Planning delays to infrastructure

Birdnuts

https://www.boards.ie/discussion/comment/120321451#Comment_120321451

Me thinks WEI and their fellow travelers were prime lobbyists in this space too

blanch152

https://www.boards.ie/discussion/comment/120321451#Comment_120321451

Lawyers concerned about measures to reduce unnecessary litigation is hardly surprising, is it?

Birdnuts

https://www.boards.ie/discussion/comment/120334928#Comment_120334928

Depends what you define as "unnecessary"?? There would be no need for alot of this litigation if ABP had not become so dysfunctional over the years in terms of ignoring best practice, relevant EU legislation etc.

blanch152

https://www.boards.ie/discussion/comment/120338717#Comment_120338717

It doesn't matter how I define it, it is the Oireachtas that is considering legislation to reduce unnecessary litigation. My point is that it is not in the least surprising that lawyers oppose this, which means any argument that because lawyers oppose it, it is wrong, is stuck on the clear conflict of interest.

https://www.boards.ie/discussion/comment/120339415#Comment_120339415

Let me see if I understand your logic...

Lawyers, who are experts in the law, should not be allowed to comment on changes to the law because they work in the area of law

Next up, teachers are to be prevented to commenting on changes to education

Where do you see these restrictions of your stopping?

Farmers & agriculture?

Doctors/nurses and the health system?

Thankfully this is not how the world works and Oireachtas committees go out of their way to bring in experts in relevant fields so they can make informed decisions because the alternative would be, well, fking stupid in the extreme

blanch152

https://www.boards.ie/discussion/comment/120339459#Comment_120339459

Nope, that isn't what I said.

Of course lawyers are allowed to comment on changes in the law. Generally there is no conflict of interest.

However, in this particular case, there is a legislative measure designed to reduce litigation and there is a clear conflict of interest. Their views have to be considered in that context.

https://www.boards.ie/discussion/comment/120339668#Comment_120339668

At least you acknowledge that the changes are designed to limit access to justice

blanch152

https://www.boards.ie/discussion/comment/120339839#Comment_120339839

If you recall, the lawyers were vociferous in their opposition to the Personal Injuries Assessment Board.

That initiative limited access to justice, so limiting access to justice is not necessarily a bad thing. In this particular case, Ireland is decades behind on infrastructure. Part of that reason is the access to justice issue which these proposals will address. In my opinion, that is a good thing.

https://www.boards.ie/discussion/comment/120339925#Comment_120339925

Your PIB example is not the same as that merely standardised the process for awards and claims. There was no restrictions placed on making claims

A key difference is in relation to changes to the environment and adherence to environmental legislation and protections. Per Aarhaus, there can be no limits. This is the point that every opposing voice has made, including EU representatives and which will form the basis of legal challenges to the limits should they be enacted.

Its also important to note that challenges made on non-adherence to points of law and are exactly that.

Vexatious challenges are rightly called out by the courts and dismissed.

What the proposed changes mean is that only someone living close to an affected area could challenge and they could only do so on a personal basis and not as a group. This means, that unless you are an expert in the legal requirements, you would have little luck in challenging the legality of various things going into a site close to your home, for example

• a waste incinerator plant
• wind turbines
• motorway etc

What you personally see as a good thing will only be good for as long as it doesn't affect you personally. Once it does, you'll be hard pressed to do anything to mount a challenge.

This is what repeatedly gets pointed out, over and over.

You are ok with that fact, cool for you. I am not, nor are many others.

blanch152

https://www.boards.ie/discussion/comment/120340484#Comment_120340484

If a waste incinerator plant, motorway or wind turbine is being built for the benefit of the community, to my mind, those "living close to an affected area" who object are NIMBY, and their claims should be considered vexatious.

https://www.boards.ie/discussion/comment/120340885#Comment_120340885

While you're entitled to your opinion that would be determined by the court in the event of a challenge on environmental grounds and/or adherence to the prevailing planning regulations

Anecdotal evidence now being used to justify the stripping of rights

A senior housing official has accused residents' associations of misrepresenting the views of neighbours and counting vacant homes and dead people to boost the size of their support.

No evidence, so just a case of "trust me bro"

His answer to fix this is to set extra criteria for residents’ groups to meet before being able to seek judicial reviews in planning cases.

They would be required to form companies, have at least 10 members, be in existence for at least a year, be active on the issues at hand for that time and take a formal resolution in relation to the court action.

The official did not clarify how this was supposed to address the issue he highlighted.

The proposed changes have been criticised by residents and community groups, environmental organisations, the Law Society and the planning and environmental barristers committee group within the Bar Council.

https://www.independent.ie/news/environment/residents-associations-using-dead-people-to-boost-numbers-for-challenges-in-planning-cases-42377610.html

More slating of the new legislation, this time by the Irish Planning Institute

https://www.irishtimes.com/ireland/housing-planning/2023/03/27/government-overhaul-of-planning-system-rejected-as-unworkable-by-irish-planning-institute/

Some of their comments echo many, many others i.e. that limiting access to justice will not fly and what is needed is resourcing and funding

key parts of the new regime were “unworkable”.

While Mr O’Brien wants the law enacted by summer, the professional body for planners said key measures “will not be achievable in practice” without more planners and increased financial support..

The IPI questioned the “large number of new and strictly defined timelines” in the proposed regime and said many of them “in our experience appear to be unworkable.”

The planning body said the draft law lacked an “explicit and evidence-based rationale” for many measures.

Specifically on the matter of stripping of rights to justice

The IPI expressed serious concern about proposals to restrict access to judicial review proceedings for unincorporated bodies such as residents’ associations.

“Given that the entire [judicial review] system is designed to correct procedural errors by decision, including in planning decisions, rather than planning assessments, the institute sees no reason or justification to limit access to justice by any person, especially in the context of the Aarhus Directive,” the IPI said.

The Aarhus measures, which took force in Ireland 11 years ago, apply international agreements on the right of access to environmental information and promote public participation in decision-making.

The IPI also questioned measures to remove the right of a third party to seek a declaration from a planning authority that a development was or was not exempt from the requirement to seek planning permission.

Such measures, it believes, could have implications for the ability of third parties such as neighbours to seek enforcement of planning law on developments as diverse as residential extensions, quarries and wind farms.

“It is a long-established, and cherished, feature of the Irish planning system that there is full provision for third party rights, and in the institute’s view this must be retained and enhanced in the Bill,” the submission said. “It is the institute’s considered view that this current Bill, with all of its complexity, is being promoted and progressed in too short a time period.”

Another article further highlighting how Darragh O’Brien's planned legislation would cause Ireland to fall foul of international agreements

https://www.thejournal.ie/readme/planning-and-development-bill-6025130-Mar2023/

A raft of changes is proposed in the Bill that will restrict the number and types of organisations that can access judicial review. The intention behind these changes appears to be to eliminate challenges by residents and community groups and to eliminate long-standing environmental organisations that do not meet the new criteria.

Under the changes proposed, unincorporated associations and NGOs or associations which have less than ten members will be restricted in their access to judicial review. NGOs will also be required to have been registered in existence for at least one year prior and to have passed a resolution to take judicial review proceedings.

This represents a substantial rollback of environmental access to justice. The narrowing of the category of NGOs eligible to take a judicial review is likely to be a breach of international and EU law under the Aarhus Convention and of the non-regression principle of international human rights law. 

Sam Russell

Surely the planning authority just needs a note (from a neighbour, say,)to check a development that is underway without planning but may require it.

The proposals would appear to have an impact on that.

To be honest its getting difficult to keep track of the many ways this is going to fk things up

Another issue coming from the new planning bill.

The bill plans to specifically disallow appeals for mobile masts which have been built without planning permission

https://www.irishexaminer.com/news/arid-41107786.html

This is a weirdly specific thing to legislate for

tom1ie

I haven’t read the whole of this thread so apologies if this has been answered, but what professions work in ABP.

I asked this previously in a different thread and someone mentioned ABO consisted mainly of civil servants.

So how long does it take to train up the civil servant and have we started tracing enough of them to match the current and projected infrastructure projects that will travel through the doors of ABP?

Also who is the minister responsible for ABP?

The Oireachtas Housing Committee finished its review of O'Briens proposed legislation and he won't like what they have to say.

https://www.independent.ie/irish-news/committee-seeks-revisions-to-planning-bill-over-concerns-about-judicial-review-restrictions/a1507788856.html

153 recommendations on elements which cause concern, with the top one being "that the proposals around judicial reviews be thoroughly rechecked to see if they comply with the Aarhus Convention". Virtually everyone who presented to the committee raised this as a major concern along with the timeline requirements to bring a JR (8 weeks) and the requirement that a company must be formed in order to bring a JR (almost impossible to do within the 8 weeks when you consider who would be mounting challenges)

On the Aarhaus Convention, the committee recommended

The Committee recommends that Part 9 of the Draft Bill is reviewed against the Aarhus Convention, in particular unencumbered access to justice, barriers to seeking review of decisions, and prohibitive administration or burdensome process which may inadvertently restrict access to justice and updated to comply with current CJEU and Aarhus Convention decisions, ensuring access to justice through proportionality

Regarding the 8 week requirement, they stated

The Committee recommends that the time limits proposed in Part 9 are reviewed, given the impractically short timelines proposed.

On the requirement to form companies to take a JR, they stated

The Committee recommends that the stated intention to exclude unincorporated organisations from Judicial Review proceedings should not proceed. It is recommended that clarity is provided to ensure people, incorporated organisations, unincorporated organisations and co-operatives, including organisations incorporated within the EU should be in a position to seek to take Judicial Review

On the loophole built into the legislation which would allow ABP a get-out-of-jail free card to use at their own leisure and not face any consquences, they stated

The Committee recommends that section 249(5) of the Draft Bill is reviewed to ensure only minor administrative errors can be corrected following the publication of a decision. It is further recommended that the position on costs is clarified where cases do not proceed as the error has been rectified.

That last one is a pure "cute hoor" move by O'Brien which was basically to allow ABP to correct a mistake on the steps of the courthouse and quash the rationale behind any JR raised against them without having to pay costs. This is a particularly disgusting move and the committee's recommendation basically would allow for only minor corrections and would potentially automatically burden ABP with costs should they choose to use this ability. To be honest this entire provision should be removed as its literally building in a dirty trick into legislation.

The full report is linked below

https://www.oireachtas.ie/en/committees/33/housing-local-government-and-heritage/

The recommendations fall under 5 headings

1. Access to justice
   1. 14 recommendations
2. Forward planning
   1. 69 recommendations
3. Timelines and resourcing
   1. 20 recommendations
4. Exempted development
   1. 18 recommendations
5. National planning policy statements
   1. 13 recommendations
6. Omissions
   1. 19 recommendations

They also didn't shy away from highlighting the way O'Brien has tried to bulldoze this through

Throughout the Committee meetings, it was reiterated that, given the unfinished and complex nature of the Draft Bill and the significant concerns raised on several aspects of the legislation, adequate time must be given to the final Bill for scrutiny and avoidance of unintended consequences.

As the planning legislation review was conducted without a General Scheme to expedite the delivery of an updated Planning and Development Act, no explanatory rationale was set out and an explanatory memorandum has not been provided.

Many witnesses expressed frustration with aspects of the Draft Bill, stating that it was difficult to understand the reasoning behind proposed amendments.

This lack of information on the evidence and justifications for specific proposals hindered informed discussion and analysis. Publication of detailed evidence and an explanatory memorandum should be a priority.

It was also highlighted to the Committee by CLM and EJNI that no Regulatory Impact Assessment was carried out on the Bill, which is a standard governance instrument used to establish the nature of the problem sought to be addressed by the legislative intervention and the best options to address it.

Based on these recommendations, if O'Brien does proceed with it as-is, I think its a safe bet it will be challenged and quashed by the Supreme Court

CatInABox

https://www.boards.ie/discussion/comment/120559540#Comment_120559540

Based on these recommendations, if O'Brien does proceed with it as-is, I think its a safe bet it will be challenged and quashed by the Supreme Court

This is the most frustrating thing about this really. There's a way to bring in a reform of how we do planning, with a fair bit of room for improvement, but this is guaranteed to be annihilated in the Supreme Court. They're going to rip it to pieces.

https://www.boards.ie/discussion/comment/120560692#Comment_120560692

100%.

His approach to this whole thing is doing nothing but wasting years, literally.

That being said, what I expect him to do is remove one or two controversial items, tweak 2 or 3 others and whack it through saying "hey look everyone, I listened".

It's just a farce

The Climate Change Advisory Council calling out the poor levels of investment in the planning system, in particular at local level, which is severely impacting on the meeting of climate goals.

They are calling for "an urgent increase in staff numbers at local authority planning offices to help effectively deliver national climate policies".

No idea where councils are going to get the staff though

https://www.thejournal.ie/underfunding-planning-climate-change-advisory-council-letter-6063703-May2023/

blanch152

https://www.boards.ie/discussion/comment/120579547#Comment_120579547

This is just another example of how the county system has wrecked the country.

Our local government is based on the British county system and we should have fixed that decades ago. Because they are small, councils are also generally incompetent, and they have lost responsibility for major roads, driving licences, water services, sanitary services, motor tax, etc over the last 40 years. About the only thing left, apart from parks and libraries was planning. That they are incompetent at that as well is no surprise.

The Courts Bill 2023 has concluded its passage through the Houses of the Oireachtas

https://www.gov.ie/en/press-release/3f48a-minister-of-state-announces-passing-of-the-courts-bill-2023-through-the-houses-of-the-oireachtas/

Just has to be signed off by Michael D now

This will see further increases in the number of judges at all levels of the system. this will hopefully see timelines shortening but not by much as Ireland is still very poor in terms of the number of judges even with these planned increases

In February of this year, Minister for Justice, Simon Harris received Government approval to appoint an additional 44 judges to the courts in Ireland by the end of 2024. An initial tranche of 24 will be appointed this year, followed by a further tranche of 20 subject to the implementation of reforms and efficiencies to the operation of the courts.

Sam Russell

Could the courts sittings commencing at 9am help to increase court time?

[I think courts start at 11 am - but of course I may be wrong - I do not frequent the courts].

https://www.boards.ie/discussion/comment/120612809#Comment_120612809

I'm sure there are reasons for the existing times (writing up judgements etc), but anything that adds additional time for hearings would be no bad thing. not sure how feasible it is though

Birdnuts

https://www.boards.ie/discussion/comment/120611661#Comment_120611661

There has to be concerns about the current governments role in this given the ongoing meltdown at ABP eg. the reckless comments on due process by the current government appointed Chairperson targeted at certain judges and barristers involved in Judicial Reviews - as covered by The Ditch in recent days

hans aus dtschl

https://www.boards.ie/discussion/comment/120614961#Comment_120614961

I don't understand what you mean, could you possibly explain further?

Edit: I think I can see what you mean. ABP chairperson was criticising "two activist judges" apparently. And you're saying that the government appointed the ABP chairperson, so there's a conflict of interest in them appointing judges. Yep, makes sense.

It was a very strange comment out of the chairperson IMO, I personally read it as a moan about the Galway Ring Road, but ABP don't have a leg to stand on there, it was just out-and-out shoddy work out of them. And legislation doesn't just change by surprise. If the legislation is changing, it's usually signposted really well in advance. I don't know enough to say more but she looked out of order

https://www.boards.ie/discussion/comment/120615756#Comment_120615756

I didn't see those comments by her but I know she did the same in relation to a solicitor who has taken many JR's on environmental grounds, Fred Logue. Basically called him an ambulance chaser. She had to swallow her words and apologize after everyone pointed out that he would have zero grounds for JR's if the laws and requirements were adhered to

She seems to be a bit of an idiot in this regard, making digs at people. She'd be better off focusing on sorting out her own house first

hans aus dtschl

https://www.boards.ie/discussion/comment/120616006#Comment_120616006

Yeah she seems to be complaining about the laws themselves this time, saying that the laws are changing by the time the judicial review comes through and implying that the judges are applying new laws to old cases. It's nonsense, to my non-expert eye.

tom1ie

What qualification do you need to work in ABP?

Is ABP populated by town planners or civil servants for example.

https://www.boards.ie/discussion/comment/120617939#Comment_120617939

The ABP site should have the info you need

tom1ie

https://www.boards.ie/discussion/comment/120618141#Comment_120618141

Couldn’t find anywhere that they have a list of professions that work their now, but I see they are looking for marine/offshore energy consultants.

Nice money too:

Rates of Payment

Fee per day is €699 with time estimate authorised in advance. 

Seth Brundle

https://www.boards.ie/discussion/comment/120617939#Comment_120617939

I'm sure they employ both but in terms of reviewing actual planning application appeals, you would have planners along with some legal heads.

https://www.boards.ie/discussion/comment/120618306#Comment_120618306

€699 per day for a consultant nowadays isn't much. Over twenty years ago my day rate in a consultancy firm was over a grand (which the company got (not me) and was used to help pay both me and my colleagues).

tom1ie

https://www.boards.ie/discussion/comment/120618825#Comment_120618825

I’m sure they do employ both but it’s quite difficult to see who makes these planning decisions in ABP and what qualifications they actually have.

Sam Russell

https://www.boards.ie/discussion/comment/120612857#Comment_120612857

I was told (I cannot remember who told me) that the reason was to allow country folk to get to court without having to stay overnight.

[This would have applied to people who travelled by train].

LuckyLloyd

https://www.boards.ie/discussion/comment/119990881#Comment_119990881

You’ll have to explain to me how this is a bad thing? Surely if you raised an objection and it was corrected / incorporated your concerns have been addressed? And the development in question gets to proceed? If the interest is in correcting something, this makes a ton of sense.

I infer therefore, that your perception of the motivation behind challenging APB decisions in court is to block their progression, and force the process back to the drawing board? And if you can’t block or delay a development, why bother?

Because if the objection is incorporated / a correction is made then surely the investment in legal fees has been worthwhile on the part of the applicant? This doesn’t limit access to justice imo. It is just a practical way to keep things moving. Which is clearly required more than ever.

https://www.boards.ie/discussion/comment/120676195#Comment_120676195

Its been explained previously so I'll summarise

Think of it like the opposition moving the goalposts, after you've run up 6 figure costs and the movement of the goalposts now means you are no longer entitled to claim costs while at the same time, the folks that moved the goalposts can move them back to their original position again unless someone else spends 6 figures to point it out again. There is also no admission of failure in locating the goalposts in their original position and no measures taken which would prevent said goalposts from being moved and/or cemented into an incorrect position again and the impact of any selected position on other things may or may not be assessed properly. If its not, you need to spend another 6 figures to challenge, then maybe they do that assessment poorly on the last day and you're left holding the bag as you've no basis to challenge the assessment at this point unless you go back to the start again.

Its basically another method by which to dissuade challenges.

Just to note, there are frivolous challenges, and those are typically thrown out by the courts and they absolutely should be thrown out. However challenges on points of law or non-compliance to environmental protection requirements are the ones that always go the full way. The sheer volume of cases that ABP loses for not following legal or environmental protection requirements is mind blowing. These guys are the gate keepers and I understand they have a large workload, however if they are required to assess the environmental impact of a development on the surrounding area, then they should absolutely be challenged if they didn't do that correctly.

The flip side of it is, if they do their job properly, assess all that should be assessed and give permission for a development, then there is little scope for challenges. They may still occur, but many would fail as ABP would have done everything correctly.

There is little chance of this aspect of the new planning legislation being allowed to stand. If it gets enacted, it will be shot down by the courts as its 1,000% against the Aarhaus Convention in every way. It limits access to justice, it makes it prohibitively expensive and its designed to prevent involvement in decisions.

CatInABox

https://www.boards.ie/discussion/comment/120681182#Comment_120681182

While I don't think that this law will stand either, I do think that your comment on costs is slightly unrealistic. There's no way that a judge would allow ABP & Co to amend their application to correct any errors, and also not acknowledge that costs are needed.

https://www.boards.ie/discussion/comment/120681521#Comment_120681521

I'm pretty sure its written this way in the proposed legislation but I'm open to correction

hans aus dtschl

https://www.boards.ie/discussion/comment/120681521#Comment_120681521

Would a judge need to be involved though? If they just amend the documentation then there's no case in the first place?

CatInABox

https://www.boards.ie/discussion/comment/120681738#Comment_120681738

Sure, you could drop the case, but no one will, because as soon as it gets in front of a judge, ABP will stand up and say "this is no longer an issue because we changed the application to remove it", to which every judge will respond "so the application was changed as a result of the JR being brought, ergo the JR was successful."

Changing the application won't be seen as removing the problem, it's going to be seen as an admission that the JR was right.

Look, I'm no lawyer, and I think that they're using a sledgehammer to crack a nut, this is without doubt a terrible law, and it almost certainly will get overturned, but I also don't think that it's the end of the world.

https://www.boards.ie/discussion/comment/120681850#Comment_120681850

Again, as I understand it, the idea is ABP change X so negate any determination of the case by the courts i.e. the case becomes null and void. The judge would have nothing to rule on

LuckyLloyd

Let me just say that if APB had to use this provision I think costs should be conceded by default.

Again, let’s keep these things moving, hear objections and incorporate valid ones.

CatInABox

https://www.boards.ie/discussion/comment/120681938#Comment_120681938

The only person who can decide if an JR is null and void is a judge. Can't see them allowing the opportunity to costs go unrewarded in that case.

It's all a bit moot anyway, as this is all going to be struck down. There's a queue of groups waiting to get their hands on this, and anyone of them could succeed at getting this overturned. A massive missed opportunity, in my opinion. There's reforms out there, some easy, some harder, but all of them more worthwhile than this poor attempt.

https://www.boards.ie/discussion/comment/120682147#Comment_120682147

100%. I don't think anyone thinks the current system is fit for use and it does need an overhaul but amendments like this and others which go against Aarhaus are counter-productive and will just add further delays.

I'm not sure if these new delays are a good thing or a bad thing

https://www.irishtimes.com/politics/2023/07/03/further-delay-to-bill-seen-as-largest-overhaul-of-states-planning-system-in-decades/

Hopefully a good thing and they are taking on board the approx 150 recommendations and adjusting accordingly.

For such an important piece of legislation I really do hope they do it right and don't leave it open to being shot down by the courts (which is likely if no changes are made)

tom1ie

I posted this on another thread so I’ll post it here again as it’s directly related to planning.

If the government were serious about delivering infrastructure we’d have ABP working 3 eight hour shifts seven days a week to pump out decisions. 

It would require hiring a large amount of suitably qualified and competent people to do this but the cost in wages would be minuscule compared to construction inflation.

O'Brien might be ploughing ahead with limiting access to justice in the new Planning bill. If it does its going to end up being struck down by the courts which will be a colossal waste given this is "the third largest piece of legislation ever passed in the state".

https://www.irishtimes.com/politics/2023/08/24/new-planning-law-to-speed-up-developments-will-be-passed-by-christmas-vows-obrien/

The Planning and Development Bill runs to over 750 pages and is the third largest piece of legislation to be published in the history of the State.

It includes a number of changes designed to accelerate building during the housing crisis, including fines for breaches of mandatory planning deadlines, and placing new limits related to the standing of parties to take court cases.

tom1ie

https://www.boards.ie/discussion/comment/121025294#Comment_121025294

Serious question- what do you propose he does to shorten the length of time it takes major infrastructure projects to from design to shovel in the ground?

Also what would your imagined improved time period for the above be?