Controversial reforms to the judicial review process, which were dropped following political bargaining earlier this year, have reappeared in the Government’s landmark overhaul of planning laws.
Limiting the ability of some individuals or groups to take judicial reviews – challenging a planning decision on a point of law – has become a big issue between the Green Party and its Coalition partners in advance of the publication of important planning legislation.
Now Green Party backbenchers say that reforms dropped from previous bills have resurfaced in an outline of the consolidated legislation due to be published in January.
They include plans to allow An Bord Pleanála to correct an error of fact or law it has made in a planning decision, pausing any judicial review under way while it does so.
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A version of the reform appeared in legislation that was working its way through the House in July – at the same time the Government was facing a confidence motion, having lost its on-paper majority in the Dáil.
However, it was removed following the confidence vote, and it is understood that before that there were contacts between Green Party TD Neasa Hourigan and Fianna Fáil in an effort to secure her support for the Government’s confidence motion, and her unhappiness with this part of the Bill was part of the discussions at the time. Government sources said there was no quid pro quo involved and that others in the Green Party had asked for the amendment to be removed and revisited in next year’s Bill.
Ms Hourigan and Dublin South Central TD Patrick Costello were both then without the Green Party whip after they voted against the Government earlier in the year.
Ms Hourigan said the reintroduction of this reform risked a “chilling effect” and endangered the party’s legacy in government.
“Creating a facility whereby a party to a legal action can correct an error of fact or law during the process of a judicial review will create huge uncertainty for the other parties involved. This will inevitably have a very chilling effect on environmental cases,” she said, adding: “This is not the type of legacy that the Green Party would like to leave after our time in government.”
Mr Costello told The Irish Times that if An Bord Pleanála was given the ability to correct its decision once it has been challenged, but before a court judges on the case, “it could be seen as the law interfering in ongoing cases”.
“A stay on determinations while you change the facts of the case in the middle of a case could easily be seen as undermining the court’s role or sidelining the judge.”
“If we get it wrong about access to justice by cutting off judicial reviews, if we get it wrong about interfering in the courts, then the Act itself will be at risk, and the result will be nothing but chaos and uncertainty and again nothing will be built,” he said.
In July, Minister of State Peter Burke told the Dáil that the amendment, which he said was “raising most concerns” would be withdrawn after the Government “reflected on the concerns... raised by colleagues in the House”.
The amendment to the July legislation was described at the time in the Dáil as “a leap too far” by Steven Matthews, the Green Party TD for Wicklow and chair of the housing committee, who has been to the fore in criticising the Government’s planning overhaul this week.
Mr Matthews told the Dáil that the reform risked curtailing access to justice. “I will stand up every day and fight for people’s right of access to justice. I am glad [it] has been removed.”
However, on Thursday he said its re-emergence in the new planning Bill meant it could be given extra scrutiny.
