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Planning delays to infrastructure

[Deleted User]

I often see posters complaining about appeals and objections to various infrastructure projects and how much this impacts on the time lines.

What many people don't take into account is the lack of resources in planning depts, ABP and the courts.

Case in point, the President of the High Court requested 15-20 new High Court judges to be appointed, 5 were approved but the delays in approving them for the court resulted in the announcement of multiple very high profile cases being removed from the docket.

The resulting embarrassment from this motivated the govt to get 4 of the 5 judges appointed asap to allow these cases to proceed as scheduled

Judicial appointments to be rushed through after High Court President announced cancellation of murder and rape trials

https://www.independent.ie/irish-news/politics/judicial-appointments-to-be-rushed-through-after-high-court-president-announced-cancellation-of-murder-and-rape-trials-40908945.html

My point is, it suits the govt to have the blame for delays to be laid at the feet of objectors when a lot of the blame resides with the govt themselves through the poor provision of resources to the relevant bodies.

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[Deleted User]

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.

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.

[Deleted User]

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/

[Deleted User]

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

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.

[Deleted User]

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

Access to justice
1. 14 recommendations
Forward planning
1. 69 recommendations
Timelines and resourcing
1. 20 recommendations
Exempted development
1. 18 recommendations
National planning policy statements
1. 13 recommendations
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

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?

[Deleted User]

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

[Deleted User]

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

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.

[Deleted User]

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.

[Deleted User]

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.”

[Deleted User]

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

[Deleted User]

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

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.

[Deleted User]

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/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.

[Deleted User]

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/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.

[Deleted User]

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/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.

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/120321451#Comment_120321451

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

Birdnuts

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

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

[Deleted User]

Further concerns raised at an Oireachtas committee today about the plans to limit access to justice, this time by the Law Society of Ireland

https://twitter.com/LawSocIreland/status/1632708790419173376

Full statement here

https://www.lawsociety.ie/news/Media/Press-Releases/law-society-raises-questions-about-impact-of-planning-law-reform-on-citizens-rights/?filters=&location=&category=&area=

Outside of the construction lobby, I don't know of a single body within the state supporting these restrictions on the access to justice.

[Deleted User]

More judges to be appointed to the courts to try assist with the backlog of cases will be in the first tranche (24) broken out as follows

Court of Appeal to increase from 16 to 18
High Court increases from 45 to 51
Circuit Court increase from 38 to 46 and
District Court increase from 64 to 72

A second tranche of 20 appointments will happen......sometime in the future, maybe. That will be broken out as follows

High Court gets an additional 6
Circuit Court gets an additional 6
District Court an additional 6
and the Court of Appeal would get an extra 2

This will take use from 173 to 217 but this still leaves wayyyyy behind the norm in Europe

https://www.rte.ie/news/courts/2023/0224/1358529-judges-appointed/

Statistics published last year by the European Commission for the Efficiency of Justice, found that Ireland has the lowest number of judges per head of population. It found Ireland had 3.27 judges per 100,000 people in 2020, below the European average of 17.6 judges.

The Planning Court will also be born out of these appointments

https://www.friendsoftheirishenvironment.org/news-archive/judge-numbers-to-be-increased-and-new-planning-court-to-be-established

Incidentally further concerns were raised about restricting access to justice and Irelands non-compliance to the Aarhaus Convention, this time by the Irish Planning Institute in a presentation to an Oireachtas committee

Meanwhile, a leading Oireachtas committee heard concerns about resourcing and about communities' access to justice under the draft planning legislation.

Gavin Lawlor of the Irish Planning Institute told the Oireachtas housing committee that the bill in its current form would limit those who can apply for a judicial review and would exclude residents' association from directly bringing High Court challenges (though they could be taken in the name of an individual directly impacted).

This reduction in actors who can appeal through the courts is problematic for the Irish Planning Institute, Mr Lawlor said. “We do believe it will reduce who has access to the law. We have concerns regarding equality of people of different means having equal access to the law.

“We have concern over the Arhaus convention [an international agreement that gives people the right to access justice on environmental matters, information about the environment and promotes public participation in decision-making].”

Its been flagged now by so many different groups that if the govt do plough ahead, it will most certainly end up in the courts and I can see the EU getting involved to strike it down. They don't take interference with the judicial system lightly as evidenced by them withholding billions from Poland over their shenanigans

[Deleted User]

Further comment and analysis

https://www.independent.ie/news/environment/key-details-still-absent-from-new-planning-laws-despite-looming-summer-deadline-42315165.html

[Deleted User]

https://www.irishtimes.com/ireland/housing-planning/2023/01/26/internal-tensions-grow-in-green-party-over-sweeping-planning-reforms/

Some comments and further details

Green Party TD for Dublin Central Neasa Hourigan said the Bill was also not compliant with the Aarhus Convention, a key UN declaration on public participation in decision-making and environmental information which is also in EU and Irish law. She told The Irish Times that “limiting judicial reviews in the manner outlined by the Bill as published is clearly unlawful within the EU and under the Aarhus Convention”.

Dr Elaine McGoff, natural environment officer with An Taisce, said it was “hard to conceive of a more dysfunctional and inappropriate response from Government than the planning Bill published today”.“

What this Bill presents is a significant erosion of the public’s right to access justice and participate fully in the Irish planning process,” Dr McGoff said, adding that An Taisce’s view was it was “primarily an appeasement of developers and a facilitation of developer-led planning.”

Attracta Uí Bhroin, environmental law officer of the Irish Environmental Network, said the group was “extremely concerned” about the changes to judicial review.

“In fact, they’re much worse than what was outlined in December. It’s going to cause delays rather than solving problems. There will be arguments about legitimacy and the lawfulness of what is being introduced,” she said.

Vincent P Martin, the Green Party Senator and senior counsel, warned there could be “no diminution of rights of access to the courts”.

As to the impact to local communities access to justice:

The Bill sets new rules under which residents’ associations and other interested parties can take judicial reviews and stipulates that applicants for judicial review will have to demonstrate a “sufficient interest”, with NGOs, residents’ groups or other similar bodies expected to be incorporated as a company, have protection of the environment as part of its corporate constitution, have at least 10 members and to have passed a resolution authorising the bringing of proceedings.

Residents’ groups can still take proceedings but if they do not comply with these rules, they will have to sue individually or collectively under their own names.

If they do get this passed, it'll be killed in the Supreme or EU courts

[Deleted User]

The draft planning legislation details

https://www.independent.ie/news/environment/new-planning-laws-aimed-at-bringing-wide-ranging-reform-published-42314302.html

Govt press release

https://www.gov.ie/en/press-release/3e4e1-improved-planning-regime-takes-step-closer-with-publication-of-draft-planning-and-development-bill-2022/

The bill itself

https://www.gov.ie/en/publication/c6f60-draft-planning-and-development-bill-2022/

Some of the main changes

Reforms include the renaming and restructuring of scandal-hit An Bord Pleanála
New criteria will make it harder for residents' associations and community groups to seek judicial reviews of High Court planning decisions
Mandatory timelines for planning decisions will be introduced with fines to be paid in default
Changes to the way local authorities make county development plans and local area plans
Local authorities will get beefed up powers to enforce breaches of planning law and will have greater scope to use compulsory purchase orders to take over vacant and derelict sites and properties.
A loosening of restrictions on the redevelopment of heritage buildings and protected properties will also come into effect.
The Office of the Planning Regulator will get new powers to investigate complaints against An Bord Pleanála.
Proceedings sought on environmental grounds will only be considered if taken by named individuals or by associations or NGOs that have been registered and active as a company for over a year and have at least ten members.
Applicants will have to prove they are materially affected by a proposed development rather than taking proceedings on principle.

The 3 bolded points are the ones that are going to be stumbling blocks as these will potentially fall foul of the Aarhaus Convention on the basis of restricting access to justice. The previous post above, with the tweet shows the level of impact they are trying to address by limiting access.

Then we have this one rearing its head again, which got shot down the last time the Minister tried to sneak it through

changes to Judicial Reviews (JRs) of planning decisions: there will be timelines for various steps in the JR process. ABP will be able to correct an error of fact or law in a planning decision and will be able to apply for a stay on the determination of JR proceedings whilst making such corrections. The Bill will bring clarity to the role of different parties in accessing justice. In the case of applications for JRs by certain organisations, these will be taken by an individual or individuals

In essence, this will allow ABP to drag a case right up to the point of judgement, with all the costs that this would entail for all parties, at which point they could ask the court to "hold on for a sec while we adjust our original permission, ok, we've adjusted it to account for X, the case can now be thrown out".

This is another underhanded way of limiting access to justice as it amounts to moving of the goal posts after the shot has been taken.

The rest of it seems fine in principle.

[Deleted User]

https://twitter.com/gavinjdaly/status/1618761604472147969?s=20&t=QYC03cugtljgwPyUkM4EOA

Some context