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Planning 'Proposed law designed to scare local groups off potential challenges'

Environmental justice lawyers Rose Wall and Gavin Elliott write that restrictions on access to justice will erode the right of citizens to hold government to account.

THE PLANNING AND Development Bill 2023 is the most significant intervention in the planning system for over two decades.

As one of the largest pieces of legislation ever considered by the Oireachtas, containing 541 sections alongside six schedules, it will reshape the delivery of housing and infrastructure for decades to come.

The Bill is at an advanced stage in the legislative process, with Committee Stage due to commence in the coming days. First mooted in 2019, it was finally published in November 2023.

Proposals in Part 9 of the Bill to restrict access to judicial review – the fundamental right of citizens to hold the government and state bodies to account – will be at the forefront of the debate. 

The Bill was developed during a tumultuous period for An Bord Pleanála, when serious governance and resourcing problems surfaced, leading to long delays in the planning system that continue into 2024.

Work on the Bill has also taken place against the backdrop of a housing crisis and rapidly evolving climate crisis, creating a tension between competing public priorities.

Well-resourced property development and construction groups have capitalised on this to lobby for restrictions on access to justice, arguing that judicial reviews are stalling progress on housing and other developments.

  • 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.

Access to judicial review has been a key point of contention throughout the shaping of the Bill.

The proposed restrictions go to the heart of democracy and will make it more difficult and potentially costly for citizens, residents’ associations and community groups to challenge planning decisions which affect their community and the environment.

We need more houses, but not at any cost

As a community law centre, housing issues account for more than one-sixth of queries to our legal advice clinics. Many of these relate to homelessness and waiting times to access social housing.

But many also relate to poor quality housing and substandard living conditions (damp, mould, rat infestations); homes prone to flooding; homes located close to environmental hazards such as industrial estates; homes that are poorly linked to services.

Lives and local environments that are impacted daily by poor planning decisions.

People have a right to expect that that their government will pull out all the stops to build houses in the midst of our housing crisis. This, of course, includes removing bureaucratic and other barriers to house building. But the fundamental right of citizens to hold the government and state bodies to account is not one of those barriers.

The need for houses, and the need for lawful decisions about how and where they are built are not in conflict, they are complementary.

Housing priorities must be addressed in tandem with environmental and climate imperatives and the right to a healthy environment.

The purpose of judicial review

Judicial review is the way in which a citizen or group of citizens can challenge decisions made by government to ensure that they have been made lawfully.

In the context of planning and environmental protection, the right of access to judicial review is protected in the Aarhus Convention, which has been part of the EU legal order since 2005 and was ratified by Ireland in 2012.

Many people will be familiar with the use of judicial review in planning matters and with the suggestion that it functions as tool for NIMBYs and opponents of housing. It is also argued that an increase in judicial review rates has stalled progress on housing.

However, judicial review is not an easy process to engage in, and only the poorly informed would go into it lightly. It requires time, emotional effort, and often involves a risk of significant costs being awarded against an applicant.

A judicial review application will only be successful if there has been a breach of process or law.

Why judicial review rates increased

Much of the controversy linking stalled progress on housing with an increase in judicial review rates arose following the introduction, from 2016 onwards, of Strategic Housing Developments (SHDs).

This was because the SHD process, a fast-track planning process for large-scale housing projects, by-passed local authorities meaning members of the public weren’t afforded the opportunity to have their say at planning stage and had to resort to the judicial review process to appeal a decision.

The success rate of judicial reviews relating to SHDs was high (75% in 2021), with proposed developments found to have ignored key environmental impacts on the locality or a material contravention of the local development plan without following process.

SHDs were subsequently replaced by Large-scale Residential Developments (LRDs), a process that restored decision making to the local authorities.

Recent analysis by construction consultancy Mitchell McDermott found that while some SHD projects remain stalled due to planning backlogs and judicial reviews, almost all the LRDs have been decided on time, with no judicial reviews on LRDs outstanding by the end of last year.

This highlights the importance of embedding proper oversight and decision-making throughout all stages of the planning process and ensuring that members of the public are afforded the opportunity to have their say.

A significant number of housing projects with valid planning permissions have yet to commence, an indication that the problems with the delivery of housing lie elsewhere.

Names to be submitted in court documents 

The Bill proposes significant changes to the judicial review process which will be felt most acutely by residents’ associations and local community groups – the very people who know their communities best and who are best placed to speak on behalf of their local environment.

Under the new provisions, these groups will only be able to take judicial reviews if they have a written constitution and then hold a vote among their members. Two thirds of the members will have to vote in favour of taking legal action.

Perhaps most worryingly, a list of the names and addresses of the members who cast a vote in favour of bringing the proceedings will have to be submitted in the court documents.

These proposals can only be designed to produce a chilling effect and scare local groups off potential challenges.

The Bill will also restrict environmental NGOs – many of whom have spent decades attempting to defend our natural inheritance – from taking action unless they fulfil arbitrary preconditions such as being a company with ten or more members.

The ability of ordinary members of the public to bring questions about the legality of administrative decisions to the High Court is a vital aspect of our legal system and not one which should be casually curtailed.

Is there an alternative?

The Bill is at an advanced stage in the legislative process, but it is not too late to recognise that a solution already exists much earlier in the planning process – with the restructuring and resourcing of An Bord Pleanála.

An Bord Pleanála, soon to be renamed An Coimisiún Pleanála, must be resourced and equipped to:

  • ensure proper oversight and decision-making at the planning stage of a development;
  • reduce the current unacceptable delays in the planning system that leave it open to exploitation; and
  • ensure that existing safeguards in the system are enforced to prevent financially motivated and other spurious objections and appeals.

Delays in the planning system and in the delivery of housing cannot be tackled without addressing these issues.

Community and residents groups play a vital role in helping make their neighbourhood a better place to live. While not perfect, the existing legislation protects their right to participate in planning and environmental decision-making and to access justice when those rights are denied.

Amid a worsening climate crisis, we should be empowered to fight for clean, healthy, and liveable communities; and to hold the government and public bodies to account when they make decisions which aren’t in accordance with the law.

Restrictions on access to justice may ultimately be pushed through in the Bill, but they will only serve to disempower communities and erode our fundamental right as citizens to hold government to account. The problems relating to housing supply will remain.

Rose Wall is an environmental justice solicitor and CEO of Community Law & Mediation (CLM), a community law centre and charity. Gavin Elliott is an environmental justice lawyer at CLM. In 2021, CLM established the Centre for Environmental Justice which works to ensure climate change and other environmental harms do not disproportionately affect those who have contributed least to the problem.

Rose Wall & Gavin Elliott