Greater financial risk for litigants in judicial reviews ‘outrageous’

Public should have the right to go to court ‘without being unduly affected’, says Minister

More than 80 challenges have been lodged to date this year against An Bord Pleanála decisions. File photograph: Getty

More than 80 challenges have been lodged to date this year against An Bord Pleanála decisions. File photograph: Getty


Communities, individuals and environmental organisations should have the right to take legal proceedings “without being unduly affected” financially, Green Party Minister of State for Housing Malcolm Noonan has said.

He was responding following an Irish Times report that the Government has proposed changes to the judicial review regime that could see people challenging planning decisions having to take to take a greater financial risk.

The issue was raised in the Seanad by Independent Senator Victor Boyhan who said it was “outrageous and a disgrace” that people taking judicial review proceedings against decisions on major infrastructure projects could have to pay costs of at least €5,000.

The report suggested the proposals would mean an individual having to pay €5,000, and a legal entity €10,000, towards a notice party or respondent’s costs when they successfully defend a judicial review.

Under the measures the respondent would not have to pay more than €40,000 towards the costs of the applicant, if the applicant wins the judicial review.

At present in the case of major planning decisions that affect the environment, the usual rules on legal costs do not apply and people who challenge court rulings do not have to pay the other side’s costs if they lose.

Mr Noonan pointed out that 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.”

Contentious SHD process

The convention gives the public the right to access environmental information from authorities and to participate in decision making.

But the programme for government committed to overhauling the process following a surge in legal challenges to strategic housing developments (SHD) which involve large numbers of living units and which go straight to An Bord Pleanála for approval.

Mr Boyhan said the planning board had lost 90 per cent of completed judicial reviews lodged against its decisions on SHDs. Some 33 reviews had been completed in the courts since 2017.

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, he said.

More than 80 challenges have been lodged to date this year against An Bord Pleanála decisions.

Mr Boyhan said the housing planning system was in crisis over judicial reviews but the problem was with the strategic housing development process. He said that should be ended and environmentalists and citizens should not be penalised.

The Minister told him that reforms of the judicial review provisions “would be in line with our EU law obligations on public participation under the Aarhus Convention”.

He added that public participation is and should be a cornerstone of our democracy and it was “critical that community groups and NGOs have the right to participate fully in our judicial system when it comes to planning”.

He pointed to a commitment in the programme for government to “move away from token consultation towards a more participative and inclusive planning system”.