Among the more controversial pieces of legislation introduced toward the end of the term of Ireland’s last Government was the Planning and Development Act. The Act was well intended and was championed by the Government as a way of fast-tracking planning applications and short circuiting objections that led to delays in projects. The Act covers not only commercial and residential planning applications but key infrastructure projects as well.
The average time from the submission of a planning application to work commencing on a house has risen from around eight months to more than 16 months since 2017, while the equivalent time for an apartment has moved from around 10 months to around 18. The new act introduces shorter mandatory times for planning decisions and makes changes to areas such as judicial review.
However, experts in Ireland’s legal, planning and development sectors have mixed views on the 900-page piece of legislation, which will be implemented in stages over the coming 18 months. When the bill was being introduced last year, objectors and sceptics ranged from most of the opposition parties to An Taisce, and the Irish Planning Institute. Former chief justice Frank Clarke observed that it would end up creating a system where there would be references to the European Court of Justice and delays while seeking legal clarity would be “counterproductive to the purpose it is intended for”.
There appears to be a consensus among many commentators that the Act, while well intended, does not achieve the objective it was designed for.
Its scale, for starters, is specific issue. As Gavin Lawlor, president of the Irish Planning Institute, puts it: “The ambition, which was to simplify and codify the planning system, was laudable but we’re ended up with something more complex. The more paper, the more ink, the more problems.”
The Planning Act of 2000 started out at just over 260 pages; it grew over time to more than 700 pages and its attending regulations, which are just as important, grew from around 300 pages to more than 800, Lawlor points out. He is concerned something similar will happen with the new Act.
“We have a byzantinely complex planning system in Ireland and we are likely to make it even more complex,” he says. “We have issues in terms of European law, the way the law has been significantly influenced by judicial review, and then we have the uniquely Irish way in which we paint outside the lines and find ways around obstacles.”
How quickly the new Act is rolled out will also be an issue, in Lawlor’s view; it took six years for the 2000 Act to be fully enacted, he points out; the provisions of the new Act are also being phased in gradually, although the Government expects much of it to be in place by next year.
Resourcing in terms of planners is already an issue, he says. The institute estimates that there are around 1,200-1,500 registered planners in the State, with a deficit of around 500 at present. The complexity of the Act is likely to exacerbate the challenges posed by that shortage, in Lawlor’s view.
Stephen Barry, head of Planning and Environmental at law firm Eversheds Sutherland, agrees. He says that unless the Government allocates more personnel to manage the existing backlog of applications, the enhanced legislative framework may speed things up “at the tail end of the planning process – namely, judicial review” – but it won’t necessarily increase the number of planning applications being evaluated in the first place.
“I don’t expect the number of judicial reviews to decrease in the short term but I do expect the time it takes to conclude a judicial review to decrease,” says Barry. “We are fortunate to have an established planning and environment court list with specialist judges already managing the timely progression of judicial review cases. Judges will continue to expedite the litigation process, and the new act provides more mechanisms to do so. Last-minute amendments to pleadings which can cause delay will be more difficult to make.”
The new act also provides the High Court with “flexibility in handling cases where a public body has made a mistake,” he adds. “Instead of quashing the decision, the court can order the public body to correct the mistake within a specified time frame, which should speed up the existing remittal process for a successful party in a judicial review.”
