An ice age esker, an Anglo Norman motte and a large-scale residential development of 177 apartments on Howth Head: throw in EU wildlife protections and an oblique attack on domestic law and from this one case you will get a sense of the ingredients that make up a typical High Court strategic housing planning challenge. 

The action in question was taken last year by north Dublin residents opposed to An Bord Pleanala fast-tracking permission for apartment blocks of up to five stories in height across three sites in Howth. The developer was Crekav Trading, a subsidiary of Pat Crean’s Marlet Property Group. Locals voiced concerns about the density and disruption of the proposed build.

When the matter went to court, the residents won their legal challenge on a couple of grounds, including as a result of the lack of information provided in the plan for proposed excavation works near Asgard Park, a local housing estate. As problems go, this was deemed “fundamental” and far from academic by Justice Richard Humphreys in circumstances where the developer proposed installing five “huge” subterranean structures aimed at stabilising the ground. Rather than remit the matter back to the planning board for review, the judge chose to quash the board’s approval in its entirety.

From start to finish, the High Court challenge lasted five and a half months which is speedy by legal standards. However, this was the developer’s second bite of the cherry after revisions were made to the original permission granted by An Bord Pleanala in 2018 which was also the subject of a court case. Those alterations clearly did not go far enough for local objectors in Howth who succeeded in quashing the planning, second time around. 

After approximately two and a half years in the planning process, it was back to the drawing board for Marlet – not an altogether uncommon scenario for developers operating in the Strategic Housing Development (SHD) system.

SHD was introduced by former housing minister Simon Coveney under 2016 legislation to speed up the delivery of large-scale residential developments, typically with over 100 units. Planning submissions are made directly to An Bord Pleanála (ABP), bypassing the local council, after a consultation process. Critics say SHD is developer-led and throws planning norms, including EU standards around public engagement, out the window. But the developers are not entirely satisfied with the scheme either which has shown itself highly vulnerable to legal attack.

To explore this friction, The Currency spoke separately with two leading lawyers in this sphere, Brendan Slattery and Fred Logue.

Brendan Slattery is a partner with big-four law firm McCann Fitzgerald. He has over 20 years working in Environmental and Planning Law. In the past, Slattery has done work for the Environmental Protection Agency, An Bord Pleanala and – according to McCann’s website – “promoters of every major waste-to-energy project with consent on the island of Ireland, including the first municipal waste incinerator in Ireland”. 

A lot of his current work is for the property industry.

Fred Logue is the principal at FP Logue, which specialises in Environment, Technology, and Information Law. The practice is currently acting for objectors in eight SHD planning challenges before the courts.

In conversation, the two men offer very different diagnoses as to why so many strategic housing developments are being successfully challenged in court, where the faults in the system lie, and what, if any, lessons are being learned – or need to be learned – by developers, government and the planning authorities.

The numbers stack up

The Currency spoke first to Slattery who made no bones about what side of the fence his work currently falls on. He spoke at length about the growing frustration among developer clients at the number of SHD projects being quashed or held up by judicial reviews, sometimes, he says, as a result of minor administrative errors. This adds significant uncertainty, cost, and delay to a building project.

This frustration is borne of the recent explosion in the number of SHD challenges. A report last month by construction consultants Mitchell McDermott found the number of housing units in Dublin affected by judicial reviews jumped 1,000 per cent from 508 in 2019 to 5,802 last year.

What’s more, the SHD objectors are winning by a ratio of nearly five to one. Slattery notes that in February (when we spoke), An Bord Pleanala made its 250th strategic housing decision. Since it began, there have been 45 challenges to the board’s decisions in respect of 38 proposed developments. That is about a 15 per cent hit rate which he says is much higher than when compared with cases taken against other statutory bodies or An Bord Pleanala when operating under traditional planning rules. 

While 16 of the 45 judicial reviews of strategic housing developments are still pending before the courts, 29 challenges have been determined. Of that number, objectors have succeeded 24 times while only five decisions of the board survived intact.

Engaging with the data, Slattery took The Currency through some of the construction industry’s concerns. For example, of the five An Bord Pleanala SHD decisions that have withstood legal challenge, only one made the finish line on merit. “Three of them were negotiated so, technically, we don’t really count them as wins because the developer persuaded the objector that they shouldn’t be maintaining their proceedings, or the objector decided for other reasons to withdraw. We don’t know the full details but we know three have been struck out without the need for a fight. One has been struck out for being late,” he says.

That means just one development, Marlet’s Techrete project to build 500 apartments at a former industrial site in Howth, survived a full legal assault on merit.  

Elsewhere the High Court has quashed a number of SHD decisions with the consent of An Bord Pleanala. Examples include Johnny Ronan’s docklands towers and the proposed Cairn Homes development on former RTE lands in Montrose, Donnybrook. In the latter case, the board acknowledged there was an issue with its processing of the planning application.

Whether it is with the board’s consent or not, the result is the same for developers, the planning permission does not stand.

Francesca Comyn (FC):One thing we know about SHD developments is they are more likely to be controversial than a lot of other developments just by their size and nature. And are you noticing that your clients are learning on the job? Are court findings influencing how developers are approaching their work?

Brendan Slatter (BS): Absolutely. Even the job of work being done by the board is improving. The decisions we’re seeing now are easier to defend than some of their earlier decisions. The challenge has been the pace is so fast, decisions being made in 16 weeks. Sometimes court challenges come to a conclusion within three or four months, which doesn’t necessarily seem that fast to the real world, but within the legal world, that’s bloody quick. And in that context, the chance for the board to breathe and absorb what observations are being made by the court judges is actually not so great. You’re seeing a lag before those High Court rulings start to become adopted, perfected, and later decisions respecting all of those rulings. The pace has been such that they haven’t been able to react….

FC: What are the learnings?

BS: If you look across the successful grounds for challenge, there’s probably two that have stood out the most. One is relating to protection of habitats and one is relating to how you document a decision that’s materially contravening a development plan, in particular regarding building height. So, we have development plans and schemes across the urban state with specific ceilings, or limits on the number of floors or stories or metre limits for taller buildings. The minister has published guidelines to say actually, that’s not the right way of going about achieving the dense urban environment that we think is necessary. And in that context, you should treat those ceilings as permeable and so long as you justify how to breach through those ceilings, you can make defensible grants of permission. And that process has led to friction.

I confess I’m a tall buildings enthusiast, but I can understand how plenty of people who are on the shoulder of that kind of development are much less enthusiastic, and it has led to real friction. There’s been legal jousting around the fringes of exactly what changes in legislation have been made and what they mean, and exactly how burdensome the path of overcoming those ceilings in planning policy should be. And the answer is quite burdensome and quite precise. In that context what we’re seeing certainly since last summer, is greater care and attention to how you justify and explain and defend why it is a taller building is perfectly appropriate on a site.

FC: The learning then from that is not that people are being cowed from putting in taller building applications, but they just realise there’s an ambiguity there to navigate.

BS: Absolutely. We’re not seeing shrinking buildings, what we are seeing is better defended, better shaped and more precise arguments defending the planning merits of those taller buildings and more precisely engaging the bundle of criteria the minister set in the height guidelines from the tail end of 2018. With many of the features there is a set of rules, and those rules need to be followed with a degree of precision that maybe hasn’t always been the case. And that goes for developers as much as it does the decision makers.

FC: The famous one I suppose that everyone remembers is the Johnny Ronan tall building scenario.

An Bord Pleanala granted permission for 13 and 11 storey apartment blocks in Dublin’s docklands, which was successfully challenged in the courts by Dublin City Council, on the grounds that the plans contravened the city’s Strategic Development Zone (SDZ) which only permits for heights of up to ten storeys. In separate proceedings, Ronan’s company lost a challenge to the council’s legal interpretation of the 2018 “Urban Development and Building Heights” guidelines issued by the then minister for Housing Planning and Local Government Eoghan Murphy who argued that “arbitrary” height caps on apartment buildings in cities don’t make any sense.

BS: It’s a real challenge trying to draw any inferences from that because it’s really unique in the context of a planning scheme in a Strategic Development Zone, and the real conflict there, almost ironically, is that the best lands in the state for taller buildings along the River Liffey are in fact the places in the state that are hardest to get the taller building consensus right now because of that tension between the way we designate them as strategic and the control that is vested in the hands of the local authority for that purpose. And it means it’s actually harder to contravene the planning scheme in the strategic zone than any other planning policy document ever published in the state. So almost ironically, the best lands, arguably, I mean you could take any kind of waterfront set piece in an urban big city, a proud capital city at certainly the mouth and walking your way back, you wouldn’t be surprised to see the taller buildings there. And yet, it’s exactly the place where pretty much if you take that site – [Ronan’s] Salesforce Tower had nine stories in a commercial space – that’s the ceiling. And until there’s a planning scheme that says different that will remain the ceiling or until the laws change because it literally turns on how much weight is to be given to minister’s tall height guidelines, as opposed to any other features of the process, or inputs to the process.

I think there’s still high confidence in the process, but what [developers] certainly would like to see is that we maintain momentum, that we see when a challenge is brought, that it surfaces quickly, and that it comes to a head quickly, so that we’re not trapped in a process

Brendan Slattery

Habitats is maybe more widely relevant, if you’re delivering wind turbines, power lines, water supply pipelines; habitats is a recurring theme across the full range of what planning decision makers do. But there’s been a number of European interventions – key in 2011, key in 2018. And I think some of the learnings from in particular the 2018 decision are still being processed. It’s a pendulum that’s still swinging and it hasn’t quite settled at its resting point. And that’s maybe not too great of a surprise but we are probably learning most about it through strategic housing, because again, you get really quick feedback, both on the planning application made, and on a court’s attitude or lawyers’ attitude to defending a challenge.

The Habitats Directive identifies if a project is likely to have an impact on a Natura 2000 site for rare and threatened species. There is a stage one screening process that determines whether Stage two, a detailed impact assessment, is required. A landmark decision of the European Court of Justice in 2018, involving a wind farm and an endangered species of freshwater pearl mussel in the River Nore, changed the goalposts in how screening was to be approached. Developers could no longer avoid stage two scrutiny by relying on mitigation measures intended to reduce the harmful effects of a building project on a site.

Slattery discusses the main issues raised in planning rows under the directive along with the fallout from that EU decision particularly in reference to Dublin Bay which is protected.

BS: What you’re seeing, in particular, are two topics. One that you’re flushing your toilets into the Ringsend wastewater treatment plant. There is a legal argument that because Ringsend wastewater treatment plant is in the process of an upgrade and is currently overloaded, overcapacity, that in consequence any additional loading  – anyone else who wants to flush into that treatment plant  – must be presumed to be having a consequence in Dublin Bay which is protected. And so, therefore, anyone who wants consent to flush to Ringsend needs to do a particular kind of difficult assessment rather than the usual expected kind of easy assessment. And that challenge has been brought across a wide range of court cases. Recently just, I think the dust has settled on it in a challenge to Connolly Quarter [Sean Mulryan’s Ballymore development approved by Dublin City Council], where the court agreed a perfectly acceptable method for assessment is to acknowledge that you’re draining to Ringsend and actually when you look at the data on Ringsend, even in its overcapacity state, it’s not having adverse effects on these European sites. 

One of the things that may be frustrating around habitats is again this element of precision required around the language used. And there has been some – at the start -some clumsiness using a legal test from one part of the directive and applying it to the job of work to be done at a second part of the directive and they’re blurring the lines between those two stages. And that’s as close as you get to an open goal, in terms of legal challenge and you’re seeing the board act very quickly to that with its lawyers recommending, and the board accepting, to consent to a quash order.

And that’s moved on to a different point of interesting friction. Developers are looking at a debate that’s happened since 2018 around – can I rely on mitigation measures to avoid the need to do this more difficult stage two assessment. Europe says, not exactly. And then the answer is, well what about best practice? if I’m doing best practice things – not to protect the European site – just because that’s how we dig holes, that’s how we lay bricks, that’s how we develop construction compounds. And developers, rather than have that fight, have been submitting to the stage two process, submitting to the more complicated assessment because they know they’ll survive that. And what we’re seeing is An Bord Pleanala looking back and saying, actually, those are ordinary things you’re relying on, we can still complete stage one and that’s leading to again more legal friction.

A consistent approach

FC: Your clients are developers?

BS: Yeah, definitely. I mean, personally I’ve represented objectors and decision makers. I’ve done the work for An Bord Pleanala for several years but now it’s absolutely and principely developers, including developers who sometimes sue An Bord Pleanala. That has been necessary, but that’d be a small fraction of what I do. But absolutely, for the most part it’s the routine and familiar names who are looking to make applications and to implement permissions in strategic housing, renewable energy, transport infrastructure.

FC: This is kind of an aside, but I see An Bord Pleanala is tendering for legal work themselves. It looks like quite a good offer of roughly €2 to €5.5 million in the next couple of years.

BS: It’s very busy work, it’s very important work. Unhappily from our perspective, we would be conflicted from the large part of the job and so unfortunately wouldn’t consider ourselves free to bid for that. 

But it’s a busy job, and it’s not getting any less busy. And like I say, when I first was doing work with the board, there might be 15 or 20 legal challenges in a year and that would be a busy year.  Now it’s approaching 100. You take strategic housing, in 2018 and 2019 there were five challenges each year, in 2020, there were 34. And that’s not just that they made seven times as many decisions and so the run rate is static. It’s probably gone from your prospects of there being a challenge to a grant was less than one in 10 to now being somewhere between one in four or one in five. You’re much more likely to be sued.

FC: Are developers upset with the actual legislation, how the board is implementing it or how it’s getting to the court, the standard of leave for judicial review, that sort of thing?

BS: The first thing is that in 24 successful legal challenges, very few, like really only two, and arguably one, relate to the legislation. In other words, the SHD legislation hasn’t been the problem. The only two where that effectively surfaced were on Connolly Quarter where there’s a specific prohibition on having too much non-residential in your application. And there’s a sensitive point around parking that was to be accommodated on that site that permission wasn’t sought for.

And then there’s the Spencer North one where you can’t use SHD to overcome the Strategic Development Zone height limit. But apart from that, the rest are all nothing to do with SHD specifically. So I am not hearing about that kind of frustration with SHD as a legislative process. I mean I think you could probably break the concerns and sensitivities across three main themes. You know, the inputs to the legal process, the process itself, and then a couple of important points around the outputs from the process. In terms of the inputs, we are talking about the quality of the board’s decisions. And obviously, the better that quality, the more will survive and the happier those who are interested in them surviving will be.

If you look at a system where, at the end of the court process, nine in 10 cases are going against a public authority, that’s surprising, and that’s not something that suggests the system is working very well.

Brendan Slattery

In terms of resources, Dave Walsh [An Bord Pleanala’s] director of planning says they need more resources. And they do. They are under pressure with strategic housing, with important infrastructure, and with more important infrastructure coming to them, probably during this year if you think of Metrolink, Bus Connects. They are big projects that will consume talent and resources within the board. They will need more people to assist and to give them the chance to perform effective legal risk analysis on their decisions and we’re starting to see that towards the tail end of last year, clearly more care and attention to the approach to making and recording their decisions.

I think in terms of other things on the input side, when we make rules – like around height, like around density, like around co-living – we need to have rules that are sufficiently clear that there isn’t ambiguity that would generate reasons for legal challenge. I think having clearer rules is better for everybody; better for the public so we can see whether something passes those rules and better for developers because they more confidently enter into the process.

FC: Is the board consistent in its decisions?

BS: I think for the largest part, yes. I think where you see inconsistency is across the non-SHD but sometimes large housing developments and how local authorities might approach those would be very different than An Bord Pleanala. You see real tension, particularly in the greater Dublin area outside of the Dublin local authorities, where there are maybe development plans that speak to housing density at less than 20 to the hectare, and you see An Bord Pleanala interested in meeting ministerial guidance on density that would suggest somewhere between 35 and 45 to the hectare. And what that means in real terms to the users in the neighborhood is that you are going to have fewer townhouses, you’re going to see more duplexes and more apartment blocks at three, four, maybe five stories in the greater Dublin area. And that’s how to achieve those density guidelines and if there was greater clarity on those guidelines we’d see less friction between local authority decisions and board decisions. But the board generally, I think the experience is that there are high levels of consistency.

FC: So the issue for developers is more around court, delay and costs.

BS: Well absolutely I mean I think they would like to see the board better resourced to pay better attention to legal risk analysis. I think there’s a lot of, sometimes I think, misguided frustration with the actual legal process. Although I’m a lawyer, maybe I would say that, wouldn’t I? There are folks who would like to see the ladders pulled up, they would like to see the ex parte behind your back process change to be on notice, they would like to see the threshold shifted from substantial grounds to something more burdensome. They would like to see leave refused every now and again to show that it is a filter rather than just a free pass.

Heads I win, tails you lose

What Slattery is referring to is the two part process that makes up a judicial review. In the first part, a litigant, such as a planning objector, seeks leave of the High Court to bring a review. This is done on a one-side only basis (ex parte) without having to give prior notice to the administrative or regulatory body whose decision is being challenged eg An Bord Pleanala. For the actual judicial review, both sides are on notice and represented at the hearing.

To be granted leave to proceed with a judicial review, an applicant has only to show they have an arguable case which is a pretty low threshold. Some think too low. The recent report of the Civil Justice Review Group, chaired by former High Court president Peter Kelly, recommended that the threshold for leave be modified to include a requirement that the applicant show a ‘reasonable prospect of success’.

BS: We changed from on notice to ex parte back in, 2010, 2011, and in the 10 years since the board’s probably been challenged maybe 400 times. I’d say leave has been refused once in 400 times. That sort of feels like it’s not much of a filter. We’ve had a number of high profile challenges not in the strategic housing but in the renewable space, where a later court was happy to say that leave should never have been granted, that the court should have stopped this case at the filter stage, and that obviously introduces frustration. I don’t think it’s the biggest problem, but it is definitely something where you feel actually rigour at that stage has benefits. Is it better if everybody’s in the room at the first stage and it’s not ex parte? I’m not convinced by that. I think there are limited exceptions where it does work well. If there’s a time point and if someone is outside the eight week period it makes sense to deal with that for everybody’s sake.

For me, the thing that makes the most difference to why we see more court challenges in Ireland than in other European countries is the way we chose to give effect to our costs regime. Ordinarily, in litigation, as you know, costs follow the event. if you bring a case and it’s not a good case you suffer the risk that you will be paying your opponent’s legal costs. That’s fundamentally different in planning challenges. In planning challenges, it’s heads I win, tails you lose. If the objector succeeds, their opponent is paying their legal bill. If the objector loses, they’re only paying their own legal bill they’ll not be paying their opponent’s legal bill. There are really limited exceptions to that. That’s if you’re challenging the Apple data centre, you’ll get a cost order against you for making those demands as he did. Otherwise, that’s an exception rarely relied upon.

We sometimes say Europe required us to do that. There’s an international convention, the Aarhus convention that requires access to justice and that obliges us to do that. And the truth is it doesn’t. It does require us to make sure that your access to a review procedure is not prohibitively expensive. That’s true, but you can skin that cat in multiple different ways. And what you see is that anyone bringing a challenge is not forced to pause and think in planning challenges, and hesitate, in the same way, they would be across any other court case or intervention into the High Court.

FC: Would a lot of lawyers be working on a no foal no fee basis in that space? I mean for a normal person to even consider paying a few thousand euro to cover their own legal fees (if they lose a planning challenge) is actually a lot of money. Out of an average person’s wage, it is a huge knock.

BS: It’s very material and that’s one of the reasons why I would say that an adjusted approach to, if you bring a bad case and you lose that you would be exposed to your opponent’s costs but up to a cap. It might be €5,000, it might be €10,000, but it would make you go, that’s serious money.

FC: A lot of times people don’t succeed in regular planning challenges [outside SHD]. And it’s different than like in a PI (personal injury) no foal no fee case where there may be a damages payout and everyone has an interest. It’s not the same kind of scenario.

BS: Insofar as there’s published data on that there was an attempt brought to stretch the Legal Aid Board’s remit across planning challenges, and the observation made by the High Court judge who said no, we’re not going to force legal aid into this world is because there are those kinds of no foal no fee arrangements. Lawyers are prepared to look at a fact matrix and form a view. And if you think about a lawyer forming a view on a success rate at the minute that’s defaulting at around nine and 10 – if you take it all the way to the full contest – you’d have to think those odds are maybe attractive. And so, I wouldn’t criticise any lawyer who looks at a fact matrix and says, this is a good case I should help you and I’m prepared to fund the litigation through my sweat effectively. I mean you do certainly see GoFundMe campaigns but I don’t think I’ve seen them gather more than maybe €5000 on challenges. You see some cohorts where there’s maybe someone who has deeper pockets in the community who’s contributing more substantially at the front end. But certainly, I would have no doubt that the full economic cost of the litigation is not being burdened on objectors, that there’s some sensible arrangement being proposed. Absolutely. I think we’d have to expect that. We shouldn’t be surprised at that.

FC: I suppose to get back to the nub of it, what are developers actually aggrieved about? I mean they have this fast track process, that’s an improvement presumably, there is expertise on the board – yes they could probably do with more but beyond that  – I mean what system is perfect?

BS: If you look at a system where, at the end of the court process, nine in 10 cases are going against a public authority, that’s surprising, and that’s not something that suggests the system is working very well. And I think if you’re a developer sitting in on a court case, you would listen to the exchanges and think to yourself this feels like a planning merits oral hearing and they might be surprised at the level of scrutiny that the court process brings to bear, and there’s lots of reasons why that might be the case, but I know certainly developers are surprised at that. What they’re expecting is that the courts are focusing on the procedural legality rather than the substantive debate about density, around the niceties of what are the contributing factors that would defend the worthiness of a tall building in an area, and they’re surprised by that or the level to which there’s engagement around what 300 houses at a given location might mean for birds on the shoulder of an estuary where the tide comes in and out. They’re surprised by that. So I think there’s learnings on both sides in relation to what you should now expect the Irish High Court judges to be doing for so long as the rules are structured the way they are, for so long as the quality of the decisions from An Bord Pleanala merit that kind of attention and scrutiny from the court.

I think the most important thing that could be done that would actually make the process work and feel more like other parts of the system, and more like parts of a system that all parties would feel confident in, is if the board was given the resources to ensure that they’re in a position to make the high-quality decisions that would withstand scrutiny and to make sure that the court process, when it has its elements that are filtration stages, that there is filtration happening. That it maintains its speed because at the minute, it has started to slow down. A challenge that started in January is now getting a hearing date in October. Two years ago, a challenge that started in January would get a hearing date in March. So we’ve had a fall off from a two to three-month turnaround, to a nine or ten-month turnaround.

FC: There’s only one judge presiding over that list isn’t there?

BS: Yeah, that made sense in 2018 and 2019, and it made sense through maybe the early part of 2020. There were 34 challenges during 2020, a sevenfold increase. I’m not saying that’s too much work for one judge but if we are to maintain the short timeline between a challenge starting and coming to its conclusion, I think there probably does need to be more resources there. And then costs, it is exceptional and unusual across Europe, and across public administration decision challenges in Ireland, for the rule to be heads I win tails you lose. If you look closely at the run rate of challenges since we introduced that rule there have been just more challenges year on year. The board has had more challenges generally across its decision making every year since then, the last four years. Notable increases. Last year, probably has set a record for the board in terms of legal challenges and strategic housing, like I say, a sevenfold increase in the last year alone. And I think having some hesitation, where you look at how confident you are about your case is something that has to be healthy in all decision making processes. We all hesitate before making important decisions and, I think, entering into a court process should require that same hesitation. And the last thing I think when folk parse through what they might consider the headlines on successful challenges around legal footfalls that it feels don’t make any real difference to the merits outcome. I think that does frustrate. The idea of a missing dimension on a drawing in circumstances where the overall developmental impact has been fully assessed. There is a push for there to be a greater level of discretion at the tail end of the court process. 

FC: This is a member of the public finding a flaw, a technical flaw that is scuppering a whole development? I mean, on a very basic level, there’s obviously going to be a tension between the public and developers and An Bord Pleanala is sort of in the middle. My impression, and I could be wrong, with strategic housing An Bord Pleanala is siding with the developers mostly but that’s not necessarily surviving when it’s held up to scrutiny.

BS: That’s a fair observation. I mean let’s put the board in context. It’s fiercely proud of its independence, it’s routinely been reviewed and had that independence exalted. It is not afraid of making difficult decisions where the national policy sets a framework where maybe local decision-making would duck the decision that’s required. And so they’re left to be the mudguard for the state when it comes to planning. And that includes making difficult decisions around refusing planning permission for peat-fired power stations, refusing planning permission for the Shell terminal the first time around, doing the hard stuff that others can’t or won’t do. And that will include consenting to more dense schemes in circumstances where folk might like to be surrounded by townhouses with as much green space as they have in their own plot, but there’s only so much land we’re not getting more of it and there are still lots more people looking to live here. And the board is there to effectively arbitrate. And I suppose the interesting thing is to think about courts in a role as arbiters or inquisitors, and the sensation I think some clients are lamenting about the court process is the extent to which it’s court acting as arbiter between two arguments.

FC: More like a de novo hearing?

BS: The scrutiny feels more like a continental inquisition rather than arbitrating between the different competing arguments, but look I’m in the happy position that, in a sense, all of this is actually generating work for me.

FC: I’m just trying to get at…. I mean there are bound to be frustrations but the ones that maybe you’re dealing with, are they aimed more at the court process, or An Bord Pleanala or a bit of both?

BS: I think more at the court process. I think that is sometimes misguided and I spend a lot of energy helping focus complaints, where I hear people complaining that this court process isn’t working and here’s what’s wrong with it. I try to refocus and say ‘well actually here’s what’s right about it. And here are the parts that you can consider changing and here are the parts that, because we are a member of the European Union, we can’t’; trying to sort between the good, the bad and the indifferent about those kinds of changes. And I think no matter what we do, there’s always something we can improve at the input stage in terms of the An Bord Pleanala decision making, because the better the administrative decision, and the record of it, the easier it is to build confidence, not just in the public who will be then less likely to challenge, but in the courts, who will then be less likely to set decisions aside. And what comes from a run rate of successful challenges or unsuccessful defences is a dent in confidence, the public’s confidence in the system and the court’s confidence in the decision-maker and, and that needs building. That needs rebuilding.

Keeping investment rolling

FC: Are there implications for investment in the current system?

BS: It’s a good question. Our sense of money is that it likes its strategic housing, that it likes the confidence around timelines and where we see that starting to erode, we start to see anxiety. Where we see uncertainty at the tail end around -is there a challenge? So I can say to an investor, there’s an eight week period for a challenge. And then they come to me at eight weeks plus one day and say, am I safe? And I have to then explain well, ‘yeah, but no, but maybe’. The answer will depend on whether someone [an objector] filed papers, moved an application to stop the clock, has a reasonable excuse for coming late. And so you’re left in a let’s see what happens over the next two to four weeks, because it might change. But as we get longer, we get more confident.

The challenge to the Glanbia cheese factory commenced in the middle of August. The leave process, that first stage filter that normally takes about an hour, took until the end of November. The developer strictly wasn’t formally notified until the end of November, their permission having been under a shadow since August. It’s a serious challenge. And look, it’s listed for hearing in March so it caught up some pace at the back end once it entered the commercial lis. But the prospect that there might be a bogeyman out there, and you don’t know about it, that’s unsettling.

What we haven’t seen is enthusiasm dimmed just by court outcomes. That doesn’t seem to have quietened interest in investing in Ireland. Does that message take longer to spill out? I’m not sure. I don’t think so. I think there’s still high confidence in the process, but what they certainly would like to see is that we maintain momentum, that we see when a challenge is brought, that it surfaces quickly, and that it comes to a head quickly, so that we’re not trapped in a process that is to say at the minute, a challenge launched in January doesn’t get a hearing date until October. That’s slower than the process has promised us before, and has delivered before and so certainly people like to see the process working as it used to do which is the swifter turn around.

FC: You may have answered this already but it’s still in my mind so I’m not sure if I heard an answer. Developers are not necessarily dissatisfied with the board but they’re dissatisfied maybe with the court process or the fact that so many decisions are being overturned. But like is that not just a tough luck scenario. I mean, you may not like that decisions are going against you, but is this not a learning process for developers to say – when we do this, we lose?

BS: What’s becoming clear from the grounds of successful challenge is that it doesn’t really matter what the developer does. And so it’s something over which they have little or no control. And when you have no control, your frustration levels will be higher I’d be sure of that. The coming into court and seeing that it’s not a court being the arbiter between two pleaded grounds but it’s a court enquiring deeply into planning merits feels like the court trespassing into what the expert judgment of the board is.

FC: You said that before. But that is the courts in Ireland, that is the planning process. Are developers really saying that needs to change so it’s more of an appellate court?

BS: The point is, it traditionally hasn’t been. So in 40 years of planning challenges, it’s been a process of judicial review being not on appeal on the merits but a review of the legal process. And over the last five years probably what that feels like to developers is a more anxious scrutiny of the work of the board. So for 40 years, the board is deferred to as an expert decision-maker. It’s someone whose judgment is trusted, to whom courts defer. And what you see over recent years, in particular in the strategic housing context, is a different framing, where maybe the process is perceived as a developer favourable process – I don’t think necessarily justifiably – but perceived as thus that it’s the fast track and that they’re getting some material advantage from that and therefore, the court is burdened with checking that more carefully to make sure that there’s not an undue or unfair advantage and I think that reframing is a challenge.

FC: And that’s not a feature of the legislation or of European developments? That is something arising from the practices of certain judges? Is this being upheld in the Supreme Court because presumably this has been raised in challenges.

BS: Because of the pace at which SHD comes in and out of the High Court there have been precious few appeal decisions yet because that doesn’t move necessarily at the same pace. So, if you’re a developer, do you place your bet on an 18 month appeal process, or do you resubmit to the planning process and come in and out within half that time or less. And if you look at the number of successful challenges, almost all of them have boomeranged. So they’ve gone back into planning and they’ve come back out and some of them have been challenged again and some of them have not. So where are you better to spend your money and time, I guess back in planning rather than sweating the detail in the appeal process. So I’m not expecting that lots of these will actually lead to appeal court decisions. 

Locked out of the process

From the legislation underpinning strategic housing to the role of An Bord Pleanala in the SHD planning process, solicitor Fred Logue, who – as stated – has represented many planning objectors, has a very different reading of what ails the system.

Our conversation, which succeeded the zoom call with Slattery, started with developers’ concerns about SHD planning judicial reviews. Did Logue agree that the courts were, at times, reviewing the merits of An Bord Pleanala’s planning decisions rather than looking at the decision-making processes of the board? In short, he didn’t.

Fred Logue (FL): All our cases are based on legal grounds. The legal grounds are generally compliance with EU law, which is not optional. It’s not like the court is an activist court. I would love to have an activist court but the Irish courts and the judgments in these cases are straight down the line, judicial review based. There’s absolutely no merits-based considerations, I can guarantee you, you’d be laughed at the court.

FC: Look maybe it’s more that developers are surprised when they hear the level of detail that the courts ask about the actual projects themselves.

FL: Take the Habitats Directive, it’s a strict scientific test. You have to have scientific certainty and there can’t be any gaps in the analysis about the conclusion. So, obviously, you can’t judicially review that without reviewing the decision-making. Like sometimes you win and sometimes you lose. But it is, and it should be, based on a scrutiny of the file. The court isn’t going out and doing its own surveys or basically making stuff up, it’s just looking at the documents that were before the decision-maker and identifying whether or not the decision-maker met the legal test for whether or not permission can be granted based on the habitats. So for Environmental Impact Assessment, there’s a lower kind of standard.  There’s more deference shown and there’s less scope for the court to get involved in the nitty-gritty of how the environmental impact assessment was done. So the challenges on EIA are generally procedural based on the legislation being deficient. But I’m not sure why it’s a criticism that the court is actually reviewing the decision. And that level of detail I think that’s probably a good thing because then you have certainty about it and everyone gets the benefit of that, including the board, that it knows the standards that it has to meet.

FC: I suppose the broader point then is if there are so many decisions going against the public authority that might suggest  the system isn’t working very well.

FL: According to my figures, the board has either conceded or lost 19 SHD judicial reviews, and a lot of them are conceded. So, even without the court getting involved, the board itself has identified a legal error and has conceded the case which it should do as a public body. It shouldn’t defend cases that it shouldn’t be defending. The cases that win are being won on two fairly broad areas. The first is that there are serious problems with the legislation itself. It limits public participation. The principle of public participation is that the public should be able to give their views on a proposal at the earliest opportunity when all the options are open. So, what happens in our normal planning system is you put in your planning application, people put in their views, based on those views the local authority might ask for further information from the developer or might ask them to revise their plans. And then there could be further rounds of public participation, based on the response to that. That’s under the local authority and An Bord Pleanala when it handles planning appeals.

The problem with the SHD is that you can’t do that. What happens in SHD is there’s a closed-door consultation between the developer, the board, and the local authority, where they review the proposed application. And then the board issues an opinion on whether it’s an appropriate application or whether there’s further consideration or amendments are needed. Then once that application goes in and goes on public display, a decision has to be made within 11 weeks of the public consultation closing. So there’s no possibility for the board to take on board the public comments and then ask for more information. So let’s say there’s a gap in the environmental assessment and somebody points it out, the board can’t go back to the developer and say you actually need to do more environmental assessments or say there’s part of a development that might have a particularly bad effect on you or somebody, you can’t say would you lower the height or move it about or change your plans, and put it back out for consultation.

FC: Are you saying there’s an issue with this because the board can only refuse the plan or accept it but they can’t actually allow it to be amended within the time available?

FL: It’s worse than that. They can either refuse it, accept it or they can amend it themselves. Without the public being aware of this until the decision is made. So in some circumstances – there’s a case starting on Monday where the project that actually got planning permission was materially different from the one that was applied for. They applied for six blocks and got permission for four. So that means the environmental assessments aren’t valid because they’re based on a development with six blocks. So for example, wind and daylight analysis, all that kind of stuff, it depends on where these blocks are going to be, relative to each other. If you take out two, you then can’t rely on the environmental assessment.

The normal way of things is either they would look for revised plans, or they would refuse it, and the decision would say we’re refusing it because blocks C and D are not correct. The developer would have to go back and put in a new application. So what’s happening is this kind of tunnel vision about granting planning permission as quickly as possible. And so that’s excluding the public, which is a breach of EU law. And it’s leading to this situation where the board can’t get further information, it can’t ask for revised plans, it itself is amending the developments, which again is contrary to EU law because the public haven’t participated in a procedure based on what was granted.

FC: They’ve participated but they haven’t participated in a meaningful way, is that your view?

FL: Participation to the European standard, the EU law standard. The system has been designed, like this. This is done on purpose. There is a research paper from people in UCD that interviewed people in the property industry, the lobbyists and developers who had a very strong influence on the SHD legislation. The two issues for them was that further information was delaying admissions. So they purposely wanted to get that to make sure that once the application went in the decision would be made within the fixed period of time within 16 weeks. And then the second thing is the legislation gives the board the power to grant permission in material contravention of the development plan, except for zoning. So say there’s a height limit, or there’s a density limit, or there’s a requirement to have a certain amount of open space in the development plan, the board, under Irish law anyway, has the authority to grant permission even though it breached those limits. For example, in a suburban housing estate there might be a two story to three story limit, but people are coming in with five, six, ten, fifteen storey apartment blocks. As you can imagine, this is not what people are expecting. They’ve participated in the development plan which again is a public participation procedure. It’s voted on by councillors, so when they see this 15 storey apartment block in their housing estate, they’re going crazy, because that’s not what they voted for, that’s not what they expected.

If people start suing you, there’s a problem. The problem generally isn’t just people being vexatious.

Fred Logue

Like the development plan itself is subject to environmental assessments, called strategic environmental assessments. That’s supposed to be the framework in the hierarchy for planning permissions. You’re supposed to stick within the framework of the development plan. That’s why we have this idea that you can’t materially contravene it. Most of the applications now are material contraventions –  height, density, open space. And numerical limits in the suburbs. So again that’s causing a huge conflict. And then when you put together that conflict with the lack of public participation, which kind of more or less shuts people out of the process, it’s not surprising that there’s so much judicial review. Because people aren’t accepting these decisions. People don’t go to court because it’s fun. It’s very stressful and very expensive. They only do it if there’s something that they really, really care about.

If you look at the inspectors’ reports, there are hundreds and hundreds of submissions on these plans. It’s not unusual to see between one to 300 submissions on a planning application. Up and down the country there’s enormous opposition to these. People feel locked out of the process, they feel that the democratic plan-making process has been abandoned. And they feel that this is not a process where the public can have any real influence. All they have left is to go to judicial review and that’s why there are so many of them. The reason that the board is losing so many of them is not a reflection of the amount of litigation, it’s a reflection on the quality of the decision-making. It’s very hard to win a judicial review. In normal planning, you might win around one in ten. The rate here is like 80 or 90 per cent. There are five to 10 times more successful JRs in SHD compared to other planning.

Large developments need more time

FC: A lot of people are enthusiastic about fast-track planning. Given there’s a housing crisis, what, from your perspective, would allow for an efficient planning process?

FL: Like that’s just a myth. If you look at the procedure there’s a long period of consultation between the developer and the board and the council that can go on for a year or two. So this is just basically spin from the developers and property industry.

FC: You’re saying from inception to delivery it’s taking the same amount of time through strategic housing as it would through the normal process?

FL: There’s no data on this but it’s said as if it’s gospel. They don’t want local authorities, councils putting constraints on them via the democratic development planning system. So, I am not convinced that this is a fast track. And like the thing is, for the largest developments, you need to take more time. Some of these developments are the size of small towns.

FC: You said there are issues cropping up around size, height, density. How about  resources, drainage, that kind of stuff?

FL: The Ringsend sewerage plant is already over capacity. It’s been upgraded. Even when the upgrade is finished, it’ll be over capacity. I can’t understand how Irish water is letting people connect to it given that it does overflow. When it rains, the sewage flows into Dublin Bay.

There are huge transport infrastructure blockages, like the road capacity around Dublin is small. There isn’t enough public transport particularly into Meath, Kildare, Wicklow. A lot of these are based on assumptions that people will just take the Luas or take the bus, even though the bus is full or the Luas is full. There are some good things like they’re trying to get away from car usage, there’s more bicycle parking, things like that. But it’s not an integrated planning system, it’s just based on a lot of assumptions that may or may not be true. For example, people are putting apartment blocks in South Dublin, like D14 areas, on the assumption that people will get the Luas. So they’re not putting car parking in and they’re putting bicycles in. But Dublin is still not a city where you can get rid of your car, particularly if you live in the outer suburbs. The Luas is full and it only goes into town. So if you live in Dundrum, and you work in Bray or you work in Blanchardstown, there’s no option but to drive. So again, the problem with the housing crisis, it’s not just a lack of houses, it’s a lack of everything, a lack of infrastructure, and a lack of proper urban planning, urban design.

FC: This is a different point but is there anything developers could do within strategic housing that would reduce the number of legal challenges in your view? Are there a few key lessons to be learned?

FL: There needs to be public participation from the start. Basically we need the planning system that we already have. It wasn’t that bad. And if it’s a question of delay, they should be looking to have the local authorities resourced properly. You can’t bypass the development plan. We have the national planning framework, the regional spatial economic strategies. These plans are supposed to flow down into the development plans to set appropriate development targets for areas. So doing an end run around those is a recipe for disaster.

Because 80 to 90 per cent of the cases are succeeding. That means the board broke the law. It made a decision that was not lawful. This isn’t vexatious or nimbyism. This is permission that should never have been granted in the first place

Fred Logue

FC: It’s my understanding that at the moment it’s only Justice Humphreys doing SHD judicial reviews at the moment. Are there issues around trying to get an early hearing? And costs. And lastly, the Civil Law Reform group, was looking at a higher standard of leave for judicial reviews. I’ve bundled a few things in there but I’m just wondering what your thoughts are on the courts side of things.

FL: The court system is exceptionally fast. The delays I’m seeing are the board, and developers being late filing papers. We’re supposed to get a judicial review ready in less than eight weeks. You don’t find out about [an SHD] decision, until three days after it’s taken. The time starts to run and three days are already gone. It takes a few weeks to try figure it all out. We’ve been crushed into eight weeks and then people like the board and developers are taking months to respond.

FC: Why? As a lay person that doesn’t make sense to me because if they want to get their development through, why would they delay?

FL: The board has capacity issues because of the amount of litigation. From start to finish, you can get from hearing to judgment in about four to six months.

Judge Humphreys is a very good judge. He’s actually managing a very heavy caseload because he takes not just the SHDs but any planning cases that go into the Commercial Court. And also, any local authority developments that apply directly to the board, go into SID (Strategic Infrastructure Development) so like wind farms and electricity stuff. So he’s got a massive caseload. And so far he’s managed it very well. The delays, in my cases anyway, all the delays are by the board, and the developer sometimes. 

With costs, EU law says costs can’t be prohibitively expensive. They’re always tinkering with the standard with costs, like all of these cases would meet the standard for judicial review. There’s never any doubt really about the standard. There is rarely, if ever, a marginal case.

(For the record, Logue says he does not operate on a ‘no foal no fee’ basis with clients, the system whereby payment is waived unless the client wins.)

Beyond nimbyism

FC: The Civil Law Review Group was suggesting that judicial review standards generally could be slightly tougher, with more of a hurdle to jump on the first leap.

FL: Why? The ex parte procedure is just meant as a filter. It’s a fairly low threshold. It’s just a filter. The principle of judicial review is that administrative bodies have to obey the law. The judicial review is there to make sure that happens. So, you know anyone who’s advocating for higher standards, that means that there’s a standard of lawbreaking that’s acceptable for administrative bodies. That’s what they’re saying.

FC: Well, I suppose, not all cases succeed.

FL: You’re missing the point. The ex parte is just to see if you have an arguable case. If you want to reduce delay get rid of ex parte and just have a statutory appeal. I’m serious about that because people who say there has to be a higher standard are advocating for unlawfulness by administrative public bodies. That’s what they want. Or if they want people to be put to extra cost or at extra risk to take a case. That’s what they want. Because 80 to 90 per cent of the cases are succeeding. That means the board broke the law. It made a decision that was not lawful. This isn’t vexatious or nimbyism. This is permission that should never have been granted in the first place. And if the board can’t get its decisions right, that shouldn’t be pushed back onto applicants, that should be pushed back onto the board to figure out why they’re not making lawful decisions.

FC: Is there a learning curve there for the board or do you think it’s a lack of resources?

FL: Five years ago, the board had an outstanding track record. It won nearly all of its cases. That’s changed in the last few years. And I don’t know the reason why that is. They have all the resources. The amount of money they’re spending on legal costs indicates the level of resources that they have. And I think they’re probably under pressure because of the 11 week deadline after submissions come in. So they only have 11 weeks – they have the shortest period to make decisions on the biggest developments, which is  counterintuitive. You would think that the larger the development, the more time you would needs to look at it.  That could be a factor in that they just don’t have enough time to look at it properly. But that being said, we only have eight weeks to look at the decision, and we’re able to figure out the issues with it. It’s hard to understand why the situation’s got to where it’s at.

So if the property industry wants to avoid litigation, they need to embrace public participation. You need to embrace our development system, which has a hierarchical system of plans, and they just need to accept that that’s the system we have, and work within it.

As something of an aside, I ask Logue if he approves of the rule-based planning systems of continental Europe. He notes there is much more public ownership of land in Europe than in Ireland but generally speaking he finds it positive that local authorities there get to lay down the urban footprint while developers have to work within the structure provided.

FL: We’re going the opposite direction. Even to the limited extent that we actually do that, they don’t want to play by those rules. If people start suing you, there’s a problem. The problem generally isn’t just people being vexatious. The problem is somewhere else within the overall system. If you work in newspapers and you get sued for defamation a lot, you’re probably doing something wrong. 

There is a public view that public participation is about objections. That’s rarely the case, the public inputs in its observations and they have to be taken into account. I think there’s a view that it’s nimbyism – build nothing, not anywhere near anything. That’s not the case. People are just saying what they believe should be built, or what their concerns are, about what is proposed to be built. And the reason people say they wanted planning refused, because what is being proposed is just so grossly invasive on their amenity and their locality. They’re not objecting on the basis that they don’t want anything, they’re objecting on the basis that there is huge over-development in inappropriate locations that will have very serious effects on their quality of life. It’ll cause traffic congestion, it’ll overload the schools, overload the public transport that’s there, and cause parking to spill out into housing estates. There are huge consequences. And that’s what their concerns are. It’s not nimbyism.

FC: Sometimes it is.

FL: The people taking JRs are not in that category. There’s always somebody who writes a letter, usually handwritten, to say this is terrible, nothing should be built. That’s fine. But the ones who are taking the JRs, they’re spending money on planning consultants, traffic analysis, they’re putting an awful lot of effort into looking at the issues.