Government attempts to tackle “vexatious” court challenges to planning proposals, including major infrastructure projects, are set to backfire, according to legal specialists who fear they are likely to lead to more lengthy and costly litigation.
Barrister Oisín Collins, who specialises in planning law, said the recently published heads of a reform Bill would also row back on legal entitlements for community groups, non-governmental organisations (NGOs) and citizens won with the help of EU law over the past decade.
Public consultation on the heads of the Housing and Planning Development Bill was launched earlier this month with a deadline of January 13th, but after opposition to such a narrow timeframe – notably from environmental NGOs – Minister for Housing Eoghan Murphy extended the deadline to January 27th.
The changes are a retrograde step, especially as law was increasingly moving into environmental issues, Mr Collins told a briefing by the Planning, Environmental and Local Government Bar Association of Ireland. The Bill's intentions were not clear. There was "an implication applicants are wasting everybody's time" with little justification for this, he said.
The changes would lead to challenges in the High Court or judicial review proceedings with inevitably high costs attached, as they would necessitate additional hearings before going to full hearing. Only those who win cases would be entitled to costs but "often you have to travel a very long (and costly) road to win," Mr Collins said.
The so-called reforms, he said, were “a model of confusion”, which indicated “now is the time for a planning court” to properly and efficiently expedite planning cases.
Dr Áine Ryall who is based at University College Cork said the proposals were in conflict with responsibilities to ensure wide access to justice rights under EU law and the Aarhus Convention, that is "fair, equitable, timely and not prohibitively expensive".
The changes would “make it almost impossible” for environmental NGOs and local groups to bring challenges. The timing by the Government, she added, was alarming, when more robust overview of planning and environmental decision making was needed at a time of “a climate and biodiversity crisis”.
“We need to see clearly are there really unnecessary judicial reviews and, if so, how many? And if there are delays in the system, what’s causing these delays?” Dr Ryall added.
She warned the Government to “be careful with what you wish for” as the proposed changes were unlikely to speed up the system and will “trigger more litigation”. It should instead look to improve the quality of decision making by better resourcing An Bord Pleanála and local authorities to process development applications in a timely and efficient manner.
Mr Murphy’s department has indicated the move is to speed up legal proceedings following an increase in legal challenges in the High Court that is causing backlogs and associated delays to large infrastructure projects.
Sinn Féin housing spokesman Eoin Ó Broin said he had "huge concerns" about the proposals. The Oireachtas housing committee was due to begin pre-legislative scrutiny of the Bill in January but needed independent legal analysis of the Bill and on judicial reviews to do this properly.
He said he would find it hard to see the legislation being adopted before the general election, but believed the Department of Housing, Planning and Local Government wanted to put the Bill into the system, so an in-coming government could proceed with it quickly.
Environmental Law Officer at the Irish Environmental Network, Attracta Uí Bhroin, sent an email to Mr Murphy last week urging him to extend the consultation given what was envisaged was an "extermination of environmental democracy and oversight".
“The proposed Frankenstein-like monster legislation would kill off access to justice in Ireland, drawing from the worst practices elsewhere and putting them all together in a bid to obstruct the rights of citizens and concerned NGOs to challenge bad and unlawful planning decisions,” she added.
