Planning and Development Bill 2022: A solution in search of a problem

A joint submission to the Joint Oireachtas Committee on Housing, Local Government and Heritage by Community Law & Mediation (CLM) and Environmental Justice Network Ireland (EJNI)

Framed as a response to the housing crisis, the Planning and Development Bill 2022 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.

Problematic aspects of the Planning and Development Bill 2022

This joint submission by CLM and EJNI to the Joint Oireachtas Committee on Housing, Local Goverment and Heritage discusses some of the more problematic aspects of the Planning and Development Bill 2022, including:

1. Lack of detail in the Bill – significant areas are left to be constructed by Ministerial order, making it impossible to truly assess the full impacts of the Bill.
2. Lack of public consultation in the preparation of the draft bill, failing to adhere to international law obligations under Article 8 of the Aarhus Convention.
3. Lack of any rationale provided for the Bill, no explanatory memorandum for these massive changes to our land use law, no clear identification of the problems the Bill is supposedly trying to address, and no evidence base for the necessity for the changes. This impairs the public’s ability to engage with the Bill, and makes it difficult to assess the proportionality of the approaches adopted.
4. Designation of certain projects as presumed IROPI
5. Changes to the scheme of statutory planning judicial review which will negatively impact on access to justice and Ireland’s international and EU law obligations. In particular:
   1. Restricting NGOs that are not constituted as limited liability companies from participating, which conflicts with International (Aarhus Convention, Art 2(5) & 9(3)) and EU law obligations (Art 47 EU Charter/Art 11 EIA Directive) obligations to afford wide access to justice and to exercise any discretion to set down criteria on access to the courts in a manner that does not excessively restrict the number and types of organisations that can avail of the deemed locus standi provisions.
   2. Changes to the costs rules that would eliminate “no-foal, no-fee” litigation. The provision in s.250 of the Bill providing both sides would bear their own costs with no discretion to award costs to the successful party, creates a barrier for litigants not in keeping with States’ access to justice obligations under EU/International law. Also, no-foal, no-fee provision acts as a filter on weak claims, with legal professionals selecting cases based on strength/likelihood of success (therefore likelihood that they will be awarded costs and get paid). It seems strange that a bill seeking to reduce unmeritorious claims would dismantle this.
   3. Sufficient Interest Test definition – addition of “materially affected” requirement: 249(10)(c)(i) of the Bill attempts to change the definition of sufficient interest, introducing a requirement of being “materially affected” in order to have locus standi. This appears to be an attempt to raise the threshold for individuals standing to judicially review planning decisions and is unlikely to be compatible with Ireland’s EU and International law obligations.

Recommendations

1. That the entire Planning and Development Bill 2022 be put out to a general public consultation.
2. That the Bill be the subject of multidisciplinary review by experts from relevant fields like environmental science, ecology, planning, architecture, law and NGO experts.
3. That the Bill be substantially revised in the areas highlighted above, in particular in the provisions dealing with costs and standing, and in the area of the Habitats Directive.

Read the submission in full: