Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

I move amendment No. 954:

In page 441, between lines 4 and 5, to insert the following:

Judicial review of applications, appeals, referrals and other matters

250. (1) Where a question of law arises on any matter with which the Board is concerned, the Board may refer the question to the High Court for decision.

(2) A person shall not question the validity of any decision made or other act done by— (a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,

(b) the Board in the performance or purported performance of a function transferred under Part XIV of the Act of 2000, and which continues to be vested under section 378,

(c) a local authority in the performance or purported performance of a function conferred by an enactment specified in section 214 under the Act of 2000 and which

continues to be vested under section 377 relating to the compulsory acquisition of land, or

(d) without prejudice to the right of appeal referred to in section 325—

(i) the competent authority (within the meaning of the Aircraft Noise (Dublin Airport) Regulation Act 2019), or

(ii) the Commission in its capacity as the appeal body from decisions of such competent authority, otherwise than by way of an application for judicial review under Order 84

of the Rules of the Superior Courts (S.I. No. 15 of 1986), in this section referred to as “the Order”.

(3) Subsection (2)(a) does not apply to an approval or consent referred to in Chapter 1 or 2 of Part 10.

(4) A planning authority, a local authority or the Commission may, at any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (2) applies and which relates to a matter for the time being before the authority or the Commission, as the case may be, apply to the High Court to stay the proceedings pending the making of a decision by the authority or the Commission in relation to the matter concerned.

(5) On the making of such an application, the High Court may, where it considers that the matter before the authority or the Commission is within the jurisdiction of the authority or the Commission, make an order staying the proceedings concerned on such terms as it thinks fit.

(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the publication of the decision or notification of the decision whichever is the later or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.

(7) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(b) or (c) applies shall be made within the period of 8 weeks beginning on the date on which notice of the decision or act was first sent (or as may be the requirement under the relevant enactment, functions under which are transferred under Part XIV or which is specified in section 214, was first published).

(8) The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in either subsection may be made but shall only do so if it is satisfied that— (a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension. (9) References in this section to the Order shall be construed as including references to the Order as amended or replaced (with or without modification) by rules of court.”.

By way of a general introduction to this group of amendments, to submit some high-level questions as to the rationale for these sections of the Bill, this would be a good place to start. This is probably the most, if not the second most, controversial part of the Bill. During pre-legislative scrutiny there was near unanimous criticism of the entire Part of the Bill from planners, legal professionals who work in this area - barristers and lawyers - residents' associations, environmental groups, local authorities and others. The two principal issues they raised were, one, that the intention behind these sections of the Bill is to deny people access to justice in an attempt to reduce the number of judicial reviews. For me, probably what was more significant was the fact that almost everybody who was an expert in this area and who commented on it said that not only would it not work but, in fact, it would open up a Pandora's box of litigation - satellite litigation and superior court litigation - all of which will lead not only to more planning applications and appeals ending up in the courts but much-needed infrastructural development, residential development and renewable energy development being delayed. It seems to me to be incredibly bizarre that the Government on the one hand would try to restrict people's rights under Irish, European and international law but to get it so badly wrong that the stated intention of its actions, which is to speed up the planning process, would actually have the opposite impact. We will go through the detail of all of that when we get into it.

My initial question is: on what basis, analysis and empirical information have the profound changes proposed in this part of the Bill been introduced? We know from the Office of the Planning Regulator that only a tiny number of planning applications in a given year are subject to judicial review. More than 30,000 planning applications, and sometimes anything up to 40,000, pass through our planning system annually between the local authorities and the board. Only about 3% of appeals to the board end up in the courts for judicial review and less than 0.4% of all planning applications end up in the courts. It really is hard to understand, given the small number of legal challenges, why we would be making such profound changes and taking such profound risks with our planning process. I am very strongly of the view that I would like to see the lowest number of judicial reviews possible. In some respects judicial reviews are a failure of the system, either bad planning applications, poor quality decisions or, in a very small minority of cases, vexatious actions by third parties. Therefore, the best way to deal with these issues is to make sure the planning system is robust and makes good quality decisions based on good public participation so that nobody feels the need to go to the courts.

Likewise, where judicial reviews do arise - and they will always arise; they cannot be removed from the system - we need to ensure the courts system is adequately resourced to expedite those decisions. While the Government recently made an announcement of three judges in the sub-panel of the High Court, it is really only two judges because two of them are not working full time on these cases. Most of the experts we spoke to suggest we need approximately five full-time judges dealing with planning and environmental issues, one of whom would probably spend more time outside of Dublin than in it to ensure JRs, if and when they do occur, happen in a very timely manner. In fact, one expert I spoke to who spent a lot of time in the courts on these matters said that if we had five dedicated High Court judges dealing with these matters through the planning and environment panel, we could be looking at timelines of three months, which of course would be ideal.

Before we get into the amendments my initial questions on the analysis of the profound changes in this Part of the Bill. Why was it changed, despite all of the advice of this committee, including from the Bar and the Law Society? Two of the most powerful presentations were from the legal representatives who not only take judicial reviews but defend against them and they told us that what is in this Part and these sections of the Bill will not work and will make things eminently worse.

We have been here before. We saw a significant increase in judicial reviews because of really bad planning law introduced by the Minister of State's party colleague, Deputy Coveney, when he was the Minister with responsibility for housing. They created enormous conflict on the ground and dramatically increased levels of judicial reviews that were upheld by the courts because of the poor-quality decision-making of the board. That eventually forced the Government to change the planning process to something many of us had argued for for a much longer time. This is a really important Part of the Bill and it is important we scrutinise each of these sections individually, and my colleagues and I intend to do that. There is a need, which has not yet been put in the public domain, to justify what is in front of us. I will be very interested to hear the Minister of State's response to that initial question before we get into the meat of the amendments.