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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In an earlier post we highlighted the introduction, in November 2022, of a temporary moratorium on the termination of residential tenancies during what was referred to as the “winter emergency period”. The legislation was intended to help reduce homelessness numbers over the course of the winter and was due to expire on 31 March 2023.

Over the past number of weeks there has been much discussion at both political and policy levels as to whether the moratorium, or a version of it, should be extended beyond 31 March given the continued supply issues in the Irish housing market.

However, the Minister for Housing has today confirmed the Government’s decision not to extend the moratorium beyond the original intended expiry date.

In announcing the decision, the Minister said that “the measure has not had the impact of reducing homelessness numbers” and that the Government was concerned that an extension of the moratorium would have the long-term impact of “potentially storing up larger problems”. These problems are understood to be the concern at Government level that any extension might damage supply in the longer term by prompting landlords to leave the rental market.

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.

The Planning and Development Bill (the Bill) makes a number of changes to the environmental assessment regime under Irish planning law. Developers should be aware of their obligations under the Bill before it is enacted.

The Bill defines “project” for the first time and ties the need for environmental assessment back to plans or projects which require consent. The Bill also reflects Irish and European court decisions in the field of environmental law – for example, now clarifying and enshrining in legislation that “up-to-date reliable data” must be used when carrying out an appropriate assessment.

Perhaps most noticeably, the language and formatting has been made more user-friendly and simplified, from what had become an overly complex and intricate regime under the Planning and Development Act 2000. This will be welcome across all industries.

Our Environmental & Planning Team is paying close attention to the Bill as it passes through the Oireachtas and will post all relevant updates here.

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

Enforcement of planning law and the powers of An Bord Pleanála (or An Coimisiún Pleanála, in time) and local authorities in this respect will be of particular interest to developers. In relation to enforcement, there are very few changes to the current regime envisaged by the new Planning and Development Bill (the Bill). Enforcement, which is currently governed by Part VIII sections 151-164A of the Planning and Development Act 2000, is dealt with in Part 11 sections 289-300 of the Bill.

The time limits, procedures and options for enforcement are all essentially the same and, of particular note, the 7 year time limit for enforcement remains. As before, no planning permission is needed to comply with the terms of enforcement notices or court orders.

Once the Bill is enacted, a section 160 planning injunction will be referred to as a section 294 injunction – one to add to your planning law lexicons!

Under the Bill as drafted there is little that large scale residential and housing developers will not be familiar with when it comes to enforcement of planning law, however this may change as the Bill moves through the legislative process. Our Environmental & Planning Team is paying close attention to the Bill as it passes through the Oireachtas and will post all relevant updates here.

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

Photo of Kathy Gilmore

The Irish Government has announced plans to draft legislation to support the remediation of apartments and duplexes with fire safety, structural safety and water ingress defects. Any other types of defect i.e. drainage defects or defects with heating systems would appear to be excluded. The plans are to include apartments and duplexes which were constructed between 1991 and 2013. We therefore assume that apartments and duplexes constructed outside this time frame are not covered by the scheme and any issues will have to be dealt with in the normal way.

The scheme is set to go to Cabinet but nothing has been published as of yet and ultimately the devil will be in the detail. However the Government has published a “frequently asked questions” document to provide an idea of how such a remediation scheme may operate.
The intention seems to be to create something similar to the scheme that was previously introduced in respect of properties impacted by pyrite.

What apartments and duplexes will be included?

From the information provided, the Government is intending to take a ‘whole building approach’ in order to improve the safety of all occupants in the building. Therefore, all parts of the building (e.g. the common areas, the individual apartments etc.) will be considered together when addressing defects.

The Government is proposing the scheme will be administered by the Housing Agency on a nationwide basis and that Owners’ Management Companies (OMCs) will be funded to carry out the necessary remediation works on a “whole building” basis and therefore will be responsible for procuring and facilitating the remediation works that affect the common areas of apartments and duplexes as well as the individual apartments.

It appears that commercial owners will be exempt from such a scheme.

What works will be covered by the scheme?

As stated above, the scheme will only cover works to remediate fire safety, structural safety or water ingress defects in purpose-built apartments and duplexes constructed between 1991 and 2013. The defects which are covered by the scheme must relate to defective design, defective or faulty workmanship or defective materials. The defects must have resulted from a contravention of the Building Regulations applicable at the time the building was constructed. All other defects are excluded from the scheme.

Irrespective of this scheme and in accordance with the Fire Services Act, responsibility for fire safety continues to rest with those who control a premises.

When will the legislation be in place?

Subject to the implementation of the legislation, it is intended that the scheme would be in place by 2024.

The Government has also approved the principle of allowing remediation costs already incurred or levied to be covered, within the scope and defined parameters of the scheme.

Notably, and in order to ensure that no life-safety works are paused until the scheme is put in place, remediation works related to fire safety defects which are entered into or commenced from 18 January 2023, will come within the scope of the scheme. It is intended that such works will need to be agreed with the relevant local fire authority. The details of this process will be worked out as a priority and provided in due course.

How much funding will be made available?

The amount of funding will depend on the nature and extent of defects to be remediated. It is estimated that the scheme is worth between €1.5 billion and €2.5 billion.

For further information on this topic, please contact Conor Owens, Partner, Kathy Gilmore, Solicitor, or any member of A&L Goodbody’s Construction and Engineering team.

The European Commission has approved, under EU State Aid rules, the Irish Government’s proposed €450 million scheme to support the construction of apartments to be sold to owner-occupiers. The scheme, know as the Croí Cónaithe (Cities) Scheme, aims to bridge the current “viability gap” where the cost of building apartments is higher than its market sale price.

The scheme aims to support the delivery of up to 5,000 apartments via blocks of at least four storeys in the urban areas of Dublin, Cork, Galway, Limerick and Waterford.

How will the scheme operate?

The aid will take the form of a direct grant covering the difference between the actual price and the development cost of the apartment, up to a certain maximum amount depending on the city. The scheme will be open to developers of apartment blocks that hold an unactivated planning permission and demonstrate the existence of a viability gap.

To be eligible, apartment blocks must be

  • located in Dublin, Cork, Galway, Limerick or Waterford cities;
  • four storeys or higher and have a net density of at least 35 dwellings per hectare;
  • close to public transport;
  • for sale to owner-occupier households only; and
  • be able to demonstrate a viability gap, where the cost of building the apartments is higher than the market sale price.

How much funding will be available?

The maximum funding anticipated for each apartment is €120,000. This may be exceeded by up to 20% in certain cases in regional cities where lower market prices mean that the viability gap is wider.

Who will manage the scheme?

The Croí Cónaithe (Cities) Scheme will be managed and administered by The Housing Agency on behalf of the Department of Housing, Local Government and Heritage. The Housing Agency will receive proposals for developments via e-tenders. It will assess eligibility and carry out detailed due diligence and an open book assessment on eligible proposals.

Beneficiaries will be ranked based on density, date of delivery, the quality of the development, the delivery cost per apartment and proximity to core services and amenities.

Open book accounting will be required for all developments to make sure that the funding support provided only targets the viability gap in question, resulting in a reduction of cost for home-buyers and increased supply into the market. Both delivery costs and market values will be assessed by independent quantity surveyors and valuers appointed by the Housing Agency.

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer, or any member of A&L Goodbody’s Real Estate team.

Following the publication of the outline of the proposed Planning and Development Bill in December 2022, the Department of Housing, Local Government and Heritage published the draft Planning and Development Bill 2022 (the Bill) on 26 January 2023. The Department has confirmed that the Bill will be subject to pre-legislative scrutiny before it is finalised, and has promised that this new legislation will “bring greater clarity, consistency and certainty to how planning decisions are made.”

The Bill seeks to restructure An Bord Pleanála, to be called An Coimisiún Pleanála or the Commission, and to consolidate and refine Irish planning law. The provisions that will be of particular interest to developers and stakeholders include:

  • The introduction statutory mandatory timelines for consent processes, including Commission decisions on Strategic Infrastructure Development. The specific timeframes have yet to be set out;
  • Changes to the Judicial Review process including the introduction of statutory timelines and prohibition of companies registered for less than one year taking JR proceedings; and
  • Reform of Development Plan content and lifespan. Development Plans will include more detail and amongst other measures, a specific housing delivery strategy.

The Bill was published on the same day that RTÉ News highlighted that 28,786 strategic housing development applications await a decision from the Board, according to Mitchell McDermott’s Annual Construction Sector Report.

It is hoped that, once enacted, the Bill will improve the development consenting processes, leading to speedier decision-making and more streamlined judicial review.  

Our Environmental and Planning Team will continue to post updates on the provisions of the Bill. In the meantime, should you require more information on this topic contact Alan Roberts, Partner, Niamh Collins, Solicitor, or any member of A&L Goodbody’s Environmental and Planning team.

Photo of Síomha Connolly

We are delighted to invite you to our Construction, Planning and Procurement Breakfast Seminar on Thursday 9 February as we discuss the theme of “Uncertainty”.

Venue
Banking Hall at The Westin Hotel, College Green
Date
Thursday 9 February 2023
Time
7.15am – 10am

Please join us for a light breakfast, followed by a series of short presentations all focusing on uncertainty in the areas of construction, planning and procurement. Senior members of our Construction, Planning and Procurement teams will update you on the issues and topics which will be on the agenda for key industry players:

  1. Conor Owens and Enda O’Keeffe on adjudication and the current issues arising.
  2. Siobhan Kearney and John Dallas on utilities risk / energy issues. This will cover issues such as gas and ESB supply and connection agreements.
  3. Jamie Rattigan and Kim O’Neill on inflation / deflation. This will also consider how inflation and deflation impact on funding.
  4. Alan Roberts and Kristen Reed on “Will the new Planning Act shut the door on Judicial Reviews?”
  5. Conor Owens and Richard Hourihan on “Contract modifications arising from inflationary and market pressures”.

The seminar promises to be informative, practical and lively with insights being shared by leaders in their respective fields. The seminar also qualifies for Legal/General CPD with the Law Society of Ireland.

Breakfast and registration will be from 7.15am and the seminar will begin at 7.45am. As always there will be a Q&A session with our speakers at the end of the agenda items with a view to finishing up at 9.15am, or a little later if you would like to stay on and connect with some people who you may not have met for some time.

We look forward to welcoming you on the day.

Please RSVP by Friday 3 February here or contact any of the following, or your regular A&L Goodbody contact, for more information:

After considerable ambiguity in respect of environmental costs protection, the Supreme Court’s decision in Heather Hill Management Company CLG & McGoldrick v An Bord Pleanála, Burkeway Homes Limited and the Attorney General [2022] IESC 43 has brought some much-needed clarity to the rules around costs implications of challenges to large scale developments on environmental grounds.

On 10 November 2022, Mr. Justice Murray handed down a judgment on behalf of the Supreme Court on the interpretation of section 50B of the Planning and Development Act 2000, overturning an earlier decision of the Court of Appeal and agreeing with the decision of the High Court judge.

The Supreme Court held that the protective costs order available under section 50B applies to any challenge to a decision made pursuant to a statutory provision which gives effect to specified EU Directives listed in the provision. The Supreme Court held that there is no basis for the splitting of costs by reference to the issues and grounds in proceedings where some grounds/issues raised engage those EU Directives and others do not. This means that applicants who take judicial review proceedings will in the normal course be entitled to their full costs where the challenge involves environmental grounds.

While the judgment has brought certainty on the question of costs, it remains to be seen whether the judgment will result in an increase in the number of judicial review applications. The impact of this judgment will certainly be felt across a number of industries including property development and construction and stakeholders will eagerly track the effect on the volume of challenges to development over the coming months and years.

For further information on this topic, please contact Niamh Collins, Solicitor, Alan Roberts, Partner,  or any member of A&L Goodbody’s Environmental and Planning team.