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Opinion We could improve our planning law - instead the public is being excluded

The draft Planning and Development Bill 2022 is a solution in search of a problem, say Alison Hough and Gavin Elliott.

FRAMED AS A response to the housing crisis, the draft Planning and Development Bill 2022 is designed to enact a radical overhaul of the planning system and related court processes in Ireland.

It attempts to fulfil promises made in the Programme for Government and appease construction and property industry lobby groups who have long complained that excessively bureaucratic processes, over-regulation, restrictive nature protections and “NIMBYs” or “objectors” stymie development.

The changes proposed in the Bill, which were not subject to public consultation, will have far-reaching negative implications for access to justice and the Rule of Law in Ireland, and will make it difficult for citizens, NGOs and community groups to challenge planning decisions which affect the environment. It could also expose Ireland’s planning system to years of satellite litigation.

Published in January of this year, it is currently before the Joint Oireachtas Committee on Housing, Local Government and Heritage.

Flawed premise

A central aim of the Bill is to restrict access to justice, based on the flawed premise that “a tsunami” of judicial reviews are stalling progress on housing and other developments. An examination of the available figures quickly shows that these arguments do not bear up to scrutiny.

Judicial review rates have remained relatively steady over the past ten years.

That is the period since Ireland ratified the Aarhus Convention. This agreement provides the international legal basis for rights such as access to judicial review of planning decisions, the right to participate in planning decisions and rights of access to information.

However, the number of judicial reviews of An Bord Pleanála decisions increased following the introduction of Strategic Housing Development (SHD) legislation, a fast-track planning process for large-scale housing projects that bypassed local authorities and went straight to An Bord Pleanála.

In 2021, for example, the number of judicial reviews of An Bord Pleanála decisions doubled (95 compared with 50 in previous years), and the success rate of those relating to strategic housing developments was 75% – clearly demonstrating why trying to bypass proper oversight and decision-making procedures is a bad idea.

This increase in the number of judicial reviews is still a very small percentage (3.65%) of the circa 2,600 An Bord Pleanála decisions annually. This is not an open floodgate that needs to be closed.

Academic and other investigations, including by Noteworthy, have documented extensively the manner in which industry lobby groups have successfully weaponised the housing crisis to argue for a deregulatory agenda in the planning system in Ireland.

The real story of the housing crisis is unfortunately a much more complicated and nuanced affair.

  • If you want to find out more about construction industry lobbying, read THE CONSTRUCTION NETWORK investigation by Noteworthy which revealed how the industry pushed back against the judicial review process.

Implications for challenging State decisions

At a time of intensifying climate and biodiversity crises, the importance of judicial review for environmental and climate accountability cannot be overstated. It is a vital mechanism for ensuring that developments align with Ireland’s climate and environmental goals and commitments.

A raft of changes is proposed in the Bill that will restrict the number and types of organisations that can access judicial review. The intention behind these changes appears to be to eliminate challenges by residents and community groups and to eliminate long-standing environmental organisations that do not meet the new criteria.

Under the changes proposed, unincorporated associations and NGOs or associations which have less than ten members will be restricted in their access to judicial review. NGOs will also be required to have been registered in existence for at least one year prior and to have passed a resolution to take judicial review proceedings.

This represents a substantial rollback of environmental access to justice. The narrowing of the category of NGOs eligible to take a judicial review is likely to be a breach of international and EU law under the Aarhus Convention and of the non-regression principle of international human rights law. 

Housing briefing 007 Minister for Housing Darragh O’Brien and Minister of State Malcolm Noonan briefing the media on the planned law in January Leah Farrell / Leah Farrell / /

The practical effect of these changes will be to force citizens to litigate individually rather than as part of an association, potentially creating a multiplicity of separate litigations on the same case, rather than having the desired effect of reducing the number of judicial reviews.

Where individuals are concerned, they will now need to show that they are directly or indirectly materially affected by a planning decision in order to be considered to have “sufficient interest” to take a judicial review. There is no definition of “materially affected” in the Bill – this will require definition by the courts.

Additionally, changes to the cost rules will make it more difficult for individuals and NGOs to get legal assistance. If brought in, the clause removing the capacity to recoup your costs if successful means that applicants will not be able to avail of “no foal, no fee” legal help from lawyers any more.

This is a system where, if a lawyer assesses your case as being well grounded, they may offer to take the case for free on the basis they will get paid if it is successful. This system has the benefit of filtering vexatious cases and ones with a low prospect of success out before they get to court.

Only act properly if and when you get sued

The Bill also proposes changes that will allow the planning authority to amend a planning decision at any time in the eight weeks after judicial review proceedings are initiated, to remedy the matter that is the subject of the judicial review.

This change would introduce further uncertainty and laxness into the planning system.

It also risks inculcating a mindset which views the decision as provisional pending a challenge.

If the An Bord Pleanála crisis has shown us anything, it is the importance of proper decision-making and accountability by the planning authority.

No valid public consultation

The failure to engage in public consultation when drafting the Bill is striking, given Ireland’s obligations under the Aarhus Convention and the fact that this Bill constitutes an historic reform of our land use laws with significant implications for the environment.

While a closed, invitation-only stakeholder group was established for the duration of the review, the Planning Advisory Forum, the majority of its members were from industry and government. This does not meet the international law requirement to consult with the public.

The lack of meaningful public consultation raises the prospect of a breach by Ireland of Article 8 of the Aarhus Convention, which stipulates that legislative proposals under development by the executive must be subject to broad public participation through the publication of draft legislation and provision of sufficient time for response.

Potential to radically improve planning system

We are at a critical juncture in the future of the planet in terms of climate and biodiversity issues, and it has never been more important that Ireland takes bold steps in the direction of strengthening democracy, climate action, addressing housing and human rights challenges.

This comprehensive review of Ireland’s planning law has the potential to radically improve and overhaul our planning and land use system as well as related court processes.

But in order to achieve this ambition, the public must be given a proper say on such significant changes to the democratic balance of our planning system, and proper recognition needs to be given to the right of communities to have a say in what happens to their local environment.

The Bill must be put out to public consultation. It must also be the subject of a multidisciplinary review by experts in relevant fields (environmental science, ecology, planning, architecture, law and NGOs).

Crucially, it must be substantially revised to ensure citizens’ rights to call Government to account are protected.

Alison Hough is the head of the Access to Justice Observatory at the Environmental Justice Network Ireland and Gavin Elliott is an environmental justice lawyer at Community Law & Mediation.

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Alison Hough & Gavin Elliott
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