Oireachtas Joint and Select Committees
Thursday, 2 March 2023
Joint Oireachtas Committee on Housing, Planning and Local Government
General Scheme of the Planning and Development Bill 2022: Discussion (Resumed)
Steven Matthews (Wicklow, Green Party)
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This morning we continue our pre-legislative scrutiny of the draft planning and development Bill 2022. We are joined from the environmental and planning law committee of the Law Society by Ms Rachel Minch SC, committee chair, Mr. Conor Linehan SC, committee vice-chair, and Mr. Nap Keeling, committee member, and from the planning, environmental and local government Bar Association by Mr. Tom Flynn SC. They are all very welcome and I thank them for their attendance this morning.
Copies of the witnesses' opening statements and briefings have been circulated to members in advance of the meeting. I must read a quick note on privilege before we start. I remind members of the constitutional requirement that they must be physically present within the confines of the place where the Parliament has chosen to sit, namely, Leinster House, to participate in public meetings. Those attending in the committee room are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy and it is my duty as Chair to ensure that this privilege is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks and it is imperative they comply with any such direction. Members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
Before I invite the witnesses to make their opening statements, for their information, this is a series of meetings in which we have been carrying out pre-legislative scrutiny on this first draft of the planning and development Bill 2022. I invite Ms Minch to make her opening statement on behalf of the Law Society.
Ms Rachel Minch:
I thank the committee for the invitation to discuss the draft planning and development Bill. We appreciate the opportunity to engage with the committee on this fundamentally important legislative initiative.
As stated, I and my colleagues represent the Law Society’s recently established environmental and planning law committee, which is very much focused on the draft Bill. As the representative body for the solicitors' profession in Ireland, the reforms to the judicial review of planning decisions proposed in the draft Bill are of significant interest to the society in the context of their implications for access to, and the timely and effective administration of, justice.
There are two primary areas where access to justice questions arise: standing in judicial review and costs. We would to take this opportunity to address these for the benefit of the committee. Both areas have given rise to significant satellite litigation in recent years, where questions around the compatibility of rules relating to both EU law and the Aarhus Convention have arisen in the course of challenges to planning and other decisions. Those questions inevitably have to be explored before the core judicial review challenge can be resolved, which has been the cause of significant delay for many judicial review cases in recent years. The courts have now resolved many open questions about the compatibility of the existing rules with the Convention and EU law. The Law Society would be concerned that any changes would be carefully scrutinised for compatibility in this respect to avoid new delays in judicial review proceedings as settled questions of law are reopened.
In terms of standing, as I know this committee has discussed, the current requirement is generally that an applicant seeking leave to apply for judicial review must have what is called a sufficient interest in the matter to which the application relates.
The draft Bill appears to suggest that the court would assess the question of sufficient interest on a ground-by-ground basis and that an applicant would have to demonstrate a sufficient interest in a specific ground for judicial review because he or she is or may be, directly or indirectly, materially affected by the matters to which the application relates; the ground relates to matters raised by the applicant in submissions before the decision-maker, provided the applicant has legal capacity to bring proceedings; or, in certain environmental cases, the applicant is a company which meets specific criteria. In that respect we note that one of those criteria is that the company's constitution includes objectives related to the promotion of environmental protection relevant to the matters to which the proceedings relate. The fact that these proposed rules about standing are less restrictive than those proposed in the draft general scheme of the planning Bill 2019 is to be welcomed. Questions remain, however, about their interpretation and compatibility with the convention and EU law. Rules on standing which are too narrow or unclear could deprive people of their right to seek legal review of planning decisions and delay the resolution of proceedings if those standing requirements are challenged.
Turning to costs, as we know, the Aarhus Convention and certain implementing EU directives require that costs in certain environmental cases must not be prohibitively expensive. The scope of costs protection afforded by, and the adequacy of, implementing legislation has been the subject of significant litigation during the past decade, with some measure of certainty and clarity having only recently been achieved by the judgment of the Supreme Court in Heather Hill v. An Bord Pleanála last November. Against that background, and given the significance of this issue in the context of access to justice, it is a cause for concern that proposed costs reforms remain a draft head at this stage. While the draft Bill proposes an administrative scheme for costs, it is not clear whether it is intended that this would be the sole funding option for litigation in environmental cases or whether the normal roles around cost recovery would be displaced. It will be important to ensure that further consultation is undertaken once details of that scheme, and the legislative proposals, are made available, again, in order to ensure compatibility with the convention and EU law.
Our committee is also examining various aspects of the draft Bill's other proposals in this context, including that bodies may make amended decisions correcting "any error of law or fact" in its decision, an area which I know has attracted the interest of this committee, and how that would operate in practice and its implications for the judicial review process; that leave applications would be made on notice rather than ex parte, as is the position at present; that the Bill would prescribe time limits for the judicial review process and the implications of the time limits proposed, noting in particular that such matters are normally dealt with in the rules of the superior courts and in practice directions; and, finally, that no appeal would seem to lie from a decision of the High Court to the Court of Appeal, subject to one exception.
While access to justice is of course a very significant part of the Bill, it is important not to lose sight of other proposed reforms. We are also reviewing other aspects of the Bill, with a focus on areas which have given rise to legal uncertainty and litigation, and assessing how those have been addressed. They include section 5 declarations and exempted development; the alteration and extension of planning permissions; retrospective consents, currently substitute consent; the material contravention of development plans; environmental assessments; and statutory mandatory timelines for development consent processes. We believe it would also be helpful, as anticipated, that an explanatory memorandum explaining the changes proposed in the draft Bill be prepared to enable further engagement with it. Our committee also intends to make a written submission on the draft Bill in due course.
Again, I thank the committee for including us in its pre-legislative scrutiny of the draft Bill. We would be glad to take any questions members may have.
Steven Matthews (Wicklow, Green Party)
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Thank you, Ms Minch. I invite Mr. Flynn to make his opening statement.
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.
Steven Matthews (Wicklow, Green Party)
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I thank Mr Flynn. In relation to that comment on section 250, it is very deficient and does not provide enough information as to what is being proposed. I suppose it is important to bear in mind that this is a first draft of a very large item of legislation and I expect there will be much more detail on that section in relation to costs. Both witnesses covered the point very well that the Act and all the amendments that went with it over the past 23 years created really difficult impenetrable legislation and that this was absolutely needed to try to consolidate what was there.
I will go to the members now and Senator Fitzpatrick will take the first slot.
Mary Fitzpatrick (Fianna Fail)
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Go raibh maith agat a Chathaoirligh and I thank all the witnesses for their presentations and contributions to our work. As the Chair alluded to, 23 years of iterations of this legislation and then 18 months of work have gone into preparing what is just a draft. I come from the public representative perspective and dealing with lay people and constituents who are trying to engage in the planning process. They have a number of opportunities to engage. There is the development plan process, where a specific planning application is with their local authority, and if that is appealed, An Bord Pleanála, and then finally, they end up with the witnesses or their colleagues. Thankfully, it is a very small percentage of developments that end up in the courts. What we really want to try to do in amending this legislation is to create greater clarity, certainty and consistency to our planning developments. Dealing with the legal aspects in this regard, it is really important we get that right. There are two areas I would like to focus on in my opening questions. First is this issue of locus standi. that is, basically, people having a legitimate position to engage in a legal way on a development. Can Ms Minch provide clarity on one point? From the way it is currently drafted and proposed, if individuals or groups had either made a submission on the development in the development plan or in a planning application to either their local authority or An Bord Pleanála, would that automatically qualify them as having legitimacy or a locus standi as she describes it?
Ms Rachel Minch:
Leaving aside the materially affected point, prior participation would not appear to be sufficient as it states that an applicant shall be regarded as having a sufficient interest in any ground that relates to matters raised by the applicants in submissions before the decision maker, as well also of having legal capacity. As we read it, you will have sufficient interest to raise grounds in judicial review proceedings, provided they relate to matters raised by the person in submissions before the decision maker. Therefore, prior participation in and of itself would not appear to be sufficient. An applicant would be limited to the grounds in relation to matters he or she had raised. That can raise certain questions because of course you cannot always anticipate the potential difficulties with a decision until it has been made. It potentially also raises the prospect of people feeling they better raise everything, even if it is just touching on points. There might be a concern there that it will lead to quite pro formaor one could say quite defensive submissions to try to-----
Mary Fitzpatrick (Fianna Fail)
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Cover everything.
Mary Fitzpatrick (Fianna Fail)
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How would Ms Minch propose that could be fixed? Is it by broadening the language?
Ms Rachel Minch:
Some people would have different views as to whether that ought to be fixed. Perhaps the Supreme Court judgment in the Grace and Sweetman case is helpful there in the sense that it generally indicates that if you have proximity to the development or if you have participated in the process, that will give you general standing. Then there is some quite mature or developed case law around whether you might be able to raise new points at a later stage. If you wanted to make it simple, I suppose you could say that prior participation in the process would confer standing to challenge a decision and that is the general understanding of the Grace and Sweetman judgment in the Supreme Court at present.
Mr. Tom Flynn:
I broadly agree with that proposition. Looking at the idea of standing and whether it should be restricted in planning legislation, it depends. There are very different perspectives on this and policy choices to be made in relation to it subject to confinement of obligations under the Aarhus Convention and EU law. It could be argued that one is entitled to restrict in relation to it but a contrary argument is made by some people, which is that there should be very light restrictions because this is public legislation and is a matter which deals with the public interest. Every decision is a decision of public interest. If, for example, somebody proposes an extension to Trinity College Dublin and for whatever reason - maybe I am abroad at the time - I do not make a submission to the planning authority or the board, and subsequently I see a decision which I strongly believe to be incorrect, should I be excluded simply because I did not participate? There is an argument to be made there. People sometimes ask if there should be geographic restriction. Should we say that somebody from Donegal should not be allowed object about an extension to Trinity College Dublin and it should only be people within 20, 30, or 50 miles? That is just an example in relation to those matters. The contrary argument is that this is public legislation and the sense is that the planning domain and decisions are public issues so therefore should have very lightweight restriction. Many of these planning decisions, such as a wind farm and a road bypass, have very substantial intergenerational impacts and have environmental, climate change and amenity impacts, given that large-scale housing developments change the character of an area and raise amenity questions. However, that is a policy choice.
There is an attempt, it seems to us, to restrict and narrow the definition of "substantial interest". This will probably be counterproductive in the short term because it will lead to lots of litigation.
Mary Fitzpatrick (Fianna Fail)
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I agree that if it is a public matter, then public participation must be maximised. However, we then have the conflicting objective or ambition of trying to make our decision-making process more efficient and productive in order that we can have development. Engaging people in the development process and having opinions is one thing, but it is equally, if not more, frustrating for them to have engaged in it and then to see no development, good, bad or indifferent.
Mr. Flynn also raised concerns around the proposed statutory timings.
Mr. Tom Flynn:
Yes. Under the rules of the court and under practice directions the current judge over the planning division of the High Court has, there are default directions. What has happened is parties often agree, or in an interaction with the court having regard to the case they say what they are going to propose and the judge can adjudicate on that if it is reasonable. The problem with a one-size-fits-all set of time limits is one size does not fit all. Some cases are very neat and fine, in that you can put in your statement of opposition within three weeks. However, a case may raise complex issues and then that cannot be done. Our point is this is something better left over for rules of court and that a degree of flexibility should be given to the court to deal with it.
Steven Matthews (Wicklow, Green Party)
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On the subject of time limits, I must move on to Deputy Ó Broin.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Chair and thank our guests for their detailed submissions. I will use my first slot to discuss matters with the Law Society and my second for Mr. Flynn.
This is the seventh meeting we have done on this complex draft Bill. The last four, including the material in our present guests' submissions, have raised substantial concerns regrading the draft Bill. Other members will rightly say that it is a draft, but in my seven years in the Oireachtas, whenever we have had detailed planning legislation, the final version as passed has rarely differed substantively from the draft or general scheme. I hope it is different with this one, but my experience tells me that is often not the way this process works. I invite Ms Minch to speak more about her concerns around the Bill's compatibility with both the Aarhus Convention and EU directives with respect to the standing. Where does she think we could end up in difficulty vis-à-visthe Aarhus Convention and EU environmental law?
Ms Rachel Minch:
It is a good question. We are going back over some pretty opaque Court of Justice decisions as well. As a general comment, most of our applicants have sufficient interest, in our experience. There are rare cases where a court finds an applicant does not have sufficient interest. Our general understanding, from EU law on the Aarhus Convention, is that wide access to justice is to be facilitated. There is much to be said for having a fairly general concept of sufficient interest and allowing the court to assess, using its discretion and various factors, whether or not that test has been met. An area where there are potential difficulties is this possible prior participation aspect and that if you are not directly or materially affected then you only have standing if your grounds relate to the matter you have raised before the decision-maker. Questions also arise when you look to the requirements for environmental NGOs, for example. There are differing views within the committee on this, so we are trying to work towards some consensus or at least to flag the issues. I might dig it out the relevant passage. I have been going from my house to work with this big folder for the last while. The draft Bill requires "[the] constitution [of the company] includes objects that relate to the promotion of environmental protection of relevance to the appeal, ... [and] that [it] has pursued those objects for a period of not less than one year". Thus, it is not just that you will have a general interest in environmental protection, but rather that it must relate to the particular decision. In that context, I wonder whether we need to look at that given how many NGOs here have such a broad mandate and would be pursuing issues that relate to decisions it might be legitimate for an environmental NGO to challenge. As a matter of practice, we felt that could be challenging as well.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will move on because our time is limited, but we will have subsequent rounds. The issue of costs was raised on Tuesday by the Irish Environmental Network and some of its members. Is it Ms Minch's view we would be better to leave the cost protection and recovery regime post the Heather Hill judgment alone for a while in order to let that settle and see where it goes, rather than reopening all those issues? I am especially concerned by both presentations that the consequences of reopening it could lead to significant levels of additional litigation just at the point when most of that litigation is now settled. Does Ms Minch believe we should wait and see what happens post the aforementioned judgment, rather than opening something up again?
Ms Rachel Minch:
It is an issue in respect of there is consensus across the committee that we have finally reached the point where matters have settled. It may not be perfect, as people have said, but there is a measure of certainty now. There is certainly concern if we reopen that now we will have another one or two years, and possibly more, of litigation around what the meaning of those cost rules are. For example, it is stated in section 250 that there shall be no order for costs in proceedings that seek to enforce a national environmental law, but we still have not got a settled position on what is national environmental law. That is just a small aspect of this.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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For the benefit of those of us who would not be as au faitwith the operations of the court as our guests, the consequence of that would be significant delays in a large number of planning applications across a wide range areas, for example. That would be the import of another couple of years of litigation around costs. It would mean that if there were a series of judicial reviews, whether in respect of residential developments, infrastructure or wind energy, and if there were then a dispute regarding costs, everything would be put on hold until the decision regarding costs is made. Is that the case?
Ms Rachel Minch:
That is generally the case, because of the fact applicants are entitled to certainty about the extent of cost protection or the cost position before they proceed with their case. They want these matters resolved as a preliminary issue before the underlying challenge proceeds. What you have then is a motion, which is what occurred there, where the High Court then decides in the matter. Then there may be an appeal up to the Court of Appeal and then to the Supreme Court to seek to resolve that issue. There would then be other cases waiting behind that, which is what has happened.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am keen to come back to the parts of the society's submission that do not relate to judicial review, so I will ask my final question on the latter issue. We have had a number of different discussions, all very interesting, around the proposition to allow for changes of the decision based on errors or fact or law. I ask Ms Minch to explain, in plain English for those of us who are not lawyers, why that is a problematic proposition. In defence of it, some people have said it will just help speed things up or that it refers to minor, technical issues. Other people have said this is significant and will have impacts on both people taking judicial reviews and also on the integrity of the process. Will Ms Minch explain, in as non-legalistic way as she can manage, why this is an issue and potentially a problem?
Ms Rachel Minch:
As the Deputy noted, there are differing views on whether this is a helpful provision. There is already provision for a public body to correct an error in its decision. It is quite narrow in scope, but it is there in section 146A of the 2000 Act and in section 131 of the draft Bill. Otherwise, where proceedings have issued, the option is already there for the decision-maker to realise they have made a mistake, see their decision will be quashed, ask to take it back and then the court can make directions and the decision is made again. There are, therefore, two avenues to deal with errors. Perhaps we could look at those to see if they could be improved upon or if efficiencies could be built into that. The potential issue with this further possible option of public bodies coming forward to say they have made a factual legal error and they are taking it back themselves and what that would mean, for example, for proceedings already in being. Are they adjourned or rendered moot? Then we have an amended decision being made and a further judicial review could then be had on whether the eight-week period then starts to run from that again. We can see it as a potential additional layer of complexity on top of the two options already there.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It could also be a possible cause of delay.
Ms Rachel Minch:
It could possibly cause delay. Some people might feel it could speed things up if there is a more expeditious way to correct factual, legal errors but there is possibility for delay and possible further litigation around the scope of that power and the appropriate directions a court can make.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank Ms Minch.
Steven Matthews (Wicklow, Green Party)
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At this point, it would be helpful if one of our guests was willing to give us a brief overview of the Supreme Court ruling on Heather Hill from last November. Members of the public will be watching this and we are dealing with public participation and standing here.
Many of us have read it, and I am sure many people have read it but I am not sure many people would have the full understanding of our witnesses. Would someone be willing to give us a brief overview?
Mr. Tom Flynn:
There is a special cost rule under the Planning and Development Act. The question was to what extent did that rule apply to all decisions made under the Planning and Development Act or just to decisions that related to specific cases. That is essentially the question. The High Court took a wide view, the Court of Appeal took the narrow view and the Supreme Court took a wide view in relation to it. The consequence, in practical terms, is that the majority of decisions that are challenged under the Planning and Development Act have the benefit of the costs rule. There may be refinement and nuancing around that and there is some level of uncertainty as to precisely whether all decisions are covered but there is a degree of certainty now.
To explain how this operates in practice, most developers in most cases now simply do not make an issue of this. They accept that the special costs rule applies and they do not want to delay the matter. The matter simply proceeds and people accept that the special costs rule applies. There is a carve-out within the special costs rule for exceptionality if, for example, a case is frivolous or vexatious or because of the way in which the case is conducted such as if there was foot-dragging or misconduct by an applicant, the court can make provision for costs and take that into account and reverse the ruling in relation to costs. So there is a carve-out built into the system. But we have a level of stability arising from the Heather Hill judgment in relation to it and in practice, there is a kind of truce after many years of uncertainty.
Ms Rachel Minch:
The understanding was that cost protection only applied to certain grounds in proceedings so there was a lot of argument about whether a particular ground would be covered by cost protection or not. The Heather Hill ruling clarified that all grounds are covered by cost protection so an applicant is not exposed to costs in respect of any aspect of their challenge subject to certain exceptions, as Mr. Flynn has said. But then, if they succeed, they are entitled to their costs or an appropriate proportion of them.
Steven Matthews (Wicklow, Green Party)
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And that judgment only came last November. Thank you. That is very helpful.
Emer Higgins (Dublin Mid West, Fine Gael)
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I have a follow-up question in relation to that. In the legal view of the Law Society of Ireland and the Bar Association of Ireland, does the legislation go beyond the Heather Hill decision or is it contrary to the Heather Hill decision?
Ms Rachel Minch:
I suppose in some respects you could say it goes beyond Heather Hill because there is possible provision for legal aid if you are not successful in relation to your case. But we think it restricts the Heather Hill ruling in the sense that the Heather Hill decision was interpreting the existing legislation, which does allow for cost recovery when you are successful. Based on the draft Bill, there does not seem to be any provision for cost recovery in the normal way beyond whatever is anticipated in this scheme that we have not seen yet.
Emer Higgins (Dublin Mid West, Fine Gael)
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Given that often the legal profession operates on a no-win, no-fee basis, would this have a detrimental impact on people having the means to be able to challenge?
Ms Rachel Minch:
Certain practitioners in the area might be better placed to comment on that than myself. But yes, there is certainly a concern that if there is not a provision for no foal, no fee and if there is not a provision for cost recovery in the normal way but that you are just limited to the scheme - again, we need to see the terms of the scheme - it might prove challenging for practitioners to operate.
Mr. Tom Flynn:
The difficulty is that Heather Hill was dealing with a different statutory provision. This has moved beyond the Heather Hill decision, which is of limited relevance in relation to that.
The removal of the cost-recovery mechanisms, that is, if you are an applicant and you are successful, you can recover costs, is a fundamental problem. Many of our members would be acting for applicants who would be either individuals, smaller residents associations or environmental NGOs. The difficulty is that these cases are very complex and require a large commitment for the lawyers involved. If there is no prospect of them recovering their fees, and this would be a unique provision, market forces will apply and people will find it difficult to get legal representation.
Emer Higgins (Dublin Mid West, Fine Gael)
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So the concerns about the ability to appeal are twofold. First, they are based on cost but Ms Minch's submission referred to the interpretation and compatibility with the conventional requirements for EU law in terms of narrowing people's ability as well. Will she talk a little about that?
Emer Higgins (Dublin Mid West, Fine Gael)
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Yes.
Ms Rachel Minch:
To be fair, we are looking more closely at what is being proposed as opposed to some of the quite challenging European Court of Justice decisions around the area so I would not be able to provide a definitive view or indeed whether we can provide a definitive view, which is a case for not fiddling around with the current provisions because it is not always clear what EU law requires. However, there is a concern that, whatever about the materially or directly affected requirement, insofar as you get standing through public participation that you are limited to the points the Deputy raised before the decision maker. That is a particular issue. Also, as I mentioned before there is also the requirements around what environmental non-governmental organisations, ENGOs, need to satisfy as well.
Emer Higgins (Dublin Mid West, Fine Gael)
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Ms Minch's submission highlighted six other areas which the Law Society of Ireland is reviewing which have given rise to legal uncertainty and litigation. How far along is the society with those reviews? I know it is a lengthy Bill and I thank both organisations for sharing their expertise. How far along is the review and when does Ms Minch envisage the written submission will go to the Department? Can we have a copy?
Emer Higgins (Dublin Mid West, Fine Gael)
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Are there any initial insights Ms Minch could share with us?
Ms Rachel Minch:
There are a few points around there. The section 5 declaration, and Mr. Flynn also mentioned it, which is now section 8, is an area we want to look at. At present it is open to any member of the public to ascertain whether something is development and whether it is exempt for development. Usefully, the provision also clarifies that under the new section 8 you can also find out whether something is in the scope of a permission. But it is proposed to remove the ability of a third party to seek that reference. There is concern around the fact that this relatively inexpensive tool could be removed from third parties. We are looking at it having certain mitigating introductions in the sense that a third party which wants to bring enforcement proceedings that any declaration that the developer, in colloquial terms, has obtained saying it is exempted development and is not admissible in proceedings. It is an area where the lack of explanatory memorandum is proving challenging because we do not understand what it is getting at. We are surmising. There have been some cases around collateral attack and we have been trying to address some of those points but it is an area that will benefit from further review.
On first review, the retrospective consent provisions are raising questions around their scope. We currently have a substitute consent process. The way the definition of retrospective consent is drafted would appear to indicate that applications for retention for development that even just needed an appropriate assessment screening under the habitats directive are going to be put through this quite exceptional route directly to the board where you need to show exceptional circumstances to get permission and that there might be directions to cease activity. In theory, all developments need some form of appropriate assessment, AA, screening. There could be drafting issues. You could find that all these developments would have to go through this particular route. That is another area that we have been looking at as well. Also, the material contravention, noting some ongoing drafting issues that exist in the current legislation.
Emer Higgins (Dublin Mid West, Fine Gael)
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I thank Ms Minch. The explanatory memorandum is something all of us would definitely welcome. We are probably in trouble if the Law Society of Ireland is unsure about something from a legal perspective without that memorandum. I totally understand that.
Steven Matthews (Wicklow, Green Party)
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Which section is the substitute consent in, that is, the second last point Ms Minch made?
Steven Matthews (Wicklow, Green Party)
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Which volume is that?
Steven Matthews (Wicklow, Green Party)
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Ms Minch can come back to us on that.
Steven Matthews (Wicklow, Green Party)
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It has not been raised with us, so far.
Victor Boyhan (Independent)
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I welcome the Law Society of Ireland and the Planning, Environment and Local Government Bar Association. These may be two of the most important papers. Members of the public and elected members of city and local councillors are concerned. It is not that everyone is for litigation. Litigation costs money. However, people want their rights vindicated. They have rights to property and a considerable concern about the community in which they live. They are genuine. I have rarely met anyone who has been vexatious or wishes to spend money, but people engage. They have been looking at some of the prescribed bodies and their activity. People are interested in their environment, where they live and how it impacts on their life and society. It is very important and that importance is showing up here. We need the explanatory memorandum and, as a committee, we need that message to get to the Minister. We talk about certainty, understanding and transparency and, yet, we do not have the explanatory memorandum to assist us in our work.
I will focus on the Law Society and come back to Mr. Flynn. I am dealing with the submission by the Law Society. Ms Minch said questions remain around our interpretation - we are talking about the rules of standing - and compatibility with the convention requirements of EU law and that rules on standing, which are too narrow, could deprive people of their right to seek legal review of the planning decisions. Will she elaborate on that? I am conscious there are people listening in who wish to understand. I ask that she explains, in simple language, the challenge and concern.
Ms Rachel Minch:
Leaving aside compatibility, for a start, the provisions introduce new concepts that probably will be litigated as to what they mean. What does it mean to be "directly or indirectly materially affected" by something? The provisions also state, "by the matters to which the application relates". The provision is not necessarily for the applicant to be affected by the development, but "the matters to which the application relates". What does that mean? This is not necessarily bad or good, per se, but when making changes, new questions are opened up as to what they mean. There are questions of interpretation as to what they mean.
With regard to compatibility with our house and EU law requirements, we have been making the point that whether someone i "directly or indirectly materially affected", he or she has standing provided he or she has raised the matter before the decision maker. If that is unduly restricted, someone would be limited to the grounds that he or she had raised before the decision maker, and we have been making points on some of the requirements relating to the NGO restrictions that I have mentioned
Victor Boyhan (Independent)
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Ms Minch said leave applications would be made on notice, rather than ex parte, as at present. What is the significance of that? What is her general comment, good, bad or indifferent? Should it remain?
Ms Rachel Minch:
There are differing views on this point. Under the old system, leave applications were made on notice and opposed, which would take a year, after which leave would be granted and there may have been another year or two of litigation, added to costs, delays and inefficiencies in the court system. I do not think anybody thinks it is a good idea to go back to that. What is being proposed here is interesting, in the sense there is a deemed leave provision, unless somebody steps in to oppose it. Some people would say there is some merit there. It moves matters along, unless a respondent or notice party sees there is a manifest issue, whereby one is out of time and does not have standing to challenge it. There could be some merit to a hybrid.
Victor Boyhan (Independent)
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What is Ms Minch's recommendation?
Victor Boyhan (Independent)
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Ms Minch might keep us informed on that.
Victor Boyhan (Independent)
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The real issue of concern is that no appeal would lie from the decision of the High Court to the Court of Appeal. That is clearly disturbing and of great concern. Will Mr. Flynn take up that point? We might come back to Ms Minch.
Mr. Tom Flynn:
There are differing views on this as well. People cannot simply appeal planning cases. They have to go before the High Court and go through a procedure where they satisfy the court that there is a certain criterion that they can then appeal to the Court of Appeal. However, they can appeal to the Court of Appeal, which has jurisdiction in planning cases. There is also a separate mechanism, called a leapfrog appeal, whereby they can appeal to the Supreme Court, even if they have been unsuccessful in persuading the High Court to allow them to appeal to the Court of Appeal. It is a different threshold and will still be available.
Some people would say it does not really make any difference if the appeal to the Court of Appeal was eliminated, because there would still be constitutional cases. However, the question at a level of policy, is as to why one is singling out planning cases to say that, uniquely, these cases are not allowed to go to the Court of Appeal. Many of our members ask what the rationale for that is. We simply say it should be very carefully considered before one takes that step.
Victor Boyhan (Independent)
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What does Mr. Flynn recommend? What would he like to see?
Mr. Tom Flynn:
This is a synthesis view and there are differing views on that. What we would say is that it needs to be very carefully considered. I do not wish to speak out of turn, but most lawyers may be reluctant to see the jurisdiction of an appellate court be extinguished for a category of cases - that is probably fair - unless there is a very strong reason.
Victor Boyhan (Independent)
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Does Ms Minch have a comment on that?
Ms Rachel Minch:
Some people can see some pragmatic sense to it. I apologise to Mr. Flynn. They can see it, because the criteria to seek leave to appeal to the Court of Appeal is already very high, that is, a point of exceptional public importance and that it be in the public interest to appeal to the Court of Appeal, whereas the Supreme Court has commented that the threshold of appeal to it is lower. The threshold needs to be in the interest of justice that leave to appeal be granted, or that it is a point of general public importance. There might be some pragmatism around there, in that one is simply going to the Supreme Court, where the threshold to appeal to may be lower. However, we also agree it needs further consideration and that there may be further constitutional issues.
Victor Boyhan (Independent)
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It would be very useful to the committee, if they come back to make a submission, were the witnesses to have greater clarity. There is clearly no clarity among either organisation here on this issue. I understand what they have set out, but I get a sense there is no clarity from either on the issue. The committee would be very interested to hear a more definite argument, one way or another.
Steven Matthews (Wicklow, Green Party)
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With regard to the point Senator Boyhan made, an explanatory note would be helpful. I think it would run to much more than 738 pages. It would be another considerable body of work to try to get through.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Departmental officials might benefit from it as well.
Steven Matthews (Wicklow, Green Party)
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We would all benefit from it. The Department of Housing, Local Government and Heritage said it would produce a document to compare the changes. We have a document that compares the existing section number to the new section number as closely as possible. With regard to the sense that we do not see substantial changes once the Bill has been published, something similar to section 249(5) was proposed in the planning and development evaluation Bill and was removed. This is a draft. We have seen a lot evidence, so far, that what is proposed in the draft could well be problematic.
Mary Fitzpatrick (Fianna Fail)
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Senator Boyhan triggered an interesting discussion about the jurisdiction of the various courts. As a layperson, I am not familiar with the jurisdiction of the courts. When the witnesses are making a further submission to us, it would be helpful for the committee if they could give us a simple explainer on that. From what I have understood, the issue is not that there will not be an appeal, it is just that there will not be an appeal to the appeal.
It is proposed that there would not be the right to appeal to the Court of Appeal. There would be the right to appeal to the Supreme Court. It would be helpful to us to understand the legal context for those operational matters. If the witnesses could provide us with that information, it would be useful.
Steven Matthews (Wicklow, Green Party)
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Could Mr. Flynn explain that to us briefly?
Mary Fitzpatrick (Fianna Fail)
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It is a pertinent issue and the context is important.
Mary Fitzpatrick (Fianna Fail)
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I am also interested in finding out if there are other areas of law that are excluded from an appeal to the Court of Appeal, for example? This is something I do not know.
Ms Rachel Minch:
There may be other areas in law. At the moment, as the Senator may be aware, someone who wants to appeal a planning decision must seek leave to appeal from the High Court. There is not an automatic right to go to the Court of Appeal. There are other areas where there are some restrictions.
Mr. Tom Flynn:
There are some restrictions. Generally, it is the exception. In the context of certification, there are other cases. For example, in procurement, one must obtain certification and one cannot simply write an appeal. One has to go before the court and set out within certain criteria that there has to be an appeal. Just to be clear, what is being proposed here is to remove even that right. It is a complete ouster of the Court of Appeal's jurisdiction in respect of planning cases. To my knowledge, I am not aware that there is another area of law, but I am open to correction-----
Mary Fitzpatrick (Fianna Fail)
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Perhaps Mr. Flynn can come back to us on that.
Mr. Tom Flynn:
-----where there has been a complete ouster of jurisdiction. To be clear, there is still a residual right to appeal to the Supreme Court and by a quirk of the system, the criterion for appealing to the Supreme Court - it is called a "leapfrog" appeal - is actually lower than the Court of Appeal. Therefore, the pragmatic argument would be that really this does not make any difference. There is certainly a case for that, in that it does not make any difference and that if an issue arises, one still has the leapfrog appeal. Many lawyers would be reluctant about the idea of ousting the jurisdiction of the court completely. I presume that is the principal argument.
Mary Fitzpatrick (Fianna Fail)
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When the witnesses come back to us it would be beneficial for us to know what is the disadvantage. Lawyers would argue that it is, let us say, a diminution of access to justice. Perhaps we could get an explanation for that. Access to justice is a very important issue. I apologise to the committee for taking so much time.
Steven Matthews (Wicklow, Green Party)
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The matter is very much in the public interest so we will allow that. Do any of the witnesses wish to respond to that?
Steven Matthews (Wicklow, Green Party)
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Yes, the constitutional issues.
Victor Boyhan (Independent)
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I am sorry for putting the witnesses on the spot as the cameras roll but what we are hearing from them is that a lot of thought must go into that. If the witnesses are having difficulties with the matter, we will have further difficulties. An explanation would be very helpful.
Steven Matthews (Wicklow, Green Party)
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Was there something in this regard in the Planning and Development (Amendment) (Large-Scale Residential Development) Act 2021? Deputy Ó Broin might know.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The leapfrog provision was an amendment introduced on Report Stage to that Bill but not pertaining to that Bill. It was one of those late stage amendments-----
Steven Matthews (Wicklow, Green Party)
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I remember the Deputy raising that point at the time.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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-----that we do not get to scrutinise when they are introduced late.
Steven Matthews (Wicklow, Green Party)
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To go back to the question of grounds, if people do not raise certain grounds in their submission to the board of the planning authority, they may not be in a position to raise it on the judicial review stage. Someone can make a submission to the planning authority in week two, three, four or five of the timeframe that is open for submissions. There are certain things that may or may not have happened after someone has made a submission but which could be valid grounds for judicial review. In the judicial review someone might raise the ground that there had been inadequate assessment or inadequate reasoning given, but that person could not have raised that in the submission because those things would not have happened yet. How would that anomaly be squared?
Ms Rachel Minch:
That is an issue. The general point that would normally be made is that if there was a point that could have been made before the decision-maker, and it was not made at the time, then that might have implications for the person in the context of standing or possibly in the court's discretion to allow the person to raise a point at a later stage. If there are simply points that a person could not have anticipated, or which had simply not crystallised at that point, then of course somebody needs to be able to raise that at a later stage. Section 4 possibly needs to be looked at in the context.
Steven Matthews (Wicklow, Green Party)
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Planning decisions are given in the interests of sustainable development and proper planning. That generally covers it. If someone was to put in a submission that it was in the interests of sustainable development and proper planning, does that give him or her scope? There is some language in this Bill that I find a little fluffy, including words such as seeking to "promote", for example, in the context of promoting the objectives of climate legislation, or whatever it might be. In my view this language should be tighter and should refer to seeking to implement the objectives or outline how the objectives would be implemented. Would including in the Bill language such as "in the interests of sustainable development" or similar be slightly vague as well? I suppose there would be an argument to make.
Steven Matthews (Wicklow, Green Party)
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Section 249 provides for the ability to be able to correct "any error of law". We have had previous discussion on this. In my view, it is much too wide. There is a provision in the Act, under section 146A, to correct a small clerical-type error. Must the Bill also include scope to correct something that is not hugely significant and would not actually change the decision but would make the process right, without availing of this broad and sweeping statement to correct any error of law or fact? Should there be some scope for some level of correction?
Ms Rachel Minch:
That is a really interesting point. When we were looking at this, one of the areas we were looking at was whether section 146A could be broadened to capture to some extent certain obvious errors that do not ultimately go to the substance of the underlying decision. That strikes me as pragmatic. Section 131 does broaden it to some extent to refer to being able to correct the decisions that clarify matters. Our view, therefore, was that this could be looked at and section 146A could perhaps be broadened rather than necessarily going down this route.
Mr. Tom Flynn:
The difficulty with that, I presume, is that with a contested decision, there is a realism that one person's clerical error or minor change to a decision is another person's very significant change. In fact, that is one of the difficulties when one talks about correcting an error of law. The decision-maker may say they have identified an error of law here and they are going to correct this now but the applicant or person seeking to challenge will say the decision-maker has not correctly identified the error of law and what they are proposing does not correct the error of law.
Steven Matthews (Wicklow, Green Party)
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You walk into another-----
Mr. Tom Flynn:
You walk into a hole. That is the difficulty we see. It is well-intentioned and understandable but the difficulty with it is that one needs certainty of decision. Developers will want certainty of decision. If this provision is here, there is a concern for the developer if they have planning permission from the board, for example, for a wind farm development, then how do they know the board will not come along and seek to change it, even within a relatively short timeframe? It raises very fundamental issues. Our concern is that the potential for it to be counterproductive and generate more problems than it resolves is very apparent, so it really needs to be perfectly considered.
Steven Matthews (Wicklow, Green Party)
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I do not know when section 146A was inserted in the Act. It sounds like an amendment.
Steven Matthews (Wicklow, Green Party)
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Does anybody know? I presume that was introduced because at some point there was a clerical error and that was seen as a failing.
Mr. Tom Flynn:
From memory, I believe there were a number of cases involving clerical errors and minor changes and it was felt that the introduction of this provision would deal with that. That is generally uncontentious. It is accepted that there can be slip errors in formal decisions and that they should be capable of being remedied.
Steven Matthews (Wicklow, Green Party)
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With the level of complexity and everything that has to be considered in a planning application by a local authority or the board, it is reasonable that omissions or mistakes could be made. It is such a complex process and sometimes it is not black and white. It can be subjective. Should there be scope for something whereby the board could say something should have been done but was not? If it would not have affected the decision, it could correct it and make the process correct but not change the decision. Once the board has made a decision, that is it. The decision is final. I would be concerned that it can make a decision and then go back and make a different decision.
Ms Rachel Minch:
That is certainly possible. If the error is procedural and a submission was not taken into account, the appropriate remedy would be to take the matter back to make sure the board can have regard to that submission. If there has been an error around environmental assessment, that could lead to a different outcome. It is a good point. Section 146A and that kind of amendment are directed at correcting the more superficial errors that do not affect the legal validity or the substance of a decision.
Steven Matthews (Wicklow, Green Party)
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It was suggested at a previous session that there is already a process of some kind to quash a decision and remitting it to the board. The concern is that even with a perfectly functioning board that has enough board members, quashing and remitting decisions might mean another 16 weeks - maybe less - of consideration. At present, there are massive delays and backlogs with stuff going back to the board. Would the witnesses guess that this is bring proposed because of resourcing and delay issues rather than in order to give us better judgments or better law?
Mr. Tom Flynn:
In the absence of an explanatory memorandum, it is hard to know what is behind it. It seems to go beyond minor errors because if that was the case, then why not amend the existing section? There is an argument and a case for that. The difficulty is that even minor amendments have significant effects. For example, let us say someone puts in an application for 18 wind farms and the board's decision grants permission but it refers to 17 wind farms. You could say that was just a mistake. However, there is a different in environmental impacts and planning impacts between 18 and 17. You could argue that there is a formality to the board's decision. It has a legal consequence. One person might think a making a change like that is minor, but it is not minor. Applicants will contest this.
I would just make one observation. I do not know whether this is being considered. In the analogous integrated pollution control licensing regime, which is operated by the EPA, there is an application process and submissions and all the rest. The EPA produces a draft licence for proposed determination saying it is going to grant permission for an intensive pig farm or an incinerator and stating what it is proposing for the licence, including the scope, the conditions and all the rest. It then leaves that draft determination our for consultation and people can look at that. Ultimately, that becomes the final determination. There may be merit in looking at this issue. I do not know whether it is being considered. There is no solution that is perfect but perhaps the board could issue a draft proposed permission with the conditions and leave it there for four weeks. Then someone, like a developer, could come along and point out that there is a mistake, the board has got something wrong and they are looking for 18 wind farms, not 17, and ask it to change that The difference there is that you would not have the final legal decision, in a sense. That could deal with those types of scenarios where there are difficulties or flaws in the decision. That is not a perfect solution. It is not without its problems but it is something that may be worth considering.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I thank both organisations for coming in. I want to ask about satellite litigation and the potential around that. From what the witnesses have stated, it seems that there could be significant satellite litigation around costs, potentially correction of errors and compatibility with the Aarhus Convention and EU law, which relates to the other three areas. Is there anything else in the draft Bill that stands out in terms of potential significant delays around the satellite litigation? Are those the main areas?
Ms Rachel Minch:
When we refer to satellite litigation, we are thinking about when a judicial review has started and getting bogged down in satellite litigation on preliminary issues. Those are the key areas in which see those difficulties. There is also the right of appeal point we raised. More generally, because this is such an extensive new piece of legislation, there is a lot of devil in the detail. Unless we get this right, any change in legislation is going to potentially give rise to more litigation.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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When the witnesses say the satellite litigation could potentially lead to delays of one or two years, do they mean delays in a particular planning application that is under review in the courts or do they mean that within one to two years these issues will hopefully be resolved and there would not be much more satellite litigation?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Each substantial satellite litigation could lead to one or two years of delays across the board for a whole number of cases or planning applications
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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None of us has a crystal ball, but how long might it take to get these issues resolved, or get back to certainty or stability people say we now have in the system now post the Heather Hill case? How many years could we be looking at just to get back to where we are now in terms of stability and certainty?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I ask Mr. Flynn to just give an indication if he can.
Mr. Tom Flynn:
We could be looking at several years. We have to bear in mind that the wording around directly or materially affected will probably be challenged in some proceedings. What would happen then is that, because that issue is there, the courts people may apply to have their cases in other decisions stayed. There may potentially be references to the Court of Justice of the European Union, which could take the best part of two years, most likely a year and a half. Then the answer comes, which may or may not resolve the issue entirely, and then there would be further litigation up through the courts. We could be looking at a three-year timeframe where lots of litigation will surround these issues. That is the difficulty when you introduce a new statutory provision with new wording; you tend to get litigation trying to determine what that statutory provision means. We have to consider the pros of introducing a new provision as against losing the certainty of statutory provisions that are well-established and the meaning and interpretation of which has been determined by the superior courts.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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On the issue of the administrative cost regime, we have not seen what that is so it is hard to give detail on it. The witnesses have said that it is not a proper replacement for a statutory right to costs. Can they expand on why it would not be? What are the potential deficiencies there?
Mr. Tom Flynn:
There is a fundamental qualitative difference between an administrative scheme and a statutory scheme. I am sure the Deputy will know this from his own experience. If I have a statutory right to something, I have statutory protection for that.
It can be removed only by an Act of the Oireachtas, either in ending or revoking the provision or replacing it with something else. The difficulty with an administrative scheme is it has no statutory underpinning. It is at the whim of the Minister of the Department in question, who can remove or vary the scheme. They are at large as to how they may operate that scheme. An administrative scheme is no substitute for a statutory scheme.
I wish to highlight another point, which is an argument that could be contested and I accept that. There is an argument that an administrative scheme, for the reasons I have explained, would not provide the certainty as to an applicant having a right to costs as is required under either EU law or the convention. Going back to the original, when the Aarhus obligation was introduced in Ireland, Ireland initially defended that by saying we have a rule of court, which confers discretion on the judge to award costs. Therefore, applicants have the level of certainty required in the Aarhus Convention to take cases in a reasonably affordable manner. The Court of Justice said that is not sufficient - a discretionary rule of court. Ms Minch may know the case number; I cannot remember it. I refer to the first case where the Court of Justice said we had to change our legislation to bring in statutory provisions to provide the certainty required under EU law. That is one of the reasons an administrative scheme may be vulnerable to attack on that ground. I am just offering that as a possible argument. I am sure the State lawyers would be able to construct an argument against that but I would think there certainly would be an issue in relation to that.
Ms Rachel Minch:
There is also the practical piece that you need to move within eight weeks. At that point, people might be trying to ascertain whether they can access the scheme and what costs may be available to fund the litigation at the same time as trying to prepare their case, which is a pragmatic point as well.
Mr. Tom Flynn:
Exactly. If you get instructions to judicial review a case, you have eight weeks, but you will be working on this before the eight weeks. Are you going to apply to this administrative body and get an answer within two, three or four weeks? There is the issue of the scale of costs as well. Our colleagues in the Legal Aid Board are upset that the scale of fees has not been increased for many years in criminal legal aid cases. There must be a concern that even if the initial scale of fees is, for example, market-based, it will not keep pace with costs. Is there to be a right or any role for the Office of the Legal Costs Adjudicators in this? The difficulty with one-size-fits-all cases is some cases are straightforward. Perhaps there can be a judicial review that is net point and might be able to be resolved in a day or a day and a half. Another case can be genuinely very complex. There can be multiple issues arising. How is the remuneration to be calculated? These are all fundamental issues that should be dealt with now, at this stage.
I wish to make one other point. There are two cost rules. There is a cost provision under Aarhus under the Environment (Miscellaneous Provisions) Act and then there is a separate cost. It is a little bit silly why there are two rules. The reason the legislation was enacted seems to be just administrative happenstance. It is one of the reasons there is a complexity around that. I saw there is an Aarhus Bill proposed in the latest legislative programme. I am not sure where that Bill is. It has been on the legislative timetable for many years. There may well be an argument to suggest that this issue of costs in environmental cases and the whole issue of Aarhus in relation to it is not just dealt with in this Bill but is perhaps dealt with in a more fundamental way across not just planning cases, but there are also other cases that are entitled to Aarhus protection. The sensible thing would be to have one rule or scheme, so to speak, or deal with this in an integrated manner rather than deal with it in a piecemeal manner. There may be an argument to suggest that is a better way to deal with it rather than dealing with it in the piecemeal manner here. If that course of action is adopted, it would be important that there would be a sensible and detailed interaction with the stakeholders involved. There is a complexity around this. In fairness, it has to be accepted that it is not straightforward how the EU rules and the Aarhus rules apply. There is a complexity around it.
Steven Matthews (Wicklow, Green Party)
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This was published without much clarity in that section and section 250 as well. It has raised many questions for us.
Deputy O'Callaghan had to attend the Chamber, so I will bring him back him to finish that up when he comes back. I call Senator Seery Kearney.
Mary Seery Kearney (Fine Gael)
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That particular line of questioning with Deputy O’Callaghan is relevant to one of the aspects that I want to question the witnesses about and seek their advice on. I want to focus particularly on sections 97 and 303. It is relevant to locus standifor appeal of a planning authority decision.
I am aware of a particular application or process, without getting into the nitty-gritty of it. I refer to the timeline of this application. It was a large-scale residential development, LRD. The application was 13 June and the local authority’s decision was 4 August last year. It was appealed to An Bord Pleanála and that decisions was on 1 February. Within an eight-month period, it went through initial application, local authority decision and An Bord Pleanála. I have that parked up here as being a timeline that has operated. The local authority cited two reasons for rejecting it. One was the servicing arrangement would have caused a traffic hazard. The second one was the car parking did not meet the published car parking standards. Those were the two reasons that the local authority turned down this LRD.
An Bord Pleanála’s decision on it was based on, first, that it did not meet the zoning. It was zoned for educational and recreational purposes and nothing could be demonstrated that it should set aside that zoning, go into the exceptions and allow residential development on it. Second, it was in a flood risk zone B, in accordance with a Department publication from 2009. Third, the density way exceeded the development plan. Even going on the first two, the contrast between the decision-making of the local authority and the rather trite reasons it cited for rejection versus An Bord Pleanála’s much more in-depth reasons, which were in line with many of the objections, is quite considerable, to say the least.
That brings me to the process of residents and people and what processes within this Bill would afford the raising of many of those issues. Many of the observations were put in by local residents in the main, some of whom had competencies around environment and were aware of flood risks and things such as thing and were able to articulate those sort of things. Some of them were basic, such as 400 units are being put up and 100 parking spaces provided. Where the hell is everybody else going to park even if you are going on 50%? Some of the rest of it was quality of life issues.
If we look at the provisions in sections 97 and 303, an appeal, first of all, has to be from the person who made the application but then any person who made a submission. That is fair enough, if all these individuals made a submission. We then engage the answers to Deputy O’Callaghan’s questions in whether that person is then exposed to risks of costs, what the taxing master would decide and all that down that road. If that had not gone and they needed to make a judicial review, in order to make an appeal, there are unincorporated identities, such as the likes of residents associations.
Within that, they require the names and addresses of all of the members. Although, I cannot for the life of me find it this morning, I am aware of a decision that was made around the Malahide Road where an agent tried to put in an objection and it was ruled out by the High Court on the basis that the name and address of every member was not listed appropriately, so the locus standiwas challenged. Residents' associations tend to bring in members on the basis of the household so, for example, No. 26 is a member of the residents' association and has paid a fee, but not every member of that house is listed. There is a potential deficiency as to how tightly that is defined, and that would put residents' associations on the back foot.
One of the things we have started to see in the last couple of years is local residents incorporating and setting up a limited company so as to limit the exposure to costs if it were to go to judicial review. When the application goes in and the submissions to that application are going in, people will form a company at that point and have the members of the company move forward at that point. However, under section 303, we have the restrictions that the company must be formed for over a year, it must have environmental objectives, it must be pursuing those objectives for over a year and it must have not less than ten members. The problem is that if a residents' association had gone that route in regard to the development I have just outlined, they would never have made that timeline and they would never have had those protections. There is almost a drafting sleight of hand going on to prevent that very situation.
I am interested to hear the response of the witnesses, in particular whether they have considered those limitations on locus standiand where we are at in that regard.
Ms Rachel Minch:
It is interesting. We will need to look more closely at sections 97 and 303. Looking at the restrictions to which the Senator is referring in section 97, I think that relates to allowing certain persons to be eligible to appeal if they have not made a submission to the planning authority, so they only need to meet those criteria if they have not made a submission to the planning authority. I think that is the case although, nonetheless, it might need to be looked at in regard to why all of these requirements are necessary at this point in the process. Once someone can satisfy that they are a person who has made submissions to the planning authority - I think a person can be an unincorporated association - they can appeal. Alternatively, if they decide to incorporate at that point and that incorporated body has made a submission to the planning authority, then they should be able to come in under section 97(b) and they do not need to meet the criteria the Senator has been listing, which seem to carve out an exception to the requirement to have made submissions that applies to certain eNGOs. I know there are questions as to the extent to which people need to be listed, and the names and addresses and so on. Perhaps Mr. Flynn can comment.
Mr. Tom Flynn:
It does seem that the Bill is proposing language which would seem to be restrictive to the status quo. There are two arguments against this, as I understand it. Some developers would argue there has been a phenomenon of objections or challenges being instigated by companies which have been established very quickly, and maybe they are not particularly representative of all of the residents within an area and it may be just a couple of individuals. To be blunt, some developers would have questions over the bona fides of those objectors or the bona fides of that challenge. That is heavily contested and people would say that if there are those cases, they are very minor and the vast majority of cases are taken by bona fide applicants. It is legitimate for residents to set up limited liability companies, which has been going on for a long period of time, to bring forward a challenge and also to confer them with a degree of cost protection. I suspect it is the concerns of developers that may be the motivation behind some of that wording in regard to the restrictions. It seems to me to be more restrictive than the status quo and it is something that needs to be analysed to see if it could operate unfairly.
Mary Seery Kearney (Fine Gael)
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That goes to the heart of the situation when this was first talked about, with residents thinking they were going to be cut out of the loop because if they stay in, or stay in as themselves and then need to go down the judicial review route, then they are exposed to costs.
Mary Seery Kearney (Fine Gael)
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Given that experience of a large-scale residential development, LRD, where the local authority, to my mind, just came up with the first two things that crossed their mind to make sure it got kicked up to An Bord Pleanála, and being resigned to the fact it was going to anyway, we would need to make sure that everyone has the right of appeal if we were to see patterns like that.
Mary Seery Kearney (Fine Gael)
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We just need to know that in our own submission.
Steven Matthews (Wicklow, Green Party)
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Thank you. I call Deputy Ó Broin.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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When we particularly asked the representatives of the Department that question at the start, they said it was for reasons of cost liability or claims of cost under the new cost regime, but how and ever.
I will indicate at this point that I want to come in on the third round.
Steven Matthews (Wicklow, Green Party)
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That is fine.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am delighted Mr. Flynn mentioned enforcement because it is one of the areas where we have not had adequate discussion of the Bill in the seven meetings we have had to date. It seems to me there is very little new in the enforcement section and a lot of it is just transposition of existing elements of the original Act. I have two questions on that. In terms of our enforcement regime, is it really just a matter of increasing the resources of the planning authorities or does Mr. Flynn think there are other legislative provisions that we should be actively considering in terms of improving enforcement? Any of us who have been involved in or are knowledgeable on enforcement, particularly against egregious breaches of planning law, whether in terms of quarries or residential development, will know this is an area of real frustration. Has Mr. Flynn any thoughts on that?
Have there been considerations within the legal profession around whether there is a role for some level of administrative sanction at the earlier stages of enforcement? I have often wondered, for example, where somebody is clearly engaging in illegal activity and the local authority, as the planning enforcement body, is engaged in preparing a legal challenge through enforcement, if there are arguments for administrative fines prior to and building up to the court’s interventions to supplement that. Rather than one or the other, is there an argument for both on a phased and proportionate basis?
Mr. Tom Flynn:
The Deputy has raised a couple of issues. He is correct that the architecture of the new Bill replicates the architecture of the 2000 Act in terms of enforcement. That is probably a reflection that, generally, most people would say those provisions are pretty solid in terms of the remedies and they give a fair range of remedies across to the planning authorities. The difficulty, in our experience, is the lack of resources that are available to the planning authorities. My experience of this would be that many planning enforcement officers retired or were let go during the recession and they were never replaced. It seems that planning enforcement is not the greatest of priorities on local authorities and planning authorities. I am sure they would say that they have so many demands on their resources, but there is an issue in that regard.
The remedies are quite good. There is a range of remedies and enforcement notices which are almost quasi-administrative, to touch on a point mentioned by the Deputy. There are criminal prosecutions and there is the statutory injunction, which, in my view, is underutilised, particularly by planning authorities. We do not really see planning authorities taking them, although they may say there is a resourcing issue and a cost issue in that regard. Overall, the remedies are quite good.
We had raised several technical points. Regarding the new regional enforcement proposal, which replicates what is going on in waste, this is potentially a good idea. The only difficulty is that we would say there is a need to be very careful concerning the interaction between the regional authority and the planning authority and to ensure that they synergised.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is there a sense that this section of the proposed Bill adopts what is almost a shared-service model, where there is a pooling of existing resources?
Mr. Tom Flynn:
Yes, on an initial reading of it this does seem to be the approach being adopted in this regard. This is fair enough. I can understand it. At a broader level, I presume, there may have been an argument for looking at other models of enforcement. For example, if we look again at the analogous environmental area, there is an Office of Environmental Enforcement, OEE, under the Protection of the Environment Act 2003. This is a division of the Environmental Protection Agency, EPA, and it has certain supervisory powers over the local authorities in the area of environmental law. Is this perhaps a model that could be looked at? Would it be better to have a national authority that would deal with this context and have analogous powers? Is there an argument for hiving this office out and setting up an entirely new one, which would be an office of planning and environmental enforcement at a national level and giving it supervisory powers to underpin the powers of environmental and planning enforcement? There are synergies between those two aspects. Those are issues that may need to be examined.
Turning to the Deputy's point about administrative provisions, it is well made. Again in the analogous area of environmental law, there is scope for administrative sanction. In the planning area, it could possibly be considered but there is a difficulty in this regard because, in general, the board which is responsible for issuing many of the development permits has no enforcement role. It is slightly different with the EPA because it has an enforcement role. It issues the permit and then there are enforcement powers under the relevant Act in this regard. It would be possible, therefore, to look at introducing some kind of administrative provisions. It is probably not a major lacuna in the system now, but it may be something worth looking at.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Does Mr. Flynn think resources are more important?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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To go back to the issue of costs, and section 250, although it is only a general scheme head, this limits access to the scheme to non-compliance with national and European law. To what extent would this narrow cost-protection and cost-recovery perspective apply in the context of the Heather Hill judgment? I presume in the aftermath of that case there are many others that would be eligible for cost recovery under the cost-protection rules. I refer to the provisions as they are initially set out in the general scheme head of section 250, and these aspects not being included in that. Is this a concern? If Ms Minch has a separate view on this topic, I would be interested in hearing that as well.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Until we see the scheme.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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If I can ask the question in another way, if we take residential developments that have been upheld under judicial review, it is often the case that they are not in breach of national law but of a city or county development plan.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Here is a clear case where, in fact, in many of these judicial reviews the point of law at the centre of the contest was a divergence between national law and specific planning policy requirements, SPPRs, versus the development plan. If somebody were, therefore, to take a judicial review to uphold the development plan and then had it upheld, under the very limited wording of the proposed section 250, they would not get cost protection and would not be eligible to apply-----
Ms Rachel Minch:
This was one of the questions that was going to be referred to the Court of Justice. I refer to what was the scope of national environmental law and if it covered issues concerning development plans and material contraventions, and these kinds of broader planning questions. One of the issues here is that this point is possibly going to be reopened and we might find ourselves going back to the European Court or in litigation over what this means.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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There is a reason I am asking this question. Again, getting the explanatory memorandum would be helpful, but many of us who have been involved in many of the recent and controversial changes to our planning system, that then led to significant increases in the number of judicial reviews of residential developments, are looking at aspects of this proposed Bill to see if they are an attempt by the Government and-or the Department to resolve issues that some earlier legislation or section 28 ministerial guidelines did not resolve. For example, there is a strengthening of the ministerial policy statements. There is also an insertion into the material contraventions context, where these contraventions are in line with those ministerial policy statements. In my view, this is clearly an attempt to strengthen the kind of mandatory Ministerial guidelines, the SPPR, element of our planning system, albeit in another way.
Here, then, in the judicial review section, we have what could potentially be an exclusion of somebody taking a case not probably for a breach of national law but where there is a conflict with local law, essentially, which is the development plan. It is not that I am conspiratorially minded but I have been in this game long enough to be cynical at times. It does seem to me, therefore, that there is a possible cross-reading here which is really about strengthening the role of central government. This may be a legitimate thing to do. I refer to strengthening the role of central government in policy formulation and in the level of risk to an applicant for judicial review and strengthening the hand of central government versus local government and-or the citizen. Am I taking this perspective too far?
Mr. Tom Flynn:
Well, I do not think it is necessary to descend to that level of analysis. I am not saying there is anything wrong with it. Let us be clear, however, about the situation pertaining under this proposed legislation, in the context of what the Deputy referred to, where somebody wants to challenge the interaction between the development plan and a ministerial direction in relation to it. Currently, somebody would be in a position to take this case and would, it is possible to say with some certainty, benefit from the cost protection rule. It would be possible for that person to recover the costs. In the context of this proposed legislation, it is not clear that a person would have that ability. It is certainly not clear that people would be in a position to recover their costs. It looks like it would probably be the case, concerning this aspect, that people would have the benefit of the provisions of the new scheme, but we do not know what that is providing for in this context. I do not think any of us can be clear about this.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Absolutely.
Steven Matthews (Wicklow, Green Party)
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It is incredibly difficult to discuss this context without knowing what is being proposed. It has created many questions and concerns for us. This is something that needs to be produced in tandem with this Bill, before we go any further with it. I have a few of my own questions as well. I will then bring back in Deputy Ó Broin.
Regarding section 83 of this proposed legislation, relating to the conditions that can be attached to a commission, and specifically section 83(2)(a), which refers to "conditions regulating the development or use of any land or maritime...that adjoins, abuts or is adjacent to the land or maritime site to be developed, and is under the control of the applicant". It is possible to attach a condition to land that is under the control of the applicant.
In the context of someone leasing out a piece of adjoining land, would that still be considered to be under the control of the applicant? In anticipation of a planning application, someone might, for example, seek to lease out adjoining land to somebody for a couple of years, with a horse being put on it or whatever might be used for. In such a case, would that land still be considered to be under the control of the applicant? What I am wondering here is whether the wording should refer to the land being "under the ownership or control" of the applicant. The witnesses might think about this aspect and then respond to me. It is a point that stuck out for me.
Steven Matthews (Wicklow, Green Party)
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Yes, okay.
Steven Matthews (Wicklow, Green Party)
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Yes. That is grand. A submission, which I think is from the Law Society, refers, in relation to costs, to "The Aarhus Convention and implementing EU Directives require that costs in certain environmental cases must not be prohibitively expensive". Is this term, "prohibitively expensive", defined?
What might be really prohibitively expensive to somebody earning €50,000 per year may differ as opposed to somebody who is earning €500,000 per year. Has "prohibitively expensive" been defined?
Steven Matthews (Wicklow, Green Party)
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It is not related to a person's means.
Mr. Tom Flynn:
It is one of the difficulties with the phrase "not prohibitively expensive". First of all, it has not been definitively defined. The CJEU decision on the Edwards case gives some criteria in that regard. It is dynamic because the courts are constantly interpreting what constitutes "not prohibitively expensive". The Aarhus compliance commission also deal with this issue of defining "not prohibitively expensive". It will not, therefore, be a one-size-fits-all approach.
One important thing is that we have to consider the legal cost context and the wider context of the legal system with which we are dealing. What is not prohibitively expensive in Sweden, for example, is different from what would not be prohibitively expensive in Ireland, not just in pure monetary terms but having regard to the legal systems they have there. They have different processes in that regard. Therefore, when we talk about what is not prohibitively expensive and what it would mean in an Irish context, we must relate that to the Irish legal system and what is not prohibitively expensive having regard to Irish procedures and Irish legal costs.
Steven Matthews (Wicklow, Green Party)
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With the cost protection that exists at the moment, if a group such as Friends of the Irish Environment took a case, it would be covered by this costs protection under section 50B as it is. If a big oil company comes in, is it entitled to the same cost protection as well?
Steven Matthews (Wicklow, Green Party)
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If a company was taking a public interest environmental case, it may be to its benefit at the end of it. Those companies are covered by it as well, however.
Steven Matthews (Wicklow, Green Party)
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That is grand; I thank Ms Minch. One of the issues that came up time and again in our engagements with An Bord Pleanála, the Office of the Planning Regulator, regional assemblies and local authorities was resources at planning decision level. That big backlog we see in An Bord Pleanála at the moment was outlined to us.
In terms of court resources, such as judges and people to take the cases, the programme for Government commits to reviewing the Planning and Development Act in tandem with the establishment of a planning and environmental court. I accept that is outside of what the witnesses have been invited to talk about today. However, is that something that would help with trying to meet these very tight timelines we are trying to apply to the judicial system here? Is that something that would assist with that?
Mr. Tom Flynn:
Certainly, in terms of establishing a planning and environmental court, we already have a planning and environmental list that deals with certain categories of cases. We have only one judge permanently assigned to that list. There is a second back-up judge. Obviously, more judges would mean that more cases could be heard, which we would welcome. However, we also have to have associated resources with registrars, judicial assistants and all the rest in that regard.
One of issues is that in providing more resources, and this is a point we discussed earlier, we can deal with more cases and reduce costs. If we had, for example, let us say, three judges as opposed to one, or even four judges dealing with planning cases, we could assign those cases to those judges and they could perhaps spend more time reading the cases in advance. Rather than a case taking three days, it might only take one day and the costs would be greatly reduced in respect of those matters. That is what happens in the UK. I discussed this with my colleagues in the UK and they would make that point. Most of their cases take a day whereas in Ireland, an equivalent case may take three days. Part of the reason is that the judge, through pressure of work, is not able to read the case in advance and has not been given the time, whereas in the UK, a judge will be given two days off or maybe the week before to read up on two cases and then hear two cases in two days. We need more judges to do that, however.
Ms Rachel Minch:
---internal resources to address those challenges, meet those timelines and provide instructions. We can nearly always find more lawyers but there would need to be increased resources within possibly the State's Departments or the board itself to manage more stringent timelines and the volume of litigation.
Mr. Tom Flynn:
I will make an observation on that. This is a point we made about real-life conditions and practicalities. There is a limit to how much we can compress the hearings. To give an example, let us say I am acting for a developer and there is a challenge to a wind farm. I get my papers from the applicant and I am told I have to file them within three weeks. The difficulty with that is I then have to go back to my client and get instruction. We have to be instructed. We may know nothing about the case. We will have to spend a day or two reading through everything. We have to then get instruction. We have to go back to the clients and ask them their views on the points that were raised. We then have to go and get the experts who might prepare the environmental impact assessment. There may be a noise expert for a noise point. That person may not be immediately available and may also be doing other things. They cannot just drop everything and say they will get back to us straight away. Typically, they will say they need to read the material for the next week or two weeks and then give their response. Therefore, a certain amount of time is needed in real-life conditions to deal with these things because they are very complex cases. There is a huge amount of factual matter that may include studies, reports, traffic analysis, noise analysis etc. The legal issues are very complex as well. They are not something to which people can just give a snap answer. There needs to be engagement with lawyers and the clients. This also applies to decision-makers such as the people in An Bord Pleanála who make the decisions and the inspectors. They are also trying to do other work. Again, we cannot expect them to drop everything and say they will deal with a case immediately. There is a limit to how much we can compress the system. That would be our observation.
Steven Matthews (Wicklow, Green Party)
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The narrative that goes around is that delays in the planning system are the reason why we do not have X, Y or Z etc. From what we have heard, it is a resourcing issue with the first line of decision-makers on the board. Planning authorities actually meet their timelines quite well. In terms of judicial reviews slowing down everything, again, that is a resourcing issue. There are similarities between those stages. Does Deputy Ó Broin wish to come back in?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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To pick up that point, I have always been of the view that it is primarily a resourcing issue in the sense that both the length of time it takes the board to make decisions and the length of time it takes the courts to proceed is a function of the number of people who are working on those cases. There is obvious logic to that.
I believe, however, that we should try to have a planning system with a legal element that provides the maximum level of certainty. For me, it is not about compressing. When I talk to developers, they do not really necessarily mind how long it takes. What they want to know is how long it takes. For me, therefore, certainty rather than compression is why I think timelines are valuable.
Ms Oonagh Buckley from An Bord Pleanála made a very compelling case to say, yes, let us have timelines but let us link timelines to both resourcing and complexity of cases. I accept that principle. If that is the conversation we are having, the first question I will ask both witnesses from their experience is about what those timelines then start to look like. At some point, somebody has to start putting numbers on a piece of paper. The purpose of the timelines is not to compress but to get good quality decisions in a certain period within the current resources. The Department did not indicate to us that additional resources were arising consequent to the passing of this Bill; certainly in the immediate period. What kinds of timelines are we looking at? What would be reasonable? I will ask the question another way. What kinds of timelines would not be reasonable?
Ms Rachel Minch:
Yes, that is it. First, it is a really good point to say that everybody would welcome some timelines and some element of certainty.
That is also the feedback we have been getting through the committee. However, as the Deputy has said, we should not rush unduly. As we saw with the strategic housing developments, SHDs, unduly rushed legislation may not be helpful for anybody. As to what the timelines might look like, we might take that question away with us and think about what could be practical. At the moment, it is anticipated that a decision maker will have seven and a half weeks from being served with papers to having his or her opposition papers in. We do not believe that is realistic. It may be closer to ten weeks. We can start to parcel up that.
Mr. Tom Flynn:
You will get differing views. We act for developers as well and absolutely understand the frustration. People need certainty on this. It is very difficult to pick a time limit. There is concern about a one-size-fits-all approach because some cases are very net. There may be only one point in it. A statement of opposition may be very net and only deal with one point. In other cases, they can be quite complex and raise multifaceted issues.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I apologise for cutting across Mr. Flynn but should we really be looking at a timing matrix rather than a number? I take the point about timelines in primary legislation. There might be an argument for the legislation setting out a mechanism by which timelines are determined or for a timeline matrix to be agreed and then reviewed. What we do not want is a set of timelines that simply does not work or that leads to bad decisions.
Mr. Tom Flynn:
It is something we may think about and come back to the Deputy. On his comment that no additional resources arise from this Bill, I do not know whether that is the case but, if it is, you would have to question the reality of those time limits and the purpose of including them. If we are not going to have any additional judges to deal with these matters, I do not foresee compliance with those time limits. I do not know what my colleagues' views on this are but I really do not see how those time limits will be met without additional resources.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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To be clear, our conversations with the Department have had to do with resources for the planning authorities because resources for the Judiciary are ultimately a matter for the Department of Justice. However, even that is an issue because the Department of Housing, Local Government and Heritage is proposing a set of changes that will also impact on the operation of the courts but that Department is not in any way in a position to make a decision on resources at that level.
I have a very short question on standing. The issue of the representativeness of a group involved in litigation has come up. I invite the witnesses to put their views on the record but, to be very clear, there is nothing in our international or European legal obligations that makes representativeness a criterion for people's right to access justice. I am correct in that. For example, for a residents' group or environmental group to take a case under the Aarhus Convention or EU environmental law, representativeness of a geographical area is not a requirement.
Mr. Tom Flynn:
I believe the Deputy is correct in that but the corollary is that, under EU law and the Aarhus Convention, it is permitted to impose certain locus standi requirements. It has to be acknowledged that restrictions are imposed in other jurisdictions. For example, we have an open third party system in Ireland whereby anybody from anywhere in the country can complain about planning. That is not the case in other jurisdictions. That does not necessarily run afoul of EU law or the Aarhus Convention with regard to those matters.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is there a representativeness condition, as opposed to a material impact condition, in any of those other jurisdictions? Does a group of residents have to demonstrate that it represents 50% plus one of the residents in a certain area?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Grounds.
Mr. Conor Linehan:
It is a very interesting question. The incorporation requirement, the criteria and so on come up throughout the Bill in different contexts. However, I do not read section 249, which relates to judicial review and in which this issue comes up, as meaning that, for the purposes of raising points on European environmental law, a group is required to have incorporated under the criteria. Rather, a pre-existing company meeting those criteria will be deemed to have sufficient interest. It is something that would be regarded as evidencing sufficient interest.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I apologise. Perhaps I did not explain the question properly. We had a previous discussion with Senator Seery Kearney on the issue of Departments and officials often saying that a particular group of people taking a judicial review against a development is not representative of the community from which they emanate. Nowhere is it a requirement under law for a group to be representative. Under this Bill, there are other requirements, particularly with regard to NGOs taking cases, but I am specifically talking about a group. It really does not matter if a group of residents comprises five residents, ten residents or 50% of the residents of a geographical area. I presume their right to access justice under the Aarhus Convention remains the same.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It sounds like a stupid question but it is important to establish that representativeness is currently not actually a legal requirement.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Exactly.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The members of a group might be a minority interest within their community. However, as long as they meet all of the other criteria to hold legal standing, that does not matter.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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In her submission, Ms Minch says that she is looking at six other areas of the Bill. I invite her to tell us what the view or views of the members of her committee are on any or all of those areas at this preliminary stage. We have a fair amount of time and I believe the Chair would be interested in hearing those views as well.
Steven Matthews (Wicklow, Green Party)
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As long as it is not in respect of section 249 again. I believe everyone has answered the Deputy's question on that.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Would Ms Minch like to briefly run through those areas?
Ms Rachel Minch:
We have already touched on the aspect of declarations under section 5, now section 8. We are looking at the fact that this is no longer available to any person. As somebody said, this removal of a relatively cheap procedure to find out whether something is considered an exempted development or not will now fall within the scope of permission.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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For the record, I presume it is Ms Minch's position that the status quoshould remain.
Steven Matthews (Wicklow, Green Party)
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May I add to that question? There was reference to a case. I wrote it down but I cannot read my writing.
Steven Matthews (Wicklow, Green Party)
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It was on section 5.
Ms Rachel Minch:
The status quoremains. It sometimes happens that somebody who wishes to develop property obtains a declaration. There is no public participation in that process. Third parties, the public and the court are then bound by that declaration and cannot seek their own so there are questions around the status quo. The legislation seems to be trying to tackle that issue to some extent but it is also potentially problematic in excluding third parties from making such requests.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Would it be fair to say that Ms Minch is concerned about what is omitted in the change and would lean towards improving the status quoin a more positive way?
Steven Matthews (Wicklow, Green Party)
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I am sorry to interrupt Deputy Ó Broin.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Go ahead.
Steven Matthews (Wicklow, Green Party)
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We can tease out this issue between us. The Bill seems to be trying to address this complication by excluding the member of the public rather than addressing the issue that arose in the case Mr. Flynn named.
Mr. Tom Flynn:
There was an issue with regard to the section 5 procedure because there was no right of public participation involved. The consensus view was that the legality of this was questionable having regard to the Aarhus Convention and European provisions.
This is a refashioning of section 5 which does a number of things. The Bill broadens the scope of the declarations that can be sought and it changes the procedures, possibly purporting to address this. Many of these changes are probably not controversial and are welcome. Unusually, the Bill states the ability to use section 5 will be restricted to a limited category of person. A member of the general public will not have this right. We are not convinced that this is necessarily a step forward. It should certainly be questioned and looked at again. Many of the other proposals are welcome.
Ms Rachel Minch:
There are some measures that could mitigate what arose in the Narconon Trust v. An Bord Pleanála case. The new provisions state that where a third party brings enforcement proceedings, any former declaration is not admissible in court. This means people will not be bound by a declaration in which they were not able to participate. It sends a third party down the enforcement route rather than the section 5 route.
Mr. Conor Linehan:
Section 5 was introduced very early on in the planning regime for one very specific purpose. This was to let a landowner or somebody thinking of carrying out work or changing use know whether they needed to make a planning application. They could ask the planning authority for a declaration on whether they needed to make a planning application. The proposed amendments in the Bill seemed to recognise this. It has become a mechanism for getting a formal declaration, which becomes part of the planning history of a piece of land and can be used in planning battles within communities. There is a Supreme Court or Court of Appeal decision by Mr. Justice Hogan that states a section 5 declaration becomes part of the planning history of a piece of land.
The existing section 5 refers to "any person". The proposed change introduces the concept of a relevant person. In summary, this is an owner, occupier or any person proposing to carry out works. It removes the concept of any person being able to apply for a section 5 declaration. This is to try to remove what is seen as an element of abuse or misuse of the section 5 procedure. As originally conceived in the 1963 Act, the procedure was for people who wanted to get an answer on whether they needed to make a planning application.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is a similar explanation to that which the Department gave us. Its representatives said this was the original intention of section 5. One could argue that it has become a very useful tool for third parties in clarifying what is or is not an exempted development. If we go back to the difficulties with enforcement, in some ways it can become a tool to ensure compliance that is not as cumbersome as enforcement. Therefore, whatever the original intentions were, are we losing something? I take it that Mr. Flynn's view is that we would be losing something if we narrow it in the way that he has described.
Mr. Tom Flynn:
That argument could be made. One of the arguments about section 5 is that it can be used by a member of the general public as a way of establishing whether a change of use or proposed development is occurring. If there is a complaint, the landowner can say it is an exempted development. It could be argued that using the section 5 mechanism is a way to get a resolution to such a dispute without recourse to litigation and without having to take enforcement proceedings, and that, therefore, it is a sensible use of resources. There is a countervailing argument that there is the potential for abuse of process in that people use it negatively. We need to consider very carefully excluding the general public from the mechanism. The other elements of the proposed amendments are probably relatively uncontroversial. We believe this needs to be considered.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am not necessarily inviting Ms Minch to give a definitive position on the other five non-judicial review points but I would like to know what are the areas of concern or consideration she is making on them at this point in time.
Ms Rachel Minch:
With regard to altering and extending planning permission, the ability to alter planning permission is generally welcome and there is provision for public participation if the decision-maker believes it is a material alteration. We are looking closely at retrospective consent. I may have given the wrong statutory reference for the definition earlier. It is section 78 that has the definition. It is potentially very broad. It may require retention for projects that require screening for appropriate assessment. It could funnel an excessive number of retention applications through this very particular process.
With regard to material contraventions to development plans, we are looking at whether it might be of assistance to provide some criteria as to whether something amounts to a material contravention. There are certain drafting aspects. The board can grant permission for a material contravention provided certain criteria are met. There is still a lack of clarity as to whether some or all of the criteria need to be complied with. We can indicate this in our submission.
We are working through the environmental assessment section. One of the points that has been suggested is that we need to look at IROPI.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Will Ms Minch repeat that?
Ms Rachel Minch:
These are imperative reasons for overriding the public interest, IROPI, and whether something that will have an adverse effect on the integrity of the protected site might still be permitted. The Bill includes reasons deemed to be imperative for overriding the public interest and we want to look at them more closely. There is also the threshold for screening for environmental impact assessments. I know these are quite high-level points.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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This is the part of the Bill that has received the least attention in our consideration. We are very interested in hearing views on this.
Ms Rachel Minch:
Even its workability needs attention. We need to consider the workability of the thresholds. We are going to try to spend some time on the section. We know that environmental assessments give rise to quite an amount of litigation.
There are also the statutory mandatory timelines. We want to make sure they are realistic and flexible and that there is provision for further information. There are lessons to be learned from the strategic housing development process. The general consensus of the committee is that fines are not useful tools and should not be retained in the legislation.
Mr. Conor Linehan:
There seems to be something counterintuitive about imposing fines and reducing resources even further for this very reason. There is the issue of principle. There are many other statutory environmental decision-makers. It is not just An Bord Pleanála. Whether it will lead to rushed decisions is another question. Will it be good for the morale of the board that its individual officers will be under this pressure? In recent weeks, the chair of the board, Ms Buckley, asked questions on this. We ask the committee to give them some detailed consideration.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I apologise for missing part of this meeting. I was at another committee meeting. Comments have been made about the potential abuse of the section 5 process. Will the witnesses elaborate on this? What evidence is there of potential abuse?
Mr. Conor Linehan:
I would not suggest it is widespread but undoubtedly the use of section 5 has moved away from its original purpose. I explained that it was intended to be a mechanism where somebody, typically a landowner, would ask the planning authority whether a planning application was needed. There have been some instances where it has been used by people with no interest in the land. They have raised this question with a planning authority. As Mr. Flynn has said, there are many cases where it is very helpful to get an answer to this question.
There are other scenarios where it is used in local planning battles. It is very few scenarios, but it has been used for that purpose. As to the rationale for the amendment seeking to remove the provision that any person can apply and confine it to a landowner, I imagine it has something to do with that. That is the only rationale I can identify.
Mr. Tom Flynn:
It may be related to resources as well. Excluding the public reduces the amount of references and there are less demands on planning staff. Section 5 has a resource implementation for the planning staff and the board. When they get a reference, they have to allocate staff to process it. Planners have to look at the matter and it is time consuming. It is similar for the board.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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We have asked others and they have said they are infrequently used and there is not much of a resource issue.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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We have also been told some of these processes can be useful in getting certainty around things and can in the long term decrease workload and resource demands.
When we talk of someone who has no interest in the land, is that basically someone who has no ownership of the land? I could have interest in something as someone in the local community or a neighbour, but if it is restricted in that way, it cuts off anything other than ownership. Is it proportionate to potentially cut all the people with a wider, non-material, non-ownership interest out of a process on the basis there could be-----
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The owner or someone with the explicit, written consent of the owner, absolutely, but not anyone else. It mentions prescribed bodies, I think.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Under this a neighbour cannot.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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They are explicitly prohibited under this, which seems to me quite restrictive.
Ms Rachel Minch:
Maybe there is some middle way. I do not know. There is the mitigation that it is not admissible in court proceedings brought by a third party. The difficulty is there is not participation in the process. An option might be to allow for public participation in the section 5 process so, if the owner puts in a request, some form of public notice is published, and if people wish to make submissions they can. That then becomes quite similar to a planning application. As Mr. Lenihan was saying, it is meant to be a quick way for somebody to find out if they need planning permission for something before proceeding with work. I am not sure if there is an easy solution but that is an interesting question.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Exempted development is an important part of the planning process and having clarity around and confidence in it is important. We may arrive at a point in the future where it is clearer what is an exempted development. It might be capable of being expanded and involve fewer resources in planning areas if there was clarity. Restricting the ability to have clarity on that can undermine confidence in exempted development and may lead to a narrowing of it, which is potentially counterproductive. The area requires consideration.
Steven Matthews (Wicklow, Green Party)
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To back up what Deputy O'Callaghan said, we did not hear any evidence from planning representatives of local government that it created a resource issue. However, given the amount of time we have spent talking about section 5, everybody knows about it now and it might become a resource issue.
I have questions on Part 9. If somebody seeks leave to apply for judicial review, a respondent or notice party can indicate opposition to that leave. Is there then a hearing on the application for leave stage for the judge to decide whether to grant it? Is there then a similar round of arguments the next time as well? Does opposing leave to apply exist at the moment or is it something new that is being introduced?
Ms Rachel Minch:
It will depend on how it operates in practice. At the moment, leave is still ex parteand so cannot be opposed unless the leave application is put on notice of the court. The courts generally have a good sense of what ought to be put on notice. Here we are back into putting on notice that there is a deemed leave unless somebody decides to step in. In our experience, it is unlikely that decision-makers will oppose leave, other than in clear cases where they are out of time or sometimes a case can be very poorly pleaded if it is by a lay litigant. Questions have been raised about reopening the possibility of opposing leave, with suggestions that it could lead to applicants for permission or certain parties opposing leave and then we are back into duplicated hearings, delay and cost. We think there is some merit to the deemed leave aspect unless somebody comes in, but if many people start coming in, we are back to the on-notice position we had before, its difficulties and why it was got rid of.
Mr. Tom Flynn:
I am not sure it is really a problem. The current judge has the practice of informally putting respondents on notice that a leave application is being made, albeit made ex parte. The threshold for ex parteleave is relatively low. In most cases you will get leave. You might not get leave in all the points related to it. Then the parties simply agree. In many cases, a developer will make a tactical decision, even if offered the opportunity to oppose leave, not to do that and simply to get on with the case because it is not worthwhile to oppose leave because the threshold is so low in relation to it. I am not convinced there is a problem around the status quo. Changing thestatus quohas the potential to stir the pot and introduce counterproductive practices.
Steven Matthews (Wicklow, Green Party)
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Would somebody given notice that leave to seek judicial review of their decision has been sought weigh it up in their minds and consider that, at the leave to appeal stage, they might win and then have to go into the full judicial review process and defeat the leave to appeal? I am probably not using the right terminology but would they make a judgment call on it? That could stretch out for weeks. We could end up with the judicial leave process being extended by having this in place.
Ms Rachel Minch:
The way it is drafted is, if the respondent or notice party does not say they oppose leave on the returned date, it is a deemed leave. It is straight through. You have to indicate your position at that point and, if there is opposition, there are strict timelines around it. Depending on whether people step in, the way it is drafted could push things through the system. At the moment, even ex parteleave applications are taking some time to be heard and addressed in the regular judicial review list and to some extent in the strategic infrastructure development, SID, list as well. If people do not oppose, the way it is drafted could push things along because it is deemed leave on that first return date unless somebody steps in.
Mr. Tom Flynn:
There is a difficulty with delays in getting leave in the normal judicial review list. You are generally getting return dates which are quite extended. That is a resourcing issue. Tactically, many respondents will probably not oppose leave. The only issue is that a respondent who is served with a case by an applicant may decide it is particularly objectionable or concerning on one ground and oppose the leave. Respondents have to make the decision to delay the leave hearing and the substantive hearing or progress them. There is a tactical issue. There is complexity in that people often seek telescoped hearings where the leave and the substantive issue are heard at the same time.
There is a complexity around that in relation to it. I am not necessarily sure this will radically change or accelerate the process. It may have some impact, but it seems to me that the status quois really an issue of resources. We only have one judge in the State list, for example, effectively hearing leave, although sometimes they might farm the leave out. If, for example, there were two or three judges who were available to hear leave, and similarly in the judicial review list, one would get through much more and would shorten the whole process.
Mr. Conor Linehan:
It is probably useful to note as well that leave applications for judicial review are now quite a bit different from what they were maybe ten or 15 years ago when one or two grounds might have been raised. Now, they tend to be complex. The environmental NGO sector, judicial review applicants and the public generally have become much more conversant and knowledgeable about EU environmental law and national planning law. Therefore, applications for leave rarely tend to be confined to one or two grounds. They tend to be very comprehensive applications for judicial review and they take time in themselves.
Steven Matthews (Wicklow, Green Party)
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Was that because if you put in a wide range of grounds, you are trying to encompass everything? As the Heather Hill case showed, all the grounds are now covered. You can probably just go in with one or two, knowing that would be covered now, whereas you had to bring everything into it.
Mr. Tom Flynn:
There is a bit of that, but often we have an eight-week time limit. One of the difficulties with the eight-week time limit is people have to make compressed decision-making, including the lawyer. Therefore, they want to keep their options open, which is understandable. They are there to represent their clients. That would often lead to more grounds being included, whereas maybe if there was a more extended period of time and further time to analyse and reflect on it, you may actually focus on a number of different points. There is almost a counterintuitive aspect. Let us say you changed the eight-week period to a four-week period. You would probably even find more of that in that people would have to make the decisions so compressed, they would include multiple grounds. It is therefore counterintuitive.
Steven Matthews (Wicklow, Green Party)
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Earlier, the low threshold was mentioned, which I think was the phrase used.
Steven Matthews (Wicklow, Green Party)
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A few years ago, judicial reviews were not as common as they are now. We have had the discussion on strategic housing developments, SHDs, and I do not want to rehash it. However, I often speak to people who say it is with board but they are going to judicially review it anyway. It has almost become as though this is the next stage in the planning process. Is it at that leave to apply stage that the judge weeds out ones that have merit and ones that do not? Is that process worthwhile?
Mr. Nap Keeling:
The point is that basically everyone gets leave at the moment. Insofar as there is a threshold to get leave, it is being met routinely, particularly in the strategic infrastructure development, SID, list. What is being proposed here, for example, is rather than having to move an application for leave, which would require someone like Mr. Flynn to stand up in court, ask for leave and engage with the judge, under the proposal here, you would simply file and serve. You would lodge the papers in the central office of the High Court. There is no leave hearing unless it is contested and the default position is that there is a deemed grant of leave. Then, it is up to the developer, An Bord Pleanála or the respondent to decide if they will bother engaging at that stage. The question arises as to why you would bother, because the thresholds they have to meet are so low that they will almost certainly win anyway. In other words, you end up with a grant of leave without any application of court. The resources of the court would not have to be used for that purpose, and you would already be off and running. On one side of it, it is possible that no developer or respondent would bother engaging with leave. You would have your grant of leave and could just proceed on that basis.
The fear from previous occasions back in the early 2000s, for example, is that it would be routine to have had fully contested leave applications that would take two or three days. Then there would be almost exactly the same hearing in relation to the full hearing a number of years later. We did not have the Commercial Court back then, for a start, so it was much slower to even get on for the first hearing, let alone for the second hearing. There have been many changes since then that would suggest the same outcome would not occur.
The other issue is to stop the clock. In terms of resourcing, what often happens at the moment is someone has to make an application to a judge for the purposes of the time limit. Then you have to stop it and that gets adjourned. From that point, it might be adjourned for two or three months before the leave application can actually be heard. In this case, what would happen is instead of that happening, I would simply file papers in court before the time limit was up. I would not need a leave application and, if no one fights it, I have a deemed grant of leave, so I have bypassed all that period. That is what is intended to happen, albeit there is a check in the system whereby if the developer says, "There is no way I can let this happen. I can move in and challenge thelocus standi of that person to bring those proceedings in the first place." That is still in the system and is still allowed for, but they do not have to do it. The upside of that is probably that, if a delay arises from that, it is brought about by the developer who has challenged it and the delay affects them. Therefore, there would at least be a matching up of the decision with the delay. That is what is intended. However, as Ms Minch says, if that is what actually happens, it is possible that the initial benefit will be a reduced time period of the leave stage. After that, there will not be a big difference because, as Mr. Flynn has explained, there is a default exchange of time pleadings anyway. However, it might help in the first few months in relation to it.
Mr. Tom Flynn:
Can I make a point about judicial review? There is still a requirement to apply for leave for judicial review. In most other legal proceedings there is no requirement; you simply issues the proceedings. We have to bear that in mind when people say it is very easy to challenge or judicially review decisions of planning. That is not actually correct. The history of it is a restrictive regime. It is a very restrictive regime with a specific time limit. There is still the requirement that one can only challenge them by way of section 50 of the planning Act in the High Court. That is the mechanism. It is a restricted mechanism and there are slight ways around that. It is in contrast to other litigation and other areas of law, where you can simply issue the proceedings. You can go to your lawyers and ask them for advice. You are not required to take this step and you generally have much longer than eight weeks.
Steven Matthews (Wicklow, Green Party)
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You would not have cost protections in those other cases that were mentioned.
Mr. Tom Flynn:
That is a very fair point. There are other people who could strongly make the argument, for example, people litigating to protect children's interests in education, that there is not a regime there for them. I presume our answer to that, perhaps unsurprisingly, would be that there needs to be a comprehensive legal scheme to allow people to vindicate their rights. The reason we have this specific cost regime is that is an obligation we are signed up to under the Aarhus Convention as a matter of international law and EU law. It is something we signed up to. It is a legal obligation and that is the reason we changed our regime. We introduced the special cost regime after the European Union Court found that our existing legislation was non-compliant. We should bear that in mind.
Steven Matthews (Wicklow, Green Party)
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Do any members wish to come back in?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Yes, I have a few questions. First, did either of the witnesses' organisations engage with members of the planning forum in the Department? Have they had any engagement on the draft Bill up to this time, corporately as the committee or as the association?
Mr. Tom Flynn:
No, and my understanding is that we were not involved. I should make the point that this was a review that was led by the Office of the Attorney General. As I understand it, it is a slightly unusual position. Many of our members were involved in that professionally, but we were not involved in the planning forum and neither was the Bar Council, to my understanding.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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When the draft Bill was published, the Government said that what is proposed will lead to an improved planning regime and provide greater clarity, consistency and certainty. It also said it would make the planning system more coherent and user-friendly. I realise that it is only a draft Bill and that our guests are only considering it; however, in the last four sessions we have had, with planning professionals, local government management, elected members, architects, environmental NGOs and those present, I have not been hearing that there is a great deal of clarity, consistency and certainty. At this stage, are the witnesses concerned that there are more questions to be answered than have been answered by the text in front of them? I am asking this not to try to get them to give a political answer but because all of us accept this is once-in-a-generation legislation that will profoundly impact many people, not just legal and planning professionals but also citizens and communities. It will determine whether we can meet energy-efficiency requirements, housing needs and employment opportunities, for example. The legislation has enormous scope. If legal professionals are concerned that there is not necessarily the clarity, consistency or certainty that the draft Bill is meant to achieve, it is important that we take a little more time to consider it. I am inviting the witnesses to respond to the Government's claims, but from a legal point of view rather than a policy or political point of view.
Ms Rachel Minch:
The critical point the Deputy made is that there really is a need for time. Obviously, we have been focusing to some extent on Part 9. In this respect, we already have concerns over how it is drafted. It is critical that we have time to go through the draft Bill to pick out the small and larger points in order to ensure we are not just walking into more uncertainty with proposed legislation of this scale.
We can already see some good aspects. I welcome the idea of a streamlined process for applications going to the board, with all applications going to it and the planning authority in the same format. We have about eight different routes at present. We can certainly see some positive aspects to the draft Bill, but the devil could be in the detail. We need time to review it.
Mr. Tom Flynn:
The 2000 Act had become a bit of a mess, simply because it was being amended constantly. It was probably too complex to deal with in the end, even for lawyers.
There are some good things in this draft Bill. Some of the legislative tidying up and cleaning is very good, but there are some provisions, which we have already highlighted, that we certainly believe need to be very carefully considered. One has to be careful about change for the sake of change; it does not necessarily mean one is going to improve the situation. There are some policy choices that clearly need to be made but they need to be informed by our legal obligations under EU, the Aarhus Convention and international law. It is not immediately clear to us that the analysis of all the elements, particularly the provisions on judicial review, has occurred.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Let me ask a corollary question. If we do not take the time to get that right and if, for political reasons, there is a desire to pass the proposed legislation more quickly, what are the potential consequences of not clarifying and, potentially, improving some of the key areas the representatives have outlined, in short or summary form?
Ms Rachel Minch:
The people who need to operate the eventual legislation, the public and the decision-makers may struggle with inconsistencies or to understand what they are supposed to be doing. If time is not allowed to ensure the provisions are clear, coherent and lawful, it could give rise to more litigation.
Mr. Tom Flynn:
The difficulty is that this is an area of law that is highly technical and inherently complex. There are interactions with European law. The draft Bill needs to be considered very carefully. It is well worth spending a little extra time considering it in order to ensure that we get it right rather than having piecemeal adjournments in respect of it.
The introduction of any new statutory provisions, even if good and well-intentioned, raises the possibility of actions before the courts as people try to understand what they mean. It is always the case that statutory provisions have unintended consequences. We have already highlighted some statutory provisions that we believe will simply give rise to additional litigation and, in fact, are not a step forward. It may be counterintuitive for lawyers to be highlighting proposed statutory provisions on the grounds that they encourage litigation, but we think that is not unreasonable for us to do so.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I have two final questions. I understand there is a commitment from the Minister for Further and Higher Education, Research, Innovation and Science, Deputy Harris, to increase the number of judges by 20 over a period, although there is no clarity on the exact areas they will be in. In this regard, I return to the point that the Chair made in the context of increasing resources rather than changing the process, or increasing resources and changing the process. Is it simply that we need more judges allocated to these types of cases? In the view of the witnesses, what is the thinking with regard to having a dedicated planning and environment court with judges who can develop genuine expertise over time, are adequately resourced with researchers and other staff and can keep abreast of changing European, international and domestic law so we can have not only more timely decisions but also more consistent ones in terms of legal effect? We have a Labour Court and Commercial Court. If there is a case to be made for a planning and environment court, it is really for the larger and more complex decisions. What are the views of the witnesses or those the represent on that matter?
Mr. Tom Flynn:
There are a couple of views on that. There are proponents of divisionalised, specialised courts. I do not want to speak out of turn but suspect the majority of our members accept that. There is also a view that those courts are not a good idea. The Bar Council had some misgivings about the matter in the past because people feel a silo should be developed in relation to it. There are constitutional limitations. One cannot reconfigure the structure of the courts radically without a constitutional amendment. What can be achieved is a division of the court, as was done with the commercial court.
Resources are as important, if not more so, than changing the substantive procedures. If resources are significantly increased or doubled, even within the existing procedures, there will be better outcomes and quicker decision-making.
The issue of consistency is trickier. The Deputy stated the planning and environment court should only be for the more complicated cases. I can understand that argument but there is an argument that other types of environmental cases could benefit from court division. An example could be an environment division of the Circuit Court because there are highly technical matters, such as appeals against waste-facility permits, and certain types of enforcement that end up before the District Court. These are highly technical areas of law. With great respect to the average District Court judge, he or she does not know much about them and cannot be expected to. The District Court is not the optimum forum, so there may well be an argument that certain other types of cases, not necessarily in the High Court, could also benefit from a specialist division. If one were to have a debate about that, one would have to engage with the stakeholders and our organisations and really think it through.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I suspect that will happen because I understand the Minister is progressing separate legislation. The relevant committee will have the opportunity to do so but there is one limitation in that there are times when, even though the resourcing and configuration of the judicial system are a matter for the Department of Justice, a committee like ours would probably have intimate knowledge of many of the reasons one may or may not proceed as described. In this respect, Mr. Flynn's point about the Circuit Court is well made.
Could the witnesses clarify for those of us who are not lawyers whether there is a difference between having a stand-alone court and a division of a court, or have I misunderstood this?
For example, there is already a judge and a secondary judge designated to deal with planning and environmental cases. Is Mr. Flynn saying there could be a division of the High Court that is not a stand-alone court but is a group of judges within that court? Will Mr. Flynn explain that a bit more in plain English?
Mr. Tom Flynn:
The architecture of the courts system is set out in the Constitution. Broadly, there is the Supreme Court, the Court of Appeal, the High Court and the Circuit Court. You cannot radically reconfigure that but there could be divisions within courts. That is not a particular problem. There is a list. The Commercial Court is really just a list which certain cases that meet the criteria are entered into. It has additional resources and additional rules.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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For clarity, is it a division of the High Court?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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If one wanted to have a greater allocation of dedicated resources, not just judges but also researchers and backroom staff, who I presume are key, you are talking about a division of the High Court, similar to the Commercial Court.
Mr. Tom Flynn:
Arguably, you would not even need to go as far as a division. You could simply have a list and a number of judges assigned to that list. There is already a strategic planning and infrastructure list, but there are certain criteria to enter into that list and not all environmental and planning cases go into it. Some go into the non-jury list. You could have a list and say that all cases go into it and allocate three or four judges to it.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is there an advantage or disadvantage to having a list versus a more formalised division like the Commercial Court? Keeping in mind some of us know nothing about these issues, it would be helpful for us to try to grapple with them.
Ms Rachel Minch:
It would just be a matter of resourcing the list we have with more judges. Resources and expertise would be really helpful in that respect. Sometimes, there is also a view that it is good to have a broad variety of judges looking at these cases. Equally, sometimes for the judges themselves to not just be doing those cases. In that decision-making space, just having a broader perspective across a range of judicial reviews would also be useful.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am genuinely open to this question. Given the highly and increasingly technical nature of planning law, both development plans and State-wide plans, the increasing technical complexity of EU environmental law, the proliferation of legal judgments both at a European Court of Justice level and a domestic level, that is a lot information. There is now climate law. There are carbon budgets and a range of other things. Even in the personal opinions of the witnesses, because they were not necessarily anticipating this coming before the committee, how does one strike the balance between judges and-or ancillary staff sufficiently conversant with the complexity of that with the benefit of having people who are not necessarily always involved in that and bring other things to bear? How does one manage that? Is it that there is a list which has some people who are predominantly on it and some who are infrequently on it? I know no system is perfect.
Mr. Tom Flynn:
I think the former Chief Justice, Mr. Justice Clarke, made the point that you do not want to lose the fact that somebody who has no knowledge or previous practice in planning or environmental law might come into a court, take over a list and bring insights from another area, for example, if they practised in asylum or refugee law. It is an interesting question because there is now such a complexity around planning and environmental law that, even for us as practitioners who specialise in this area - it really is a discrete specialism - we find it really difficult to keep up to date with the law. It is a real full-time job. It is difficult for judges. Perhaps there is a balancing exercise to have some people with expertise and specialism in the area but also to give them the resources, whether they be researchers with expertise, knowledge and qualifications in this area to give them the assistance in relation to that. This underscores the complexity of the area and the need to ensure the judges have time to read the papers and take on board the complexity around the arguments being made in relation to it. This is not a criticism of the Judiciary, who work extremely hard, but it is frequently the case that they come into the cases and have not had sufficient opportunity to get a sufficient understanding of the relevant material and the legal arguments. That is not a criticism; they just need more time. That is why additional judges are needed, so they can have two days off to read the case and then one day to hear it. If there is only one judge, they cannot do that.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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In the context of that conversation, of the new timeline requirements, whatever they may be, that come with this, and in the background we have just opened up a planning regime for our marine, which is seven times the size of our land mass, in an area that is even more technical and of which we have very limited experience as legal practitioners, planners, planning authorities or judges, how challenging is that going to be in the context of this Bill?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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And planners.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is a question we asked them.
Ms Rachel Minch:
-----all the judgments, legislation and policy? Is there a way of pooling resources or distilling judgments to try to make the system workable? We are struggling to keep up with judgments. How decision-makers, who need to apply the outcomes of those judgments, are to keep up with it as well is very challenging.
Mr. Nap Keeling:
Regarding the resourcing issue, there is a compelling argument, given the importance of what these judges are dealing with, for a dedicated court. There is also an issue around succession planning. For example, judges get promoted out of the High Court to the Court of Appeal. If there are only one or two judges dealing with a section and someone is promoted to the Court of Appeal, that could happen within a length of time that is optimal for planning. There is probably a wider resourcing issue there to take into account. It is a practical issue.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is not just about more judges but a pipeline of judges.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Regarding Mr. Flynn's point and the idea that, at various levels of courts, there could be some level of specialism or subdivision or list, a little bit like county councillors, Deputies and Ministers, does that give you a potential pipeline if people are already specialising at a Circuit Court level, albeit in a more limited scope? How would you conceive of that?
Mr. Nap Keeling:
I do not know if you can necessarily look between court jurisdictions, as such. Someone may want to stay at the Circuit Court rather than move to the High Court. It makes sense that if someone has been specialising in an area and an opportunity arises to get promoted into the same area in a different court or jurisdiction. I am not sure that is necessarily how it works, however. If you get promoted from Circuit Court to High Court judge, I am not sure if you have the choice as to where you are going to go at that point. I think the President of the High Court would probably like to have the say over that decision.
Steven Matthews (Wicklow, Green Party)
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There is another point following on from Deputy Ó Broin's. There is a section completely missing from this called transitionals. How are we going to transition from the system we have? Will it be done by certain parts coming in first? How did the transition from the 1963 to the 2000 legislation work? It was not as complex then. There is a lot more complexity now.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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To add to the Chair's point, before responding to the question, it is not just the transitional mechanisms we have not seen yet. There are other areas. For example, the Department is considering whether or not to add into this Bill the land value sharing tax, urban development zones, other areas of planning-----
Steven Matthews (Wicklow, Green Party)
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The section 48 stuff as well.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Exactly, as well as the legal aid regime, as I call it. It is not even that there are aspects of this Bill as we have it that are not certain. There are also significant other aspects. One could be looking at another 50 to 100 pages of the Bill and how they interact with the bits we have dealt with. There are multiple layers of uncertainty.
Mr. Conor Linehan:
The Deputy alluded to the Maritime Area Planning Act 2021, which is a good example. This Act clearly acknowledges the 2021 Act for maritime area planning and the whole planning regime for the offshore maritime area.
There probably needs to be more formal statements within this about how the two relate to one another.
Another example is the 2019 legislation on planning applications relating to Dublin Airport, air traffic noise and all of that. The 2019 Act is acknowledged in the draft Bill as existing in the background, but more probably needs to be done in that regard. There are some transitional provisions or acknowledgements within the draft Bill. For example, the new sections dealing with ten-year development plans include provisions in respect of existing development plans. I am running out of time, but the Deputy is correct that there probably needs to be a kind of-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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One of the central areas of litigation has been with regard to conflicts between the section 28 ministerial guidelines and development plans. Sections 22 and 23 of the draft Bill, particularly section 22, set out their intention in this regard. When we interrogated the Department, it emerged that the process by which an existing section 28 guideline may become a national planning policy statement, as it is referred to in the draft Bill, is not clear. In addition, one of the areas of greatest concern is the way in which new national planning policy statements will be dealt with retrospectively. I have not asked the witnesses about that because we have thrashed it out in detail at previous meetings. However, there is worrying potential for additional litigation if we do not get that right and it causes further delays.
Steven Matthews (Wicklow, Green Party)
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We will have a final session on the draft Bill with the Department in two weeks' time. We are hoping to wrap up with the Department and bring to its attention everything that has been raised at the previous eight meetings.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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We might need six hours for that meeting.
Steven Matthews (Wicklow, Green Party)
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It could be a long meeting. Today's discussion has been helpful. It has probably thrown up more questions than answers, but that is no harm.
If the current section 50B, relating to costs, were to be inserted into the draft Bill in place of the proposed section 250, would it be a good fit? The current process under section 50B seems to be working. What are the current issues with section 50B that we might rectify if we were to include something similar to it instead of section 250?
Mr. Tom Flynn:
I presume there are people who would say section 50B is inadequate, even at the moment, because applicants have to incur a certain level of costs in respect of which they are not recompensed even if they win the case. They have to wait until they win the case, so to speak, to get it. For example, a person who wants to instigate a judicial review challenge may need to engage lawyers and pay them a certain amount up front. He or she may also need to engage expert witnesses and pay them up front as well. That is all very well, but even if the person wins the case ultimately, or even if the case is compromised, he or she does not get paid until down the line in relation to-----
Steven Matthews (Wicklow, Green Party)
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The person does get that full cost eventually, however.
Steven Matthews (Wicklow, Green Party)
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It is about having the means to get to that stage.
Mr. Tom Flynn:
Mr. Keeling may be in a better position to respond because he, as a solicitor who has acted for applicants, probably understands the situation better. That is one criticism of the current section. The consensus among our members would be that the status quo is far preferable to what is being proposed at the moment.
Steven Matthews (Wicklow, Green Party)
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We do not know what is being proposed at the moment.
Mr. Tom Flynn:
I know that. We can only deal with the draft Bill as published. In the context of what is being proposed, the removal of any right to recover costs is a retrograde step. The majority of our members would probably consider that an administrative system is qualitatively a different right from a statutory right to recover costs. There are all sorts of concerns relating to that, which we have mentioned. One may not wish to feel sorry for the lawyers and that is fine but, looking at this pragmatically, our professional analysis is that regardless of whether the changes are complaint with the Aarhus Convention - one would get differing views in that regard - they will certainly lead to more litigation in the medium- to short-term, as well as more uncertainty. In that sense, one could argue that they are counter-productive.
Steven Matthews (Wicklow, Green Party)
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I will leave the last word on that matter to the Law Society.
Ms Rachel Minch:
The broad consensus is that we can live with the status quoin terms of section 50B, particularly if litigation is run efficiently. What is proposed here could assist with that. The final piece is whether there should be some possibility of legal aid in important environmental cases. That does not exist at present.
Mr. Tom Flynn:
Just so there is no misunderstanding, there is be a view among some NGOs and lawyers that even section 50B does not meet the requirements of the Aarhus Convention and European law. That view would be heavily contested, but it is not universally accepted that the status quocontained in section 50B is entirely adequate. There are differing views in that regard. What we are saying is that what it means is settled to a degree and it gives a certain amount of costs protection and ability to have costs recovery. Even from the developer perspective, the fact that it is settled is quite reassuring for them because they know where they stand with. They might not be entirely happy with it but they know where they stand.
Steven Matthews (Wicklow, Green Party)
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Is the no-foal-no-fee way of overcoming that up-front cost an element that factors into this? A solicitor will probably not take on a case on such a basis unless he or she thinks it has a reasonably good chance of being successful. Are different things being relied on in that regard?
Mr. Tom Flynn:
The no-foal-no-fee approach is known as a contingency-fee basis. It is a long-established tradition, certainly at the Bar, that if a lawyer believes it is a good case and is in a position to deal with it, he or she will instigate proceedings. It may be that no payment is received until the case is ultimately successful. One does not instigate a case unless one considers it a statable case. As we stated, these are all cases where leave of the court is required. One must meet the leave threshold. It is not simply chalking out a writ. That requirement is there. To a certain degree, the no-foal-no-fee basis addresses a gap in the absence of a proper legal aid system in this regard.
Steven Matthews (Wicklow, Green Party)
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Does it also act as a filter?
Mr. Tom Flynn:
It does to a degree. As lawyers, we have a professional obligation to advance statable cases. All of the lawyers present have experience of explaining to clients who may feel very strongly about a proposed development that, unfortunately, we take the view that the case is not statable and may not succeed even if leave is obtained. People have to make decisions in that regard as well.
Steven Matthews (Wicklow, Green Party)
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I thank the witnesses for their engagement. It has been a very helpful meeting for us in the context of trying to craft this draft legislation in the context of making sure that what is eventually put in place will be fit for purpose for the next decade or so.