Many months in the making, a looming overhaul of the planning regime will change how the fate of housing and infrastructure projects is determined.
By streamlining an approval and appeals process and introducing statutory deadlines in each, the aim is to provide greater certainty and clarity over the outcome of applications in what can be bitterly contested ground.
As ever, the real test is whether the new system smooths the process or leads to yet more delay and disarray. Recent history provides a salutary lesson in how planning legislation can produce the opposite of desired impact. Fast-track approvals for large-scale apartment development triggered a cascade of High Court claims, consigning many projects and thousands of new homes to the slow lane of judicial review.
The latest proposal will narrow the scope for such actions, particularly by barring residents’ associations themselves from taking cases and requiring that the case is taken by an individual or individuals.
The new laws will also allow planning bodies such as An Bord Pleanála or local authorities to correct an “error of fact or law” in their planning decision after a judicial review is initiated. They will also have the right to seek a stay on the determination of the case while doing so.
Such measures might well provide an opportunity for defendant planners to eliminate the type of mistakes in their decision-making that doomed previous cases. But plaintiffs challenging an “error of fact or law” might well dispute the other side being given the opportunity to stall the case while they remedy some of the very mistakes targeted in the claim.
Certain Government figures believe these measures face the inevitability of constitutional challenge for curtailing the rights of litigants. But that is a battle the Coalition is willing to fight.
In the face of a crippling shortage of new homes and escalating rents, it is not too much of a stretch to imagine the argument being made the measures are a proportionate response to an emergency in housing provision.
The Government is also likely to argue that demand for judicial review actions may be weakened by greater national planning consistency in the new regime, with only limited grounds for An Bord Pleanála or its successor to materially contravene development plans.
Whether that argument stacks up is a matter of guesswork. But there is no doubt that the Government will argue the case for planning reform is overwhelming.
The chief political sponsor of the draft law is Minister for Housing Darragh O’Brien. But the scheme bears the legal imprint of outgoing Attorney General Paul Gallagher. The attorney has signalled he will leave the Government when Taoiseach Micheál Martin and Tánaiste Leo Varadkar switch posts next Saturday but his influence will live on in the form of the Bill that O’Brien anticipates bringing to Cabinet on Tuesday.
This effort can be traced back to the summer of 2021 when Gallagher started a process described as a “legal fitness check” on the Planning and Development Act of 2000, the convoluted body of law that has underpinned Irish planning law for a generation. Two decades of amendments mean that legislation is not far from impenetrable, even to legal and planning experts.
If the need to streamline the planning system to lessen the potential for logjam has long been recognised, the eruption of deep controversy at An Bord Pleanála last spring only intensified pressure.
An Bord Pleanála will soon be renamed as The Planning Commission – An Coimisiún Pleanála and its operating structure will be changed. That alone speaks volumes about the erosion of confidence in the institution. But it also shows that the stakes are high for O’Brien.