By Conor O’Carroll.
More than 17,000 dwellings are currently stuck in the judicial review process, according to property group Irish Institutional Property (IIP).
The figures were shared with Minister for Housing, Darragh O’Brien in November last year as part of a submission made by the lobby group in relation to the Planning and Development Bill 2023 and subsequently released to Village Magazine.
The vast majority of these dwellings are located in Dublin, with close to 14,000 subject to judicial review and a further 1,975 located in the Greater Dublin Area. The next highest locality is Cork, with 285 dwellings, followed closely by Galway with a further 223.
The remaining cases are spread across the country.
IIP highlighted some of the cases that are currently stuck in the system, including a 416-home development “on an inner Dublin canal brownfield site designated for strategic redevelopment”.
Planning permission for this development was granted in 2020 and has been upheld “following five High Court judgments and a reference to the Court of Justice of the European Union”. The case is now with the Supreme Court awaiting to be heard “on an emergency basis”.
Another development, also in Dublin, includes 191 homes in Dún Laoghaire granted permission in 2021. The date for the judicial review case is still pending and may be subject to further appeal or reference to Europe, which IIP say would cause another delay.
Figures from An Bord Pleanála show that 95 applications for judicial review of planning decisions were made to the High Court in 2022, a joint record tied with 2021. The planning body also spent almost €10 million in legal fees in 2022, up from €7.6 million the year previously.
Of the 20 substantive cases heard during 2022, An Bord Pleanála won 11 of them, however, they also conceded 35 cases over the course of the year while a further 14 cases were either withdrawn or discontinued by the applicants.
The number of applications has close to doubled since 2017, when Strategic Housing Developments (SHDs) were introduced. These SHDs have been criticised for contributing to the problem, as they bypass the normal planning process of governed by local authorities and are decided directly by An Bord Pleanála.
The vast majority of these dwellings are located in Dublin, with close to 14,000 subject to judicial review and a further 1,975 located in the Greater Dublin Area
A recent report from construction consultancy firm, Mitchell McDermott, found that over 8,000 of these SHDs are being held up by judicial reviews.
However, the report also found that plans for over 20,000 SHD homes are awaiting a decision from An Bord Pleanála and that a further 31,000 homes have secured planning permission but have yet to commence construction.
IIP says the delays caused by judicial reviews puts pressure on the construction industry to complete the approved developments before the time limit on the planning permission runs out.
With the standard duration of planning permission lasting 5 years, multi-year delays can leave the developer with an impossible task of construction, requiring an extension to permission.
The new Planning and Development Bill, which was published in full shortly after the submission from IIP, substantially reforms the judicial review process, including a fast-track process aimed at hearing cases quicker and changing who can bring forward judicial reviews.
Figures from An Bord Pleanála show that 95 applications for judicial review of planning decisions were made to the High Court in 2022, a joint record tied with 2021. The planning body also spent almost €10 million in legal fees in 2022, up from €7.6 million the year previously
Under the provisions in the Bill, constraints have been placed on residents associations that will limit their ability to appeal decisions.
These groups will be prohibited from launching a judicial review unless they have a constitution and a two-thirds majority vote to bring a judicial review to court. The names and addresses of those who voted in favour will also be submitted as part of the court documents.
These limitations will likely reduce their ability to challenge decisions, such as in 2020 when a development of 657 residential units in Raheny, Dublin was halted following an appeal to the High Court.
Judicial review applicants will also need to have “exhausted any available appeal procedures” before a case can be brought before the courts.
Environmental NGOs have also been hamstrung in the reforms, with requirements placed on them to fulfil obligations such as being a company with more than ten members before they are permitted to bring a case.
Critics of the Bill say that these changes to the judicial review system are designed to scare local groups from contesting planning decisions and restricts the fundamental right of citizens to hold the government to account.
The Bill commenced the Committee stage of the legislative process last week.
