Ireland’s Best Law Firms 2023: More robust decision-making is urgently needed in An Bord Pleanála

Ireland continues to develop essential new energy resources and the country urgently requires an expansion in our housing and student accommodation supply. I share the view that an immediate overhaul of our planning laws, including the establishment of a new fast-track planning court, similar to the Commercial Court, is urgently required to achieve Government targets for such future development.

With more land being acquired for sustainable bus corridors, greenways, motorways and ring roads, my experience is that many landowners are left unclear and uncertain as to the steps involved in a compulsory purchase process and their legal entitlements in relation to the procedures being adopted by the acquiring authority. Clients are especially unclear as to their right to representation, and not just to legal representation but to valuation and to other expert advice such as planning and engineering.

Schemes are often proposed by acquiring authorities and discussed with landowners before planning is even granted. Landowners need to be advised not to agree any issues arising in respect of their land until planning approval, usually from An Bord Pleanála, is in fact obtained. This is because An Bord Pleanála can modify a scheme, decide certain plots are not required and impose conditions which can have significant impacts on landowners.

I find that many landowners are unaware of their entitlement to have their claim arbitrated before a Property Arbitrator or that the acquiring authority is responsible for the reasonable costs of legal and expert representation, which is very unfair in a process where their land is being compulsorily acquired. Numerous issues need to be fully considered, including the value of the land acquired, damage to the retained lands disturbance, and costs or reinvestment. Accommodation works such as boundary treatments and fencing also need to be considered. All landowners’ claims can either be agreed or arbitrated.

With the proposed introduction of new bus corridors in Dublin, the expansion plans for a new ring road around Galway City, the expansion of the Cork to Limerick motorway, and proposals for new greenways and recreational tracks around the country, I am finding that many more clients are having their property acquired by the State. The majority of them are totally unaware of their rights and entitlements in a compulsory acquisition process.

I am also involved in many complex planning cases involving large schemes and developments, including student housing containing 200 or more bed spaces, and large-scale developments of 100 or more houses, where An Bord Pleanála has granted fast-track planning permission for such strategic infrastructure development – but many of these permissions are being challenged by way of judicial review.

Expenditure on legal costs by An Bord Pleanála soared to €8.2m in 2020, almost one-third of its annual budget, mostly as a result of the proliferation of judicial review challenges against planning decisions the board makes. One in four housing developments is now the subject of judicial challenges, with a 375pc increase in such legal challenges since 2018. I am seeing that many recent challenges are by unincorporated community groups with no visibility as to their membership or their meetings – an issue which is of considerable concern to those seeking to build such developments.

I believe that change is urgently needed in An Bord Pleanála to ensure that more robust decision-making procedures are introduced, with strict time limits for decision-making imposed in the future to ensure that complex planning and environmental issues are thoroughly reviewed and that decisions are legally scrutinised before An Bord Pleanála makes final decisions.

At the same time, I share a concern that there needs to be a level of scrutiny at court level as to the identity of those bringing judicial challenges so that there is transparency regarding who community groups are. This would ensure these groups have identifiable members who represent their local community and hold regular meetings to advise the local community as to the pros and cons of such litigation.

Many of the challenges involve domestic law, and European legal arguments and local community groups need to be fully aware that costs protection in respect of domestic law arguments can no longer be guaranteed. A decision is awaited in this regard in the Supreme Court following the case of Heather Hill which was heard on this issue last July.

Planning work has increased significantly for me as Ireland moves towards more renewable energy to combat climate change. Wind farm and solar farm developments have increased and will significantly expand around the country, bringing with them a need for specialist legal advice for developers and for landowners who enter into contracts for the placing of wind turbines and solar panels on land.

Developer companies often have contractual rights even in respect of retained land, and this needs to be clearly outlined and understood. Impacts on local communities also need to be considered so as to avoid nuisance issues and adverse impacts on residential properties when the siting of such development is being planned.

Offshore wind farm development brings with it new challenges with impacts, such as loss arising to local fishing communities – an issue I am advising clients to consider.

Deirdre Courtney is a partner with Augustus Cullen Law