With the continuing impact of factors such as Brexit, the war in Ukraine and the COVID-19 pandemic, construction costs have and indeed continue to rise significantly. This has led to all stakeholders in the construction industry becoming far more acutely aware of the impact of inflation on project delivery than has traditionally been the case in the past.

Up until recently, inflationary risk was considered to be within the remit of the contractor and therefore would not be considered in great detail. However with the onset of inflationary pressures, it has become a hotly negotiated point within contract agreements as contractors are no longer willing to (or simply can’t afford to) solely take the burden of the potentially significant rise in cost.

The sorts of approaches to inflation that we have seen include:

  • Negotiation on inflation risk on a product by product basis; with detailed due diligence on the supply chain and greater use of open book price recording;
  • Incorporation of various indices into the contract and a risk share mechanism;
  • Employer’s expressly buying out the inflation risk for an agreed sum;
  • Inflation risk being assumed by the contractor up to a specific value or up to a specific point in time, after which point the inflation risk is shared between the parties;
  • Different approaches to inflation being taken on materials as compared to labour;
  • Employer’s simply having to take the inflation risk in its entirety.

One thing for certain is that the old approach of simply deleting Clause 36 of the RIAI (which was the clause that allowed contractors to recover inflation costs) is no longer acceptable on the vast majority of projects.

In that vein, it is worth noting that on those projects where inflation risk has not been properly considered and allocated, it is often the case that the parties have to deal with inflation at a subsequent point in time as it is simply not practical for contractors to bear all of the risk. This does increase the likelihood of disputes arising.

It had been hoped that issues with inflation would have eased by now. However, that has not happened. In fact, the problems with inflation have become so pronounced that the public works forms of contract are being further amended to allow contractors greater relief for inflation. The amendments to the public works forms of contract are due to be published shortly and these will, no doubt, be influential when negotiating private sector contracts.

For further information in relation to this topic or any related matter, please contact Conor Owens, Partner or Siomha Connolly, Solicitor or your usual contact on the Construction & Engineering Team.

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 Department of Housing has this month launched a consultation process on the role of the Private Rental Sector (PRS) in Government’s housing policy and the wider economy. The Department’s press release and the consultation paper can be found here. Some of the key points noted in the consultation paper are as follows:

  1. The importance of the PRS sector within the wider housing system in providing flexible tenure accommodation, in particular for international workers, students, young adults and social housing supply.
  2. The important role institutional investment plays in the PRS sector, including the provision of capital for purpose-built, high-quality units in urban areas, the supply impact, a steady source of construction activity and the professionalisation of landlord functions.
  3. The increase of institutional investment in PRS stock is in line with many of Ireland’s peer economies where institutional investors such as pension funds and insurance companies own considerable proportions of the private rented stock.

The consultation paper also poses a number of questions, such as:

  • whether there are any strategies or policy measures which could be deployed by Government to attract more domestic capital toward sustainable, long-term investments in the residential rental market;
  • which rental policies and policy measures used in other countries ought to be considered for Ireland;
  • whether measures can be taken to specifically incentivise further supply of high-quality units by institutional investors with a long-term commitment to urban rental markets, and if so what form such measures should take.
  • if there are measures which should be taken to have a more structured and well-funded approach to the provision of rental accommodation for students
  • if there are any policy mechanisms available which can protect the long-term interests of tenants and investors alike, such as subsidies or tax measures which apply solely to long-term leases.

The Department is welcoming participation in the consultation process by interested parties. Any views/opinions on the questions posed in the paper should be submitted by way of submission form (available via the above link) emailed to rentalstrategy@housing.gov.ie by 26 July 2023.

For further information on this topic, please contact David Fitzgerald, Partner, or any member of A&L Goodbody’s Real Estate team.

The Irish Government recently published the general scheme, or initial outline, of the Planning and Development (Land Value Sharing and Urban Development Zones) Bill 2023 (the Bill).

The Bill is a key component of the Government’s “Housing for All” plan and proposes to introduce mechanisms for both land value sharing (LVS) and the designation of under-utilised areas with significant potential for development as “Urban Development Zones” (UDZs). This post focusses on the LVS elements of the Bill.

It should be noted from the outset that the Bill is at the very initial stages of the legislative process and is currently undergoing pre-legislative scrutiny, with it being probable that the draft legislation will change significantly over the coming months. The intention of this post is to give a flavour of the thinking behind the legislation and the Government’s initial proposals in this regard.

What is the purpose of the Bill?

The aim of the LVS element of the legislation is to introduce a mechanism to ensure that a proportion of the value uplift associated with a decision to zone land for development purposes is shared with the State, in the interest of the common good.

The net effect of this mechanism is to:

  1. Establish a Land Value Sharing Register (the Register) containing all lands falling within the scope of the LVS obligation; and
  2. Impose a statutory charge (or LVS contribution), payable to the planning authority by owners of those lands. The exact rate of the LVS contribution has not been finalised as yet, however the general scheme suggests an initial rate of 30% of the value uplift based on valuations of the existing use value (EUV) and market value (MV) of the land.

What lands will be in scope?

LVS will initially apply to all lands that are zoned for the purposes of residential use or mixed use (to include residential). It is proposed that LVS will be extended to commercial and industrial development zonings over time, on the basis that the owners of such lands also benefit from uplift in values as result of the zoning decision. Planning authorities will be required to publish a map showing the lands initially in scope for LVS in March 2024.

Land used solely for the provision of public infrastructure, public amenity facilities or open space may be excluded from liability. Exemptions are also proposed for social and affordable housing; cost rental housing; and development consisting of the conversion of an existing building to create one or more dwellings, provided that 50% of the existing external fabric is retained.

When will liability arise?

Liability for the LVS contribution will commence on 1 December 2024 in respect of planning applications lodged for permission on land that is:

  1. Acquired on or after 21 December 2021; and
  2. Zoned residential, zoned mixed use (to include residential), within an urban development zone or within a strategic development zone (the initial zoning requirements).

Lands within the initial zoning categories acquired before 21 December 2021 will come within scope on 1 December 2025.

All other lands which meet the zoning requirements prescribed in the legislation, to include commercial and industrial development zoning, will come within scope on 1 December 2026.

How will the liability be charged?

A condition requiring payment of the LVS contribution will be inserted into all planning permissions for:

  1. Residential developments of more than 4 housing units; or
  2. In due course, commercial developments of at least 500m2.

This is in addition to existing development levies and any other levies, charges or contributions which may be applied to the permission. There is generally no ground to appeal the inclusion of the LVS contribution in the planning permission.

How will the liability be calculated?

The zoning value of the land will be calculated by deducting the EUV of the land from its MV.

The charge is to be 30% of the zoning value, with provision for the Minister to adjust that percentage downwards, although the current draft of the Bill would suggest to no lower than 20% of the zoning value.

The liability arises on zoning and remains a charge on the land indefinitely until such time as it is paid in full and payment is recorded on the Register.

How will the Register operate?

Population of the Register will take place on the basis of owners’ self-assessment, with landowners required to submit EUV and MV valuations to the planning authority. However, the planning authority is empowered to undertake a review of those valuations at any time and to amend the valuations accordingly. A landowner can appeal a valuation of the planning authority to the Valuation Tribunal, whose determination will be binding on both parties.

We 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 Jason Milne, Partner, Aoife Smyth, Knowledge Consultant, or any member of A&L Goodbody’s Environmental and Planning or Real Estate teams.

On 31 March 2023, the Office of Government Procurement (the OGP) introduced monetary caps on liability in the Standard Conditions of Engagement for Consultancy Services (Technical) and the Standard Conditions of Engagement for Archaeological Services (the Conditions). Monetary caps on liability have become a typical feature in consultant appointments in the private sector.

In addition, and of interest to those operating in the PRS sector, the OGP has also noted that it intends to introduce caps on liability into the standard forms of construction contract. This is something which they have indicated is to happen imminently. Caps on liability in construction contracts in Ireland, in either the public or private sector, are nowhere near as common as they are in consultant appointments. Such caps on liability in construction contracts are much more common in other EU jurisdictions.

If the OGP does introduce caps on liability for the public works contracts, it is to be expected that contractors will push much harder for similar caps when negotiating private sector contracts. Of course, if a contractor does negotiate a cap within the construction contract it would also expect such caps to apply to any claims that might be brought under collateral warranties; and the forms of collateral warranty currently in circulation would typically allow a contractor to rely on equivalent rights of defence when defending any claims brought under the warranty.

As such, if the market does move in the way that is anticipated, there will be a lot of focus on:

  1. the level of any caps on liability; and
  2. what types of loss ought to sit outside the cap.

Purchasers and funders of PRS units will have to consider the impact that such caps might have on their overall security package.

For further information in relation to this topic or any related matter, please contact Siobhan Kearney, Senior Associate, or Síomha Connolly, Solicitor, or your usual contact on A&L Goodbody’s Construction & Engineering 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.

On 25 April the Irish Government announced a housing plan, termed by some as a “mini housing budget”, aimed at cutting the cost of building and refurbishing homes and further speeding up the delivery of housing.

The plan is comprised of the following measures:

  1. The temporary waiver for development contributions on new homes. These contributions, by which developers contribute to the cost of providing public infrastructure, will be waived temporarily and such waiver will be contingent upon the home being completed within a defined period of time, with a view to speeding up supply. It is understood that the resulting shortfall in local authority income will be reimbursed by central Government in order to fund the continued provision of infrastructure.
  2. An increase in grants to fund the cost of refurbishing vacant homes. The Vacant Property Refurbishment Grant is to be increased from €30,000 to €50,000 for vacant properties and from €50,000 to €70,000 for derelict properties. It will also be extended to cover houses built up to 2007 (under current rules, the grant only applies to homes built before 1993) and will be available for rental properties, as well as owner-occupied properties.
  3. A Government contribution of up to €750m towards to financing of construction of affordable housing for cost rental. This contribution will provide funding of up to €150,000 per building. It is understood that both the Land Development Agency and developers more generally will be in a position to avail of the funding.

We will share further details of each measure when available. In the meantime, for further information please contact Aoife Smyth, Knowledge Consultant,  or any member of A&L Goodbody’s Real Estate 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.

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