An influential environmental lobby group is to warn that legal challenges will cause uncertainty to “spread like a virus” following an overhaul of the State’s planning laws.
Attraca Uí Bhroin, the Environmental Law Officer with the Irish Environmental Network (IEN), will address the Oireachtas housing committee on Tuesday.
Ms Uí Bhroin was also a member of the stakeholder group which fed into the review of the Planning and Development Act under former attorney general Paul Gallagher, which culminated in the publication of the consolidated Act earlier this year.
Democratic controls
She will tell the committee that while they welcomed the “concept” of a legislative overhaul, as well as the objectives of a plan-led approach and other elements, the IEN is concerned at a “further fundamental erosion of local government democracy” alongside “further centralisation of power” without adequate safeguards to democratic controls.
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Ms Uí Bhroin is particularly critical of parts three and four of the legislation, which deals with the “overarching plan and policy framework”, she will tell the committee.
“This is then compounded by the erosion of environmental democracy and the rights of the public to information, participation and to hold public authorities to account before the courts, through rights of access to justice.”
She says the Bill risks “moving the battlefield upstream” with legal challenges to which are lodged against some applications simply occurring earlier in the process, with the draft legislation placing a new emphasis on earlier stages in the plan-making process.
The intervention by the IEN is likely to further deepen concerns among some Green TDs about the risk to public participation in the process. She will warn that the Bill does not comply with legal obligations on environmental assessment and participation in the planning process, and also grants “untrammelled power” to the Minister for Housing.
The committee will be wanted that it is “entirely dysfunctional and counterintuitive to compromise access to the courts with this Bill”. When it comes to the key issue of the grounds needed to initiate a judicial review of a planning decision, she will say it [the] “bill proposes a veritable cat’s cradle of obstacles making it more difficult for the public to hold a whole range of public authorities to account before the courts for the lawfulness of their decisions, via judicial review”.
‘Satellite litigation’
This will invite challenges to the legality of restrictions introduced under the new law, she will say, which will occur during and adjacent to court cases on particular planning matters — a phenomenon known as “satellite litigation”.
Uncertainties arising from these challenges will “spread like a virus through the whole system”, she will say, raising “serious issues of compliance” with EU law, the Constitution and obligations under the Aarhus Convention which governs public participation in environmental processes.
The committee will also hear from the Royal Insitute of the Architects of Ireland, which will emphasise the need to reform the planning system to take a “long-term view of the population, demographic and built environment needs of the country”.
It will welcome a range of provisions within the Bill, including longer lifespans for local authority development plans and the introduction of mandatory timelines for planning consents.
