A year of change – fast and slow – in unblocking the legal logjam in planning

The formal launch of the High Court’s Planning and Environment Court earlier this month was met with a chorus of rapturous statements from the Minister for Justice, the Attorney General, the High Court president and heads of legal bar associations.

The court’s new division, which has been assigned a third specialist judge to deal with an increasing caseload, will improve efficiency, reduce costs and lead to speedier resolutions of planning challenges, a packed Court 24 learned.

The occasion was somewhat qualified by the fact that, aside from lengthy new practice directions, much of the court’s operations were effectively under way since April.

In charge of the venture is Mr Justice Richard Humphreys, who has managed prior planning lists under various titles, including the commercial planning and environmental list, since October 2020.

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For solicitor Fred Logue, whose firm FP Logue represents a high proportion of residential groups, environmental NGOs and others challenging planning approvals, the establishment of the new court division marks an “important milestone” in demonstrating a commitment to environmental protection.

But the High Court’s handling of planning challenges was already “working well”, with earlier positive changes, such as digitisation, leading to more effective case management and quick disposal of actions, he said.

Judicial reviews of planning decisions have often been blamed for slowing down the development of badly-needed housing and other infrastructure.

There is no evidence of this, said Mr Logue, who characterises this narrative as “spin designed to attack public participation”.

Where delays occur these are typically due to “satellite litigation”, he said, where a spin-off legal issue requires determination not just by the High Court but often by the unappealable Supreme Court or the Court of Justice of the European Union (CJEU).

An area as technical and EU-law heavy as planning and environmental law is fertile ground for peripheral issues to become satellite litigation, which tends to pull other challenges into its orbit and cause blockages.

Delays of this kind are “not the fault of the court”, while resolution of these issues leads to swifter processes down the line, Mr Logue said.

He pointed to a Supreme Court decision of November 2022 which brought “certainty” to a long-contested question about legal costs in challenges to planning permissions on environmental grounds. This has led to very few disputes, and consequent delays, over an applicant’s entitlement to protective costs orders in 2023, he said.

Earlier this month, the Supreme Court heard an appeal against the High Court’s decision to send back to An Bord Pleanála a contentious application seeking to build two apartment blocks, including one of 13 storeys, on the grounds of St Michael’s Hospital, a stone’s throw from Dún Laoghaire Dart station.

Some 18 months have passed since the High Court was told the board no longer stood over its April 2021 approval of the proposal by Noel Smyth’s Fitzwilliam DL to construct 102 rental apartments on the seafront site.

The technical issue being considered relates to confusion about An Bord Pleanála’s powers in reconsidering years-old strategic housing development (SHD) applications now that the SHD scheme has expired along with development plans that have been replaced.

Awaiting the outcome of the appeal are about 10 other judicial reviews of large projects whose approvals under the now-SHD regime have been either retracted by the board or quashed by the court.

These include a raft of permissions conceded by the board in late 2022 in the wake of conflict-of-interest allegations made against its former deputy chair Paul Hyde. He pleaded guilty last June to two breaches of section 147 of the Planning and Development Act 2000 requiring him to declare his registered properties.

There is the quashed permission for 671 build-to-rent apartments at Milltown Park, Sandford Road, Dublin 6; one for 493 homes at Temple Hill, Blackrock, Co Dublin; and another for 255 dwellings in Killiney, Co Dublin.

The remittal question is also delaying final orders in a case concerning approval of a 698-bed student accommodation project near UCD in Goatstown, which the High Court overturned last February.

Further, there are 53 first-time SHD applications yet to be determined by An Bord Pleanála whose outcomes could be guided by the appeal decision, the board’s senior counsel, Fintan Valentine, told the Supreme Court.

Solicitor Brendan Slattery, a partner specialising in planning and environmental law at McCann FitzGerald, advises his developer clients that the High Court can resolve judicial reviews within nine months. It is difficult to achieve a faster outcome, he said, and the average resolution time is probably longer due to issues overlapping with legal points already being argued in satellite cases.

“If you are stuck waiting for the outcome of a case before the Supreme Court or the CJEU, yours will be put on ice,” he said.

[ New planning court will enable fair and speedy decisions, High Court president says ]

For developers, a court win may not be the success it seems if it comes years after the permission was granted. Most approvals are valid for only five years and can be extended only if substantial works have been carried out on the site, said Mr Slattery. Some builders apply for alternative approval while their earlier application is still subject to judicial review, he said.

Mr Slattery believes the 2023 Planning and Development Bill, if enacted as currently drafted, will inevitably raise new legal questions for a fresh round of satellite litigation. The legislation’s controls on residents’ associations and a potential cap on costs for successful litigants are issues the High Court and CJEU “will surely be invited to rule on”, he added.

Mr Logue agrees the Bill “will open an awful lot of stuff that was already settled”, with some elements destined to end up in the Luxembourg court. He sees issues with the Bill’s approach to public access to justice and its narrowing of the parties eligible to challenge decisions to those directly affected by it.

“This legislation is supposed to solve a problem, but it is not clear to me what the problem is,” he added.

There are currently some 140 live cases in the Planning and Environment Court, which prides itself on the ‘systematic resolution of legal questions’ that, the Courts Service said, would over time lead to simpler, more effective law

Announcing Cabinet approval last October, the Department of Housing said the Bill represented the largest reshaping of the Irish planning system in more than 20 years. It followed a 15-month review and would bring greater clarity, certainty and consistency to the planning process, the department said.

Changes to judicial reviews include removing the need to ask for the court’s permission to bring proceedings, refinement of legal grounds, clarification of sufficient interest in an impugned decision and the introduction of a new environmental legal cost scheme, the department said.

There are currently some 140 live cases in the Planning and Environment Court, which prides itself on the “systematic resolution of legal questions” that, the Courts Service said, would over time lead to simpler, more effective law. The new court has publicly committed to striving to turn around judgments within two months.

Speaking to The Irish Times at the December launch, Mr Justice Humphreys said referring a satellite issue to the CJEU could add about 18 months to an action, but it could save time overall where the decision from Luxembourg was “very often determinative of a case”.

Refraining from referring a “genuinely disputable question” would lead to the High Court’s findings on the issue being appealed and the question may end up being referred to the Luxembourg court at a higher stage of the process, he added.

In a judgment last month dismissing a challenge to three-year-old permission for 320 homes in Trim, Co Meath, Mr Justice Humphreys noted the developer, Keegan Land Holdings, “wasn’t particularly happy” about his referral of legal questions about protected site for ruling by the CJEU.

The European court took some 20 months to answer the questions. Complaints of delay in the overall case, which was tied up for nearly three years in court, should be taken up with the EU, the judge added.

Legal sources who work for a range of clients in the planning and environment list had mixed, but largely positive, opinions of the efficiency of the planning and environment court throughout 2023.

One practitioner felt the case management list, to which some 80 participants log in on a typical Monday, can be a little cumbersome. However, he said Mr Justice Humphreys managed actions in an “extremely efficient” way, which appeared to be leading to An Bord Pleanála conceding at earlier stages of the court process. It could be assumed that a concession by the board signalled a judicial review had been properly brought, so the resolution was positive and freed up more court time, he said.

He pointed to Mr Justice Humphreys’s refusal last October to allow a residents’ group to challenge a €175 million wind farm as the group was one day late initiating its case. This, the lawyer said, was in keeping with the spirit of the relevant legislation requiring strict compliance to ensure early resolutions.

Another argued the list is overly bureaucratic, with excessive amounts of practice directions and checklists that can be tricky to comply with. Seemingly trivial procedural matters can cause delays prior to hearing, while three judges assigned to hear the planning matters are too few, the lawyer added.

A fellow practitioner said it was wrong to blame the court for delayed activation of permissions. Rather, insufficient resources at An Bord Pleanála had created a “bottleneck”.

The planning court has moved heaven and earth to deal “very quickly” with hugely complex cases. It is not the court’s fault that issues of European law are so frequently before it and often require appeals or CJEU referrals, the practitioner added.

A potential perception that the list is overwhelmingly dominated by cases from community groups and environmental NGOs would be incorrect in 2023, which has seen an increase in cases brought by developers and landowners, according to some who spoke to The Irish Times.

This year has seen a significant number of developers’ challenges to councils’ development plans, the so-called land hoarding tax, site zoning decisions and permission refusals.

The development plans of all four Dublin councils are the subject of at least one judicial review each, while plans in Wicklow, Kildare and Meath are also contested, with the latter subject at one stage to five separate challenges.

On the final day of the 2023 legal year, the Supreme Court dismissed two development companies’ appeals over land zone changes in the Meath county development plan.

The decision and its findings will likely feed into how the remaining plan challenges progress through the High Court in 2024.

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