Alice-Mary Higgins (Independent) | Oireachtas source

The fact the Government has withdrawn, under extreme pressure, one of the problematic amendments is welcome, but it highlights again how incredibly ill-considered the changes are. In the tiny window the public has had to react to this, or since Friday, they have seen the issues with the changes. They regard the proposed changes as an attack on their participation and ability to effect change. One environmental NGO has described the changes as a black hole in respect of judicial reviews. There is a dysfunctional effect on the quality of decisions. This is at a time when public confidence in planning is at an all-time low. Curtailing the public's access to the courts is extraordinarily problematic.

I am going to go through a couple of the issues. The moving of the goalposts is one. That we all have to dig to find analogies for unfairness in different frames is part of it. One of the analogies I used earlier is very clear. I referred to the head start given with the pre-application discussions.

What we have here is the referee who makes the wrong call insisting that the matter go back to him or her. An Bord Pleanála has lost many judicial reviews because it has been found not to be applying our planning laws properly.A body which was initially conceived to ensure more rigorous planning and application of not just local but national, EU and international laws on planning has been seen to be a place where those laws get thrown to the side. I had a long list of quotes reflecting the language judges have used when describing An Bord Pleanála's decisions. I will not read out all of them. An Bord Pleanála is losing these decisions because a judicial review can be taken only if there seems to be a concern about the process. This is not a matter of whether someone liked a project or did not like it. People win judicial reviews only when the process itself was not properly applied. I have one quote, for example, from a judge highlighting how the board showed a laxity in scrutiny involving, in effect, the cutting and pasting of the developer's materials without adequate critical interrogation. There was cutting and pasting of what the developer had sent the board in the board's decisions. Then it was said, "If you get caught on that, you should be able to change it up." That was one of the proposals. There is almost a dynamic of developers seeing how much they can get away with and then, if they get caught, trying to make sure there is no comeuppance. In the context of judicial reviews, the kinds of judgments An Bord Pleanála is losing are those where it seems to be cutting and pasting what developers have sent it. That is one example. I have a litany of examples of the decisions made by the courts against An Bord Pleanála.

The response to the very poor record An Bord Pleanála has had and the incredible damage that has been done to public confidence in the planning system has been to double down again and again. As a whole, and leaving aside the bad amendments, the Bill had already provided that those who had not applied proper environmental standards and so forth, where consent had to be given retrospectively when proper planning standards were not met in the first place, would be allowed to fast-track additional applications and planning applications, not even on the original site but on an adjoining site. A developer with an illegal quarry can add in something else on the site next door that does not even have to connect or have anything to do with the original site. That goes straight to An Bord Pleanála, bypassing the local authority stage. That was being brought in by the Government even as members of An Bord Pleanála, who were former officials in the Department, were having to step down in respect of the poor quality and moral ambiguity of the decisions that had been made.

That is the context, and in that context we now have decisions that An Bord Pleanála should be able to correct its homework after the fact. That was one proposal, which I think has been withdrawn. There is still provision in the Bill that, before winning a case, someone first has to exhaust administrative solutions. There is the helping hand of the pre-meetings for the developer and the helping hand with flexibility as to what is applied for. There is a lifting of that side of the scales of justice and the pushing down of the scales of justice when it comes to the public. I wish to mention groups such as the Dublin Democratic Planning Alliance, which have described how these measures relating to judicial review are contrary not just to the letter but to the spirit of the Aarhus Convention. That idea of public involvement in decision-making is at the core of democracy. Sometimes people are very disaffected. When I try to persuade them to engage with politics and to believe in democracy and policy, when I tell them they can have their say and be part of shaping their lives and their world, the line I use again and again is how policy and politics are the decisions we make as to how we live together. Some of the most important decisions we make as to how we live together are those that relate to what gets built and what happens in our towns, our cities and our communities and what happens to the rivers and the forests of the natural environment we share. That is all part of how we live together and part of democracy. The public are now having obstacles placed in their way. They must exhaust administrative solutions while a clock ticks on their ability to submit judicial reviews and while a bill runs up for those people, who do this not just for themselves but for future generations. All of these obstacles are put in their way while they have not just one but maybe both hands tied behind their backs. Meanwhile, we have the pre-meetings, the extra period, the boards and so on happening on the side of the developer. That is imbalance and injustice. They all fit together.

We talk about separation of powers. I have talked about planning as part of democracy and about having a properly independent Judiciary that makes its decisions as part of a democracy and a proper independent legal process. The Minister, however, is seeking to tell the courts they already have the power to remit a decision to An Bord Pleanála if they point to where they believe it went wrong. They may wish to send it back or to look at it from a certain point. They may point to what needs to be addressed. They already have that discretion, but the Minister is trying to take away their discretion and, effectively, oblige them in most circumstances to send the poor decision that was made back to An Bord Pleanála. More judicial reviews are being taken because worse planning decisions are being made, much like more forestry appeals were being taken because the Minister for Agriculture, Food and the Marine had to stand before the Dáil and admit we were called out by Europe for not applying environmental standards in our forestry licensing. The reason there are more judicial reviews is there are worse decisions being made in that the process has not been properly applied. Now we are punishing people for that and telling developers to do what they want, to push their applications in and, in some cases, go straight to An Bord Pleanála with them. Maybe people will be able to take a judicial review but we will make it harder for them, they will have to wait a while and we will make them show all their cards and explain all the problems to the board first. The Government tried to make it so that one could change what one wrote about facts and correct factual inaccuracies after the fact. The Government has not put that in the Bill because it is so blatantly illegal. What we now still have in the Bill, however, is a provision that even if someone wins a judicial review, if the courts find in favour of the public, that will go straight back to An Bord Pleanála. There are so many ways for the public to lose now. Some of these developers had totally inappropriate relationships with An Bord Pleanála, it seems. Of course, we will have to see how the investigations unfold. That is the situation, though, and that is the imbalance that has been created.

I urge the Minister of State at this late stage to withdraw at least the amendments on judicial review. If the Government is going to trample over some parts of the planning process, it should at least ensure the independence of our courts is protected. Also, for the record, there was no indication of the Minister of State's intentions, in his speech in April, to change the judicial review processes. The idea the Government would come after one of the pillars of democracy, namely, the independence of the Judiciary, without pre-legislative scrutiny is completely unacceptable. The short debate yesterday and the short debate today are no substitute.