The new planning bill — forty shades of green or fifty shades of grey?

Provisions in the bill which propose to make it more difficult to pursue judicial review of public authorities, if enacted, will mean those awaiting homes and critical infrastructure will suffer and it will have profound impacts on local environmental groups

Wed, 22 Feb, 2023 - 02:00

Attracta Uí Bhroin

There is no one better capable of spin than an Irish politician. But the recently published Draft Planning and Development Bill is far from the Government’s forty shades of green and positive spin.

It is more like fifty shades of grey, merging into very black storm clouds of litigation that will invariably and regrettably delay the delivery of homes and critical infrastructure. That is an unacceptable outcome.

Grey is a lawyer’s favourite colour, for in the grey areas of words and law they wield their craft. The obstacle course of provisions in this bill which propose to make it more difficult to pursue judicial review of public authorities, is a lawyer fest.

If they are enacted, those awaiting homes and critical infrastructure will suffer, as arguments on the legality of these restrictions add further layers of legal arguments to cases. Uncertainty and delay will be the result, rather than the bill’s PR spin of certainty and speed.

The changes are based on a false narrative painting judicial review as a bogeyman. It is a shameful attempt to use the housing, energy and climate crises as a reason to curtail rights and paint those who have pursued judicial review as being the villains, without any supporting evidence.

The Government is driving an autocratic agenda where public accountability is put out of reach.

However, as highlighted in the recent Overview of the Planning System from the Office of the Planning Regulator, in 2021 only about 3% of An Bord Pleanála’s decisions were being subject to judicial review when measured against decisions made, and the vast majority of judicial reviews have been justified.

Kate Corcoran and Linda Fitzpatrick of Chase protesting at the oral hearing into the proposed incinerators for Ringaskiddy in 2009. The proposed new planning bill would prevent groups like Chase from taking judicial reviews over planning decisions. Picture: Darragh Kane

A recent Construction Industry Consultant report from Mitchell McDermott indicated 91% of housing units challenged were entirely vindicated by the courts.

It has never been more important to ensure the safety mechanism provided in judicial review and the oversight of our courts can be effectively accessed.

Everyone will be grappling with major changes from this legislation. Errors are inevitable. That risk is compounded by a deficit of at least 541 resources in planning in local authorities and a lack of resources in An Bord Pleanála.

All is compounded by new concerns on the independence of An Bord Pleanála. Part 9 of this current planning bill is, in my view, worse than the infamous 2019 bill on judicial review.

There are multiple barriers to locus standi for the public and eNGOs — limiting their rights to take challenges, and a deeply controversial replacement of special cost rules for environmental cases.

Provisions allow authorities to change their decisions after they are made, undermining their focus on making good decisions, apart from other legal issues. Failures of a whole range of bodies, including the minister, now fall subject to these changes with the very tight limit of eight weeks to challenge them.

The changes will have profound impacts on local environmental groups like Cork Harbour Alliance for a Safe Environment, Chase — who have been vindicated in the judicial review it took on decisions for the Ringaskiddy incinerator.

Avenues that community groups like them previously relied upon are closed off, or made very uncertain, difficult and costly.

Restricting access like this creates the phenomenon of satellite litigation. You end up arguing against the legitimacy of the restrictions first, before you can argue your case. That causes more delays and additional costs and burden to the courts.

Irish people and environmentalists who are convinced they are right don’t walk away, they fight for what’s right. It’s in our DNA.

Similarly, the bill proposes groups like GreenPeace and also ClientEarth, the rock stars of the eNGO world, will have serious issues with legal standing as eNGOs in Ireland. I wonder how Green MEP, and former GreenPeace activist, Grace O’Sullivan will explain that to former colleagues.

Serious practical issues arise for national eNGOs. The bill has ridiculously narrow and complicated views of what types of cases they will have standing on, together with onerous and intrusive administrative requirements, meaning some will have to convene extraordinary general meetings of their members within the short eight week window for judicial review.

The issues with its new proposals on costs are best viewed against the current system.

Ireland has currently implemented special cost rules for environmental cases to comply with its legal obligations. Put simply, you are generally not liable for the other side's costs if you lose. You can be awarded some of your costs if you are successful, used to pay your legal team.

This system has the added advantage that lawyers naturally screen out ridiculous cases as they will have little chance of being paid for them.

Now, instead, the bill proposes that the courts cannot make any order on costs for a range of environmental litigation, except where it wishes to punish you. So while the public will not be exposed to the other side's costs, they also cannot be awarded costs anymore. So how will you pay your legal team?

The bill indicates a new aid scheme is to be devised for costs, but provides no detail on it. Also as published, this scheme is limited to planning cases only.

That makes litigation on a range of environmental cases unaffordable for most people as you will have to cover your own costs regardless of whether you win or lose.

But there are even more profound issues of principle with this.

There is no use in trumpeting about this new scheme to cover legal costs if the public cannot get in to the court in the first instance given the obstacles in the bill;
The cost scheme is transferring control of who can or cannot afford to go to court on environmental cases to administrative control by a Government which has a clear agenda to limit litigation — not just in environmental cases;
That power transfers to future Governments, which could be even worse;
Control over access to the courts will be effectively subject to political control, and determinations by Government of where public interest lies.

This cannot be cheap and cheerful access to justice — it is also legally required to allow you to have a fair and equitable review — so you need to be able to engage a legal team capable of taking on the State and big corporate lawyers.

The practicalities of administering such a scheme would mean delays up front as people will need to have certainty on costs before they start a case. That means stopping the eight-week clock allowed to advance your case, creating delays.

If, alternatively, you are obliged seek cost aid after the case (none of which is clear in the bill), you will be beset with chilling uncertainty on what aid you may or may not get.

That will just lead to legal challenges against legally uncertainty on costs, and more delays. It is naive to believe the courts can be insulated from the fights on this. They are an emanation of the State and are obliged to disapply national laws that are in breach of EU law as the EU Court of Justice has clarified.

The legal obligations on Ireland in respect of providing for legal aid are infinitely more complex than just costs. So any legal aid scheme must be additional to the current system and not a replacement for it.

Now is the time to say no to the judicial review changes in this bill.