Friday 16 December 2022

Query on the specific proposals under the Bill pertaining to Judicial Reviews of planning decisions

 Timelines for various steps in the judicial review (JR) process will be introduced including for pleadings, hearing of cases and delivery of judgements by the Court. ABP or the local authority, as appropriate, will be able to correct an error of fact or law in a planning decision and will be able to apply for a stay on the determination of JR proceedings while doing so. Provisions regarding standing to take a JR will be updated so that environmental NGOs who meet certain criteria in relation to their establishment and purposes can also bring challenges. In addition, where an organisation, for example a resident’s association, seeks to take a JR, it will have to be taken by an individual or individuals, rather than by the association. In light of the recent ruling by the Supreme Court in Heather Hill*, the Bill will also introduce costs protection for JR cases. There will not be any order for costs unless the Court considers that the proceedings are frivolous or vexatious or an abuse of process.

*Heather Hill Management Company CLG & McGoldrick -v- An Bord Pleanála, Burkeway Homes Limited and the Attorney General, Supreme Court, Murray J, 10 November 2022, [2022] IESC 43: here it was held that all of the grounds in the proceedings challenging the validity of decisions to grant development consent should benefit from costs protection.

Query answered by Brendan Buck of BPS Planning Consultants LTD

Outline of the proposed Planning and Development Bill

The full outline of the proposed Planning and Development Bill is available at the link below:

Link to the Bill.

Among the main provisions in the Bill will be: 

- Strengthened legal status for Ministerial guidelines: Ministerial guidelines and policy directives will be upgraded to ‘National Planning Policy Statements’ and ‘National Planning Policy Guidance’. These will be approved by Government. Alignment of other planning documents with these will be mandatory. 

- Amended focus and lifespan of Local Development Plans: these will be extended from six years to ten years, with a review after Year 5. Plans will be more strategic in nature. They will give a strong sense of what is being planned for particularly areas before any planning applications emerge. This will help ensure that public engagement and major local debate is focused on the plan-making rather than planning application stage. Local Area Plans will be replaced by specific types of area-based plans to meet particular needs (Urban Area Plans; Priority Area Plans; Joint Area Plans; Strategic Development Zones/Urban Development Zones). 

- Statutory mandatory timelines for all consent processes, including An Bord Pleanála (ABP) decisions, to bring certainty to the planning consent process: timelines are being introduced for appeals and consents applications made to ABP (including Strategic Infrastructure Developments). Where ABP fails to make decisions with these timelines, it will be subject to fines. The exact timelines will be included in the finalised Bill. It is intended that the timelines for ABP will be introduced on a phased basis, starting with those for Strategic Infrastructure Developments (including energy projects). 

- Changes to Judicial Reviews (JRs) of planning decisions: there will be timelines for various steps in the Judicial Review process. ABP will be able to correct an error of fact or law in a planning decision and will be able to apply for a stay on the determination of JR proceedings whilst making such corrections. The Bill will bring clarity to the role of different parties in accessing justice. In the case of applications for JRs by an organisation, these will have to be taken by an individual or individuals. 

- A re-structuring of An Bord Pleanála: the agency will be re-named An Coimisiún Pleanála and its decision-making and governance structures separated. It will consist of Planning Commissioners (consisting of a Chief Planning Commissioner and up to 14 full-time Planning Commissioners), who will replace the Chairperson and Board Member roles. A new Governing Executive (led by a Chief Executive) will be responsible for the organisation’s governance and organisation. 

The draft Planning and Development Bill 2022, when enacted, will bring greater clarity, consistency and certainty to how planning decisions are made. It will make the planning system more coherent and user-friendly for the public and planning practitioners. Public participation, which is a hallmark of the current planning system, will remain a central component. These changes will enable appropriate development to be planned and executed with a degree of confidence and certainty about how and when a planning consent decision will be made. Where infrastructure such as housing is needed and is appropriate, it will happen with greater certainty and speed. These changes will provide greater policy certainty about the framework in which planning decisions are made. 

It is intended that from a policy perspective, this review will result in: 

- debate on the scale of housing requirements (in line with objectives of compact urban growth and environmental sustainability) happening at the plan-making rather than planning application stage. It will facilitate greater clarity and long-term visibility of planning outcomes. 

- adequate account is taken of the needs of the future population of new and expanded communities, as well as the needs of existing communities; and

- appropriate account is taken of the nature of planning decisions, which require careful balancing of public policy, public participation and environmental issues. The Draft Planning and Development Bill will be published in January and progress to pre-legislative scrutiny and enactment in early 2023. 

Summary provided by Brendan Buck, BPS Planning & Development Consultants LTD

Planning bill includes judicial-review timelines

The Government has approved the drafting of legislation that would make major changes to the way the planning system operates. The proposals have been welcomed by business group IBEC, but have drawn criticism from environmental group An Taisce. The Government says that the Planning and Development Bill 2022, if enacted, would bring “greater clarity, consistency and certainty to how planning decisions are made”. The bill, which will be published in January, would give ministerial guidelines and policy directives stronger legal status, while it would also extend the lifespan of local-government plans from six to ten years, with a review after year five.
Read the full article @ Law Society Gazette Ireland
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Planning Bill row: Greens to seek changes to proposed judicial review curbs

 The Green Party is set to seek changes to Minister for Housing Darragh O’Brien’s landmark planning Bill after divisions emerged in Government over a key plank of the reforms. It is understood that two Green Ministers, Catherine Martin and Roderic O’Gorman, raised concerns at Cabinet on Tuesday over aspects of the Bill focused on reform of the judicial review process. Under the draft legislation, the scope for judicial reviews of planning decisions is to be narrowed in an effort to streamline the planning system, which critics say sees projects bogged down for years in courtroom challenges. It is understood that both Ministers highlighted the need for amendments around access to justice and public participation in decision-making, thought to be centred on the reforms to judicial reviews.

Read the full article @ The Irish Times

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Taoiseach says overhauling planning laws 'essential' to delivering climate and housing targets

 TAOISEACH MICHEÁL MARTIN has said overhauling the planning system through new laws is “essential if we are to meet our climate change agenda”. Speaking to reporters in Brussels this morning, he said “if we are to fulfill our obligations in the draft Climate Action Plan, and also in the housing areas” the new planning laws are needed. Cabinet yesterday approved plans for new planning laws, with Housing Minister Darragh O’Brien stating that the reforms will create a “modern, efficient planning system, with coherence between policies, plans and decisions”. But a potential coalition clash is brewing, with a number of Green Party members uneasy with the proposed changes. When questioned about the potential new year clash between coalition parties, the Taoiseach said the the planning bill was approved by all three parties in Government yesterday, but it will go to pre-legislative scrutiny where it will be evaluated and examined.

Read the full article @

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