Ms Rachel Minch:

I thank the committee for the invitation to discuss the draft planning and development Bill. We appreciate the opportunity to engage with the committee on this fundamentally important legislative initiative.

As stated, I and my colleagues represent the Law Society’s recently established environmental and planning law committee, which is very much focused on the draft Bill. As the representative body for the solicitors' profession in Ireland, the reforms to the judicial review of planning decisions proposed in the draft Bill are of significant interest to the society in the context of their implications for access to, and the timely and effective administration of, justice.

There are two primary areas where access to justice questions arise: standing in judicial review and costs. We would to take this opportunity to address these for the benefit of the committee. Both areas have given rise to significant satellite litigation in recent years, where questions around the compatibility of rules relating to both EU law and the Aarhus Convention have arisen in the course of challenges to planning and other decisions. Those questions inevitably have to be explored before the core judicial review challenge can be resolved, which has been the cause of significant delay for many judicial review cases in recent years. The courts have now resolved many open questions about the compatibility of the existing rules with the Convention and EU law. The Law Society would be concerned that any changes would be carefully scrutinised for compatibility in this respect to avoid new delays in judicial review proceedings as settled questions of law are reopened.

In terms of standing, as I know this committee has discussed, the current requirement is generally that an applicant seeking leave to apply for judicial review must have what is called a sufficient interest in the matter to which the application relates.

The draft Bill appears to suggest that the court would assess the question of sufficient interest on a ground-by-ground basis and that an applicant would have to demonstrate a sufficient interest in a specific ground for judicial review because he or she is or may be, directly or indirectly, materially affected by the matters to which the application relates; the ground relates to matters raised by the applicant in submissions before the decision-maker, provided the applicant has legal capacity to bring proceedings; or, in certain environmental cases, the applicant is a company which meets specific criteria. In that respect we note that one of those criteria is that the company's constitution includes objectives related to the promotion of environmental protection relevant to the matters to which the proceedings relate. The fact that these proposed rules about standing are less restrictive than those proposed in the draft general scheme of the planning Bill 2019 is to be welcomed. Questions remain, however, about their interpretation and compatibility with the convention and EU law. Rules on standing which are too narrow or unclear could deprive people of their right to seek legal review of planning decisions and delay the resolution of proceedings if those standing requirements are challenged.

Turning to costs, as we know, the Aarhus Convention and certain implementing EU directives require that costs in certain environmental cases must not be prohibitively expensive. The scope of costs protection afforded by, and the adequacy of, implementing legislation has been the subject of significant litigation during the past decade, with some measure of certainty and clarity having only recently been achieved by the judgment of the Supreme Court in Heather Hill v. An Bord Pleanála last November. Against that background, and given the significance of this issue in the context of access to justice, it is a cause for concern that proposed costs reforms remain a draft head at this stage. While the draft Bill proposes an administrative scheme for costs, it is not clear whether it is intended that this would be the sole funding option for litigation in environmental cases or whether the normal roles around cost recovery would be displaced. It will be important to ensure that further consultation is undertaken once details of that scheme, and the legislative proposals, are made available, again, in order to ensure compatibility with the convention and EU law.

Our committee is also examining various aspects of the draft Bill's other proposals in this context, including that bodies may make amended decisions correcting "any error of law or fact" in its decision, an area which I know has attracted the interest of this committee, and how that would operate in practice and its implications for the judicial review process; that leave applications would be made on notice rather than ex parte, as is the position at present; that the Bill would prescribe time limits for the judicial review process and the implications of the time limits proposed, noting in particular that such matters are normally dealt with in the rules of the superior courts and in practice directions; and, finally, that no appeal would seem to lie from a decision of the High Court to the Court of Appeal, subject to one exception.

While access to justice is of course a very significant part of the Bill, it is important not to lose sight of other proposed reforms. We are also reviewing other aspects of the Bill, with a focus on areas which have given rise to legal uncertainty and litigation, and assessing how those have been addressed. They include section 5 declarations and exempted development; the alteration and extension of planning permissions; retrospective consents, currently substitute consent; the material contravention of development plans; environmental assessments; and statutory mandatory timelines for development consent processes. We believe it would also be helpful, as anticipated, that an explanatory memorandum explaining the changes proposed in the draft Bill be prepared to enable further engagement with it. Our committee also intends to make a written submission on the draft Bill in due course.

Again, I thank the committee for including us in its pre-legislative scrutiny of the draft Bill. We would be glad to take any questions members may have.