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

We will see about that.

For a long time it was virtually unheard of for residents' associations to take judicial reviews on residential developments. It was literally exceptionally rare. The surge of judicial reviews that took place a number of years ago has now significantly dissipated. There are fewer and fewer judicial reviews being taken by residents' associations, so I am trying to understand is what this section is trying to fix. I am in support of Deputy O'Callaghan's two amendments. For example, the Bill states the body must have a constitution. Why should it have to? Lots of residents' associations do not have a constitution. What difference does it make to the functioning of a residents' association whether it has or has not a constitution? It seems completely arbitrary. The body must hold a vote among its members. There are two issues here. The first is how long it takes to convene the meeting. There is a short judicial review window, if that is what the residents intend to do. What happens if there is a division among the residents? This takes place in real life. Residents' associations split and we get conflicting and opposing associations in a single area.

Section 258 contains the following subparagraph, "(iii) is authorised to bring the proceedings in relation to the ground by no less than two thirds of the members casting a vote." In terms of our international obligations under the Aarhus Convention and EU law, my understanding is that everybody has a right to access justice. It is not two thirds of people, but everybody, whatever way they are constituted. I simply do not understand this provision. I would be interested to know why two thirds is the decision-making threshold in this regard.

A sworn affidavit is needed. Obviously, this takes time to obtain because of the necessity to go to a solicitor. There is then this issue of the names and addresses. Let us be very clear about what is involved. This is about a chill factor and a desire on the part of the Government to send a signal to the diminishing number of residents associations which may be contemplating taking judicial review proceedings that there are risks involved in doing so. What are these risks? They include strategic litigation against public participation. We have already seen certain developers threaten and in some cases take litigation proceedings against the chairs of residents associations engaging in the planning process. There is also the ability to be able to pursue people for costs.

My concern, and I said this at the outset before the Minister of State was arrived, is that I wish to see the lowest number of judicial reviews possible. I would like to see all our planning decisions being made within our planning authorities. I would also like to see far less legal contestation. Denying or attempting to deny people access to justice, however, which is a domestic, European and international legally enshrined right and obligation, is problematic. I am interested to hear what difference a constitution makes in this regard. Why is there a reference to two thirds of people? What happens if there are competing residents associations in the one neighbourhood? It is possible to have an estate that has residents associations for each street or cluster of streets, so who would decide then what is the properly constituted body?

Does the Minister of State at least understand the point being made when organisations like the Dublin Democratic Planning Alliance are saying that they genuinely fear the requirement for names and addresses - a matter Deputy O'Callaghan tried to deal with - will create a chill factor and a fear of strategic litigation against public participation? Even if it is not the Government's intention, that will be the impact and outworking of this provision. I do not understand the reasoning behind its inclusion in the Bill. I am not so sure there is a problem that needs to be resolved. I will explain what I think this is going to do. Again, I make this point because the Minister of State was not here at the earlier session. While the intention of this measure is clearly to create a chill factor, what it is going to do is to open planning applications and decisions to further satellite litigation and, ultimately, to longer delays.