Judicial review at centre of infrastructure plan

Reform of the judicial-review process is at the centre of a Government plan to speed up the delivery of key infrastructure published today (3 December).

In a foreword to the report, Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation Jack Chambers describes it as “a statement of intent”.

“It signals Government’s determination to break through inertia and deliver the infrastructure that our people, communities, and businesses urgently need,” he states.

The plan includes four ‘pillars’:

• Legal reform,
• Regulatory reform and simplification,
• Co-ordination and delivery reform, and
• Public acceptance – “providing better information to support a more informed debate”.

‘Proportionality’

The report states that the legal reforms aim to “restore proportionality” in how judicial reviews affect infrastructure.

“While access to justice remains protected, the reforms will reduce incentives for excessive litigation, clarify rules on standing and remedies, and introduce fast-track pathways for nationally significant projects that are in the common good through the development of new legislation,” it says.

The report notes that there was a 43% increase in the number of judicial reviews last year compared with 2023, with a further 30% increase this year.

“Virtually every planning decision related to critical infrastructure is subject to judicial review,” it states.

‘Real costs’ for society

The report calls for a “rebalance of rights” towards the common good or public interest, adding that the increase in judicial reviews “imposes very real costs on taxpayers and society in general”.

In the longer term, the Government plans to develop legislation to codify the law on judicial review by placing it on a statutory basis.

“This could include measures that would significantly accelerate infrastructure provision, such as limiting judicial reviews to the ultimate planning decision underpinning a decision, rather than currently, where every licence, consent, and planning condition is separately subject to judicial review,” the report states.

It adds that such legislation could also introduce tests, such as an assessment of the prospect of the success for any litigation before it is allowed to proceed.

Costs cap

In the interim, the Government says that it will immediately commence a part of the Planning and Development Act 2024 that will cap the costs the State will pay in environmental judicial reviews (JRs).

It will also look at the British model, which limits the liability that applicants face in such JRs but would ensure that they face an element of jeopardy.

The Government says that it will also examine the appropriateness of ‘no foal, no fee’ structures and their impact on the courts system.

“Government will consider further amendments to legislation – including the potential means to limit judicial reviews to applicants likely to be directly impacted by a development,” the report adds.

It will also consider what it describes as “an explicit step” that will require the courts to consider the likelihood of success that a JR might have.

The Government will also look at the fee structures applied in the legal sector “to ensure that they do not unreasonably encourage low-probability cases”.

Critical infrastructure

The report says that the Government will aim to enact a Critical Infrastructure Bill next year that will create a legal obligation for State bodies to recognise and accelerate key projects through planning, licensing, and other consenting stages.

The bill will also explore options during drafting for incorporating statutory timelines, positive presumptions, and other measures to reduce procedural delays.

The report says that these measures will reduce the risk of judicial reviews.

The Government has also pledged to develop legislation with emergency provisions that will allow it to speed up specific critical infrastructure in emergencies, saying that there are precedents for this at national and EU level.

EIAs to be ‘streamlined’

The report describes Appropriate Assessments (AAs) and Environmental Impact Assessments (EIAs) in Ireland as “disproportionate” to the standards applied in other EU member states.

The Government is planning changes that it says would streamline the scope of information required, reducing the amount of material submitted and speeding up the process.

It will also look at increasing the threshold at which EIAs are required for projects, as well as the thresholds for expansions or extensions to existing projects.

Another planned measure is an increase in the thresholds at which critical infrastructure requires planning or regulatory permissions.

Regulation

On regulation, the report says that the Government has identified “numerous examples” of “relatively minor” legislative amendments on regulatory functions that could shorten timelines for development.

It will also put in place a mechanism to ensure that a broader view is taken into account when implementing EU legislation that is likely to affect infrastructure development.

The report says the current system – where one department develops such legislation – can lead to gaps that may affect the development of infrastructure in another sector.

The Government also intends to review the role and functions of the Office of the Planning Regulator, which ensures that local authorities and An Coimisiún Pleanála are consistent in their implementation of Government policy through the planning system.