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Planning ‘inequality of arms’ worries Law Society

The Law Society has urged the Oireachtas Joint Committee on Housing, Planning and Local Government to reconsider parts of a bill aimed at reforming planning rules.

The Society has concerns that aspects of the Housing and Planning and Development Bill 2019 could “severely restrict” access to justice.

It also says some of the bill’s proposals raise questions about ‘inequality of arms’, and could give the State greater power over challenges being taken against environmental decisions by groups or individuals.

The organisation’s comments came in an updated submission on the general scheme of the bill.

Standing rights

It expressed concern at a number of proposed changes on standing rights for judicial-review proceedings – including a requirement that any applicants seeking to be granted leave to apply for judicial review must have a ““substantial interest”, and not just a “sufficient interest” as currently required.

The bill also proposes changes to the ‘automatic standing rights’ for non-governmental organisations (NGOs), extending the minimum time an NGO must be in existence from 12 months to three years.

The Society argues that this will prohibit newly established NGOs with environmental concerns from bringing judicial-review challenges.

Pre-leave hearings

The submission also raises concerns about a plan to return to a pre-2011 “motion on notice” system for judicial-review leave applications.

This allowed the notice party to contest a leave application where the application was considered frivolous or lacking in substance, with the aim of avoiding unnecessary judicial reviews and the associated costs.

“If the pre-leave hearing becomes the norm, it may be that the expected saving of court time and expense is illusory, and the reduction in cases going to full hearing may not be offset by the number of cases where hearing time is increased by an additional hearing, before all evidence is filed,” the Law Society says.

Costs ‘deterrent’

The bill also seeks to impose caps on legal costs – set at €5,000 for individuals, €10,000 for groups, and €40,000 for defendants.

The Law Society believes that this would make it “prohibitively expensive” for the public and environmental NGOs to take legal cases, and would act as “a significant deterrent” in bringing such challenges.

“It is not clear whether these caps apply to the entirety of the proceedings, or just at first instance, with additional exposure accruing in the event of an appeal,” the submission points out, adding that most NGOs would not have €10,000 to risk losing in litigation.

Currently, NGOs are not entitled to legal aid, after a decision in Friends of the Irish Environment v Legal Aid Board, which is currently under appeal.

“The current costs regime allows each side to bear its own costs, and for successful litigants to be awarded certain costs,” the Law Society says.

“Lawyers can be engaged on a ‘no foal, no fee’ basis, making it much more likely that interested parties will bring challenges where necessary.”