Planning act effect on judicial review ‘overstated’

Judicial-review provisions contained in new planning legislation are not as radical as initial reaction to the bill suggested, lawyers gathered at Blackhall Place have heard.

A conference at the Law Society (21 November) heard praise for many measures in the Planning and Development Act 2024, but also criticisms of its complexity and potential effects on public participation.

Many speakers expressed uncertainty about the practical implications of the changes, until the measures were tested in court.

Increase in cases

The fully booked annual conference of the Law Society’s Environmental and Planning Law Committee, held in collaboration with Law Society Professional Training, was told of a 73% hike in the number of cases in the High Court’s Planning and Environment Court.

Mr Justice Richard Humphreys, the judge in charge of the division, said that the number of live cases stood at 247 in early November.

He also stated that the number of homes being objected to was just under 7,000, spread over 247 cases – a figure he described as small compared with the 100,000 homes that had been permitted but unbuilt.

The judge predicted that there would be a “lengthy settling-in period” as the 2024 act came into force in stages, but that the “legislative churn” would eventually settle down.

‘Streamlined system’ the aim

Paul Hogan (Assistant Secretary, Department of Housing, Local Government and Heritage), traced the background to the 2024 legislation, explaining that it arose from an acceptance that key elements of the planning code were no longer fit for purpose.

The aim, Hogan added, was a streamlined system, with more predictable timelines and outcomes.

Hogan said that the legislation contained mechanisms to “quickly align” national and local policy.

“There are certain things that need to be decided centrally, to apply across the board; other things can be dealt with on a subsidiarity basis,” he stated.

Hogan told the event that an implementation strategy for the 2024 act would be rolled out over 18 months, adding that the first commencement order – dealing with various procedural, transitional elements – had been drafted.

The transition of An Bord Pleanála (ABP) into An Coimisiún Pleanála in the first quarter of next year was a priority, Hogan added. 

ABP was now “fully resourced” and was not seeking any new staff now, he said.

The next block of commencements will address plans and guidelines, as well as parts of the functions of the Office of the Planning Regulator (OPR), by the second quarter of next year.

Other phases of implementation will follow, with judicial-review measures coming into effect in 2026. Hogan stressed that nothing would change until commenced by order.

‘Extra layer of complexity’

Alice Whittaker (Philip Lee LLP) focused on the parts of the legislation dealing with extensions and alterations of planning permission.

Although Whittaker welcomed some aspects of the proposals – including the focus on ten-year development plans, and the provision for planning authorities to grant permissions for longer than ten years – she said that other elements had injected “an extra layer of complexity” into the process.

Whittaker pointed out that procedures that currently applied to applications for new developments would now apply to applications to extend the duration of planning permissions.

She welcomed the proposal to allow planning authorities to take special considerations, such as the social and economic benefit that would accrue to the State, into account for marine developments, but asked why these “perfectly sensible criteria” could not also apply to land-based developments.

Whittaker added that developers were also conscious of the risk that, if their planning permission spanned a change in a national plan, a fresh plan could introduce new or different objectives that an application to extend or alter the original permission might contravene.

She told the conference that some of the procedures involved in such applications were “far too uncertain”, warning that investors fled from uncertainty and excessive complexity.

‘Fundamental change’

Aoife Carroll SC, who examined the judicial-review (JR) aspects of the act, argued that a narrative about the proposals that had emerged – that there were fundamental changes that would restrict access to justice – had been “overstated”.

Carroll told the conference that the changes were “not particularly radical” – except for a provision in section 280(4) of the act, under which the leave of the High Court would not be required in order to make an application for judicial review.

Describing this as “a fundamental change”, Carroll said that such applicants would no longer have to demonstrate to the High Court that they were entitled to bring the proceedings or had a basis to bring proceedings.

She added that this put someone applying for a planning judicial review in a different position to every other JR applicant in the State.

Carroll said that, while others could debate the merits of this proposal, it could not be described as something that would create a barrier to access to justice.

Questions on centralisation

Alison Hough BL (senior law lecturer, Faculty of Business and Hospitality, TUS Athlone) referred to “media narratives” that the housing crisis, or the climate crisis, was being caused by public participation and judicial reviews in the planning process.

Hough told the conference, however, that there was no evidence to support the contention that the planning system was “jammed up with bad actors”, pointing out just 3% to 5% of all planning decisions were challenged.

“Having a say in decisions that are made about your environment is a fundamental human right,” Hough stated.

She told the event that the act would change the hierarchy of planning, beginning at the top with national planning statements – ministerial statements setting out national policy that were binding on the lower levels of hierarchy.

While stressing that many people would welcome this consistency throughout the system, Hough was critical of the lack of any explicit requirement for public consultation in the development of national planning statements.

“That raises questions as to whether we're establishing a centralised system of power, where you have non-mandatory requirements to consult, and non-mandatory requirements to assess the permanent impact,” she stated.