Developers behind growing number of planning court cases

Judge Richard Humphreys said '[I]n more recent years, a very substantial amount of litigation is now by developers complaining about the refusal of permission.'

A growing number of cases before the planning court are from developers and not those trying to block new projects, the presiding judge has revealed.

In recent weeks, the head of Uisce Éireann hit out at the so-called ‘banana’ brigade — build absolutely nothing anywhere near anything — for delaying infrastructure projects though objections and court actions. Niall Gleeson claimed it is costing the taxpayer billions and stopping young people from buying homes.

But up to one third of cases now being heard relate to planning permissions which have been rejected, rather than ones given the go-ahead from An Bord Pleanála, according to Judge Richard Humphreys, who presides over the planning and environmental division of the High Court.

“In the past, environmental litigation tended to be by environmental challengers complaining about the granting of permission, but in more recent years, a very substantial amount of litigation is now by developers complaining about the refusal of permission,” he said.

“So in a sense, one could take the view that the sort of prominence and focus on environmental law has actually sort of stimulated and encouraged people to think outside the box and think of bringing challenges that they wouldn’t otherwise in the past.”

Speaking to the Irish Examiner, he added: “A fairly substantial minority of the work of the Planning and Environment Court is litigation brought by developers, which they’re perfectly entitled to do, just as environmental litigants are entitled to bring their challenges.

“Developers challenge things like refusal of permission, they challenge imposition of conditions that they don’t want, they challenge development plans if they see the development plan as inhibiting their projects, zoning for example.

I haven’t prepared any hard figures myself, but it wouldn’t surprise me if about a third of the litigation — or certainly 25% — is developer-led in some shape or form.

The workload of the three-judge court has increased significantly since it was established in 2023 when 300 cases in the predecessor list were taken over, including 144 live cases.

Despite a focus on dealing with cases as quickly as possible, last week, those numbers were at 659 cases processed, of which 266 were live.

“I think that the increase in work rate has been more than I expected, for sure. Definitely, the impact of that is on resources,” Mr Humphreys said.

The sharp jump in cases comes down to a number of factors, including an expansion of the remit of the court, as well as a Supreme Court finding which has given “certainty to applicants” that they would not be obliged to pay their legal costs if they were unsuccessful.

The turmoil within An Bord Pleanála in the wake of a series of controversies in 2022 led directly to the depletion of its board membership and a backlog of cases. But as the pace again begins to pick up in planning authority decisions, the judge has also seen an increase in his own court.

"The meat and drink of the list is still decisions by An Bord Pleanála, a lot of housing, still a lot of energy projects, a certain smaller number of more strategic infrastructure projects, and industrial projects. That's still the core of it.

"But then because the remit of the list covers all environmental litigation, you get a lot of other types of cases, such as other environmental consent procedures," he said, referencing other agencies which grant licences, forestry and aquaculture decisions.

Ministerial policies and guidelines, local authority projects that don't need to go through the planning system and injunctions as well as a niche area relating to access to environmental information are also heard.

For now, Judge Humphreys only sees the work of the court increasing, especially after the Planning and Development Act, which passed in the Dáil last year and is the most significant reform in planning legislation for more than two decades, comes into force.

"There is a point of view that when the new act comes into force, people will come up with all sorts of new legal points, and that, to some extent, is inevitable. So I think the settling in period is going to go on for a while."