My Department has noted the increasing number of judicial review cases being taken against decisions of An Bord Pleanála (the Board) over the last couple of years, as well as the number of cases that have been lost arising from such legal challenges, many of which relate to Strategic Housing Development (SHD) cases but also cases involving environmental related issues. This upward trend in the number of judicial review challenges has led to significantly increased legal costs having to be met by the Board in defending these actions. My Department is engaging with the Board on the steps that might be taken to improve the situation.
The Planning and Development (Housing) and Residential Tenancies Act 2016 introduced new arrangements to enable planning applications for SHDs of 100 housing units or more, or student accommodation or shared accommodation developments of 200 bed spaces or more, to be made directly to the Board for determination. The sole mechanism for appealing against SHD decisions made by the Board has been by the way of judicial review challenge to the High Court, which has been a factor in the recent increased number of judicial review challenges taken against the Board.
The SHD arrangements were a temporary measure and had a legislative expiry date of 31 December 2021. This end date was subsequently extended to 25 February 2022 arising from the Covid-related extension of statutory deadlines within the planning system by 8 weeks in respect of the period March to May 2020.
However, new planning arrangements in respect of large-scale residential developments (LRDs) - as proposed in the Planning and Development (Amendment) (Large-scale Residential Developments) Bill 2021 which has recently completed all stages in the Oireachtas legislative process and is expected to come into effect in the coming days - will restore primary decision-making in respect of such developments to the local planning authorities with the possibility of subsequent appeal to the Board. It is anticipated that these new arrangements in respect of LRDs and allowing appeal to the Board will lead to a reduction in the number of judicial review challenges in this area in the future.
Furthermore, proposals to reform the judicial review provisions in sections 50 to 50B of the Planning and Development Act 2001, as amended, were published in the General Scheme of the Housing and Planning and Development Bill 2019 which were subsequently the subject of public consultation. The General Scheme is now expected to undergo pre-legislative scrutiny in the Joint Oireachtas Committee on Housing, Local Government and Heritage in Q1 2022 to be followed by legislative drafting and the publication of a Bill with a view to the subsequent coming into effect of the new judicial review reforms on the establishment of the proposed dedicated Environmental and Planning Court, as committed to in the Programme for Government - Our Shared Future. Similar to the introduction of the new LRD planning arrangements, it is anticipated that these reforms - combined with the reform of the case management procedures in the High Court arising from the Report of the Review Group on the Administration of Civil Justice chaired by the former President of the High Court, Justice Peter Kelly and wider reforms to improve the effectiveness of the planning system, including through increased digitalisation - will lead to both a reduction in the number of judicial review challenges against planning decisions, as well as the more timely determination of such challenges, in the future.