New planning rules expected to make it more difficult to challenge planning decisions

Minister for Housing, Eoghan Murphy, intends to introduce new rules which will tighten up planning regulations and change the standard for how environmental challenges can be brought. The proposals are outlined in the Housing and Planning and Development Bill 2019, which is not yet publicly available but has been shared with members of the Oireachtas Committee for Housing, Planning and Local Government in recent days.

It appears that the key changes envisioned are in relation to (i) costs (ii) the right to bring legal challenges before the Courts (i.e. standing) and (iii) judicial review. Key proposed amendments are outlined below.

Costs:

A change to existing cost rules for environmental cases whereby costs should “not be prohibitively expensive” to a cost cap rules systemAt present, the current system allows for each side to bear their own costs. The new rules look set to change this and impose a cap of €5,000 for individuals and €10,000 for groups

Standing:

  • A change in standing rights requirements for applicants from “sufficient interest” to “substantial interest” and a requirement that they must be “directly affected by a proposed development”
  • An additional requirement that the applicant must have had prior participation in the planning process
  • Extension of the minimum time that an NGO must be in existence before it can challenge a planning decision from 12 months to three years
  • A requirement that NGOs must have at least 100 affiliated members
  • Such NGOs must pursue their environmental protection objectives otherwise than for profit. This is to ensure that judicial review challenges are not brought forward by bodies or organisations engaged in competitive or economic activity

Reform of judicial review:

  • The Bill introduces a new provision under which the right to initiate a judicial review challenge will be restricted to decisions determined by An Bord Pleanala
  • If a person wishes to challenge a decision of a planning authority, s/he will be required to firstly appeal the decision to An Bord Pleanala
  • All possibilities of administrative appeal in relation to a planning case must be exhausted before a judicial review challenge can be initiatedIn the case of planning applications submitted directly to An Bord Pleanala – regarding strategic infrastructure and strategic housing developments, a judicial review challenge will not be able be initiated until after the decision on the application has been made by the Board
  • Judicial review will no longer be available for trivial deficiencies, unintentional errors or omissions in planning decisions unless it can be shown that the applicant has previously applied for rectification of the deficiency and was wrongly refused that relief

This is a Bill which is bound to attract enormous interest from all sides. In a context where protracted delay accompanies almost all large scale development, this will certainly be welcome news to developers and those involved in delivering projects as part of the National Development Plan. It's one to keep a close eye on, with the Department outlining Easter 2020 as the envisaged timeline for the introduction of this Bill.

For more information in relation to this and related planning matters, please contact Alan Roberts, Alison Fanagan, Jason Milne, Mark Thuillier or any member of the Environmental and Planning team.

Date published: 18 November 2019