Monday, 5 July 2021
Nithe i dtosach suíonna - Commencement Matters
I thank the Cathaoirleach for selecting this really important Commencement matter related to planning. I welcome my colleague and friend the Minister of State. It is good to see him in particular, as he has a strong record on planning and environmental considerations and is a major champion of the Aarhus Convention. It is important this Commencement matter is dealt with in this way. It is very timely we are dealing with this item today because there is a very substantial piece in this morning's edition of The Irish Timesby Mr. Colm Keena, the legal affairs correspondent, on new proposals around judicial review. I have a copy of the edition to hand, which I can give to the Minister of State later when we leave the Chamber. The article suggests new proposals would see an individual having to pay up to €5,000 and a legal entity €10,000 towards a notice party’s costs when a notice party successfully defends a judicial review. That is outrageous and a disgrace and I hope it will not happen on the watch of the Green Party in government. I do not think it will. I am confident enough in the Green Party to know it will resist it and I again call for this to not happen. The fact that this has even got life and been published in this morning's edition of The Irish Timesmust be of concern to environmentalists and to the Green Party. I opened the newspaper this morning in my office and read of these proposals.
I return to the kernel of the matter. We know the housing planning system is in crisis over judicial reviews; the Minister of State knows it, I know it and we all know it. However, it is not the objectors who are the problem but the fact that there are major concerns about strategic housing developments, SHDs. Submissions were made in an interim report on SHDs and all of them were ignored. I have engaged exhaustively with An Bord Pleanála and its documentation and correspondence and have also gleaned knowledge from my active involvement in the Oireachtas Joint Committee on Housing, Local Government and Heritage. I will state three things: An Bord Pleanála has lost 90% of completed judicial reviews lodged against its decisions on SHDs; An Bord Pleanála has been the subject of 33 completed judicial reviews since the SHD fast-track process was launched in 2017; and An Bord Pleanála has lost 29 judicial reviews, 14 of which it conceded without a hearing and 15 which it conceded following the full court hearings and judgments. That is the reality I want to put on the record of the House. There is a problem with the SHDs and we need to address it. There are concerns about development, industry, jobs and homes, and I share them. The process is flawed; it is a disgrace and should never have been put into the programme for Government but the Green Party had to compromise. I engaged with the Green Party and it told me it had to compromise, which I recognise, but let us see the end to the SHD process. Let us not take it out on environmentalists or citizens. Let us empower city and county councillors and citizens to engage on an SHD application or any other. The current SHD plan process excludes individuals from a third-party appeal in their local planning authority. It excludes environmentalist groups, such as Friends of the Earth and An Taisce, which have a view. It might not always be the right view but it should be aired. I acknowledge I am talking to a Minister of State who is fiercely committed to all the engagement to which I refer so let us have that engagement. If we have to have reform, let us have it on the timelines but let us not penalise or punish people for engaging. Let us adhere to the principles of the Aarhus Convention, to which the Green Party, including the Minister of State, is committed.
I thank Senator Boyhan for raising this issue. I share his concerns and his interest in the Aarhus Convention and public participation in general. I am glad of the opportunity to update Senators on the reform of the judicial review provisions in the Planning and Development Act and the related matter of the proposed establishment of the environmental and planning court, both of which are important commitments in Programme for Government: Our Shared Future.
The general scheme of the Housing and Planning and Development Bill 2019, which was published in late 2019 and has since been the subject of a public consultation process, sets out an initial outline of the revisions to the judicial review provisions in sections 50 to 50B of the Planning and Developments Acts. The general scheme was incorporated in the Government's legislation programme for the autumn session of 2020 among the list of the general schemes to undergo pre-legislative scrutiny. However, given the range of other legislative measures proposed by my Department for scrutiny by the Joint Committee on Housing, Local Government and Heritage in the earlier period of the current Government's tenure, it was not possible to progress the general scheme as envisaged.
Further to the programme for Government commitment on the judicial review provisions and having regard to the increasing number of judicial review challenges being taken against planning decisions, particularly regarding large-scale housing developments such as the SHDs, which is undermining efforts to increase housing supply, combined with the knock-on implications for project delivery, including strategic infrastructure developments under the national development plan required to meet the demands of a growing economy, the Government is now anxious that the legislative process on reforming the judicial review provisions can be activated and progressed as soon as possible.
My Department is currently engaging with the joint Oireachtas committee on the arrangements in this regard and I hope the process can be facilitated at the earliest opportunity. However, I assure the House that it is intended that the reforms of the judicial review provisions would be in line with our EU law obligations on public participation under the Aarhus Convention.
With regard to the proposed new environmental and planning court, it is intended that it will be established as a division of the High Court simultaneous with the coming into effect of the judicial review reforms. My Department has already been engaging with the Department of Justice on the legislative and practical aspects associated with the establishment of the new court, which will require the resourcing of further dedicated judges upon establishment.
I support Senator Boyhan on the points raised. Public participation is and should be a cornerstone of our democracy. I was involved in cases to test the early provisions of the Aarhus Convention when it came into effect in Irish law. It is critical that community groups and NGOs have the right to participate fully in our judicial system when it comes to planning. I support that. There is a commitment within the programme for Government to move away from token consultation towards a more participative and inclusive planning system. That is something we would all more than welcome.
I thank the Minister of State for that response. I am happy with it. It was a coincidence that today's The Irish Timescarried the story. However, on 15 June 2021, the Minister of State, Deputy Peter Burke, wrote to the committee, of which I am a member, and referred to Programme for Government: Our Shared Vision and his requirement to examine again the general scheme of the Housing and Planning and Development Bill 2019, to which the Minister of State, Deputy Malcolm Noonan, referred. I am fully supportive of the request of the Minister of State, Deputy Burke. I proposed that this request be accepted by the committee and that we would engage in pre-legislative scrutiny. The Minister of State expressed his concern and said he hoped the committee would consider the matter. I thank the Ministers of State, particularly Deputy Peter Burke, because he has been proactive in this area. That is where we can do a lot of the lifting. Let us not take our eye off the ball, however. Let us not punish or disadvantage good environmentalist citizens who want to engage in our process. I thank the Minister of State, Deputy Malcolm Noonan, for coming to the House to deal with this Commencement matter.
I have just been handed a copy of the article in question. In the early stages of the Aarhus Convention being brought into effect in Irish law, I was one of several people who took a case seeking a not prohibitively expensive order to protect us from legal costs given that we were community activists at the time. It is important that communities, individuals and environmental organisations have the right to take legal proceedings without being unduly affected. That is what the Aarhus Convention is about. It is about access to environmental justice, access in a way that is timely and access to environmental information. It is vital that we have fair and transparent judicial and planning systems. Again, I thank the Senator for raising this important issue.
Before proceeding to the next Commencement matter, I am appointing Senator Flynn as a Cathaoirleach Sealadach to Seanad Éireann. This is the first morning on which she is going to chair a session of Seanad Éireann. As Members know, her appointment by the Taoiseach as the first member of the Traveller community to serve in the Oireachtas was hailed by Pavee Point and the National Women's Council as historic. The father of the House, Senator Norris, talked about it as being a huge advance for Seanad Éireann and the Oireachtas as a whole. I now ask Senator Flynn to chair a session of Seanad Éireann.