Speed Read

In North Great George’s Street Preservation Society v An Bord Pleanála Mr Justice Humphreys refused to quash planning permission for shared accommodation developments at Hill Street and North Great George’s Street.

The Court was critical of the Applicants, where they contended that an archway located at the front of 36a North Great George’s Street should be afforded the protection of a “protected structure” but had not raised this point at any stage before taking the judicial review. The Court also analysed the Board’s application of the Department of Housing’s Sustainable Urban Housing: Design Standards for New Apartments Guidelines for Planning Authorities (the Guidelines), and considered the manner in which these can be challenged.

Gaslighting the decision maker

As part of the planning application, the Applicants had made a submission to Dublin City Council in which they stated that the development would “have a seriously detrimental effect on the adjoining protected structures” on North Great George’s Street. Judge Humphreys found that the Board could not have known that the Applicants were contending that there was a protected structure within the proposed development site itself. He viewed this as a “case of gaslighting the decision maker”, where the Applicants had failed to make a point and then subsequently sought to challenge the Board’s decision based on their failure to consider this same point. The Court found that requiring the Board to inquire into a multitude of hypothetical factual assertions would be “unworkable”.

Incorrect decision permissible in circumstances

The Applicants attempted to argue that if the archway formed part of a protected structure, it would follow that the permission granted was void from the beginning as the Board did not have jurisdiction to deal with it under the Planning and Development Regulations 2001. The Court disagreed and clarified that in some situations, the Board can “permissibly make an incorrect decision”. If an issue has not been raised before the Board, and it would not have been apparent to the Board from the materials put before it, the Courts will examine whether the Board acted lawfully rather than reasonably in order to determine whether the decision should be quashed.

While the Board is legally required to take a view on whether they are dealing with a protected structure in an application, any laxity in the implementation of this requirement will not automatically be fatal to its decision if this did not or would not have had any impact on their decision.

Challenging the Guidelines

The permission in this case was granted subject to a condition that the shared accommodation units be for single occupancy only and operate in accordance with the definition of Build-to-Rent developments, as set out in the Guidelines. The Applicants argued that this condition should be void for vagueness and uncertainty. The Court viewed this as an “attack” on the Guidelines. Judge Humphreys found that the Applicants should have challenged the Guidelines themselves rather than the Board’s application of these Guidelines.

The Court dismissed the Applicants’ case and refused to quash the permissions. The key messages arising from this decision are that objectors:

1. Cannot raise new issues for the first time in judicial review proceedings in circumstances where those issues have not already been put before the Board; and
2. Are precluded from challenging planning conditions that stem from policy documents or guidelines, as this is viewed as a collateral attack on the relevant policy documents or guidelines. Instead, objectors should have challenged those documents/guidelines themselves.

For more information please contact Alison Fanagan, Consultant, Jason Milne, Partner, or any member of our Environmental and Planning team.

The Joint Committee on Housing Local Government and Heritage (the Committee) has just published its report (the Report) on the Pre-Legislative Scrutiny of the draft Planning and Development Bill 2022 (the Bill). It is a well put together report and the recommendations are clearly set-out and justified. The Committee considers that there is a lot to do before this Bill can be finalised and that a target date of Q3 2023 is unrealistic.

The Report comprises 87 pages and considers key elements of the Bill, with Part 5 being a summary of all 153 of the Committee’s recommendations. In addition, appendixed to the Report there are details of the Committee members, the Committee processes, useful hyperlinks to all of the transcripts from each day’s hearings, and all of the opening statements/submissions made. In each subsection of Part 4, the Report summarises key points made by those attending before the Committee and also includes the Committee’s own views on 6 key areas being:

• Access to Justice;
• Forward Planning;
• Timelines & Resourcing;
• Exempted Development;
• National Planning Policy Statements; and
• Omissions.

The Report references the difficulties that have arisen due to the lack of an explanatory memorandum which would have set out what changes were made to the 2000 Act and why. The Committee notes that it is very difficult to understand the justification for many of the changes in the Bill. Many of the Committee’s rejections of the changes in the Bill are made on the basis that they are not explained. The Committee emphasises the need for all bodies to be adequately resourced and calls out An Bord Pleanála, the Office of the Planning Regulator and the Planning Authorities in particular.

A few key points:

1. The Committee is not in favour of almost all of the proposed changes to Judicial Review (JR), including the tighter proposed requirements on those taking challenges (to include residents’ associations), the changes to protective costs provisions, the removal of the ability to appeal to the Court of Appeal and the proposed entitlement for An Bord Pleanála to be able to amend its decisions after a JR challenge has been taken without incurring legal costs.
2. The Committee considers that An Bord Pleanála should have to provide main reasons “in detail” where it decides to disagree with its Inspector, which would be very onerous and is a change to the 2000 Act which requires only that the “main reasons and considerations” be stated.
3. Regarding the proposal for development plans to be on a 10 year cycle, the Committee emphasises that there should be a robust midterm review to ensure in particular that the role of elected Councillors is retained.
4. The Committee expresses concern relative to the proposed National Planning Statements and considers they should be clearly defined, and require Oireachtas oversight as well as consultation.
5. The Committee recommends that mandatory pre-planning public engagement should be required for all development applications but especially for large infrastructural projects.
6. The Committee has several recommendations on ensuring that all relevant documentation is available easily online, and for example recommend that the 5 week period to make submissions on a planning application only commence when all application documents are available to access.
7. The Committee considers that the proposed Regulations dealing with exempted development should be published before the Bill is debated in the Oireachtas and say that the exemptions provided for under section 4 of the 2000 Act should be replicated.
8. The Committee is not in favour of the proposal to remove the public from the entitlement to seek a Section 5 declaration as to whether a particular development is exempt, and want that reinstated.
9. The Committee recommend consideration of the removal of the seven-year rule for exempting enforcement action against unauthorised development, where that development is likely to have significant effects on the environment or to require Appropriate Assessment.
10. It is noted in a heading entitled “Omissions” that sections 48 and 49 (on development contributions) of the 2000 Act have not been included and from engagement with the Department, it understands that this is an oversight and those provisions will be reinstated.
11. The Committee notes that provisions regarding biodiversity protection have not been included in the Bill and consider that both biodiversity and climate issues should be considered in a revised version of the Bill.

Our Environmental and Planning Team are tracking the Bill as it moves through the legislative process and will be providing further updates to this post.

For further information on this topic, please contact Alison Fanagan, Consultant, or any member of A&L Goodbody’s Environmental and Planning team.

The Supreme Court has agreed to consider two appeals concerning the nature of local development plans and how these can be legally challenged. The issues will be considered in appeals brought by developers whose legal challenges to zoning elements of the Meath County Development Plan for 2021 to 2027 were dismissed by the High Court in July 2022.

In its March determinations in the cases of Killegland Estates Limited and McGarrell Reilly Homes Limited, a three-judge Supreme Court panel said the applications raised points of general public importance. The court will examine:

• the grounds upon which a challenge can be brought to part of a plan,
• the nature and extent of any obligation to provide reasons for rezoning decisions, and
• the nature and extent of the obligation to address submissions made on a draft plan.

A hearing later this year is expected, with the two appeals being heard together.

Killegland Estates Limited bought land at Ashbourne, Co Meath for €1 million before Meath County Council, as part of its review of the Meath County Development Plan, decided to remove the housing zoning for those lands, and instead designate them for community infrastructure, to be used as an access site to a park. Mr Justice Richard Humphreys ruled in the High Court that there was no basis for Killegland to argue that the Council’s rezoning decision exceeded the bounds of rationality, and so it was upheld as lawful. Mr Justice Humphreys said, among other things, there was no failure on the part of the Council to comply with its obligations under the Strategic Environmental Assessment Directive. Even if, counterfactually, the council’s decision was flawed, there would be a particular problem related to granting an order to quash the zoning changes because the applicants had only sought to quash the decision in relation to their own lands and not the core strategy that ensures compliance with national and regional policy. The same judge also dismissed a separate but similar case taken by McGarrell Reilly Homes Limited and Alcove Ireland Eight Limited’s case relative to land in Kilcock and Stamullen.

The Supreme Court is no doubt cognisant that this issue is of general public importance currently, where many of the revised Development Plans are under legal challenge including those of Dublin City Council, Dun Laoghaire Rathdown, Wicklow as well as other challenges to Meath’s Plan.

For further information, please contact Alison Fanagan, Consultant,  or any member of A&L Goodbody’s Environmental and Planning team.

In recent years a staggering number of judicial review challenges have been brought against decisions of An Bord Pleanála (the Board), with an unusually high proportion being successful in overturning such decisions. The new Planning and Development Bill (the Bill) seeks to bring about certain changes to the judicial review process, including the introduction of statutory timelines and the prohibition of companies taking judicial review proceedings where they have been registered for less than one year.

It remains to be seen whether the Bill will shut the door on judicial reviews or, more precisely, on unmeritorious judicial reviews.

Judicial Review under the current Planning and Development Act 2000

In order to evaluate the judicial review provisions of the Bill, it is helpful to first recap how judicial review operates under the Planning and Development Act 2000, as amended (the 2000 Act).

Judicial review differs from an appeal to the Board. In the case of an appeal to the Board the planning merits of the decision of the local authority are reviewed. In the case of a judicial review challenge, the Court is restricted to considering whether the planning authority or the Board acted within its powers. The Court may declare a decision ultra vires but it cannot substitute its own decision for that of the Board. While it is possible to judicially review a decision of a local authority, such challenges are rare, given the appeal mechanism to the Board. This means that the majority, if not all, judicial review challenges are against decisions of the Board.

In order to take a judicial review challenge an applicant must establish substantial grounds and have a sufficient interest in the subject matter, by way of prior participation in the planning process, or be able to show that there were good and sufficient reasons for not participating in the planning process.

Substantial grounds

Leave will not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. Accordingly, the Courts should only intervene in circumstances where:

• the Board has failed to take relevant considerations into account;
• the Board has taken irrelevant matters into consideration;
• the Board has acted “irrationally” – the term “irrational” has a particular meaning in law. It means that the decision-maker has reached a decision which no reasonable decision-maker could have reached, on the basis of the information before it; or
• the Board has failed to give reasons or sufficient reasons for its decision.

Sufficient interest and participation in the planning process

It is not sufficient for an applicant merely to prove there would be an impact on their land or other legal or financial interest – the applicant must have a personal interest. Such an interest can be established by way of prior participation in the planning process. This means that anyone making a submission on a planning application can establish a sufficient interest. However, the Supreme Court has held that a person who has a sufficient proximity, having regard to the nature of the development and any amenity in the location of the development (which might potentially be impaired), will have standing even without participation.

8 week time limit

An application for judicial review must be made within eight weeks of the decision or act of the Board. The High Court has a discretion to extend this period if it considers that there is a good and sufficient reason for doing so and the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.

Remedies – quashing of decision and remittal

Almost invariably, the remedy in judicial review proceedings is an order quashing the decision of the Planning Authority or the Board, as the case may be. The decision can be remitted back to the Board to make the decision again, on a sound basis.

Costs protection

The costs of proceedings are generally entirely at the discretion of the judge and usually the successful party will be awarded its costs – costs usually ‘follow the event’.

This is not the case where a challenge is brought to a decision by the Board that gives effect to the EIA Directive, Articles 6(3) or 6(4) of the Habitats Directive, the Strategic Environmental Assessment Directive or the Industrial Emissions Directive. In those cases, Section 50B of the 2000 Act provides that no order will be made against any applicant who brings such judicial review proceedings.

There have been a number of recent cases before the Court on whether costs protection would apply in various circumstances. The Supreme Court recently clarified the position in Heather Hill. This case centred on a judicial review challenge which included certain grounds that were “environmental” in nature and others which were not. The Supreme Court held that all costs in such proceedings are protected under Section 50B.

The challenges of the current judicial review system

There are a number of challenges or pitfalls with this system:

• Judicial review proceedings are the only proceedings for which you require permission of the Court in order to launch litigation. It is designed to be a valve by which the Courts root out unmeritorious challenges, but in reality it is very rarely the case that leave to apply for judicial review is refused.
• The application for leave is currently not made on notice to the other parties. This means that neither the Board nor the notice party developer is usually entitled to participate in the leave application hearing. Developers feel that they do not have any chance to ‘cut off at the pass’ a judicial review challenge that may be entirely without merit. Many feel that by the time they get to engage in the process at all, they are starting from two goals down.
• It is often very difficult to even establish whether judicial review proceedings have been issued against a project. This is because of a practice that has developed whereby applicants/challengers will simply go into Court and make an application to “stop the clock”, meaning it can be very difficult to establish whether judicial review proceedings have issued or even whether leave has been granted. This is particularly the case where the “clock has been stopped” at the end of July, or during August and September when the Courts are closed.
• There are significant delays involved in the judicial review process. Even with the advent of the High Court Commercial Planning and Strategic Development List, any judicial review is likely to take a minimum of 9-12 months to be determined. There is also ample opportunity for applicants/challengers to delay and slow the process down. If you factor in the possibility of an appeal or a referral to the Court of Justice in Luxembourg, often the viability of the whole project can be called into question because of a judicial review challenge.

Reform of judicial review under the Bill

The Bill introduces a number of reforms to the current judicial review procedure:

• The Bill makes provision for the ability to go back and amend a planning permission at any time within 8 weeks from the date of the decision (or act done or failure to perform function) or at any time after issuing of proceedings, to correct any error of law or fact contained in the decision or perform any function concerned. This would allow the decision-maker to engage with the Court to obtain directions so that the original decision-making process can be saved and timelines preserved.
• Applications for leave must be on notice. Where no respondent or notice party has indicated to the Court that it is opposing leave, leave will be deemed to be granted. Whilst overall, this is a welcome amendment, it will only be beneficial where the Court properly engages in the question of substantial grounds during the leave stage. If not, the application for leave has the potential to simply slow matters down.
• “Substantial grounds” is now defined as where there “is a reasonable prospect of relief being granted”. The Courts will have to engage in whether there is real substance to a ground. The Court can only grant leave where there is a reasonable prospect that the applicant will be successful in their challenge. This may finally be a check on the number of judicial reviews taken or at least reduce the number of grounds being argued by an applicant.
• “Sufficient interest” is now defined as where the applicant “is or may be directly or indirectly materially affected by the matters to which the application relates”. Again, as this means applicants will have to be materially affected in order to be granted leave, it is hoped it would reduce the number of judicial reviews.
• In terms of timelines and case management, a decision on the leave application must be delivered not later than 3 weeks after hearing. The Bill also sets time periods for the management of the proceedings, for example for the delivery of opposition papers and further affidavits. Judgment must be delivered no later than 8 weeks from the conclusion of the matter, and any consequential orders must be made within 3 weeks of delivery of judgement.
• The Court may direct that any error found by it in any part of the decision-making process be corrected without declaring invalid or quashing the remainder of the decision.
• There is no right of appeal to the Court of Appeal under the Bill and parties must instead obtain leave to appeal to the Supreme Court.

What impact will the changes to judicial review procedure have?

In summary, under the Bill:

• The test for leave will be stricter;
• There will be tighter timelines for the running and determination of cases;
• There will be more flexibility for Planning Authorities and the Board to fix errors and for the Court in terms of remedies which stop short of quashing planning decisions; and
• Generous costs protection rules are here to stay.

The judicial review rules will be rebalanced and there are some provisions which will make judicial reviews more difficult to bring. However the Bill does not introduce the type of radical reform that many developers and stakeholders would like to see.

The Bill is currently undergoing pre-legislative scrutiny and will progress through the Oireachtas in the coming months. There have been concerns raised in respect of the reforms to the judicial review process on the exclusion of residents’ associations bringing judicial review challenges and curtailments to public participation in the decision making process. Political disagreement could delay the implementation of the Bill and potentially lead to the watering down of the proposed reforms.

Our Environmental and Planning Team are tracking the Bill as it moves through the legislative process and will be providing further updates to this post.

For further information on this topic, please contact Alan Roberts, Partner,  Kristen Read, Senior Associate, or any member of A&L Goodbody’s Environmental and Planning team.