Response to the Housing and Planning Bill and Development Bill 2019
The proposals contained in this planning legislation would seriously reduce the ability of citizens, resident’s associations and NGOs to legally challenge any planning decisions with potential environmental impacts.
At the moment flawed planning decisions can be challenged in court by the use of a judicial review. The amendments that are proposed in the bill would seriously restrict the rules around which members of the public may take a legal challenge and put restrictions on which organisations qualify as an environmental NGOs. These amendments, in our view, would significantly increase the possible financial exposure for qualifying members of the public and NGOs who might wish to make a legal challenge.
Some areas of concern to Imagine Dundrum include:
1. Proposed new legal cost capping arrangements
The prohibitive cost of mounting a legal case is a key challenge in bringing environmental cases in Ireland that is widely recognised in the legal sphere. This has been an issue in a judgement of the EU Court of Justice in the 2018 North East Pylon case and also in comments in the EU Commission’s Environmental Implementation Review Report from 2019 and the 2019 Environmental Governance Assessment for Ireland.
The new cost rules proposed would expose people and groups to much higher costs if they lose in the courts, and also significant uncertainty on costs. It will also make it much more difficult to hire lawyers without having to finance this significantly themselves. This isn’t always possible for local communities or individuals, or for environmental NGOs seeking to protect habitats or species.
The current system allows for each side to bear their own costs, and it is feasible for successful litigants to be awarded certain of their costs if they are successful. This sometimes makes it possible to engage with lawyers on a “no foal no fee basis.”
The new rules proposed by Minister Murphy would impose a cap of €5000 for individuals and €10,000 for groups. This will create problems particularly for organisations that may need to take several cases in order to fulfil their objectives of protecting the environment from bad decisions.
Additionally, a limit on awards of €40,000 in successful challenges makes it unsustainable for the small cohort of lawyers who are prepared to act for citizens and environmental NGOs. It also does not provide for a fair and equal process to review decisions when the State (supported by taxpayers) and big companies can afford to pay their many lawyers to defend bad decisions
2. The extension of the minimum time that an NGO must be in existence before it can challenge a planning decision from 12 months to 3 years
This would stop recently established NGOs and residents’ associations concerned with local environmental and planning issues from bringing challenges. This is particularly concerning for local, citizen-led groups who may have only recently formed due to concern with a developing local environmental issue that may be linked to a development going through or about to go through the planning regime.
3. New requirement that NGOs must have a minimum of 100 members
A handful of environmental NGOs are currently in a position to take legal challenges and act as watchdogs through the court system, such as Friends of the Irish Environment and An Taisce.
This proposal in the Bill, however, would exploit a capacity issue at most NGOs and would rule out the vast majority of Irish environmental groups from bringing challenges, even looking at national environmental NGOs and foundations. It would also prevent many local environmental organisations from being able to act.
4. A change in the standing rights requirements for judicial review applicants from “sufficient interest” to “substantial interest” and a requirement that the applicant must be “directly affected by a proposed development in a way which is peculiar or personal” on top of a requirement for prior participation.
In a move that strongly favours developers, the Heads of the Bill seek to radically cut down on the prospect for citizens to be able to exercise their rights to protect their environment and communities, and to uphold their EU law rights.
The public will have to provide a far higher level of justification to have standing to entitle them to take such cases, meaning that the burden of taking legal action will fall even more heavily on the shoulders of our resource-strapped and cash-strapped environmental NGOs.
This is on top of requirements for prior participation in the planning process for the application in question, which make the whole process additionally expensive and onerous given the costs involved for making submissions and appeals.
These proposals represent a major change in planning law. The Bill would severely tighten the rules for eligibility to take judicial review proceedings, so much so that would-be litigants would have to prove that the development impacts on them directly, and in a personal and peculiar way to entitle them to take such cases. They would also have to establish that they have a reasonable prospect of success at the leave stage.