Planning and Development Bill 2022 (Ireland): a solution in search of a problem

Abstract

Framed as a response to the housing crisis, the Planning and Development Bill 2022 (P&D Bill 2022, ‘the Bill’) is designed to enact a radical overhaul of the planning system and related court processes in Ireland. Its central aim is to increase efficiency and the speed of the development consent process by centralising power and restricting access to justice in order to remove perceived impediments to housing development. Unfortunately, it is likely to backfire and lead to years of satellite litigation. Firstly, because it is based on a flawed premise, i.e. that there is a tsunami of judicial reviews holding up projects, when figures indicate that only around 1% of the circa 30k planning decisions made annually are ever judicially reviewed (and around 3.65% of An Bord Pléanála decisions). Secondly, because the Bill conflicts with International and EU legal principles and obligations surrounding access to justice, specifically through restricting access to public participation and access to judicial review in planning (i.e. reducing accountability), and through centralising powers in the planning system in undemocratic ways. It is worth noting that judicial review of planning decisions is already subject to a more restrictive regime than other administrative decisions (introduced via the Planning and development Act 2000) - this bill proposes to restrict access to justice even further (e.g. see Browne (2021) in Simons on Planning, para 12-01 to 12-13). In the era of increasingly urgent climate and biodiversity crises, the importance of judicial review for environmental and climate accountability cannot be overstated. It is a vital mechanism for ensuring that development that is carried out aligns with our climate and environmental goals, as well as with State policies and plans. For example, the Edenderry Peat case (An Taisce v Bord Na Mona (2020) IESC 39) shows how planning judicial review can prevent extraordinary destruction of important habitats. More broadly, cases like Friends of the Irish Environment v Ireland (2020) IESC 49 (“Climate Case Ireland”) demonstrate how judicial review can be used by the public to keep Government accountable on climate targets. It has never been more important that we stop permitting projects which will push us out of compliance with Paris Agreement/EU Climate Law Net Zero and 2030 targets. Pressure continues to build for Ireland to keep to its commitments under the EU climate framework, and there is increasing attention on backsliding on both EU and international commitments around access to environmental justice in Ireland and in other member states. Ireland’s poor track record in meeting its climate obligations suggests that the role of pushing to ensure achievement of these targets will fall largely on the public and NGOs in between EU reporting periods. There are many issues with the Bill at detail level (discussed below), but one of the most striking is the lack of consultation with the public on massive changes in our land use law. The public need to be given a proper say (i.e. via public consultation) on such significant changes to the democratic balance of our planning system, and proper recognition needs to be given to the right of communities to have a say in what happens to their local environment.