Ms Attracta U? Bhroin:

Furthermore, even with the best will in the world, given the scale of changes presented in this Bill and how it may be advanced, there will be errors in the legislation leading to flawed decisions. That risk is compounded by the massive deficit of at least 541 resources in planning in local authorities and serious resourcing issues in An Bord Pleanála, alongside all the changes it is experiencing, and concerns about its independence. Our courts are ultimately the great clearing house for all those flawed decisions. It is therefore entirely dysfunctional and counterintuitive to compromise access to the courts with this Bill.

Now, more than ever, we will need to be sure courts can be accessed quickly and efficiently, and add their important value to our planning system, as provided for under our Constitution, EU law and the Aarhus Convention.

However, alarmingly, in Part 9 in particular, with changes to judicial review, the Bill proposes a veritable cat’s cradle of obstacles making it more difficult for the public to hold a whole range of public authorities to account before the courts for the lawfulness of their decisions, via judicial review. Some of the obstacles are replicated for even making an appeal to An Bord Pleanála, which is to be called An Coimisiún Pleanála. Rather than speeding things up, this risks creating and adding to delays, as the legality of these new restrictions will inevitably be challenged and argued first. This adds to the complexity of any particular court case, and to its duration and costs. This is a phenomenon known as satellite litigation. The uncertainties arising from any such challenge will spread like a virus through the whole system. The resolution and determination of these matters may end up involving references to the European Court of Justice to clarify questions on EU law and to assist the national court in deciding matters, a process which typically takes at least 18 months or more.

The individual changes raise serious legal concerns, but they also need to be viewed collectively in terms of how they work together to compromise wide access to justice and make access to the courts excessively difficult. These changes raise serious issues of compliance with EU law, Aarhus Convention obligations, and our Constitution.

The programme for Government promised a review and reform of judicial review. Where is this review rationalising the changes to judicial review? Where is the evidence required to justify the proportionality of a response which impinges on EU law rights to an effective judicial remedy under the charter and under the treaties, and as required by the European Court of Justice? That is what is at stake here. Judicial review, and those who pursue it, have become unjustifiably subject to a toxic narrative. However, as the Planning Regulator highlighted to this committee, the recently published overview of planning for 2021 highlights that approximately 3% of An Bord Pleanála’s decisions were subject to judicial review when measured against decisions made, and that these were overwhelmingly justified.

Let us be clear: you do not want unlawful decisions being built upon. It is bad enough when the actual materials of buildings and homes are faulty, but when the very concept of the development itself, which is someone’s home or critical infrastructure, is unlawful, that is a nightmare, in legal and practical terms. Further issues arise when homes and infrastructure are built in places where they are unsustainable, due to flawed assessments and decisions.

We are concerned at the risk of these provisions causing delays and compromising our collective need to ensure lawful, and sustainable outcomes for a range of planning decisions. However, we also make no apology for defending the right of access to the courts to hold public authorities to account, and all the principles for effective access to justice. It is a fundamental element of the architecture of the rule of law in our democracy.

We recommend that Part 9 should be deleted, and sections 50, 50A and 50B of the Planning and Development Act 2000 should be maintained, with their outstanding issues of non-compliance corrected with a supplementary scheme to address legal aid obligations. We would welcome an opportunity to expand on the concerns on judicial review later.

We also wish to highlight fundamental concerns with the process for this legislation, including the limited input we have had to the Bill; the need for public consultation on this Bill; the need for multiple impact analyses of and for this legislation to support the Legislature's decisions; and the understanding of the systems changes the Bill will precipitate, and what is needed to implement them effectively.

Also of concern is how the Government unusually presented a draft Bill for pre-legislative scrutiny, meaning we all have lost the benefit of the explanatory rationale for each head which would normally be provided in a general scheme of a Bill, with changes highlighted. We recommend the rationale for the changes proposed be set out, and where required the detailed evidence base to support them be made publicly available well before this is advanced before the Oireachtas. Such omissions in the presentation of this draft Bill are unacceptable, given that it will govern practically every element of the physical world that the public experiences, and the state of the environment on which they and future generations depend. These omissions place a significant burden on legislators. This is quite apart from the fact there is no published outcome from the fitness check the Attorney General was charged to conduct.

Our final high-level recommendation is on ensuring adequate time is afforded to address this legislation, given the major issues identified through this pre-legislative scrutiny, the many corrections and inconsistencies to be resolved, and the further complex areas still to come. We would welcome an opportunity to elaborate on these and further concerns, including in respect of section 8 declarations and reliance on them under section 9; appeals; material contravention; information, participation and consultation; fees; extension to duration of permissions; and environmental assessments.

I thank the Cathaoirleach and the committee once again for this opportunity, we will endeavour to answer your questions to the best of our ability and to revert promptly with any details or clarifications sought in our furthermore detailed submission.