An Bord Pleanála is facing as many legal challenges now as it did during the building boom, with a growing proportion of its decisions being taken for judicial review.
The planning appeals board is also spending more on legal fees than when construction was at its peak despite its caseload being down 70% on 2007.
Some of the judicial reviews are a hangover from busier times but the board has noted a “significant increase in the rate of legal challenges in 2013 and 2014”.
It says new responsibilities and the growing complexity of planning laws “is by its nature providing increased scope for questioning the legality of An Bord Pleanála decisions usually combined with challenges to the legality or constitutionality of the underlying legislation itself”.
The board received a record 6,664 cases in 2007 and 5,800 in 2008, the year in which judicial reviews rose to a record high of 45. The caseload fell sharply in the recession and was 1,864 in 2014 and only slightly higher at 1,979 last year, yet the number of judicial reviews, which fell to 13 in 2010, shot back up to 42 in 2014.
That means proportionately the rate of judicial reviews was more than four times greater in 2014 than it was in 2007.
Legal costs were highest in 2008, at just over €2.6m, and after falling to slightly over €1m in 2012, they shot back up to €2.4m in 2014. When recovered costs are factored in, net expenditure on legal matters was actually higher in 2014 than in 2008 — €2.2m compared to €1.7m.
The need for the board to address its mounting legal battles is just one of 101 recommendations made in a review which calls for wide-ranging changes in law and the way the board operates.
In its own submission to the review, the board points out that new planning legislation, applications for major infrastructure development in the energy area, and the inclusion of European Union directives on habitats, species, and environmental impacts in domestic planning law “has added further complexity to already complex planning legislation”.
“A number of judges have recently commented on the complexity of the overall legislation framework governing planning decisions and the difficult job faced by An Bord Pleanála in interpreting and applying the legislation,” the board said.
The review, ordered by Environment Minister Alan Kelly and carried out by a four-member independent group chaired by British planning law expert Gregory Jones, said the board was working with “an unnecessarily complex and fragmented planning code”.
It said: “The Government should give prompt consideration to establishing a review to address the complexity of planning law.”
It also said the board needed to boost its legal expertise. “In particular, it is a severe weakness of the decision-making function of An Bord Pleanála that it possesses no professionally qualified lawyer to assist with the drafting of the reasons given by the board and to advise board members generally.
An Bord Pleanála has previously sought and been refused funding for the appointment of in-house legal counsel. The Review Group considers such an appointment to be vital.
The board is preparing its formal response to the minister. The Department of the Environment said: “The department shortly intends to engage with An Bord Pleanála on the practical implementation of the report’s recommendations.”
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