5 May 2023
The Environmental Pillar, an advocacy coalition of 32 environmental non-governmental organisations, is demanding that leaders in Government pause and re-evaluate their strategy on the proposed new Planning Bill1. Government must listen to and address the major concerns that have come forward from a diverse range of stakeholders on the delays, uncertainty and other problems the bill is set to cause in Ireland’s planning system. This call echoes the Pre-legislative Scrutiny (PLS) Report2 published this week, which has an unprecedented 153 recommendations on the controversial bill3,4. It sends a clear message that significant changes and further work are needed before this bill advances to the floor of the Oireachtas. Included in the report are welcome recommendations that changes proposed to the Planning Act be explained and justified, along with calls for regulatory impact assessment, public consultation and for the legislative process not to be rushed5. However, grave concerns remain that the report’s approach fails to solve the risk of delays to development arising from the bill’s changes to rules on judicial review.
Attracta Uí Bhroin, who is the Environmental Pillar’s representative on the Planning Advisory Forum6 said:
“The report’s message that this bill is deeply problematic is directed to Ministers Darragh O’Brien, and Kieran O’Donnell in the Department primarily responsible for the bill, and also to Minister Eamon Ryan, who has responsibility for Ireland’s compliance with the Aarhus Convention. We call on Minister Ryan to preserve fundamental rights of access to justice and remove the most controversial elements of the bill that change rules on judicial review.”
“The changes proposed on judicial review are an unprecedented rollback and regression of Aarhus rights implemented on access to justice. The report highlights multiple issues with the bill’s changes to judicial review, but it adopts a piecemeal approach to them and fails to grasp the nettle and reject them outright. This begs the question as to whether there is a real appetite within Government TDs and Senators to do the right thing to avoid the delays which will result from the changes proposed.”
Attracta Uí Bhroin, added: “Contrary to the Government’s positive spin on its bill, the Joint Oireachtas Committee heard from multiple and diverse stakeholders, including barrister and solicitor groups that the bill’s changes to rules on judicial review will be counterproductive and will cause delays, and uncertainty on the delivery of homes and critical energy and transport infrastructure. That’s an unacceptable outcome.”
“The delays the bill will cause are of core concern, but we make no apology for taking issue with the changes on judicial review in their own right. Judicial review is a key mechanism for holding public authorities to account, and to maintain high standards in decision making and compliance with the law. At a time of interdependent climate and biodiversity crises we need to be improving the quality of environmental decisions, not lowering the bar and taking our eyes off them.”
Phoebe Duvall, Planning and Environmental Policy Officer for An Taisce, the National Trust of Ireland, emphasised that:
“Not one shred of evidence has been put forward to justify and rationalise changes to judicial review. These changes are being made in the context of an alarmist and false narrative, vilifying judicial review and those who take challenges. Yet as the Committee heard, even from the Planning Regulator, judicial reviews are taken on a tiny proportion of decisions7. The vast majority of cases have been totally vindicated, with the planning decisions being found to be unlawful.”
“In recent days we have also heard the new interim Chair of An Bord Pleanála warn against the effects of the bill in driving litigation8. The CEO of Glenveagh homes, Stephen Garvey, also called9 for pause, and to allow changes already made on housing legislation to be evaluated first and not to pile change upon change, and risk upon risk.”
Duvall concluded: “This bill can’t be rushed and it is hard to see why the Government believe they should hurry to enact it before the summer recess given the complexity of the bill, its enormous implications for society and the environment, and this report which highlights that so much change and work is needed.”
The Department has indicated that a further version of the bill will be prepared to go before the legislature, and it will also include a number of further new complex sections. The extent to which the Committee’s 153 recommendations will be reflected in the approach to the final bill remains to be seen.
1The Draft Planning and Development Bill, 2022; Government are proposing the bill to replace the current Planning and Development Act, the legislation which governs virtually all physical development in Ireland.
3The Draft Planning and Development Bill, 2022.
4The Joint Oireachtas Committee commenced its scrutiny within just 7 days of the publication of the complex 738 page bill. Nine three hour sessions of public hearings were conducted from Feb 7th to March 9th, including two sessions with the Department of Housing Local Government and Heritage, and a range of other stakeholders. There were 27 hours of oral evidence on the bill whose table of contents alone runs to 28 pages.
5See recommendations: #136 and #135.
7Based on the Office of the Planning Regulator’s latest Annual review of Planning, 2021, in terms of the number of decisions taken by An Bord Pleanála in 2021, just 3% were subject to judicial review. That represents just 0.25% of decisions taken by Local Authorities and An Bord Pleanála in 2021. Niall Cussen, the Planning Regulator, also commented when giving evidence to the Committee: “Every year 30,000 decisions are made by planning authorities. The vast majority of these are by local authorities within statutory timeframes. We highlighted this in the planning overview report we published recently. It is a story that very often is not told to the public. The vast majority of applications handled by planning authorities are approved. In some cases in local authorities this is to the tune of 80% to 90%. Insofar as there have been very well-flagged challenges and issues in the planning process, they are a very small part of the wider day-to-day operation of the planning process that is discharged without a great degree of drama.”
9RTE Prime Time, Apr 20th 2023, https://www.rte.ie/player/series/prime-time/SI0000000825?epguid=IH10000976-23-0031