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Explainer: How 'deeply controversial' planning law changes could lead to 'years of litigation'

A proposed Bill with last-minute amendments impacting judicial reviews is being voted on by TDs tonight.

Noteworthy - The Construction Network Investigation - Last minute deeply controversial changes to Bill will impact judicial reviews process used by community groups to overturn planning decisions. Changes criticised by politicians and environmental NGOs but welcomed by construction industry. Amendments could cause serious legal issues with one potentially incompatible with EU law.  Expert - There will be another three years of litigation trying to sort out the mess that this thing is creating.

POLITICIANS, ADVOCATES AND environmental NGOs have hit out at the Government for adding last-minute amendments to a proposed law due to be voted on today.

Late last Thursday, opposition TDs received 48 pages of amendments that were added to the Planning and Development (Amendment) (No. 2) Bill 2022 which was originally 18 pages long. That left just three working days for examination before voting on it this evening in the Dáil.

“Given how complex planning law is, and how complex the interaction between the courts and judicial review processes and planning, it’s really a very reckless way to make these kinds of changes,” Sinn Féin housing spokesperson Eoin Ó Broin told Noteworthy.

The proposed Bill primarily has to do with matters of substitute consent, a form of retroactive planning permission that unauthorised developments – such as quarries or wind farms – found to be in breach of EU law can apply for.

The Bill passed through the Seanad last month and was debated last week in the Dáil. It is due to be voted on in the Dáil this evening, as the Government works to push legislation through the Oireachtas before it breaks for the summer at the end of the week.

However, the new amendments put forward by the Government expanded the Bill to cover a wide range of issues outside of substitute consent, including new regulations for short-term lets and changes to the judicial review process, among others.

The Government has been strongly criticised for both the amendments and the way they were added at the end of the process, particularly in relation to the proposed changes to judicial reviews, which Ó Broin told the Dáil yesterday were “deeply controversial”. He also stated:

The idea that the Government would try and ram through 48 pages of technical legislation, many of which [the amendments] won’t even be dealt with in limited time… is wholly unacceptable.

Judicial reviews are challenges taken by citizens or groups to the High Court. In recent years they have been used extensively to challenge decisions made by An Bord Pleanála (ABP) in relation to large scale property developments.

TDs have been given 2.5 hours to finalise the Bill this evening, which Ó Broin said would only be enough time to cover the primary issue of substitute consent, without taking into account the proposed amendments.

According to an updated Order of Business for the Dáil, there will be an additional hour of discussion this morning also.

Attracta Uí Bhroin, Environmental Law Officer with the Irish Environment Network, said that the amendments were “throwing a minefield into the judicial review process”.

Attracta Uí Bhroin from the Irish Environmental Network - wearing a black top and necklace with the quote - Everywhere you step and look there are going to be problems… This is completely dysfunctional. It is counter-productive. Photo - Sasko Lazarov Photo - Sasko Lazarov

Uí Bhroin said that the Environmental Pillar – a network of environmental NGOs – is calling for the proposed amendments to be scrapped.

Her calls were echoed by Phoebe Duvall, Planning and Environmental Policy Officer with An Taisce, who said the amendments were “a stealth attack on public participation in the planning system”.

However, Conor O’Connell, incoming Director Housing, Planning and Development with the Construction Industry Federation (CIF), broadly welcomed the amendments as tackling issues around judicial reviews.

“We’re assessing them at the moment obviously, they’re just being published, but we’d welcome any streamlining of the proposals,” he said.

“We’ve seen an extraordinary rise in the number of judicial review cases taken against planning permissions that have been granted. So there’s obviously systematic problems with the application of the Planning and Development Acts and we’d welcome measures that would streamline that.”

Noteworthy, the investigative platform of The Journal, is currently examining the judicial review process as part of our upcoming investigation – THE CONSTRUCTION NETWORK.

So, what are judicial reviews, why have they become more commonplace in recent years and why are these amendments being made all of a sudden before the summer recess?

Growth in judicial reviews

In planning and development, there are special laws governing judicial reviews, as set out in Sections 50 and 50A of the amended Planning and Development Act 2000.

Under these laws, the High Court must be satisfied that the person or group taking a judicial review challenge has “substantial grounds” that the decision was invalid. They must also have sufficient interest in the case, and they must bring the challenge within eight weeks of the planning decision being made.

In recent years, the number of judicial reviews have shot up as a response to laws introduced by the last Government aimed at speeding up the planning process for large housing developments.

In 2017, the then Fine Gael-led Government brought in laws that allowed large developments of over 100 units of accommodation to bypass local planning authorities and go straight to An Bord Pleanála (ABP) for a decision.

These Strategic Housing Developments (SHDs) would then be decided directly by ABP, instead of being decided by a local authority.

If someone or a group felt that there was an issue with the lawfulness of the decision-making process, they could not lodge an appeal to ABP itself. The only option for local residents’ groups, environmental NGOs or concerned individuals was to challenge these decisions in the courts.

One of the most well known cases occurred at St Paul’s College, in Raheny, Dublin, where local residents opposed a development of 657 residential units on the site at St Anne’s Park.

Through a judicial review, they challenged ABP’s decision to grant planning permission in the High Court. The judge ruled in favour of the challenge and the board’s decision was struck down. ABP appealed this decision, but their appeal failed earlier this year.

In 2012, 17 decisions by An Bord Pleanála were subject to judicial review. This had risen to 41 in 2018. Two years later – in 2020 – there were over 2,600 planning decisions made by ABP and 83 judicial reviews taken.

This increased to a new record of 95 judicial reviews last year, according to figures released recently to Ó Broin and reported by The Irish Examiner.

Though the frequent use of judicial reviews has been criticised by Government and construction industry representative groups as slowing down development, an analysis of completed cases shows that a significant majority are decided in favour of the challengers.

According to Fred Logue – a solicitor whose firm represents many of the parties taking judicial review cases – 91 challenges to SHDs have come before the High Court since 2018, with 44 having reached a conclusion.

These have a success rate of over 70%, he added, with 32 out of the 44 winning the challenge. A total of three cases failed, and nine were settled. A decision is still pending in 47 of the cases.

Logue said that many more cases are still coming down the line. “There’s about 50 cases pending, and about 90 SHD decisions that are yet to be made, which is about 20% of the entire number of SHDs since it started,” he said.

Attempts to make challenges harder

As the number of judicial reviews rose throughout 2018 and 2019, the then-Government sought to amend existing laws to make it more difficult for cases to be brought to the High Court.

The last Government published a bill that aimed to make it harder for NGOs and individuals to bring judicial review challenges. This was met with fierce condemnation, particularly from environmental NGOs and advocacy groups, who said that many of the proposed provisions would go against EU laws on the right to access justice.

Following the 2020 general election, the Green Party sought to delay the changes to judicial review to coincide with the establishment of a separate Environmental and Planning Law Court to deal with matters of planning.

SHDs have since been wound down and the laws amended. However, there is still a significant backlog of cases to be determined – with many last-minute applications having been put forward by developers.

Earlier this year, Housing Minister Darragh O’Brien announced a significant overhaul of all planning laws that is due to take place following a review of the system by Attorney General Paul Gallagher.

This review is to be completed by the end of the year, and O’Brien informed the Oireachtas Housing Committee in April that any changes to judicial review would now be included as part of the wider overhaul, effectively sidelining the issue until later this year.

Following this, a separate set of proposed laws, the Planning and Development (Amendment) (No. 2) Bill 2022, was introduced into the Seanad in April, dealing with the matter of substitute consent.

At the time, Junior Minister Peter Burke notified senators that the Government would be introducing amendments at a later stage dealing with separate matters, including judicial review. However, the Bill cleared the Seanad last month with no amendments being made.

Darragh O'Brien, Minister for Housing, wearing a navy suit and blue patterned tie with quote - These are primarily streamlining-type proposals aimed at improving the efficiency... in relation to judicial reviews of planning cases Photo - Sasko Lazarov Photo - Sasko Lazarov

Speaking in the Dáil last Wednesday, however, Housing Minister Darragh O’Brien said that judicial reviews can cause “considerable delays in the progression of development proposals, including projects of strategic national importance” and that he was introducing a number of “streamlining amendments” in order to “improve the efficiency and effectiveness of the processes involved”.

Junior Minister Niall Collins said last Thursday that the amendments were being put forward in order to reduce “unnecessary judicial reviews and help to achieve Government policy in this regard”.

A spokesperson for the Department of Housing told Noteworthy that these “streamlining-type amendments” were introduced by the Government “so cases can be more speedily addressed and resolved, thereby potentially reducing the number of judicial review cases and the time taken up in the Courts in dealing with such cases”.

They added: “The Planning and Development (Amendment)(No 2) Bill 2022 was identified as the legislative vehicle through which that change to Planning legislation could be most speedily introduced. Otherwise the change would have had to wait until towards the end of the year.”

The spokesperson said that Department officials briefed “members of the Seanad on the proposed amendment on 25 May 2022″ and members of the Joint Oireachtas Housing Committee “on proposed amendments in advance of Wednesday’s [today's] Committee Stage in the Dáil”.

‘Proper scrutiny’ needed

This “streamlining” lead to the 48 pages of amendments to the new planning bill being given to TDs late on Thursday, leaving just three working days to examine them before tonight’s vote.

There are three central amendments being brought to the judicial review process under the proposed new law. If brought into law, they:

  1. Allow ABP to amend its decision after the judicial review process has started – this means the board can retroactively change parts of its decision if the challenge has found it has made an error
  2. Require the High Court to ensure that all other administrative avenues have been exhausted before it grants leave for the appeal to be taken
  3. And also require the High Court to send the case under review back to the planning authority when a decision has been made on the judicial review

Sinn Féin’s Ó Broin said he was informed by officials that the amendments only related to a small number of cases, so he questions the urgency with which they are being pushed through the Dáil, and why they can’t be implemented as part of the wider review being conducted by the AG. He added:

“There is no reason why the judicial review provisions in the amendments which we’re dealing with this week couldn’t be in that wider piece of legislation [coming later this year] and we could have proper scrutiny and attention paid to them.”

Ó Broin said that he didn’t “want to overstate what may be the negative impact of this” but before making a “decision on whether to vote for this or not”, he would prefer to speak to experts such as the Irish Planning Institute. “But we won’t have any of that opportunity.”

‘Extraordinary power’ given to ABP

According to Fred Logue, the amendment which allows ABP to change its decision mid-challenge is of particular concern, and will cause serious legal issues and further delays if implemented. He told Noteworthy:

Fred Logue, planning law expert - wearing a suit jacket and speaking into a microphone - with quote - That's an extraordinary power. It's actually unbelievable. There's nothing like it that I know of in existence. Photo - Leah Farrell Photo - Leah Farrell

“It’s grossly unfair to somebody who has basically spent the money to take a judicial review to find that the goalposts have been moved after they started their proceedings and that they effectively end up challenging a different decision that wasn’t in existence when they started.”

In general, he said the amendment gives no proper procedural framework of how it will be legally implemented, and that it will cause huge delays down the line.

“It’s just going to lead to more litigation. People will start challenging that. And there will be another three years of litigation, trying to sort out the mess that this thing is creating.”

Logue also takes issue with the other two amendments. In relation to the need to exhaust all other options before taking a challenge to the High Court, he said that this provision is already mostly in place, and only a very small number of cases don’t comply with this rule.

However, he said, by putting up an “absolute barrier” to allowing a court to grant leave to a case without all other avenues being exhausted, the Government will be contravening EU laws around access to justice.

That amendment is completely contrary to EU law. It’s fundamentally incompatible to EU law. Because it doesn’t give the court any flexibility on allowing judicial review without exhaustion if it’s required.

For the final amendment, Logue said that by making the court send the case back to ABP, the Government is interfering in a decision that should be the High Court’s to make, and that there has never been a significant issue in the past with cases being remitted [sent back].

“Practically speaking, most cases do get remitted. There’s never been any issues with it. The remittal discretion is quite limited in practice,” he said.

“But again, I can’t understand why they’d put in such an obviously problematic provision when there’s no actual issue that it’s solving.”

‘Streamlining’ welcomed by construction industry

Houses under construction with quote in front from Conor O'Connell from the Construction Industry Federation - We've seen an extraordinary rise in the number of judicial review cases taken against planning permissions that have been granted Photo - Eamonn Farrell Photo - Eamonn Farrell

Conor O’Connell of the Construction Industry Federation (CIF) said that the amendments were necessary, pointing towards a drop in planning permissions last year as indicative of serious problems in the sector.

In response to queries over the high success rate by applicants in judicial review cases, O’Connell said that it seemed to be “indicative of a fragmentation in relation to the planning system or the use of the legal system by some individuals to delay applications that have been granted at a local authority level or ABP level”.

When questioned by Noteworthy if CIF had lobbied specifically for the proposed amendments to be brought forward before the summer recess, O’Connell said:

“We have always said on a general basis that the process needs to be streamlined. The method through which that process is streamlined is completely up to the legislator.”

He said that in relation to land that was zoned for housing, there should be the “presumption of development”, and that many judicial review challenges boiled down to complex interpretations of EU laws and directives, and that it was “very frustrating” from a construction industry perspective.

I don’t think it’s in anyone’s interest that there are these interpretation issues arising in legal environments when we have a planning system put in place to assess planning processes and applications.

According to Attracta Uí Bhroin, however, the proposed amendments will only serve to further frustrate the planning process and slow down development.

“Anybody who wants to see timely decisions and development facilitated should be looking to have robust sound legislation that is clear and compliant and that has been scrutinised properly. Are we even having it in respect of these [amendments]? No.

“Secondly, they should be improving the resources and the imperative on the decision makers in making good quality decisions. Are they doing that here? No.

“The best way to stop judicial review is to have good decisions. For good decisions you need sound decision making and sound legislation. And both of those are compromised here.”

The issue is due to be debated in the Dáil later today, with a vote on the Bill expected to take place this evening.

This article is part of Noteworthy’s upcoming investigation THE CONSTRUCTION NETWORK to be published later this year. For this, reporter Cormac Fitzgerald is examining construction industry lobbying, including around judicial review reform.

Design for THE CONSTRUCTION NETWORK - Two business people in suits shaking hands

This investigation was proposed and funded by readers of Noteworthy, the investigative journalism platform from The Journal. You can support our work by submitting an investigation idea, funding a proposed project or setting up a monthly contribution HERE>>

We also have a number of other projects focused on politics which you can view here.

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