Judicial reviews serve the common good

Rather than castigating public-spirited ordinary people concerned by planning problems, the Government should focus on properly resourcing the planning and legal systems 

"We should not forget recent serious issues within what was An Bord Pleanála, when it was the public’s vigilance, together with the proper scrutiny of the courts, who were the guardians of the public interest and exposers of bad planning decisions."

In the last months, we’ve been subjected to a concerted attack waged on civil society and the courts for their role in planning and development in Ireland, particularly with regard to judicial reviews.

With multiple crises facing ordinary people and businesses in housing, energy, water and climate change, judicial reviews are being framed as the problem delaying delivery of housing and key infrastructure. The narrative is restriction on the use of judicial reviews is now necessary and justified for the common good, with significant legislative changes necessary.

A contrary view is that this narrative on judicial reviews is to create a distraction from Government’s ongoing failures by scapegoating the public and the courts. 

It is part of a deregulatory agenda, facilitating a disproportionate curtailment of the public’s rights, and compromising public accountability. This will undermine the rule of law and the quality of planning decisions, and risks exerting political pressures on our independent judiciary — which is unacceptable. 

Those taking judicial reviews, and the few lawyers prepared to and capable of representing them in taking on the State and big developer interest, provide an important public service.

Seán O’Driscoll’s views, as chair of the Accelerating Infrastructure Task Force are interesting given its role in addressing infrastructure delivery problems and the associated government decisions including on the housing plan to be announced this week. 

Attracta Uí Bhroin: 'The implications of flawed planning decisions are not just mishaps on paper. Too often, they end up cast in concrete, impacting horribly on those who live in or near them; on wider society; our economy and environment, lasting for decades.' 

In October, he was reported as alleging “planning objectors” are now taking cases on “an industrial scale”, threatening the common good, highlighting that 88 judicial reviews were taken in the first six months of 2025.

However, context and balance is everything if we are really to make informed choices in addressing the underlying problems for what are after all longstanding failures in these areas, with far-reaching consequences for people, society, our economy and environment. 

In the face of the overwhelming negative narrative on the use of judicial reviews, here’s an attempt to provide some balance and key facts.

The actual extent and nature of judicial reviews

An Coimisiún Pleanála is a key body for decisions on large and infrastructure projects in Ireland

Comparing the 1,484 decisions it made over the first six months of this year, with the numbers of judicial reviews issued against it over the same period:

• 2.89% were challenged by the public and environmental NGOs; 
• 2.29% were challenged by landowner or developer interests. (landowner includes interests on larger projects as well as small property interests eg a private house development/compulsory purchase of property); 
• At least 1.41% were corporate interests eg, property and investment companies or other large commercial interests;
• Just 5.32%, in total, of its decisions were subject to judicial reviews.
  

  In 2024, it made 3705 decisions. environmental NGO challenges represent 0.18% of its decisions ; with the public 2.02% and  landowner or developer at 1.34%.

So clearly, not everything is being blocked by judicial reviews. There’s an almost even split between landowner/developer and wider public interests seeking recourse to our courts to oversee the lawfulness of decision-making.

The importance of judicial reviews for the common good 

The Government does not have a monopoly on the common good. Just look at the state of the Irish environment, the housing, energy, water and climate crises, to see the failure successive governments have made of managing in the wider public interest. Oversight by the courts of Government and public-authority decision-making has never been more important.

Judicial review is a key mechanism for holding public authorities to account before our courts. It is key to the rule of law, the attack on which we decry in other jurisdictions, but which is being cheered on in our own.

We should not forget recent serious issues within what was An Bord Pleanála, when it was the public’s vigilance, together with the proper scrutiny of the courts, who were the guardians of the public interest and exposers of bad planning decisions.

So, it’s hard to take this hostility to the public and the courts and their role in maintaining focus on the quality of decision-making. However good or bad planning decisions are now — imagine the risks if public authorities consider they are not open to review before the courts?

The implications of flawed planning decisions are not just mishaps on paper. Too often, they end up cast in concrete, impacting horribly on those who live in or near them; on wider society; our economy and environment, lasting for decades. 

Procedural requirements are there for good reason as safeguards to inputs in decision-making. They should not seem like a menu of convenience for decision-makers to choose from as they make decisions.

Focus on quality 

Seán Guerin SC, chair of the Bar Council recently hit back at the criticism of judicial reviews, highlighting that: "Better-quality planning decisions would mean fewer judicial reviews”. 

Yet contrary to that wisdom, we still have under-resourcing of decision-makers, dealing with more and increasingly complex large developments. We also see complex legislation rushed through the Oireachtas. This leads to flawed decisions and drives judicial reviews, causing delays and uncertainties across the system.

It is ironic that Fianna Fáil and Fine Gael still blame “planning”. The ink is still wet on the pages of their Planning and Development Act, 2024, born out of a behind-closed-doors review of planning, and a major rewrite of planning legislation led by the then, and current, Attorney General.

Resourcing the judiciary 

As a member of the users' group for the Planning and Environmental Court speaking in a personal capacity, I am also deeply concerned about the risks of under-resourcing our courts a year since the president of the High Court called for additional judges.

More judges, judicial and court resources are essential, if we are to avoid the risk of a slide into yellow-pack justice; a prioritisation and treatment of cases to appease certain pressures; and a self-restricting approach on access to justice by our courts.

However, public expenditure minister Jack Chambers indicated before the recent budget that further planning reforms were more important than budget discussions, and additional judicial resources did not feature in the recent budget.

Instead, public-spirited members of the public are being cast as bogeymen hell bent on a mindless and selfish frenzy of judicial reviews. In the lead-up to and aftermath of Halloween, that false spectre has no merit.