A FINE GAEL junior minister has claimed that a quarter of planning applications for large-scale housing developments are subject to judicial review.
Minister of State for Planning and Local Government Peter Burke made the claim during a radio interview last month, when he used it to justify his proposals to reform the planning system.
One of Burke’s proposals is to reduce the number of judicial reviews which Strategic Housing Developments (SHDs) are subject to, amid concerns that the court system is slowing the construction of new homes.
The claim is particularly stark in the context of a housing crisis, and could be used as an argument in favour of planning reform that could prevent delays by reducing the number of housing applications that go through the courts system.
It should be noted that this proposal would also change how people could legally challenge a development that may adversely affects themselves and their community.
Given the seriousness of the issue, let’s take a look at the claim.
During an interview on News at One on RTÉ Radio One on 31 January, Burke said that one quarter of all Strategic Housing Developments are challenged in the courts system:
In the SHD process for developments of over 100 units, one in four was challenged in a judicial review.
News at One host Bryan Dobson later pushed Burke to provide the exact number of homes that had been delayed because of judicial reviews.
However, the junior minister was unable to give the figure, and repeated his claim again that it was “one in four of all applications”.
The claim was subsequently reported by a number of media outlets including the Irish Times, BreakingNews.ie and RTÉ, the latter saying that “one in four planned new houses are being blocked”.
Let’s start with some basics, because SHDs involve a policy in the planning system – an area that can be a little complex and jargon-laden.
What is an SHD?
SHDs or Strategic Housing Developments were introduced in 2016 ostensibly to speed up the building of large-scale housing developments to make up housing shortfalls.
Under the old system, all planning applications had to go through local authorities.
Once the council had made its decision, an application could be appealed to An Bord Pleanála by a developer (if the council rejected them) or a third party, such as a member of the public (if the council granted planning permission).
Instead, SHD applications were allowed to bypass local authorities and go straight to An Bord Pleanála – Ireland’s independent planning body.
To qualify as an SHD the development had to contain 100 or more houses, student accommodation or a mixture of the two.
By allowing SHDs to go directly to An Bord Pleanála, a layer of the appeal process was removed. Now there was no higher planning authority for third parties or developers to appeal that decision to.
So if someone wanted to appeal a decision that An Bord Pleanála had made about an SHD, they would have to do so via judicial review – which means going to the High Court to challenge the way that the decision was arrived at. This can be costly and time consuming for both parties.
It should be noted that SHDs are just one type of housing developments. Smaller housing developments still go to local councils and are not subject to judicial reviews at the same rate as SHDs.
SHDs are being phased out and will end this year, amid criticism they were subject to costly legal challenges.
It makes sense that judicial reviews have increased since the introduction of SHDs, because it is the primary mechanism for challenging decisions which An Bord Pleanála makes about them. There is no option to appeal the outcome; the main difference between an appeal and a judicial review is that a judicial review looks at the decision-making process rather than the merits of the decision itself.
So, have one in four of all SHD applications made to An Bord Pleanála been subject to judicial review?
The Journal contacted the Department of Housing to ask for evidence to support the Minister of State’s claim, and a spokesperson said:
Of the 273 planning permissions granted by An Bord Pleanála at end of December last, 74 have been challenged i.e 27% of them have been subject to judicial challenge.
The department added that this indicated that “Minister Burke’s figure…is correct”.
The department supplied figures they say were cross checked with An Bord Pleanála’s planning applications.
These show 273 SHD applications were indeed approved by An Bord Pleanála from 2017 to 2021, and that 89 judicial reviews were taken over 74 applications (the first figure is higher because multiple judicial reviews can be taken over one application).
But this is not quite what the minister said.
The total number of SHD applications received by An Bord Pleanála between 2017 and 2021 was 401.
Of these, 77 applications were refused by the board, nine were withdrawn by the applicant and another 42 are still awaiting a decision. Previous figures about the number subjected to a judicial review remain the same: 74.
When the total number of SHD applications is considered – 401 – and not just those approved by An Bord Pleanála – 273 – the rate of applications subject to judicial review drops to approximately 18.5%, which is fewer than one in five.
The minister did not qualify his claim by saying anything about SHDs which had been granted permission.
He initially said “in the SHD process for developments of over 100 units” – but the ‘process’ encompasses every SHD application to An Bord Pleanála.
When asked by Bryan Dobson to clarify his figures, he also referred to “one in four of all applications”.
It is, however, true that one in four approved SHDs are subject to judicial reviews, and that the number of reviews has increased in the last year.
In 2021, a third of all SHD applications submitted to An Bord Pleanála were subject to judicial review – including half of all approved applications.
For context, it is worth noting that An Bord Pleanála rejected 77 SHD applications made to it over the same period – one could just as easily argue that the planning authority was also slowing down the delivery of housing.
Minister of State for Planning and Local Government Peter Burke claimed that one in four of all Strategic Housing Developments have been subject to a judicial review.
It is correct that between 2017 and 2021, 27% of all planning permissions for SHDs granted by An Bord Pleanála have been appealed in the courts.
However, Burke said a quarter of such developments “in the SHD process” and “one in four of all applications” for SHDs were subject to judicial review.
Of the 401 SHD applications made to An Bord Pleanála between 2017 and 2021 in total, 74 went to judicial review - a rate of 18.45%, or less than one in five.
For this reason we have rated the claim: Mostly FALSE.
As per our verdict guide, this means there is an element of truth in the claim, but it is missing critical details or context.
TheJournal’s FactCheck is a signatory to the International Fact-Checking Network’s Code of Principles. You can read it here. For information on how FactCheck works, what the verdicts mean, and how you can take part, check out our Reader’s Guide here. You can read about the team of editors and reporters who work on the factchecks here.
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