Two judicial reviews taken every week against An Bord Pleanála in High Court
AN AVERAGE of two judicial reviews are being taken against An Bord Pleanála in the High Court every week amid growing calls for an overhaul of Ireland’s planning system, the Irish Mail on Sunday can reveal.
A total of 227 judicial reviews have been taken against the national planning authority since 2019, at a huge cost to the taxpayer, an analysis of High Court cases shows.
A total of 55 judicial reviews were taken against the State planning body in 2019. This rose to 83 in 2020 and to 89 last year, according to court records.
So far this year, 35 judicial reviews have been taken against the planning board, and if the current trend continues, the number will exceed 100 in 2022.
The revelation comes as An Bord Pleanála finds itself at the centre of an investigation ordered by Housing Minister Darragh O’Brien into accusations of conflict of interest against the board’s deputy chairman.
The Attorney General is conducting a separate review into the planning process.
An examination of High Court cases in recent years shows the board is increasingly being drawn into court showdowns with local authorities. Dublin City Council and authorities in Galway and Carlow have initiated judicial reviews against some of its decisions since 2019, along with cases taken by the Defence Minister and a Dublin primary school.
The judicial review outcomes show the board either loses the majority of
‘Cutting and pasting developers’ materials’
cases that come before the courts or settles them beforehand.
An Bord Pleanála lost 29 of the 33 completed judicial reviews heard in 2020. Another 14 were settled when the board admitted serious legal defects in its decisions.
The planning board is racking up massive legal fees because of the increase in High Court cases.
In 2020 it paid out €8,206,544 in fees and costs associated with legal proceedings, more than double the €3,380,571 it forked out the previous year. This is on top of the €61,926 paid out in legal consultancy fees in 2020, which was also a significant rise on the €57,673 it spent in 2019.
In some of the High Court rulings, it was found the State planning agency granted permission for developments that were in breach of statutory regulations. It also granted permission for projects that were found to be contrary to county development plans and legal height restrictions.
In other cases, it was found the planning authority ‘cut and pasted’ developers’ documents, ignored expert witnesses from appellants, and contravened EU regulations on habitats and the environment.
Some of the judgments were scathing of the planning board’s decisions.
These included a challenge by Atlantic Diamond in July 2020 against the granting of permission for a development of 336 apartments in six blocks, ranging in height from four to 10 storeys, at the Docklands Innovation Park at East Wall in Dublin.
Judge Richard Humphreys said: ‘The board and its inspector accepted documents from the developer’, which he said illustrated ‘a certain laxity in scrutiny, involving in effect the cutting and pasting of the developer’s materials, without adequate critical interrogation’.
In February of this year, the board’s permission for a wind farm was overturned because the turbine heights and blade lengths were wrongly expressed. The High Court said this was ‘equivalent to seeking planning permission for a house on the basis it could be anything from a one-storey bungalow to a 10-storey mansion’.
In 2020 Dublin City Council took An Bord Pleanála to court when it granted planning permission for buildings in Spencer Dock that were taller than the height permitted in the development scheme for the Docklands.
The planning authority’s own inspector recommended that it refuse permission for the 13-storey towers on the grounds it was not compatible with the planning scheme at the time, but this advice was rejected. The High Court held that An Bord Pleanála had no jurisdiction to grant the application and quashed its decision.
In May 2021 the High Court overturned the board’s permission for a development of apartments at Ballincollig, Co. Cork, after it found ‘the board failed to comply with planning and development regulations concerning screening of projects’.
The High Court also overturned permission for a drug injection site in Dublin after it found the board failed to consider objections from the local
St Audoen’s National School and expert witness reports, and had misinterpreted regulations.
The court found there was ‘no reference at all to the school, education or the impact of the proposed development on the welfare of the pupils’. It said this was ‘inexplicable’ in circumstances where St Audoen’s had criticised the proximity of the injection facility to the school’.
An Bord Pleanála’s handling of Strategic Housing Development (SHD) applications, introduced as a fasttrack mechanism in 2017 to bypass local authority planning procedures for developments of 100 units or more, has also become a lightning rod for public anger.
Since 2017, it has approved around
80% of SHD appli‘In cations, many of them for build-torent developments.
According to solicitor Fred Logue, many of these cases came before the courts because the board had not dealt with such large-scale housing applications before. However, he called on the planning authority to review why it has spent so much money on doomed cases. Mr Logue told the MoS: ‘The courts clarify the law so the next time they [An Bord Pleanála] make a decision they’ll apply the law as clarified, so there is a kind of feedback mechanism.
‘What happens is when you get a new procedure like SHDs, there’s uncertainty about the law or complexity in it and that leads to these cases.
In general, An Bord Pleanála should be accountable for the amount it is spending on legal costs, and it should be identifying lessons it’s learning from the number of cases it is losing. That’s important,’ he said.
Developers and some politicians are quick to blame objectors for holding up the planning process amid a housing crisis and have called for the right to appeal to be curtailed.
However, in 2020 more than three quarters (76%) of appeals to An Bord Pleanála were dealt with in the recommended 18-week time frame.
The real problem, according to critics, is that the planning authority makes too many wrong decisions that end up in court – criticism that appears to be borne out by the large number of grants of permission being overturned in the High Court.
Independent TD and Public Accounts Committee member Verona Murphy said: ‘An Bord Pleanála are at the root of the planning crisis. Their relationship to planning law resembles Boris Johnson and the Northern protocol: they think rules and the law are for other people.’
An Bord Pleanála did not respond to requests for comment.
‘They think rules are for other people’