Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

I will now address amendments Nos. 954 to 956, inclusive, which have been jointly tabled by Deputies Cian O'Callaghan, Ó Broin, Gould, Ó Snodaigh, Boyd Barrett, Bríd Smith and Gino Kenny. These amendments seek to remove sections 250 to 274, inclusive, covering all the proposed process, parameter and cost reforms relating to planning judicial review and proposing instead to revert to the arrangements that are contained in the Act of 2000.

It is worth reminding ourselves at this juncture that the Bill before the House is the culmination of not only the 15-month review led by the Office of the Attorney General but also an extensive process of stakeholder engagement through the planning advisory forum and bilaterally with relevant Departments. It also has been subject to a comprehensive pre-legislative scrutiny process, of which many of the recommendations were incorporated into Part 9 of the Bill before us, which the proposed amendment wishes to dismiss summarily and in its entirety, without nuance or regard to many of the varied benefits and improvements contained within.

The reforms contained in Part 9, as published, can be categorised as improvements to processes, which either have the potential to speed up or cut costs on planning judicial review; clarification of language and parameters regarding standing, which remove ambiguity and improve transparency in the system while protecting rights defined in European law; and reduction of costs, both to the State and applicants, through the introduction of a scale of fees and the availability of an environmental legal costs financial assistance mechanism, which protects applicants from prohibitively expensive costs.

This is a complex area of the Bill that requires careful balance.

Ireland has legal obligations regarding access to justice under the Aarhus Convention and a proud record of public participation that must be maintained and respected, while also recognising that the status quois not sustainable, either in financial cost or in terms of the cost exacted on delivery of key infrastructure.

The changes regarding judicial review should be seen in the context of the Bill as a whole and the key aim of moving to a plan-led system and ensuring a greater consistency of approach to national planning policy, including providing for limited grounds for material contravention in planning decisions by An Coimisiún Pleanála.

Among the positive reforms contained in Part 9 which amendments Nos. 954 to 956, inclusive, seek to remove are as follows: applicants will no longer need to apply to the High Court for leave to take a judicial review case. This change will save time and cuts expense while improving access to justice; and applicants will still need to demonstrate that they have sufficient interest and standing to take the case. Timelines previously set out within the draft Bill for the various stages of the process have been removed as these matters will be dealt with by the rules of the High Court. This change from the draft Bill of December 2022 was on foot of advice from the Courts Service and recommendations of the PLS.

Another important change is the inclusion of a provision for unincorporated organisations, such as residents’ associations, to take judicial review, subject to certain criteria, including having sufficient interest, taking a vote of members and providing information to the court to state who is taking the case. This change was also on foot of recommendations from committee members. The governance requirements contained can only be seen as a necessary improvement in transparency and there has never been a more important time to bolster that aspect of the planning system. To that end, further amendments have been tabled, amendments Nos. 969 and 979, with regard to persons taking judicial reviews for the sole purpose of delaying a development or for securing the payment of moneys.

Further amendments will be tabled on Report Stage to deal with those making spurious submissions on applications or taking spurious appeals and address the matters raised in the media recently, which are of concern to all of us present.

Environmental NGOs will still enjoy special status within this Bill and aligned to Ireland’s commitments under the Aarhus Convention, subject to certain criteria.

Chapter 2 contains the provisions pertaining to the new environmental legal cost financial assistance mechanism. The mechanism will facilitate the making of a contribution to the costs of all planning judicial review cases that are deemed to be Aarhus proceedings under the Bill. It will cover a full range of approved normal costs for legal cases in accordance with the financial assistance mechanism save for those that are deemed to be frivolous or vexatious. This improves access to justice by removing a significant cost barrier in a high-cost legal environment.

The financial assistance will be administered and regulated by the Minister for the Environment, Climate and Communications, who will by way of regulation, set a scale of fees payable within the scheme. The agreement of the Ministers for Housing, Local Government and Heritage and Justice, and the consent of the Minister for Public Expenditure and National Development Plan Delivery and Reform, is required. Details regarding the rates to be paid under the mechanism will be set out in regulations. The introduction of these cost measures - the scale of fees and cost mechanism - will introduce a level of certainty and predictability to the State’s exposure to judicial review costs while not limiting or diminishing the important role that judicial review plays within the Irish system.

The Department of Environment, Climate and Communications intends to bring forward further legislation with judicial review matters for all other consenting systems and to fully implement the Aarhus Convention for all consenting systems.

Environmental assessment provisions have been reviewed to ensure full compliance and alignment with EU directives.

In place of these reforms, the amendments prefer challenges presented by the status quo, including: delays to the delivery of key infrastructure due to the current lengthy and complex system, including at the early application to leave stages; a cost system based on a High Court ruling, which could change again based on future court direction, meaning no level of predictability for the State and no management of costs of judicial review in the State, which are among the highest in Europe in this area; the continuation of the "no foal, no fee" system whereby applicants are reliant on finding legal representation based on this approach as otherwise the costs of taking the case may be prohibitively expensive, a situation that has been criticised heavily by Europe and may not remain fully compliant with the country’s commitments under the Aarhus Convention. This model also means that in many cases only those cases chosen by legal representatives have a chance to progress.

The ongoing increase in frequency of judicial review as well as the costs associated have been widely acknowledging as adding a cost to infrastructure delivery, both in terms of delays to delivery and final cost of delivery, as well as having a potential effect on inward investment.

The proposed amendments seek to ignore the flaws identified in the current system and the benefits proposed within the Bill, which will future-proof our planning system while balancing key pillars of Irish planning such as public participation and access to justice, environmental considerations and delivery of key infrastructure such as public transport and renewable energy.

The Bill can be a cornerstone to our sustainable and balanced development as a country but only by having the courage and ambition to pursue the necessary reforms and not the caution and lack of imagination displayed by the amendments proposed. For these reasons, I oppose amendments Nos. 954 to 956, inclusive.

Should I speak to amendments No.979?