One of the more significant pieces of legislation that the Government shepherded through the Oireachtas before heading into the general election was the Planning and Development Bill. Its intentions in fast-tracking the planning process were clear and, at first glance, its motivations seem worthy.
However, experts in Ireland’s legal, planning and development sectors have mixed views on the 900-page piece of legislation, enacted in October, with some suggesting it will result in more headaches than solutions and lead to a new raft of legal cases. As well as opposition politicians and environmental groups, dissenting voices have included former chief justice Frank Clarke who commented that it would end up creating a system where there would be references to the Court of Justice of the European Union and delays in seeking legal clarity would be “counterproductive to the purpose it is intended for”.
Ireland’s planning system is notoriously slow, with delays and challenges seen at many stages of the process. Take housing, for starters. The average time from planning to work commencing on a house has risen from around eight months to more than 14 months since 2017. For an apartment the increase during the same period has been from more than 10 months to more than 18 months.
Housing is just one aspect of Ireland’s infrastructure. Roads and other transport developments; commercial construction projects such as data centres; energy; telecommunications; water and waste-management facilities need to be taken into consideration too. In an open economy dependent on foreign direct investment, the inefficiency of Ireland’s planning and development system is often seen as a brake on our competitiveness; this is the political context for this new piece of legislation.
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Overall, the Planning and Development Act 2024 is designed to promote quicker planning decisions, and it introduces mandatory statutory timelines for planning authorities to assess planning applications. These range from 12 weeks for large-scale residential developments to 26 weeks for local-authority developments, and up to 48 weeks for certain types of strategic infrastructure development.
Where planning authorities fail to meet prescribed timelines they may face penalties including repaying to the applicant fees paid and payment of additional sums in certain instances. The aim here is to promote transparency and accountability.
Under the previous Act, the lifetime of a development plan was six years; the new Act provides that it will have a life of 10 years.
Perhaps the most important section of the new Act is the new Part 9 Judicial Review process, explains Stephen Barry, head of planning and environment at Eversheds Sutherland.
“Though of course participants in a planning process should have the right to request a court review if legal requirements are not met, rightly or wrongly, developers and foreign investors perceive that the system is being misused,” says Barry.
“The new Act contains a number of changes. There is no longer a need to seek the leave of the court to apply for judicial review, which always carried a low threshold in the courts in any event. The removal of that step will speed up the judicial review process.
“There will now also be a requirement that if a party is going to court to challenge a decision on grounds of judicial review, that party is confined to its pleadings. A practice had developed that when a case comes on for hearing, parties would seek to extend the pleaded grounds beyond what was originally pleaded. That caused delay and understandable frustration. The ability to do so is now more limited to circumstances outside of the party’s control, or the control of their lawyers, coupled with the need to show a good and sufficient reason to make an amendment to the pleadings.”
While many of these provisions will be welcomed, Barry acknowledges a flaw.
“Without sufficient personnel allocated by the Government to manage the backlog of applications, the enhanced legislative framework may accelerate the tail end of the planning process, namely judicial review, but it won’t necessarily increase the number of planning applications being evaluated in the first place.”
According to Phoebe Duvall, senior planning and environment policy officer at An Taisce, rather than the much-needed coherence, consistency and speed that the Government claimed this legislation would bring, the new Act will actually lead to more conflict, dysfunction and delay, and won’t live up to its promise to deliver housing, renewable energy and other critical infrastructure.
“One of the key concerns is that the Act centralises power in the hands of Government and relevant ministers with very few safeguards,” she says. “It gives them substantial powers and new mechanisms to introduce national-level planning policies and requirements, and then to compel regional, county-level and local planning policies to comply with those Government policies.
“These are fast-tracked procedures that send major policy changes cascading through the planning system with little provision for oversight or local democratic input. While there is certainly a place for national-level planning policy, it requires clearly defined parameters, oversight and safeguards, all of which the Act is lacking.”
Duvall adds: “We believe that there will be a slew of legal challenges around multiple aspects of the new Act and its compliance with various European and international legal obligations, including under the Aarhus Convention, which sets out our rights to public participation and access to justice in environmental decision-making.”
The Government repeatedly guillotined debates on the bill, meaning that hundreds of amendments were made without proper, if any, scrutiny, says Duvall. And this could cause significant legal uncertainty and delay.
“The fact that the Government rammed this legislation through without adequate scrutiny and while its compliance with our European and international legal obligations remained in serious doubt is very poor legislative practice and is entirely counterproductive in the face of the multiple crises we’re facing in housing, climate, etc,” she says.
“The large amount of litigation, and therefore significantly increased delays and costs, that will likely result from this legislation will slow down rather than speed up the delivery of homes and critical infrastructure.”
Barry, however, takes a more positive view of judicial reviews.
“I don’t expect the number of judicial reviews to decrease in the short term but I do expect the time it takes to conclude a judicial review to decrease,” he says. “We are fortunate to have an established planning and environment court list with specialist judges already managing the timely progression of judicial review cases. Judges will continue to expedite the litigation process, and the new Act provides more mechanisms to do so.”
Last-minute amendments to pleadings which can cause delay will be more difficult to make, he notes, and the Act also provides the High Court with flexibility in handling cases where a public body has made a mistake. Instead of quashing the decision, the court can order the public body to correct the mistake within a specified time frame which should speed up the existing remittal process for a successful party in a judicial review.
“We are at a point in time where Ireland urgently needs to deliver renewable energy targets and promote new infrastructure,” says Barry. “Renewable energy projects receive special mention throughout the new Act. There are important new additions in the space of imperative reasons of overriding public interest (IROPI).
“In essence, where a plan or project is determined to have an adverse effect on the integrity of a European site, one of the steps that a competent authority must take is to determine whether there are over-riding public interest reasons for carrying out the plan or project. The new Act now deems IROPI to exist for plans or development for the construction or operation of plants producing or storing energy from renewable sources.”
In regard to the scale of legal actions, the perception is very different from the reality, according to Duvall.
“On average more than 30,000 planning applications are dealt with by planning authorities annually, and less than 0.4 per cent of those end up in court. Moreover, the Office of the Planning Regulator highlighted in 2022 that the number of successful judicial reviews had increased exponentially since 2019. This indicates that the number of planning decisions that end up in court is in fact very, very small, but that unlawful decision making is an issue in some cases, and in those cases the judicial review system is actually doing exactly what it was designed to do in terms of correcting those flawed decisions.”