The most radical revision of Ireland’s planning laws for a generation is now wending its way through the Oireachtas. The draft Planning and Development Bill would, if enacted, fundamentally change how our planning system works by further shifting the balance of power from local to central government while also disadvantaging citizens and communities in favour of State and private developers.
The immense 738-page Bill, containing 467 sections and seven schedules, would require a superhuman level of scrutiny of its minutiae by TDs and Senators, although the Government wants to have it enacted as soon as possible. An earlier controversial amendment to the Planning Acts, mainly dealing with appointments to crisis-stricken An Bord Pleanála, was rushed through the Dáil and Seanad last December.
Ostensibly designed to “bring greater clarity, consistency and certainty to how planning decisions are made”, the new Bill represents the culmination of a 15-month review of the planning system by former attorney general Paul Gallagher and a working group of lawyers – eight experienced senior counsels along with nine barristers to do research, as well as planning consultant Declan Brassil.
Gallagher, who stepped down as attorney general last December after this review was completed, has told friends that he regarded it as the greatest achievement of his long career. Effectively, the Bill replaces the 2000 Planning and Development Act, incorporating many amendments made since then as well as entirely new provisions that would provide the legal framework for a different type of planning regime.
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Not only does it retain the power of the minister for housing to issue “specific planning policy requirements” to the local authorities and An Bord Pleanála – first introduced in 2015 by Labour’s Alan Kelly when he was minister – but it proposes to elevate these to National Planning Statements by any minister, to be approved by the Government and handed down like the proverbial tablets of stone.
In future, the role defined for a local authority by the Bill will be to “give effect at a local level to national and regional policy and to set a framework for the future sustainable development of its administrative area [by developing] policies and objectives that are necessary for the purposes of such a strategy” – providing, of course, that these are consistent with whatever is laid down in National Planning Statements.
Gone is the long-established concept of Irish planning law – as defined by a 1991 Supreme Court judgment – that a democratically adopted city or county development plan forms “an environmental contract between the planning authority and the wider community, embodying a promise by the planning authority that it will regulate private development in a manner consistent with the objectives stated in the plan”.
This civic bond was broken by the Planning and Development (Housing) and Residential Tenancies Act 2016. It was introduced by then minister for housing Simon Coveney in response to lobbying by Property Industry Ireland – a division of Ibec – to provide a “fast-track” planning route for large-scale strategic housing developments (SHDs), with direct applications to An Bord Pleanála bypassing the local authorities.
Week after week, the board’s SHD division – headed by its former deputy chairman Paul Hyde – was issuing permissions often for high-rise, high-density apartment schemes that egregiously breached local authority development plans but were stated to be in line with national policy, including mandatory ministerial guidelines on building heights promulgated in 2018 by Coveney’s successor, Eoghan Murphy.
Nobody would be able to take a case on public interest grounds, as the Bill specifies that applicants for judicial review must show that they would be “directly or indirectly materially affected” by a proposed development
That’s what led to an unprecedented spike in judicial review cases against An Bord Pleanála by aggrieved citizens and communities who had no avenue of appeal open to them except the High Court. Taking that course is quite intimidating, as I know from my own experience of joining eco-architect Paul Leech in challenging the board’s decision to permit a high-rise scheme adjoining the Royal Hospital Kilmainham.
The multiplication of judicial reviews and the fact that so many have resulted in An Bord Pleanála’s permissions being quashed by the High Court caused outrage in the development sector. In June 2021, planning consultant and Property Industry Ireland lobbyist Tom Phillips, who was involved in promoting numerous SHD schemes, said it was beyond time for the Government to “grab the judicial review issue by the scruff of the neck”.
The Bill seeks to do that by introducing a range of restrictions on who may seek judicial reviews and under what circumstances as well as setting stricter timelines for filing legal papers. It would also permit An Coimisiún Pleanála – as the board is to be renamed – and other public authorities to correct “any error of law or fact” and issue an amended decision, even after proceedings have commenced.
Nobody would be able to take a case on public interest grounds, as the Bill specifies that applicants for judicial review must show that they would be “directly or indirectly materially affected” by a proposed development. It also specifies that cases involving the natural environment could only be taken by a company that has been in existence for at least one year and has “no fewer than 10 members”.
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The Bill decrees that the High Court “shall make no order as to costs in any proceedings relating to noncompliance with national law, or the law of the European Union, relating to the environment unless the court considers, for stated reasons, that the proceedings are frivolous or vexatious or constitute an abuse of process” – in which case the legal costs of all parties would be awarded against the plaintiff.
Conversely, successful plaintiffs in judicial reviews would not be awarded their legal costs. “What this means is that it would make no sense for any solicitor or counsel to be involved,” one barrister said. “We look at cases and take a view that there’s a fair chance of winning and getting our costs. If we lose, we lose and we’ll have to carry that can. But if we never have the prospect of getting paid, we wouldn’t do it.”
Ironically, the new restrictions on access to the courts are being introduced just as the main reason for the spike in judicial reviews – highly contentious SHD schemes – are being abandoned as a policy failure. However, they would apply in other cases such as road schemes as well as the public transport projects and wind farms that Green Party leader Eamon Ryan wants to see happen.
But the Government’s drive to deter people from taking judicial reviews would be open to challenge under the UN’s 1998 Aarhus Convention, which guarantees citizens’ rights to seek reviews of decisions made by public authorities on environmental matters, with review procedures that must provide “adequate and effective remedies ... and be fair, equitable, timely and not prohibitively expensive”.
Aarhus may well turn out to be the Achilles heel of the draft Planning and Development Bill.
Frank McDonald is a former environment editor of The Irish Times