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[Risk]Bigger cash risk proposed for challenges to planning decisions

2021-10-01

  People challenging planning decisions may have to take a greater financial risk under proposed Government changes of the judicial review regime.

  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. The Government believes this is driving the increased number of judicial reviews of big developments.

  The Government is proposing that an individual might have to pay 5,000, and a legal entity 10,000, towards a notice party’s costs, when a notice party successfully defends a judicial review.

  Also, the notice party would not have to pay more than 40,000 towards the costs of the applicant, if the applicant wins the judicial review.

  The plan is to shift more risk towards those taking the cases but “in a balanced and fair way that does not in any way infringe their rights,” Minister of State for Local Government and Planning Peter Burke told The Irish Times.

  Changing the criteria by which NGOs can become involved, and possible changes to the thresholds that decide whether environmental impact assessments have to be carried out, are among other changes being considered.

  “We’ve seen a huge increase in the number of judicial reviews being taken,” said Mr Burke. “What is happening is that key infrastructure, in terms of public infrastructure by the State, utilities, and housing projects, are being delayed.”

  There were 13 challenges to decisions by An Bord Pleanála (ABP) in 2010, when the special rule on costs was introduced. Numbers began to rise in the following years.

  There have been more than 80 cases lodged against ABP so far this year, according to the board’s secretary, Chris Clarke.

  One of the factors driving the number of cases being taken is the strategic housing development (SHD) regime, introduced in 2016, he said. With SHDs, which involve large numbers of housing units, the proposal goes straight to ABP for approval, and the process is subject to specified timelines. “Last year [SHD cases] made up more than 30 per cent of all cases,” he said.

  Another factor “driving the whole phenomenon” is the rule in relation to costs in environmental cases, said Mr Clarke.

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  Environmentalist Peter Sweetman has taken 28 High Court actions in relation to planning decisions, since 2019, mostly against ABP and local authorities.

  A former wood turner in his 70s, Mr Sweetman did not respond to requests for an interview. However, he told the Irish Examiner earlier this year that he is a “man of straw” who cannot pay legal costs if he loses.

  “He wins 95 per cent of his cases,” said solicitor Fred Logue about Mr Sweetman, whose expertise is widely acknowledged.

  In order for a judicial review to be allowed, there must be “substantial grounds” for it being heard, said Mr Logue. “There is no basis for saying frivolous cases are being run. The system doesn’t allow frivolous cases.”

  ABP used to have a good track record in relation to defending its decisions, said Mr Logue, but this has changed in more recent years. Data kept by his firm, FP Logue solicitors, shows that in 94 per cent of SHD cases to date, the ABP decision failed to withstand the challenge. “It is not the fault of judicial reviews. It is the fault of the legislation and the fault of developers’ expectations as to what they think they can get permission for.”

  He believes developers got what they wanted with the SHD regime in 2016 and “can’t really complain now that the whole system is falling apart.”

  It is troubling, he said, that “now that the legislation has failed, they are coming after the legal system. We are supposed to live in a democracy.”

  Mr Burke said the Government does not intend to renew the SHD scheme when it comes to an end in February. However, with the multibillion euro National Development Plan on the way, major projects cannot be held up for years in the courts, he warned.

  Planning consultant Tom Phillips, of Tom Phillips and Associates, said only Irish-based funds and foreign institutions are willing to fund substantial housing/apartment developments. But they are getting nervous.

  “Planning risk is a really important issue for funding institutions and we have to [tell clients] that the whole Irish planning system is now a major risk.”

  Mr Logue believes that tweaking the judicial review system is just “inviting more litigation”.

  “They are not going to be able to manage people out of the system through costs and thresholds and things. I just can’t see how it can work.”

  Ballyboden objection to SHD

  Meanwhile, the Ballyboden Tidy Towns group, in south Dublin, is currently objecting to a number of SHDs in their area, and has initiated a judicial review against one, for almost 500 apartments, at Taylor’s Lane.

  The case is scheduled to be heard this November, with Mr Logue acting as the group’s solicitor.

  “We’re not against development,” said Angela O’Donoghue, chairwoman of the group. “What we want, though, is sewage that works, that our rivers remain healthy, that we can hear birdsong, and that there are green spaces.”

  If you lose a case, she said, you only pay your own expenses “but they are still huge . . . It is very unfair that environmental justice only happens in this country if you can raise enough money to fund a judicial review.”

  Her group uses online fundraising, and events such as cake sales, to raise money. She has been contacted for advice by residents from “Sandymount, Rathcoole, Dartry, Delgany and Goatstown”, she said.

  Barrister Alan Doyle, who used to have ABP as a client when he worked as a solicitor, said the “continued harping on about judicial review being an impediment to development is incorrect”.

  Developers need to put in applications that comply with the law and ABP needs to follow the law when it is determining applications.

  “People are entitled to the rule of law.”

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