Planning process overhaul to seek to curb serial objections and reduce judicial reviews

Attorney General is working to 'streamline' planning laws

Housing Minister Darragh O'Brien: 'We absolutely need to improve our planning legislation to ensure we can deliver homes efficiently at an affordable rate where we need them.' Picture: Gareth Chaney/Collins Photos

Curbing serial objections and tackling the number of judicial reviews into projects of national importance are key parts of a major overhaul of the State’s planning laws.

Taoiseach Micheál Martin and Housing Minister Darragh O’Brien have accepted that it is taking far too long for major projects to clear the planning process.

Attorney General Paul Gallagher is spearheading a three-pronged approach to overhauling planning laws.

In the coming weeks, new legislation is to be tabled which will seek to streamline the judicial review process primarily by restricting challenges to decisions made by An Bord Pleanála. A new planning and environmental court is also to be established.

The new law will seek to revert to the previous “motion on notice” approach instead of the current “motion exparte” approach for the purposes of judicial review leave applications to the courts, aimed at eliminating delays as well as revising the “substantial grounds” and “sufficient interest” criteria for the purposes of granting judicial review leave applications.

Speaking to the Irish Examiner, Mr O’Brien said: “I’ve consistently said the judicial review system needs drastic change.

“As minister, I cannot speak on any individual planning matters but we absolutely need to improve our planning legislation to ensure we can deliver homes efficiently at an affordable rate where we need them."

Another piece of legislation, the Large Scale Residential Development Bill, will put an end to the current strategic housing development (SHD) process and “returns planning to local authorities,” said Mr O’Brien.

It will ensure a more efficient planning system which in itself should reduce the frequency of judicial reviews.” 

The SHD system has encountered significant legal problems and local criticism.

From the system's commencement in 2017 up to the end of September 2021, An Bord Pleanála received 363 SHD applications and had decided 320 cases with permission granted in 226 cases. Figures obtained reveal that 79 judicial reviews were taken against SHD permissions decided by the board.

The system will be replaced by a new local authority-led process which sets a 16-week timeframe for local authority decisions, and 16 weeks with An Bord Pleanála to ensure expedited decisions, while reinstating the primary role of the local authority in crucial local planning decisions.

The bill is due to pass in the Dáil by early December. It will end SHDs from December 17. The third part of the plan is to review and consolidate the planning acts.

The Attorney General has been given until December 2022, when Mr Martin is due to relinquish the Taoiseach's office, to complete the work, sources have said.

It is the single greatest “streamlining” of the State’s planning process, Mr Martin has said.

Lengthy delays

Addressing the lengthy delays currently to major State projects, Mr Martin said: “The Attorney General has taken on a huge task in a fundamental overhaul of the planning code, to streamline it to ensure we can go one layer from county council to An Bord Pleanála, to judicial review, to the courts, and to Europe. We need to streamline it.”

In addition to returning planning decision-making to local authorities and an overhaul of the judicial review process, Mr Gallagher is also undertaking a total review of the planning laws with a view to consolidating them.

The current Planning and Development Act runs to 437 sections and seven schedules.

It has been amended hundreds of times since enactment and, as a result of these amendments, there are inconsistencies as well as a number of provisions which are not compliant with EU law.

The complex nature of the legislation makes it is difficult for those responsible for the implementation and enforcement of the law to successfully navigate it.

At present, judicial reviews in planning matters are frequent as potential inconsistencies in the act are judicially tested.

The Government’s Housing for All set out a commitment to undertake a comprehensive review and consolidation of planning legislation.

The Attorney General is working closely with the Department of Housing, and a planning advisory forum is being established in December to draw on industry experience.

“The objective of the review is to consolidate and revise the State’s body of planning laws. It will regularise our planning laws, improving coherence and overall stability of the system. Above all else, it will bring a level of consistency and certainty in the application of the planning system,” said the Department of Housing.

Sinn Féin’s housing spokesman Eoin Ó Broin said he and his party welcomed the commitment not to extend the SHD legislation in the programme for government, but that allowing SHDs to continue to the end of 2021 is not acceptable.

“Once the SHD legislation is abolished, we must introduce meaningful reforms to the planning legislation that introduces statutory timeframes for pre-planning, requests for additional information, and appeals to An Bord Pleanála,” he said.

“This will ensure planning decisions can be progressed within the quickest possible timeframe without undermining democratically agreed development plans and local participation in planning."