Changes To Judicial Review Process Among Major Reforms Proposed In Draft Planning And Development Bill 2022

• Published date: 07 March 2023
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Real Estate and Construction, Environmental Law, Court Procedure, Construction & Planning
• Law Firm: William Fry
• Author: Conor Linehan, Michelle Martin and Kate Abell

The Government's housing plan to 2030, Housing for All, committed to a review of the current planning system. Following this review, led by the Office of the Attorney General, the Draft Planning and Development Bill 2022 (Draft Bill) was published. The Draft Bill contains a number of significant changes to the planning regime.

Among these changes is a re-branding of An Bord Plean'la (ABP) to An Coimisiún Plean'la with its decision-making and governing structures separated and a strengthened legal status of Ministerial Guidelines.

Judicial Review

The Draft Bill also introduces a number of changes to the Judicial Review (JR) process regarding planning decisions.

A person wishing to challenge a decision of ABP may do so by JR only. This is currently provided for under Sections 50, 50A and 50B of the Planning and Development Acts 2000 to 2022 (PDA).

The proposed changes contained in the Draft Bill include the following:

• Timelines for various steps in the JR process, including for pleadings, hearing of cases and delivery of judgments;
• Where ABP or the Planning Authority (PA) have made an error in fact or law in a planning decision, ABP or the PA (as appropriate) can correct this error and apply for a stay on the JR proceedings while doing so; and
• Increased clarity on the role of different parties accessing justice and update to rules on standing.

Standing

Environmental public interest litigation is gaining increased significance in Ireland, and the standing of environmental NGOs to bring such challenges has been the subject of much debate.

Section 249(10)(c) of the Draft Bill amends the provisions on standing to allow an applicant such as an environmental NGO to challenge a planning decision by way of JR, provided it fulfils certain criteria. The proposed section aims to make the standing requirements more stringent.

The provision requires an applicant to have "sufficient interest", which can be satisfied by being directly or indirectly materially affected by the matters to which the application relates. Sufficient interest is not limited to an interest in land or a financial interest.

Where the JR relates to a decision on a development requiring an Environmental Impact Assessment or an Appropriate Assessment, an NGO or residents association will be regarded as having a "sufficient interest" if:

1. it is a company that has existed for at least one year prior to the application;
2. its constitution has as an object relating to the protection of the...