Is there ‘an industry’ in planning objections? Level of successful appeals suggests not

Minister of State Peter Burke says that "an industry" has now been created where judicial reviews are being taken against planning decisions, clogging up the courts and delaying much-needed infrastructure for years.

Since the strategic housing development (SHD) scheme was introduced in 2017, developers were allowed to seek permission directly from An Bord Pleanála for large-scale developments, rather than applying to local authorities.

Large numbers of such decisions have faced judicial review in the courts since. Less often mentioned, though, is the fact three of every four completed judicial review challenges to the board’s SHD permissions have been successful.

So far, the board has won just two of the 36 cases finalised to date.

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In some cases, successful challenges have been taken to more than one board SHD permission for a particular development, as happened when a company of Pat Crean's Marlet group sought permission, initially for 536 dwellings, later 657, on lands near St Anne's Park in Raheny.

When the High Court's Mr Justice Richard Humphreys overturned a third board permission for the development last May, he noted it had clocked up four board decisions, 10 sets of legal proceedings "and counting".

He overturned the permission for reasons including the board invalidly allowing a material contravention of building height guidelines and its lack of regard to possible community use of green space.

The board has conceded some significant cases, including by Dublin City Council over the rejection of the council's sanctioning of lower building heights in some areas of the city's docklands. The council argued it had good reasons for favouring lower building heights in some areas and the board ultimately accepted its rejection of the council's decision was invalid.

The ending of the controversial fast-track scheme for large-scale housing developments as part of an overhaul of planning laws this year may, in fact, be greeted with relief by An Bord Pleanála.

Some SHD judicial reviews have succeeded on what some lawyers regard as "technicalities", such as clerical errors in documents, but many lawyers accept most raise substantial issues. A SHD judicial review will only get leave if the High Court is satisfied "substantial" grounds have been raised.

Business-led agenda

Against that background, Minister of State for Planning Peter Burke’s criticisms of judicial reviews and a proposed Bill aimed at restricting judicial reviews of planning decisions have infuriated environmentalists and lawyers representing objectors.

No such industry exists, they argue. Instead, they complain that the Government is promoting a developer and business-led agenda with little regard to the State’s domestic and EU law obligations concerning public participation in the planning process and access to justice.

Nine of the current 40 High Court judges are currently dealing with judicial reviews, Burke complained. However, five judges are allocated to hear both judicial review and non-jury cases.

Judicial reviews concern decisions by a wide range of bodies, including the State, the Director of Public Prosecutions, the Garda Commissioner, the Employment Appeals Tribunal, International Protection Appeals Tribunal and local authorities.

Equally, planning decisions do not dominate on the judicial review lists. Of 1,100 judicial reviews taken in 2021, an estimated 10 per cent related to planning decisions, whether by local authorities or the board.

Mr Justice Humphreys runs the Commercial Planning/Strategic Infrastructural Development (SID) list which concerns SHD and other judicial review challenges such as to windfarms or road developments. Plans for the Galway City Ring Road are currently subject to three SID challenges, the latest initiated this week.

However, the annual reports of An Bord Pleanála show the number of judicial reviews of board decisions has increased year on year since 2018.

In 2018, the board decided 2,847 cases and there were 41 judicial reviews of its decisions. In 2019, when 2,947 decisions were made, the number of judicial reviews was 55. In 2020, there were 2,628 decisions and 83 judicial reviews. A High Court search shows that, last year, the board was a respondent to 94 judicial reviews.

Planning applications

According to data from the Office of the Planning Regulator (OPR), the total number of homes delayed by legal challenges represents only a small number of homes granted planning permission.

More than 27,000 planning applications were decided by planning authorities in 2020, of which about 2,000 were appealed to the board, according to the OPR annual report for 2021. The board made decisions on 2,025 planning cases.

The report points to a 74 per cent rise between 2017 and 2020 in the number of legal challenges to board decisions. The Minister for Housing was joined to a number of those.

The increase in planning challenges, the OPR report notes, coincided with a general increase in planning activity after the economic downturn and also with the Environment Miscellaneous Provisions Act 2011 introducing special legal costs rules which limited applicants’ costs exposure in planning and environmental judicial reviews.

The OPR considers the ongoing reviews of local authority development plans, and the scrapping of the fast-track planning scheme in favour of returning to the two-stage approach of a planning application to a local authority and right of appeal to the board, should reduce the number of judicial reviews.

According to data assembled by solicitor Fred Logue, whose firm represents many applicants in planning judicial reviews, 79 SHD challenges have come before the High Court since 2018, of which 36 have been finalised. The applicants won 27 cases, a success rate of 75 per cent.

Seven cases were conceded or withdrawn and the board has successfully defended two. Of the 43 cases still to be determined, some are awaiting the outcome of domestic appeals or referrals of legal issues to the European courts.

Logue, environmental groups such as An Taisce and members of the Green Party are among those concerned about the Planning and Development Bill 2019 proposals for stricter rules for bringing planning judicial reviews.

These include a €5,000 cap on legal costs exposure of unsuccessful applicants, a €40,000 cap on the legal costs a defendant must pay to a successful applicant, and stricter rules concerning the legal standing or entitlement of individuals, NGOs and community groups to bring challenges.

Record of activity

As well as showing substantial grounds for judicial review, an applicant will be required to show they have “substantial” rather than “sufficient” interest in the matter under challenge. An NGO must have a legal personality, a minimum 100 members, be in existence three years and a record of activity on environmental matters.

All lawyers consulted were critical of the proposal that applications for leave for judicial review be brought on notice to the opposing side, saying that will further delay the process but several were supportive of proposals to permit judicial reviews only of final decisions by the board.

Logue says if the government focus was on better planning there would be no need for judicial review – and that the Bill and Burke’s “perjorative” references to a judicial review “industry” underline a reluctance by the State to accept that people have the right of access to justice.

“It’s very frustrating. All of this shows the State just can’t accept that people have rights.”

Judicial reviews of SHD decisions, according to Logue, are mostly won on serious issues, such as non-compliance with development plans, lack of public transport capacity, breach of building height and density requirements, and protection of green spaces.

“The idea that these judicial reviews are being won on technicalities is completely wrong.”

An Taisce’s Elaine McGoff says the “narrative” concerning judicial review coming from Burke and others in government is “blatantly untrue”.

“The narrative that SHD and SID challenges are frivolous and vexatious is bandied about by people who have never taken court cases. Judicial reviews are very labour-intensive, expensive and stressful. No one is going to take one for a laugh.”

According to McGoff, the proposed restrictions on judicial review are “a retrograde step cutting across the rights to public participation in the planning process and access to justice”.

Legal caps

Noting the proposed legal costs caps, she said lawyers take cases for An Taisce on a “no foal, no fee” basis, meaning they get paid if the case succeeds and costs orders are made against a defendant. “€40,000 would meet only about one-quarter of the costs of running a successful judicial review so a lot of lawyers won’t want to take the risk. This will cripple our ability to litigate.”

The no-foal-no-fee basis levels the playing pitch between applicants on the one hand and well-resourced State bodies and the board on the other, McGoff says. “The proposed caps will lead to inequality and a David and Goliath-type situation.”

She believes the proposed restrictions on the standing of NGOs to seek judicial review are aimed at community or local groups which come together to challenge a development about which they have environmental concerns.

Some lawyers who have represented the State and board in SHD cases discussed the issues but did not wish to be identified.

One believes the costs regime in planning cases is “heavily weighed” in favour of applicants and acts as an incentive to bring cases. She also believes there are many meritorious cases against the board but not so many against the State.

“Many applicants take a scattergun approach, seeking to raise a large number of issues when they might have only one or two good legal points. That means more court time and legal costs. It takes longer to deal with unmeritorious points but there is no costs penalty for raising them.”

“Access to justice is very important but there has to be a balance,” she said. “A lot of the applicants are genuine and they genuinely care about the environment. The State is doing its best with a legal regime that is very complex.”

“The housing problem is much more nuanced than the number of judicial reviews and both sides, government and objectors, are taking very simplistic views,” according to another lawyer.

She is strongly of the view that some SHD judicial review applicants “simply don’t want any development” in their areas and there is “an element of nimby-ism”.

“Some frame it as saying they don’t want this particular development beside them but when you drill down, they don’t want any development. They are not like An Taisce or Friends of the Irish Environment (FIE) , who are broadly involved in environmental protection.”

Decision on costs

The increasing number of SHD judicial reviews since 2018 was partly the result of a High Court decision on costs – the Heather Hill decision – which was favourable to objectors, she believes.

That decision has since been overturned by the Court of Appeal but a further appeal to the Supreme Court is being sought. Lawyers for all sides agree the costs uncertainty has resulted in many SHD cases being bogged down in costs disputes and not progressing.

Potential judicial review applicants in planning and environmental matters may get some comfort from comments by Mr Justice Humphreys and Aurel Ciobanu-Dordea, director for implementation, governance and semester with the office of the EU’s directorate general for the environment.

In a recent judgment, Mr Justice Humphreys noted comments by an advocate general of the Court of Justice of the EU that the environment “cannot defend itself”. The judge spoke of the importance of society accepting the rights of people and NGOs to participate in the planning process and to litigate environmental matters and noted the legal requirement that such litigation should not be prohibitively expensive for applicants.

Ciobanu-Dordea, speaking last month at an event organised by FIE, said Ireland continued to be "the most expensive member state in which to make an environmental claim before the courts".

He said the "increasingly aggressive stance" being taken against environmental campaigns in Ireland was of "particular concern" to his office. There was evidence, he said, of strategic lawsuit against public participation (Slapp) suits and "aggressive and negative reporting in the mainstream media and even from politicians", including threatening to cut off funding to certain NGOs [an apparent reference to calls for An Taisce's funding to be cut following its litigation over the environmental impact of a Glanbia cheese plant in Kilkenny].

"The rule of law especially where the environment is concerned is one of the biggest priorities for this commission," Ciobanu-Dordea said. "We believe that radical change of behaviour is necessary in this area because it is highly unusual for an advanced society like Ireland to witness such conduct which can be witnessed in more polemic places in the European Union. "