Mr. Tom Flynn:

I thank the Chair and the committee members for offering us this opportunity to talk to them about the draft planning and development Bill. I am a senior counsel and member of the Inner Bar. I am here in my capacity as vice chairperson of the Planning, Environmental and Local Government Bar Association, PELGBA, which is a specialist association of barristers who practise in the areas of planning and environmental and local government law. The membership of PELGBA comprises barristers who regularly act for the State, An Bord Pleanála, local authorities, developers, environmental NGOs, residents' associations and individual applicants for judicial review. Thus, the composition of our membership gives us a unique insight into and perspective on the issues raised by the publication of the draft Bill.

As members will be aware, the Bill is very substantial and, having regard to the time constraints, it is proposed to focus on a few key aspects highlighted by our membership as being of particular significance and of public interest.

To deal first with the issue of declarations under section 5 of the 2000 Act, that section currently enables "any person" to obtain a declaration from a planning authority or An Bord Pleanála as to whether a particular structure or activity is or is not development or exempted development and requires planning permission. Section 8 of the draft Bill proposes to introduce some significant changes to those provisions. Many of the provisions in the draft Bill are to be welcomed and are uncontroversial and procedural in nature, but we would simply highlight that section 8 proposes to limit the categories of person who may seek section 8 declarations. The procedure will no longer be available to the general public, and the loss of such an inexpensive procedure, which had the benefit of obtaining clarity, could be considered a regressive step which is worthy of further consideration.

Effective enforcement is essential to ensuring the integrity of the existing enforcement regime. In general, our membership considers that the existing provisions of the Planning and Development Act 2000 are effective, the main difficulty being the resources available to local authorities to exercise robustly their enforcement powers. The Bill proposes several significant changes to the existing enforcement regime. In our witness statement we have highlighted those changes and, for reasons of time, I do not propose to go into them in detail and will take them as read, if that is okay.

Section 249 of the draft Bill provides that proceedings for judicial review are to be commenced on notice. Currently, they are commenced ex parte, which means that only one side hears them. While there are arguments in favour of moving to judicial review being heard on notice, we would simply highlight to the committee that, in the past, when this was the system, it was not considered to have worked well. In fact, it only introduced delays.

In addition, the Bill has set out mandatory timelines in respect of pleadings and how matters are to be dealt with. We understand the reason and rationale for that but we question the wisdom of putting those timelines into primary legislation. We question the reality of the timelines as put into the Bill, having regard to the realities on the ground in respect of access to the decision-making material, the experts needed to give advice when dealing with a case and court resources, particularly, for example, the proposal that the court would deliver a judgment within eight weeks of concluding the hearing. That is a very admirable aspiration, but we query the reality of it, unless there will be a very significant ramping up in judicial resources.

There is a provision in section 249 of the draft Bill, as the committee will be aware, about the correction of errors. Again, we have dealt with that in detail. We simply question that proposal. We think it needs to be re-evaluated because we see scope for it to raise more issues and cause more difficulties than it might resolve. I can discuss that in detail with the committee.

Similarly, we have concerns, which we have expressed and set out in detail, as to whether the introduction of the new locus standirequirements in the draft Bill is compatible with constitutional provisions or Aarhus provisions. We see every possibility that there will be multiple challenges to these provisions and they may prove entirely counterproductive because they may result in the system being bogged down with all sorts of litigation and references to both the European Court of Justice and the Aarhus Convention. We have a concern about the proposal to remove the right of appeal to the Court of Appeal. That is a very fundamental proposal which states that in planning decisions there will be no right of appeal to the Court of Appeal. We simply say that such a fundamental proposal needs to be very carefully considered.

Finally, I wish to discuss the issue of costs in proceedings. We have very grave concerns about these provisions. We have under the Act an existing special cost rule which purports to give effect to obligations under EU law and the Aarhus Convention. Last September, we had a decision of the Supreme Court in a case called Heather Hill which provided a great deal of clarity on the existing rule, so the existing rule now has a degree of clarity around it. I am not saying it is a perfect rule. Unfortunately, what is proposed in the draft Bill is entirely unsatisfactory. It goes beyond the requirements of the Heather Hill judgment. In addition, one of the key points is that it removes the existing provision whereby a successful applicant has a statutory right to apply to the court if he or she is successful, or to the extent to which he or she is successful, to say, "I am entitled to recover costs in this case." That is now removed from the statutory provision, and that is a very grave concern about the draft Bill.

We note the proposal in relation to the administrative cost regime but that is not in any way fleshed out. An administrative cost regime cannot be considered qualitatively to be the same as a statutory right to recovery of costs. We are very concerned about the effect of this because as barristers we have a long tradition of taking litigation on a no foal, no fee basis, or what is sometimes referred to as a contingency fee basis, whereby lawyers engage in work on behalf of applicants who sometimes do not have the resources to take proceedings. This is on the understanding that if they are successful they can apply to the court saying they have succeeded in their case, have demonstrated there has been an illegal decision made and therefore, as costs follow the event, should be entitled to a case. Of course, any party which is dissatisfied with that can appeal that decision through the courts proceedings. Moreover, if they are dissatisfied with the scale of costs, they have the right to appeal before the costs adjudicator. That is now going to be removed and we are told we will get some form of administrative cost scheme, which is in no sense particularised. We have no details of that, which is in itself unsatisfactory, and we are very concerned that what would happen in this case is that applicants would have an inferior right to costs than the other parties to proceedings. Bear in mind that the board, the State, the Minister, or any other body that is the subject or respondent in judicial review proceedings, would have their own lawyers who would not be subject to this scheme but would be paid market rates. One can see immediately that there is a fundamental unfairness in that. Moreover, beyond that, we would respectfully suggest that this type of scheme, if introduced, is self-evidently going to be subject to legal challenge across the board and may in fact be entirely counterproductive. Similar to what we said regarding the other proposed changes, one will end up with a wall of litigation. We had more or less several hundred satellite cases about costs under the previous rule, which has now settled down. We see a similar situation arising here in that there will be a whole plethora of costs as people seek references to the Court of Justice and constitutional challenges to these provisions.

In conclusion, we simply submit that this Bill is on any analysis one of the most complex and significant legislative proposals to come before the Oireachtas. We are concerned and feel it is incumbent that it is given the careful consideration over an extended period and the detailed scrutiny that it deserves. In the event of any other issues arising from this presentation, or indeed in relation to the Bill, our members will be happy to engage with the committee. We also hope to put in a more detailed submission at a later course.