Sean Finlay: A planning system for a modern Ireland

Resourcing our judiciary is necessary to arrive at a planning system that is fit for purpose, one that can deliver major investment and infrastructural projects, writes Sean Finlay

The Irish planning system can be slow, cumbersome, expensive, and frustrating for participants in it. This is a view shared by many throughout the system fromdevelopers and local communities to major investors.

It has been argued that the current system is stifling investment in our economy, a view recently echoed by Fine Gael MEP Seán Kelly, who said: “Our planning system is not fit for purpose. It’s not geared to those who want to invest.”

So, what can we do about it?

Last summer, the British-Irish Chamber of Commerce, under the auspices of its infrastructure committee,of which I am the chairman, convened stakeholders from planning, industry, and legal services to look at our current system, the blockages, the challenges and its general shortcomings.

These experts were tasked with depicting what a planning system for a modern Ireland would look like and what action needs to be taken to get us there.

The seminar took place against the backdrop of various frustrations with the planning system, with numerous planning decisions being challenged in the High Court, with the most high-profile case, the Apple data centre, Athenry, leading to the tech giant not proceeding with the project. While this case attracted the most significant media attention, our attendees believed it to be indicative of the Irish system.

So, what’s broken in our system? The view from our experts was that it wasn’t necessarily the fault of local authorities or An Bord Pleanála for high-profile delays. It was cited that, in the case of the Apple data centre, the county council and An Bord Pleanála completed their responsibilities in six months.

It was the subsequent appeals processes taken in the High Court against applications that caused the significant delays in the planning process.

Our view is that the threshold for seeking leave to apply for judicial review for a planning decision is too low and that very few cases brought to the High Court for a full hearing are successful.

While fast-track does exist for infrastructural projects deemed to be of strategic importance, this fast-track environment for litigation has been limited and the costs and the delays associated with judicial reviews can be prohibitive.

This can lead to objectors leveraging commercial pressure on respective applicants. Furthermore, some of our attendees noted that, in certain circumstances, vexatious or frivolous claims are pursued to maximise leverage against developers yet even when a party is unsuccessful at hearing, the perception is that only very rarely do they face an adverse legal costs order.

Under our system, there is no scope for restricting judicial reviews only to parties that have a direct interest in an application. Effectively, this means an obscure objection has the potential to significantly delay a project beyond its viability.

So, what can be done?

In our view, what is needed is not to restrict the ability of the public to object to an application but to ensure the system operated in a fair, efficient and timely manner. In order to achieve this goal, the legal system needs more resources. For example, Ireland has the lowest number of judges per capita in the EU.

Ireland is also an outlier for the budget of the judicial system on a GDP per capita basis. This lack of resources means that judges do not have time to read each side’s papers before a trial despite judicial review proceedings being entirely paper-based.

The result is that a significant amount of time at trial is taken up by lawyers for each party simply reading their papers to the court to get the judge up to speed. Appointing more judges may mean that the judge assigned to a case has time to read papers before trial.

An effort was made by the Government to expedite judicial reviews with the implementation of two statutory instruments (SI 254 and SI 255). These SIs were brought in by the Government in October 2016 to provide for case management and management of time at a trial. If implemented a list judge (designated by the President of the High Court) could fix a timetable for the preparation and completion of the case for trial.

These procedures are tried and tested in Ireland but are not widely available outside the commercial court or the Strategic Infrastructure Division. However, the implementation of these rules has yet to take place due to lack of resources.

Outside of resources, other suggestions put forward included the need to move to electronic materials for trials. The use of hard copy documents remains the norm. In the High Court, papers must still be filed in hard copy in the Four Courts, and using hard copy papers at trial remains the almost universal practice.

The Courts Service has recently launched a facility to allow electronic filing of Supreme Court appeal applications and this may be extended to the other courts if it is a success. More common usage of electronic documents at pre-trial case management and at hearing will lead to increased efficiency and will, in turn, reduce the waiting list for a matter to be heard.

Private sector investment in Ireland is growing significantly, major industrial partners are looking to develop outside of Dublin — bringing jobs and much-needed investment, while Project Ireland 2040 sets out an ambitious plan that can deliver the necessary infrastructure needed to accommodate a population set to rise by more than one million people by 2040.

The realisation of these projects will be determined on whether our planning system is fit for purpose — resourcing our judiciary is a good place to start.

Sean Finlay is chairman of the British- Irish Chamber of Commerce infrastructure committee and director for business development at Geoscience Ireland. The expert panel contributing to the planning law seminar comprised Nicola Dunleavy (Matheson); Stephen Barry(Evershed); Ronan Kennedy (NUIG); Cliona Ryan(Planex), and Liam Smyth (ICF).