Changes to judicial review rules could bring planning cases to a halt, lawyers warn

Plans to restrict access to judicial review proceedings in planning cases are “retrograde” and could further delay final decisions on developments, lawyers have warned.

Barristers specialising in planning and environmental law said the move could bring judicial reviews going through the courts to a “grinding halt”.

The warning came in a submission to the Oireachtas Housing Committee, which is examining the draft Planning and Development Bill.

The bill is a major piece of legislation aimed at clarifying contentious pieces of planning law and speeding up the permitting process.

It has become controversial because of plans to introduce new criteria to determine who can seek a judicial review of a planning decision in the High Court and under what conditions.

Ministers and developers have argued that judicial reviews have held up housing developments – a claim rejected by environmental groups who point to tens of thousands of fully permitted homes that developers have not built.

Senior counsel Tom Flynn, vice-chair of the Planning, Environmental and Local Government Bar Association, said the association’s submission was based on the views of members with extensive experience acting for the State, An Bord Pleanála, local authorities, developers, environmental groups and residents associations.

They expressed concern over the proposed judicial review reforms, in particular the move to limit individual applicants seeking judicial review to those who are “materially affected” by a proposed development.

“This may exclude bona fide environmentalists seeking to act in the public interest and is retrograde step, considering the greater recognition of a general public interest in the environment and climate change,” Mr Flynn said.

He said a proposal to further limit access in certain cases to residents’ associations or interest groups that had formed companies of a particular size, duration and activity was “too narrow and again entirely regressive and anomalous”.

“Such a narrow provision in national law, may cause Ireland to be in breach of its obligations under international law under the Aarhus Convention, which is also recognised as an integral part of the EU legal order,” he said.

“While the intention may be to limit judicial reviews, concern has been expressed by some members that this provision goes too far and is counterproductive as it will lead to challenges and possibly a reference to the European Courts, which may result in system grinding to a halt and many planning judicial reviews being delayed while the matter is determined.”

Mr Flynn also said it was essential that there be clarity on proposed reforms for how costs were awarded in judicial reviews as the bill as drafted lacked detail.

The Law Society of Ireland, which represents solicitors, raised similar concerns.

It said in its submission that it was questionable if the criteria proposed for access to judicial review were compatible with EU law and the Aarhus Convention.

“Rules on standing which are too narrow could deprive people of their right to seek legal review of planning decisions and delay the resolution of proceedings if those standing requirements are challenged,” it said.

It also pointed out that queries over costs had the potential to take up a lot of court time. In that context, it said: “It is a cause of concern that proposed costs reforms remain a draft head at this stage.”