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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.
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.
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.
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.
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.
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.
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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Bad batch of illegal narcotics is being made out like a bad batch of pasteurised milk or baby food. These are drugs that have been mixed with anything and everything .
Step up the war against drugs, don’t appease them.
@Edward Vanderlee:
How is the war going ?
50+ years now.
@Edward Vanderlee: The war on drugs has been a complete and abject failure and the world has thankfully started to move on to different approaches. It’s not about rewarding or appeasing users and sellers, it’s about reducing harms to society as a whole. You may not particularly like or approve of the introduction of supervised injection centres, but I for one applaud them as a lesser evil than shooting up in alleyways and laneways in broad daylight. Get with the times, boomer.
@Kevin Collins: it’s also about Not punishing people who end up mostly through no fault of there own in addiction and or with mental health problems. We wouldn’t jail someone who had cancer but the jails are full of addicts. #childhoodtrauma
@T Paul Kelly: its not going well but it’s 100% the right thing to do.
I live a short walk from Thomas Street in Dublin. The amount of addicts in that area is terrible, publicly injecting.
No society should normalise that.
Support the addicts and jail the dealers.
@Edward Vanderlee: It’s not going well but it’s the right thing to do ? Think about that statement. The answer is counterintuitive but unfortunately we all have to wait for the less agile thinkers like yourself, to catch up with the rest of us. Then we can finally start changing policy, making a difference and saving lives.
@Declan Doherty: no need to resort to insults now Declan. I’m perfectly agile mentally.
I saw three people injecting eachother in the entrance of a hotel the other day on my way to work.
Those poor people. The poor gardai trying to police it too where the courts are a revolving door.
Nothing ageist about it… that’s not acceptable in any society.
I’m in the hostels and there was three deaths in my hostel alone while that batch was going around and I know of good few who died. Why has there been no reporting on that?
Would the author of this piece care to find out how many died during that bad batch?
Or are we too woke to print that kind of thing?
@Denis Rathsallagh Brady: how is that ‘woke’ in any way? Didn’t they have an article a week or two ago detailing a number of deaths to that point if i recall, do you not believe them or something?
@Setanta O’Toole: I obviously didnt read that article but it would be helpful if the figures were put into this article too.
Ive even given them the number for Merchants Quay Ireland.
You sure it was deaths due to this bad batch and not lives saved by Naloxone?
I mean, one knows the risks. Choices
Have to say well done to the department of health who see the value of harm reduction ( eg festival pill testing) – pity the Department of Justice seem to be trapped in the dark ages.
Here ill help you out.
Heres Merchants Quay phone number wont take you a minute to ring them.
(01) 524 0160
The police forces knows who are the dealers, yet no one is getting locked up
@Dominic Leleu: locking up those who do drive is counterproductive. We have overflowing prisons at the present time and you want to add more??? rehabilitation, awareness campaigns though workforces, schools, PLC colleges, 3rd level etc is the way to go.
@Dominic Leleu: forget the typo lol meant drugs not drive lol
@alan scott: those are mere bandages… As long as we have a drugs policy from the 1980s the only outcomes will be rich mob bosses and endless, needless death and crime.
Need to give it to lecturers and staff at all the third level colleges.
Hilarious that anyone thinks our rightwing government cares about saving lives.
80th worst healthcare system in the world.
75k homeless
Drugs policy from the 1980s, which is enriching gangs and killing the sick.
Suicide epidemic
Etc.
We – as a people – are far more likely to throw babies in a septic tank than help the poor and sick.
@Chris O’Brien: Multiple-choice question.
Are you:
a. deranged?
b. delirious?
c. profoundly delusional?
d. lying?
have your say