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ON FRIDAY, 18 February of this year, Dr David Duffy, the director of Property Industry Ireland sent a letter to Minister of State at the Department of Housing, Peter Burke.
Property Industry Ireland (PII) is an industry group that forms a part of Ibec – the employers’ lobby. Duffy was sending the minister their recently completed policy paper – ‘Proposals to reform the judicial review process in planning matters’.
This contained 15 recommendations for Government in relation to tackling the number of judicial reviews being taken over An Bord Pleanála (ABP) decisions.
Judicial reviews (JRs) are challenges taken to the High Court that question the legality of a public decision. The number of JRs taken in planning cases has shot up in recent years, with so-called fast-track planning laws being one of the main reasons due to being allowed to bypass local planning authorities and go straight to ABP for a decision.
“PII recognises the right to appeal planning decisions. However, the impact of judicial reviews on the supply of new homes is a critical issue that must be addressed,” Duffy said in his letter.
He welcomed the government’s plans to review JR laws, and said the high level of challenges was delaying the delivery of new homes, which added to the overall cost of building – “a cost that is usually borne by the first-time buyer”.
The letter and policy paper were also sent to John Shaw, assistant secretary general in the Department of the Taoiseach, and were released to Noteworthy under the Freedom of Information Act.
They are part of a wider construction industry-led push to change the laws around JRs, with the aim of making it more difficult for the legal challenges to be taken against planning decisions.
Over the past number of months, Noteworthy delved into the industry push for reform of the judicial review process as part of our project - THE CONSTRUCTION NETWORK - on lobbying by the construction industry. We can now reveal:
Back in July – as part of this investigation – we also wrote about how ‘deeply controversial’ last-minute planning law changes could lead to ‘years of litigation’. The full investigation can be read here.
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Over 70,000 lobbying returns
We examined returns filed on the Register of Lobbying in order to get a picture of how often industry representatives are lobbying government officials, who they are lobbying, and what they are lobbying about.
Since 2015, under the Regulation of Lobbying Act, any person or organisation involved in lobbying has to register as a lobbyist with the Standards in Public Office Commission (Sipo) and file returns – which are publicly accessible – three times a year detailing their activities.
Lobbying is described by Sipo on its lobbying website as “an essential part of the democratic process” enabling “citizens and organisations to make their views on public policy and public services known to politicians and public servants”.
Since September 2015, over 70,800 lobbying returns have been filed by private companies, representative organisations, charities, civil society organisations and individuals across Irish society on a wide variety of subjects.
Ibec – which has a remit across various sectors of the economy – is by far the most frequent lobbyist in the country, with over 3,200 returns filed since 2015. This is followed by the Irish Farmers’ Association, with over 2,200 returns.
Construction industry analysis
For this investigation, Noteworthy focused on lobbying by the construction and property industries, as well as representative groups, public relations (PR) and consultancy firms working on behalf of construction or property companies.
We examined ‘Housing’ and ‘Development and Zoning’ lobbying records and focused solely on lobbying periods that fell within the timespan of the current government.
We also obtained – through Freedom of Information (FOI) requests – a number of documents, correspondence and minutes of meetings, particularly in relation to engagement on planning laws and Judicial Review.
The current government took office in June 2020, so we examined records from the periods ‘May to August 2020′ to ‘May to August 2022′.
In that time, a total of 984 returns were filed in relation to ‘Housing’, and 709 were filed in relation to ‘Development and Zoning’ – a total of almost 1,700 returns.
The most frequent lobbyists are large industry representative groups, housing or homelessness charities and public relations firms.
The Construction Industry Federation (CIF) – the industry representative group – filed the most returns over the past two years. Focus Ireland – the housing and homelessness charity – was next.
Lobbying by the construction industry was conducted by industry representatives, development companies, property investor firms and PR companies, with Q4PR and Pinnacle Public Affairs joining CIF and Ibec at the top of the list.
By far, the Designated Public Official (DPO) most frequently lobbied by these organisations is Housing Minister Darragh O’Brien, who has been lobbied 88 times, with his special adviser Kevin Dillon next highest – being lobbied 40 times.
Sinn Féin’s housing spokesperson Eoin Ó Broin was lobbied 38 times, with Minister of State at the Department of Housing Peter Burke lobbied 28 times and Maria Graham – assistant secretary of the Planning Division at the Department of Housing – lobbied 25 times.
Meetings between industry and councils
Lobbying by the construction industry takes many forms, including expressing industry views on upcoming laws or regulations as well as seeking to influence policy decisions.
But it can also involve engaging with officials at forums, roundtable discussions or just general updates on the sector. Housing provision is one of the principal issues facing the country so national and local government officials regularly seek industry views on the matter.
“The IHBA [Irish Home Builders Association] and the CIF are first and foremost a trade association for the industry,” said Conor O’Connell, director of the Irish Home Builders Association – a division of CIF – in relation to lobbying.
It is vital in any functioning democracy that the views of a wide range of stakeholders are understood at a political and regulatory level. We advocate on behalf of our members to a large range of bodies both public and private so that the business model and how the industry operates is fully understood.
For example, of the 88 returns filed by CIF over the past two years, 12 involve officials from Cork City and County Councils.
According to the minutes of nine meetings between CIF and the councils between 2021 and 2022 – released to Noteworthy via FOI – industry reps and council officials discussed issues including social and affordable housing, infrastructure developments, building costs, apartment viability and derelict sites.
This is just one of the many examples of the engagement between construction industry representatives and local authorities evident in the lobbying returns.
Fast-track housing a priority for lobbyists
Often, however, industry groups lobby for changes to laws and policies that they believe will benefit their members and say will also lead to lower costs and an increase in housing supply which would be of benefit to the consumer.
Both PII and CIF told Noteworthy that the construction and property industries are facing very serious challenges, which are impacting the supply of homes being built.
Speaking on RTÉ’s Prime Time last month, Conor O’Connell of CIF said that there would likely be a decline in the number of homes being built next year.
“The reports we’re getting at the moment from our members – homebuilders right around the country – is that there does seem as if there could be a decline in output,” O’Connell told Prime Time. “We are concerned about next year. There’s no doubt about it.”
Among many of the issues facing the industry, including the disruption from Brexit, Covid-19 and the war in Ukraine – which has reduced available labour and seen the cost of materials rise – CIF, PII and others also have issues with the delays in securing planning permission in Ireland.
Recently, the industry has expressed serious issue with the sharp rise in the number of judicial review cases being taken, and has lobbied strongly for the laws to be changed.
According to industry figures and planning consultants, JRs are delaying large infrastructure projects as well as blocking thousands of homes from being built.
A large number of JRs have to do with Strategic Housing Development (SHD) applications. SHD laws were introduced by the then-Fine Gael led government in 2017, with the aim of speeding up the planning process.
Under the legislation, large developments of over 100 units of accommodation, or over 200 units of student accommodation, could bypass local planning authorities and go straight to An Bord Pleanála (ABP) for a decision.
A 2019 academic study conducted by researchers from UCD and Queen’s University Belfast shows how the introduction of SHD laws were strongly lobbied for by industry figures.
The researchers – Mick Lennon and Richard Waldron – anonymously interviewed 39 different people involved in introducing the laws. The interviewees included high level members of property and real estate companies, developers, planners, planning consultants, civil servants and politicians.
The results of the research outlined the strategies employed by the industry and the intensive industry lobbying of the government to introduce the laws.
Speaking to the researchers, one member of Property Industry Ireland (PII) stated that Minister Simon Coveney contacted a colleague after hearing them speak about the fast-track planning system. He said:
And we met him four times over about six or seven weeks for, amazing actually, from eight o’clock at night until midnight. And he went through what his vision was for the Irish planning property system. And we gave him our recommendations and they took it lock, stock and barrel and stuck it into the new housing bill.
Rise in judicial reviews in recent years
As SHD developments bypassed the planning stage, the general public could not make submissions on the process before it reached An Bord Pleanála and could not appeal the final decision without going to the High Court seeking a judicial review (JR). As a result, more JRs were taken.
“By the time the public got to comment on it, all the decisions had been made and in fact, there was no mechanism for their contribution to be taken on board,” said Orla Hegarty, Assistant Professor at the School of Architecture, Planning and Environmental Policy at UCD.
“It was really just window dressing that people could comment on an SHD because it had all been designed and agreed with An Bord Pleanála at that stage, and there was no mechanism to change it.
“So clearly, excluding people from the process has escalated everything. And that’s why we’ve seen more judicial reviews.”
The figures back up this assessment. At the hearing before the Public Accounts Committee in July, then chairperson of An Bord Pleanála Dave Walsh was asked for the total number of successful JR cases taken against ABP decisions – where ABP lost or conceded.
In 2019, 55 JR cases were taken and 15 were lost or conceded by ABP. In 2020, 83 JR cases were taken and 32 were lost or conceded; in 2021, 95 cases were taken and 40 were lost or conceded.
These figures were included in a report on a review of the functions of ABP undertaken by the Office of the Planning Regulator (OPR), published last month. In it, the OPR stated: “It is clear that the number of legal challenges which are successful has increased exponentially in the last three years.”
It also noted that a reason for the increasing number of cases being taken has to do with allegations of ABP not adhering to local area plans or guidelines, and allowing for developments that go against conditions set down in those plans.
The High Court also found in a number of cases that a proper Environmental Impact Assessment had not been carried out, and so quashed ABP’s decision on that basis.
Strategic Housing Developments overturned
The figures above relate to all JRs being taken. When it comes to JRs being specifically in relation to SHD planning permissions, the numbers are more stark.
The same OPR report stated that many of the legal challenges since 2020 related to SHDs – a total of 97 JRs up to the end of June this year.
According to Fred Logue’s latest calculations, JRs that have been decided in relation to SHDs have had a 93% success rate – where ABP lost or conceded.
The government has since declared an end to SHDs, replacing them with Large Residential Development (LRD) laws instead. These laws will see a return to the local authority being the primary decision maker, with a view to reducing the number of successful legal challenges to development.
SHD applications were supposed to end entirely by the end of 2021, however this was extended into this year, and applications were still being lodged up until July.
A spokesperson for the Department of Housing said that as a result of the new laws it was “envisaged that the number of LRD decisions subject to judicial review will be substantially less than those in respect of SHD decisions”.
Environmental challenges
JRs are also taken by environmental organisations and NGOs against proposed developments that they believe breach EU environmental laws and directives.
One high profile case involved the heritage and environment charity An Taisce challenging ABP’s decision to grant permission for a multi-million euro proposed Glanbia cheese factory in Kilkenny.
The High Court challenge failed, and An Taisce ultimately appealed to the Supreme Court, but had its appeal dismissed earlier this year.
For proponents of the use of JRs, the high level of successful cases, or cases in which ABP concedes, show that SHD laws or planning decisions were flawed to begin with.
“The first thought that struck me is that this judicial review frenzy is basically a feature of the SHD system, not a general feature of the planning system,” said Fred Logue, a solicitor, who regularly takes JR cases on behalf of clients.
“And that the explosion of JRs has occurred because of particular features of SHD,” he added.
‘Worrying trends’ – industry response
However, the industry does not see it that way, instead focusing on the fact that permission is being regularly quashed by the courts for large scale developments of hundreds of homes on “minor technical issues”.
“I would find it hard to accept the word ‘success’ as a description of the overturning of thousands of planning permissions for much needed homes by the courts in circumstances where the expert decision makers [planners] have granted permission for homes on lands zoned for homes,” said Conor O’Connell, director of the Irish Home Builders Association, a division of CIF.
O’Connell said that lands zoned for housing have already gone through a lengthy public process and voting by councillors.
“Obviously legal challenges have arisen and the need for reform of the legislation and legal process is needed,” he said.
CIF’s position is echoed by other leading industry groups.
“The SHD process did significantly reduce the time taken for planning decisions. At the time the process was introduced there were long delays in getting planning permission,” David Duffy, Director of PII told Noteworthy.
Then and now there is a need to increase the delivery of new homes into the market – to increase supply. The further delays that have occurred are largely due to planning decisions being challenged, for the most part on legal or technical grounds – not on planning issues.
According to the Office of the Planning Regulator report, planning permission for housing developments has been overturned by the High Court for issues such as: ABP not properly justifying contravening a local area plan; the extent of car parking on a development – which went against SHD guidelines; the drawings submitted for a development being incomplete.
The industry position is that factors such as these should not result in the planning decision being overturned.
However, solicitor Fred Logue wholly rejects the idea that decisions are being overturned on “legal or technical grounds”.
“[Judicial reviews] are used to overturn unlawful decisions. That’s what a judicial review is, that’s what it does, and that’s what people [who take the cases] are doing,” he said, adding that the vast majority of concluded JRs have been successful, with ABP losing or conceding.
That means that those planning applications should never have been granted in the first place… You can’t lay it at the hand of the people who are just exercising their rights to bring a case to overturn an unlawful decision.
Lobbying by industry
Prior to PII’s letter and policy paper last February, the chair of PII, David O’Connor, sent a letter to the Minister Darragh O’Brien on 5 March 2021, emphasising “the urgency of a review of the existing system for Judicial Review (JR) of planning decisions and, in particular, worrying trends in recent months”.
The letter went on to say that it “might be tempting to blame the SHD legislation” on the increase in JRs, but that it had “nothing to do with that legislation”.
“Only one of the 25 successful challenges to an SHD decision relates to a unique feature of that code,” the letter states.
The Noteworthy investigative team obtained this PII policy document through FOI from the Department of Taoiseach but the Department of Housing refused to release it.
This was refused by the Department of Housing along with a number of other records that Noteworthy requested due to “deliberative process”. This reason is given when the records may be informing an upcoming decision like the creation of new laws, for example.
In addition, in one case, a separate letter that was refused by the Department of Housing had been released previously by the same Department under FOI, so Noteworthy requested a re-release of the record and obtained it that way.
In a separate letter in April 2021, Bartra – a large property investment company – wrote to An Taoiseach Micheál Martin concerning its plans to lodge a Strategic Housing Development (SHD) application for hundreds of homes at O’Devaney Gardens.
“I feel that it is absolutely inevitable that, no matter what we do and no matter what effort we put into our planning application, any decision by An Bord Pleanála under the Strategic Housing Development legislation will be judicially reviewed,” the letter states.
In my view, High Court judicial reviews are being used as a de facto way to appeal planning decisions and this cannot be the State’s intention.
Bartra also wrote to Minister Darragh O’Brien in December 2020, expressing frustration with the increasing number of JRs being taken.
The property firm that it “fully supported and endorsed” people’s rights to take cases against decisions which may breach domestic or EU law, or the terms of the Aarhus Convention, which gives people the right to access information about the environment and promotes public participation in decision-making.
“However, they must be balanced with the propensity for applicants to abuse the Judicial Review process and/or to treat the Judicial Review process as a mean of appealing and/or delaying the substance and implementation of planning decisions,” Bartra said.
However, Orla Hegarty said that the JRs were being taken as people had been excluded from the planning process by the SHD legislation, and that the courts were able to decide if there were grounds for the cases and if the law had been followed.
When Noteworthy put allegations of the process being abused to Hegarty, she said that “the courts are well able to throw it out if it’s abuse”.
Clearly, there are grounds if they accept the cases and the majority were found to be justified.
Judicial review ‘industry’
What’s more, the property and construction industries reference a growing “industry” around JRs.
In its letter in 2021, PII said that government plans and laws have as their primary goal the provision of housing, “yet JR challenges have evolved as an effective cottage industry to frustrate that provision”.
This “industry” is also referenced in research by planning consultants Tom Phillips + Associates. In the document, which informs the 15 recommendations from PII, the authors state: “It’s time to readdress the Judicial Review industry!”
CIF also references JRs being taken on grounds of “commercial interest” in a submission to government in October of last year, provided to Noteworthy by CIF.
The group said it supports the review of JR laws being undertaken by government. It laid out a number of recommendations to amend the laws.
The group also stated that there are cases in which “the commercial interests of the applicant are the main reason behind an application” and that laws should be introduced to “debar applicants in circumstances where it reasonable to deduce that the application is made on the grounds of a commercial interest”.
Planning experts and opposition politicians roundly reject the idea of an industry profiting off JR, and say that the high number of cases being taken is as a result of poor planning laws.
Fred Logue strongly refutes any suggestion of an “industry” around judicial review cases being taken, stating again that the vast majority of JR challenges have been successful.
But how can you say there’s an industry taking cases on small points when the vast majority of the cases actually succeed?
He said instead that “the problem is the board [ABP] making decisions that are unlawful” and that these “don’t comply with the requirements of proper planning and environmental protection”.
“An unlawful decision has to be removed,” he added.
Echoing of statements
Recent government statements echo some of the industry positions. Speaking on RTÉ’s News at One last January, Peter Burke announced planned changes to JRs, which would make it harder to take cases.
“We’re making the planning process more robust. We’re trying to tackle an industry that is growing,” he said.
It’s very important that we curb this industry.
Burke announced a number of changes to JRs, including a cap on costs for those taking cases, ensuring that anyone taking a JR had to have a “substantial interest” in the case, and altering the “automatic standing rights” for non-governmental organisations, such as charities or environmental groups, which would make it harder for them to take cases.
The changes are similar to ones contained in the General Scheme of the Housing and Planning and Development Bill 2019, published by the last government, which also sought to reduce the number of JRs being taken, but which was never progressed.
The Bill was met with strong criticism from NGOs and civil society organisations. Legal experts also said that it would likely break EU laws around access to justice. This included the Law Society who expressed their concern in January of this year, when it was asked to submit its views on the Bill:
The Society is concerned that the cumulative effect of the outlined changes will be to severely restrict access to justice, a right which is recognised as a fundamental personal right guaranteed under Article 40.3 of the Constitution as well as Articles 6 and 13 of the ECHR [European Convention on Human Rights].
However, Burke’s plans and the proposed laws are in alignment with many industry positions.
In its letter from December 2020, Bartra put forward a number of recommendations, including calling for those taking JRs to have a “sufficient interest” in the case, as well as recommendations over costs, also stating that planning authorities should “rigorously pursue the recovery of costs against the applicant” when a JR is unsuccessful.
PII in its policy report from February puts forward 15 recommendations. Among them, it also calls for “proportionate cost risk” for people taking a case, as well as a call to “raise the entry bar for making a challenge”, and that any applicant “must be able to show some connection to the area”.
Commenting on these recommendations, David Duffy told Noteworthy that the paper “recognises the right to undertake a judicial review of a planning decision”.
“The PII submission has been prepared with input from legal and planning professionals with significant experience in this area and we believe that the proposals put forward are both workable and consistent with EU law,” he said.
The aim of many of the recommendations in the PII paper are to make the planning decision making process more robust and reduce the very high overturn level of planning decisions in the courts, while also reducing the time it takes to go through the JR process.
In its submission, CIF also called for a requirement that JR applicants have a connection with the area, and that they must show how the development directly affects them and that they have made submissions at the earliest stage of the planning process.
Controversy over law amendments
Burke’s statements over a judicial review “industry” and the plans to amend the laws were met with some controversy, and the plans were temporarily shelved.
Our investigative team reported in July on an attempt by government to ram through “deeply controversial” changes to the laws around JRs before the Dáil’s summer recess. These changes sparked outrage from opposition politicians and NGOs.
Following the outrage, the government dropped the most controversial amendment, which would have allowed ABP to amend its decision after the judicial review process had started. However, more changes are coming down the line.
A full review of all of Ireland’s planning laws is currently being undertaken by the Attorney General, and is due to be concluded imminently, with a new consolidated planning bill set to be brought to government by the end of the year.
The bill will represent a massive overhaul of Ireland’s planning system. It will also contain changes to the laws around JRs, though it is unclear at this stage what these changes will be.
Recent government statements point towards changes that will restrict the number of JRs being taken. Speaking in Limerick last month, Minister O’Brien said:
We have a housing crisis that is resolvable and solvable, we need people to stop objecting, frankly.
He also said that he didn’t believe planning decisions should be made in the courts, as it’s “not the right place for them”.
“Planning decisions should be made in our local authorities and in An Bord Pleanála,” he said.
Minister for Public Expenditure Michael McGrath made similar comments in September at an industry conference, stating that the new planning bill would deal with JRs.
“It’s intended to reduce the legal risk of successful judicial reviews, that planning decisions should be made by our planning authorities, not by the courts, and the court should not in so many instances have grounds on which to overturn planning decisions,” he said.
Fred Logue rejected the statements that the courts are deciding planning decisions and said that “we actually have a very good quality court system”.
The courts “don’t decide planning applications”, he explained and said that’s “the one thing they actually don’t do and have never done”. Instead, “their job is to review the legality of the decision, procedural and substantive legality”.
The ‘key issue’
For local advocates and opposition politicians, focusing too much on JRs is a distraction to the main issue with homebuilding in Ireland – developments that have been granted planning permission, but where construction has yet to commence.
A recent analysis of large-scale housing developments by the Dublin Democratic Planning Alliance – an alliance of community groups and associations – found that planning permission for over 50,000 homes was granted, with no moves made as yet to build them.
These figures, first reported in the Business Post, did not include homes that were subject to legal challenges.
According to TD Cian O’Callaghan, housing spokesperson for the Social Democrats, planning permission being granted for developments that were “speculative” and “aren’t aimed at actually delivering homes” is the main issue with planning in Ireland.
This is “the key issue in terms of the planning process and delays in getting a quicker, more efficient planning system,” he told Noteworthy.
David Duffy of PII said that there were many reasons why developments that receive planning permission may not be built – including changing market conditions, certain conditions that need to be met, and a failure to secure funding.
“Homebuilders want to build houses. There is no evidence of significant hoarding of permissions,” he said.
Changes ‘could backfire’
Opposition politicians, planning experts, and NGOs disagree that changes to JRs will speed up the planning process, however. As well as this, some commentators state that government should not listen to industry in relation to any changes to laws.
“In terms of judicial reviews, we need to be very careful in terms of any changes that could backfire, like the previous changes backfired and could lead to more conflict, more delays,” said TD Cian O’Callaghan, housing spokesperson with the Social Democrats.
“And I definitely don’t think [the industry] are the right people to be… proposing further changes, given that the previous proposals they championed were so disastrous in terms of increasing the use of judicial reviews, conflicts, court cases and delays.”
David Duffy said, however, that SHDs “did significantly reduce the time taken for planning decisions” and that amending the laws would have solved any issues with SHDs.
“There were some deficiencies in the SHD legislation. These were capable of being addressed by legislative amendments, and PII did put forward proposals in this respect,” he said.
However, the government decided to replace SHDs with the new Large Scale Residential Developments (LRD) process, which may address some of the issues. This will significantly extend the time scale for decisions.
According to Orla Hegarty, many of the issues raised in JR cases were ones that could have been ironed out in pre-planning consultations and public participation, but as SHDs removed much of this, the issues got taken to the High Court.
“Things that might have been a €20 submission at the beginning and ironed out locally, suddenly turn to €50,000 in a High Court judicial review,” she said.
“So instead of going back to the strength of the previous system, now what they’re trying to do is say – let’s make judicial review even harder, which is just excluding people and oversight even more from the process.”
Hegarty said that this “is not a solution, because we’ll just find things getting kicked off to European courts”.
Fred Logue echoes this assessment, saying that JRs are being taken as a result of serious faults in planning decisions and the “seriously flawed” SHD laws.
“That’s why there [are] so many JRs, and that’s why they’re succeeding,” he said. “The problem isn’t judicial review, the problem is what’s upstream of judicial review, in terms of the planning, legislation and the decision making.
“And they’re the areas that should be fixed, not basically going in and undermining the rule of law by trying to squash judicial review.”
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FULL SERIES IS OUT NOW
An opinion piece – out this morning – states that politicians blaming judicial review for housing delays are overshadowing planning reform. Our explainer - in July - reported that ‘deeply controversial’ last-minute planning law changes could lead to ‘years of litigation’.
And in our REVOLVING DOOR series – out earlier this week – the extent of lobbying by former senior public officials in Ireland is revealed for the first time.
By Cormac Fitzgerald for Noteworthy
This investigation was proposed and funded by readers of Noteworthy, the crowdfunded investigative journalism platform from The Journal. We also have a number of other projects focused on politics which you can view here.
You can support our work by submitting an idea, helping to fund a project or setting up a monthly contribution to our investigative fund HERE>>
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