Explainer: Planning Bill seeks to reform the process and reduce number of court challenges

Is the new Planning and Development Bill designed to make it harder for people to object to developments in their area?

Not according to the Department of Housing, Local Government and Heritage, which has produced the massive Bill following inputs from other departments, the Office of the Attorney General, and an extensive pre-legislative scrutiny process. In particular, it insists it is not trying to stop people taking judicial reviews of decisions by An Bord Pleanála (ABP), despite such challenges often being the subject of negative political comment.

“We need faster planning decisions, more timely judicial reviews and fewer of them,” Taoiseach Leo Varadkar said following the Cabinet’s approval of the new planning Bill on Tuesday.

One of the changes to be introduced is to get rid of the step whereby a party had to go to court to get leave to take a judicial review in the first place. Now, it is being proposed, cases will go straight to hearing. Furthermore, if a court rules that there is a problem with a particular decision handed down by ABP, that part of the decision can be sent back to the board for rectification, rather than the whole process being set back substantially. The special status held by environmental non-Government organisations in relation to becoming involved in court challenges is to remain unchanged.

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More generally, the hope is that by introducing greater consistency throughout the planning process – from Government policy to local authority policy – by encouraging greater public participation in planning at the development plan stage, and by putting in place an integrated hierarchy of plan-making across all tiers, there will be better decisions made and a reduced need for people and organisations to take judicial reviews. It is hoped the intensive detail of the Bill will lead to better planning and a reduced need for challenges.

But is the Bill not designed to make it more difficult for residents’ associations to take judicial reviews?

Again, that is not the objective, according to the department. An environmental legal cost scheme is to be introduced, whereby a schedule of fees will be set out for lawyers engaged in the environmental judicial review process. If an applicant wins a case, their costs will be paid in line with the schedule of fees. If an applicant loses a case, they will be responsible for their own costs, but can apply to the environmental legal cost scheme for legal aid. The scheme will be means tested. Further details of how the scheme will work will be set out in regulations that have yet to published.

There was a suggestion that residents’ associations, which tend to be unincorporated associations, would have to be incorporated if they were to qualify for the legal aid scheme. However, the Bill provides that residents’ association can qualify if they have a constitution or articles of association, if the members have voted on the decision to take a judicial review, and if two-thirds vote in favour. The names and addresses of those who voted in favour will have to be submitted as part of the court application.

[ Landmark planning legislation may not be passed by Oireachtas until 2024 ]

The purpose of these changes, it is argued, is that in a situation where a legal aid scheme is being introduced, involving significant sums of public money, there is a certain level of legal personality needed. It is a basic requirement to know the body exists and is acting on behalf of its members. For environmental NGOs, they will have to show that their boards or governing body approved the taking of the court challenge.

So is this an effort to try stop vexatious court challenges being taken?

Again, not according to the department. It believes that judicial reviews are having a wider, negative impact on the planning process, because of the fear they create that expensive and complex projects can be knocked back at a late stage because of an error. These feelings of uncertainty are not in the public interest and are affecting Ireland’s international reputation and capacity to finance and complete large infrastructure projects. Tweaking the system with the new Bill, it is hoped, will improve the system so that problems can be fixed without years of effort being set at nought. It is this aspect of how the system is currently working, rather than the taking of vexatious or frivolous court challenges, that is driving the reform plan.

And what about the Taoiseach’s reference to faster decisions?

The new Bill provides for a significant restructuring of An Bord Pleanála, which is to be renamed as An Coimisiún Pleanála, and the introduction of statutory mandatory timelines for decisions, with a range between 18 weeks, for smaller, domestic matters, up to 48 weeks for larger, infrastructural decisions. Very complex matters can get an extended timeline. Failure to meet the timelines will result in a series of escalating measures, including fines, but the key change is that even if a fine is imposed, the authority will still be obliged to produce a decision within a stated time. These changes are designed to introduce greater certainty about when a decision can be expected, which has emerged as a key concern for interested parties.

Is this a case of changing names and introducing rules, but doing little or nothing about resources?

No, says the department. An Bord Pleanála is receiving substantially more resources and a lot more staff are being recruited. The expectation is that the new timelines will be met.

When can we see the detail of the Bill?

Not for a few weeks yet. It is the third-largest piece of legislation to be introduced since the foundation of the State, running to 691 pages and 539 sections. Its size is holding up its production. A draft was published in January as part of the consultation process. Responding to the points raised, among other matters, has seen the Bill jump in size by 20 per cent since then. As is the practice with legislation, the Bill will come with an explanatory memorandum, but in this instance, because the memorandum runs to more than 100 pages, it will be preceded by a five- to six-page explanatory memo explaining the explanatory memo.