Overhaul of planning system ‘could make things worse’

Michael McGrath expanded on the issue at a recent conference (see below) but critics say 'reforms' could in fact add to planning delays by reducing early stakeholder participation. Picture: Damien Eagers

A review which could lead to a major overhaul of planning laws is expected this month, but concerns have been raised that it may constrict democratic participation in the process.

Delays in the planning process have constrained the delivery of infrastructure including renewable energy and housing projects, sparking calls for a swifter system.

However, problems also lie with developers as many housing projects which are granted planning never get built. Cork County Council has confirmed that, of 12,169 planning consents for homes between 2012 and 2021, only 4,426 units were completed.

Minister for Public Expenditure and Reform Michael McGrath told a Construction Industry Federation conference in Cork that a major review of planning legislation under the Attorney General is nearing completion.

“It will lead to a new consolidated planning bill, which will be brought to Government in the coming weeks,” Mr McGrath said.

"It’s intended to reduce the legal risk of successful judicial reviews, that planning decisions should be made by our planning authorities, not by the courts, and the court should not in so many instances have grounds on which to overturn planning decisions. 

"It’s an issue that we believe a comprehensive new planning consolidated bill will address, significantly reducing legal risk, and also ensuring a greater degree of compliance with EU law.

“It is a very, very important piece of work.”

However, Ian Lumley, head of advocacy with An Taisce said he is concerned about any rollback on people’s rights to have planning decisions reviewed.

He was particularly concerned about new planning legislation potentially clashing with rights secured by the UN’s Aarhus Convention which protects people’s access to justice on environmental issues. 

If new legislation breaches rights established under this convention, it would result in years of legal action and international complaint, and the undermining of Ireland’s reputation, Mr Lumley said.

“We’re very concerned about any infringement of rights under the Arhaus Convention. We’re very concerned that the rights of access to justice to review decisions could be infringed," he said.

Any amendment to planning legislation needs not just to comply with Arhaus but should be enhancing environmental justice and sustainable development goals. 

The fact that so many planning decisions have been overturned in the courts, particularly regarding strategic housing developments, shows that this function of review by the courts is necessary and should be maintained, he said.

Recent controversy over An Bord Pleanála and its flawed decision making processes underlines the importance of maintaining someone's right to seek access to the courts, Mr Lumley added.

“That’s an indication as to why we need to protect that right — the fact that there has been such a record of bad decisions overturned. Lobbyists always talk about streamlining and fast-tracking, but what they really mean is rubberstamping.” 

Eoin Ó Broin, Sinn Féin's spokesperson on housing said he has “very mixed views” on the planning legislation review.

“We urgently need a comprehensive review and update of the Planning and Development Act. It has become an unwieldy, complicated and at times contradictory piece of planning legislation. The idea of a review and updating and streamlining on the legislation would be very welcome.” 

He said that he is “sceptical” of the Attorney General being asked to lead the review rather than planning experts and he is “uncomfortable” with some of the suggested changes so far.

Sinn Féin's Eoin Ó Broin: 'There are a lot of good things about our planning system. We also have a lot of problems and you fix those problems by getting people involved in the planning system as early as possible.' File picture: Leah Farrell/RollingNews

“Some of the proposals around changes or proposed changes to judicial reviews would actually make our planning system worse and would lead to further and more protracted legal delays at superior courts beyond domestic courts,” Mr Ó Broin said.

“There are a lot of good things about our planning system. We also have a lot of problems and you fix those problems by getting people involved in the planning system as early as possible. 

The more participative and democratic our planning system is at the earlier stages, the less problems you have at an advanced stage in planning applications. 

Mr Ó Broin said he would wait to pass judgement on the review after he had seen it but he did not think a pre-Christmas deadline for new planning legislation is feasible.

“We were initially told there would be comprehensive legislation this side of Christmas. I don’t see how that’s going to be possible.

" If there’s going to be a comprehensive review of the planning and development act and related judicial review provisions, that’s going to have to produce a report, that report will have to produce a general schemes, that general scheme will have to go through pre-legislative scrutiny and then a full bill will have to be introduced.

“We have learned to our great cost the consequences of rushed and poorly considered planning legislation, the Strategic Housing Development is probably the best example of that. This is something you have to do right."