Dr. Fred Logue:

On the costs relating to the amendment, we already have a procedure to fix a decision that is wrong. This is referred to as quash and remittal. What happens is that the court quashes a decision and the matter then goes back to the board. The advantage of that is there is a proper decision-making procedure that follows the error being identified, whether it is by the board or by the court. That gives the board the procedural flexibility, for example, to get more information and do more public participation. The way I read this is that the board will just change the words on the page. It does not open up a new procedure. It is merely a textual change. Therefore, I do not think just paying the lawyers will make a very unfair procedure fair. Obviously, lawyers like getting paid; that is our job. The underlying procedure is unfair, however. There is already a solution in place, and nobody has really explained what is wrong with it. In fact, there are many benefits because 95% of decisions relating to planning that are quashed go back to the board, which makes new decisions. It has the procedural flexibility to deal with it properly, however, and it is not just a mere textual change. People will not trust or believe there was just a mistake in typing up the decision. I guarantee that. What will happen is that board members will have to give evidence and swear affidavits about what happened. They will have to be called to give oral evidence. Inspectors will have to give evidence. It is not even clear whether the inspector's report can be amended because that forms part of the decision. I do not see a clear line between fact and law, because these are mixed. This is application of the law to the facts. One cannot say, except, maybe, in very particular situations that are not dealt with in the draft Bill, that there can be a clear distinction between fact and law.

On the section on the cost provisions, which Ms Uí Bhroin will talk about, from a legal point of view, on 10 November 2022, we got legal certainty from a judgment relating to Heather Hill. There had been a massive amount of litigation. Whole judicial reviews on planning were being held up because of this issue. We finally got legal certainty that it was not an issue anymore and there were no disputes over it. Then, literally two months later, it was decided to throw it in the bin, for want of a better word, and replace it with something and nobody can actually explain how it works or how it is going to work. This is the issue. Why abandon something that has reached some kind of stability after 13 years of litigation and go back ten or 15 years to start the process all over again and end up in the same place?

What I think should happen is that we should keep what we have and build on it rather than abandon what we have got to at this stage for want of something new. It is like of you have a leaky tap and basically decide to demolish your house because you have a leaky tap. You fix what is broken; you do not throw away what actually works or has been proven to work.