act to be advanced within the Oireachtas in the new year. The outline2 for this bill published today is raising alarm within the Environmental Pillar, the advocacy coalition of national environmental NGOs in Ireland, particularly in respect of changes to rules on Judicial Review.
The Planning Act forms the basis for all major construction and development in Ireland. The avowed intentions of the review are to streamline and address flaws and confusing complexity in the existing Act, which in principle is welcomed3. But while the specific text of the Bill has yet to be published, the outline of the Bill together with comments from Government and other sources, paint an alarming picture. Certain changes will severely limit the ability and rights of the public, its associations and organisations to challenge unlawful planning decisions in the Court and hold public authorities to account. Multiple changes are proposed, including significant alterations to the existing special cost rules, which were introduced to comply with EU law and the Aarhus Convention. The Pillar fears this would substantially increase uncertainty on the risk of prohibitively expensive exposure to costs, which is known to have an intimidating and deterrent effect on those considering challenging decisions that fail to address legal requirements.
The Environmental Pillar is significantly concerned about this element of the Government’s agenda to curtail access to the courts. Serious questions now arise on how these changes can comply with EU and international law obligations binding on Ireland, and indeed the Irish Constitution. Government argues that restrictions on rules around Judicial Review of planning decisions are necessary given the increase in such challenges in the courts and the need to advance housing and infrastructure.
Attracta Uí Bhroin, Environmental Law Officer of the Irish Environmental Network commented: “we are deeply concerned that the changes being indicated don’t comply with requirements under EU law and under the Aarhus Convention for providing the public and environmental NGOs with access to justice.” She continued, “instead of reducing delays these additional issues are likely to backfire and add to the complexity, length and cost of legal proceedings, as these issues invariably will need to be dealt with in satellite litigation – alongside the core issues in the cases – adding delay and frustration.”
The Environmental Pillar highlights that there has been clear vindication for taking such challenges – with even the Office of the Planning Regulator reporting that there was an exponential increase in the amount of An Bord Pleanála’s decisions which the courts found to be unlawful4. The changes being mooted are likely to cause problems by adding to the number and complexity of arguments in cases, while causing greater delays and frustrations.
Dr. Elaine McGoff of An Taisce and Spokesperson for the Environmental Pillar said, “assurances from this Government that the changes will comply with legal obligations are sadly not convincing. We saw how this Government railroaded two changes on Judicial Review in before the summer recess5 – and we understand one of those changes is now already subject to litigation.”
Today the Cabinet approved a bill to supposedly improve issues and flaws in the planning act, but tomorrow the Government will be railroading through another Planning Bill, which we argue has obvious legal flaws6. On top of these flaws, the Bill will very controversially give the Minister and Government extraordinary power over An Bord Pleanála, the body at the apex of our planning system.
Dr. McGoff also said, “the bill to be passed before Christmas has alarmingly gotten little public attention, but it will eradicate five decades of policy to keep the Board independent of political control. It also explicitly removes multiple existing safeguards in the Act to keep the power of the Minister and Government in check.”
Attracta Uí Bhroin added, “to add insult to injury the Government are moving to compromise the independence and arguably the experience and quality of the decision-makers in the Board before Christmas, and after Christmas they then plan, with the changes proposed on Judicial Review, to limit the public’s ability to hold the Board to account before the Courts where necessary.”
The bill going before the Dáil tomorrow also introduces last minute proposals for housing on state lands, which the Pillar argues are legally flawed and which include provisions that effectively block public participation. It also brings changes to foreshore licences which are highly contentious. The resulting issues are expected to add to delays in advancing offshore renewable energy.
Dr. McGoff concluded, “The Government needs to solve the problems driving legal challenges at source – by addressing flawed legislation and poor quality planning decisions. But here we are again rushing through another planning bill before Christmas, with guillotined debate. That means there is no chance of obvious issues being addressed before it becomes law and drives more flawed decisions from what will be in the future now a very compromised Board if tomorrow’s bill passes.”
The Pillar is urging people to actively call on Government TDs to reject the changes proposed for An Bord Pleanála, to support amendments for a more nuanced approach to the Foreshore Act contained in the Bill, and to address legal flaws in the changes to the new s.179A for Housing.
1 Government announcement of Planning Review by Attorney General here.
2 Outline of the proposed Planning and Development Bill available here.
3 The review announced here, amongst other things, was supposed to streamline and sort out issues and flaws in what is now undoubtedly a lengthy and complex Planning and Development Act which has over a thousand incremental changes made to it.
4 Page 48 of the OPR phase one report into An Bord Pleanála – here.
5 Section 22 of The Planning and Development, Maritime and Valuation (Amendment) Act 2022
6 The Planning and Development and Foreshore (Amendment) Bill, 2022.