27 January 2023
Deeply troubling changes to Ireland’s planning legislation have been proposed by the Government with the publication of the Draft Planning and Development Bill 2022. The bill makes fundamental changes to the current system of access to justice in the Planning and Development Act 2000. If passed, the Bill would drastically reduce the ability of the public and environmental organisations to pursue judicial review proceedings on planning and environmental decisions which they view as being unlawful. The consequences of these changes will be to add delays, rather than speed development up, and will burden the under-resourced Court system. Government action is needed to alleviate the pressing issue of housing shortages and to deliver critical transport and energy infrastructure across Ireland, but the Bill threatens to exacerbate these crises.
Among the controversial changes in the 738-page bill are new restrictions on who has the right to take a case in planning, and an entirely new regime on cost protection in environmental cases. The bill proposes to make it significantly more difficult for the public to challenge legally flawed decisions. Further legal arguments and delays will invariably arise now in cases as a result of the Government’s changes if enacted. The public may have to fight for the right to take a case, and in seeking certainty on how they will be protected against incurring prohibitively expensive costs in advance of running up legal bills. The proposed bill lays multiple legal landmines for those pursuing a judicial review, and rather than streamlining Ireland’s planning system, will inevitably add to delays and costs. This comes at a time when Ireland urgently needs reliable delivery of housing and key infrastructure for energy needs.
Attracta Uí Bhroin, Environmental Law Officer of the Irish Environmental Network, commented on the proposed bill:
“You simply could not pick a worse time to constrain access to the Courts. We are piling on risk on top of risk, with major changes to Planning legislation and within An Bord Pleanála, including having Board members temporarily appointed from the civil and public service. We need stability and certainty, to be able to rely on access to the Courts as a safe port in the storm and to be able to sort legal challenges out quickly when things have gone wrong.”
“Instead of speeding things up in planning, the bill creates new criteria and huge burdens and obstacles for small organisations to take a judicial review. There will be arguments about the lawfulness of the changes being introduced. This will add to the complexity of cases and cause delays rather than solving problems. There are clearly major consequences and issues of concern on compliance with EU Law and the Aarhus Convention. The full 738 pages of the bill must be examined carefully, particularly in respect of access to justice and the implications for other sectors.”
Reflecting on her role as a member of the Planning Advisory Forum, Ms Uí Bhroin added:
“Contrary to the implication there has been consultation on the proposed bill, the scope of the changes to judicial review go way beyond anything discussed with the Planning Advisory Forum. In fact, members were assured that there would be no changes to the special rules on cost protection as part of the Attorney General’s review.”
“The public and civil society have been effectively blocked from commenting on and scrutinising on changes which go right across the entire Planning and Development Act – with no consultation envisaged with the wider public. As a result, the outcome of the Oireachtas scrutiny on this bill will be crucial to delivering effective legislation in Ireland. Good planning legislation benefits our environment, society and economy – the legacy of which affects generations to come in practically every aspect of daily lives.”
Dr Elaine Mc Goff spokesperson for An Taisce and the Environmental Pillar commented:
“What this Bill presents is a significant erosion and compromise of the public’s right to access justice and participate fully in the Irish planning process. Given that there is no evidence that the proposed Bill will have a substantive impact on reducing planning delays, it would appear to the Environmental Pillar that it is primarily an appeasement of developers and yet another facilitation of developer-led planning, at the expense of environmental Human Rights and Ireland’s wider legal obligations. Clearly lessons have not been learned from the chaos caused by the Developer led Strategic Housing Development provisions which were eventually abandoned.”
“This Government bill is replacing the current system on cost protection in the Planning Act so that the public, particularly those across rural Ireland, will now be faced with crippling uncertainty on how their legal bills will be met. In small, dispersed populations, the ability to raise money to take cases will be particularly challenging. And the worrying thing is, the details of a new scheme for costs will be specified outside the watchful eyes of the Oireachtas, with all the decisions on this being left to a Government who have demonstrated that they have a clear agenda to keep the public from holding public authorities to account. “
“It is hard to conceive of a more dysfunctional and inappropriate response from Government given elements of the Planning Bill published today. The draconian changes on rules governing Judicial Review in particular, will not serve the housing and homelessness crisis, or the need to advance critical infrastructure for transport and renewable energy given the climate and energy crises.”
“Given our awful track record, Ireland cannot afford to further restrict access to justice on matters of environmental protection. The highest level of oversight and scrutiny is required. It is critical that there is time given to allow for a thorough scrutiny by the Oireachtas on all the processes and stages for this Bill to address the incredibly serious issues with it, and to examine it properly in its entirety, before it passes into legislation.”