Is it really possible to reform judicial reviews of planning?

Bringing decisions back onto the Cabinet table and reforming our important but outdated system of judicial review could help break the housing deadlock, writes David Gwynn Morgan, emeritus professor of law at UCC

Among the obstacles to overcoming the housing crisis in a prosperous state, like Ireland, are two, which, to an intelligent Martian would seem not to be especially formidable. 

In the past couple of weeks, these two have been brought strongly to public attention, by an entrepreneur and a builder. 

They are: judicial review of compliance with the necessary administrative stages for a development (Stephen Garvey, CEO of Glenveagh, Today with Claire Byrne, October 28); and the thicket of state agencies which a builder has to negotiate (John Collison, Entrepreneur and co-founder of Stripe, Irish Times, October 25).

In regard to each of these objections, one has to accept, as indeed did each of the gentlemen mentioned, that ‘no red tape’ is simply not an option: there does need to be some system of enforceable rules to ensure: consultation with neighbours and responsible experts, safety and durability; avoidance of corruption; and transparency (sunshine is the best disinfectant’). 

I could go on. But the question is combining these necessary virtues with a prompt planning system the best and most efficient way? 

Stephen Garvey believes that, since there is a check at the local planning authority stage, the judicial review of planning matters should be scrapped. File photo: Chris Bellew / Fennell Photography.

Mr Garvey suggested uprooting judicial review of planning matters on the basis that, even without review, there is anyway a check at the local planning authority stage (though this stage has been removed in the case of large housing estates and structural developments) and, on appeal, to An Coimisiún Pleanála.

However, judicial review of all administrative action is required, by the Constitution, not explicitly but by long-established judicial interpretation. So: should they amend the Constitution? Good luck with that, as they say.

Reform of laws?

But, instead, might it be possible to severely reform judicial review of planning? Difficult, but let’s see.

In the first place, even beyond what was done in the recent reforms to judicial review, more might be done to reduce delay: additional judges and court resources and shorter hearings (more written submissions, as on the Continent). 

Delay almost invariably favours the objector because the developer is caught by such factors as: capital expended on land, with returns only in the uncertain future, when the houses are sold; banks barking; and the need to retain the labour force together.

Both sides know what a weapon delay can be. I have heard counsel for objectors saying, without embarrassment, "this one had better be a slow bicycle race". Without embarrassment.

Next, for historical reasons, judicial review often turns on highly legalistic points. 

Technical considerations

In one case, a potential building site was located in a field which had once been in Cork Council territory, but following the re-drawing of the boundary, it fell into City territory. The result was that the documentation gave a slightly incorrect address and building has been, at best, delayed for some years. You couldn’t make it up.

A major feature of review of planning matters is that various expert documents must be provided by the developer. The traditional legal principle here is: that it is not open to the developer or the public authority to argue that, in the particular circumstances of that case, if it had been provided, the document would have made no difference. 

In many cases, it would affect the outcome if that principle were changed so that the onus was on the objector to establish that the document would have contained something crucial.

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At the heart of a judicial review, a High Court judge frequently has to scrutinise the appropriate balance between the individual interests of some definite individual landowner(s), in court ; and, on the other hand, the ‘public interest’. But this of its nature is difficult to represent completely or, for the judge to measure it.

This is especially true where the development is for services. For instance, a recent case involving the Dublin Drainage Scheme, centred on a wastewater plant and a long pipe to the coast. This is a type of situation with which the judicial review process which originated in the 17th century is simply not designed to cope.

Worse, given the longevity of buildings, roads or watercourses, the effect of the granting (or withholding) of permission may become concrete only after decades or generations have passed. As they say: what’s posterity ever done for me?

Aarhus Convention

Of most practical importance is the Aarhus Convention. This UN regional treaty started life, rather innocently, to establish the principle that legal proceedings ‘relating to the environment’ must not be prohibitively expensive. 

While the position is complicated, it means that in many cases, a losing party will not be caught for costs, even where s/he is motivated by pure nimbyism, unpolluted by any concern for the environment. So, heads the objector win, tails s/he doesn’t lose. 

Perhaps it is significant that the Aarhus Convention, not being an EU instrument, provides that any state may withdraw from it.

The changes to judicial review suggested or implied here are fairly radical. It would need significant political pressure to persuade senior lawyers and/or judges that the circumstances (housing crisis; mass of technical considerations; Aarhus…) are now such as to call for changes to a centuries-old legal procedure. 

But I think it needs to be done.

Equally radical, but on the political side, are the changes proposed by Mr Collison. His point of departure is that, partly as a response to the Haughey-Burke ‘era of Tribunals’, 300+ independent governmental agencies have been established. And many government functions have been shunted to them, away from Government departments.

In contrast, pre-2000, the governmental landscape was largely of a series of departments headed by a minister, who would have: to answer Dáil questions from the Opposition; and, at his own parliamentary party meeting to reply to deputies. 

Also, by today, these deputies would have been full of the complaints received, the previous weekend from constituents, in their 30s or 40s, still living with their parents. That, after all, is how democracy is supposed to work.

In response to this line of argument, champions of agencies would say that they are equipped with experts; and, secondly, capable of looking into the future beyond the next General Election.

Taoiseach Micheál Martin with Stripe co-founder John Collison at the opening of Stripe's new Dublin Headquarters last month. Mr Collison thinks that the many housing-planning type functions carried out by independent governmental agencies should be transferred back to the Government. File picture: Conor McCabe Photography

Nevertheless, Mr Collison’s view is that the many of these housing-planning type functions should be transferred back to the Government. This would also allow for better communication in regard to matters which should be considered together, like water and agriculture or roads and schools.

In a sort of way, the outcome of last the presidential election — a firm vote against the Government — seems to provide support for Collison’s view.

• David Gwynn Morgan is Emeritus professor of law at UCC