A dramatic increase in the number of judicial reviews (JR) of planning decisions is cited in the report of the Accelerating Infrastructure Taskforce. In his forward to the report, Minister Jack Chamber says 2024 had seen a 43pc increase in the number of JRs taken in relation to planning decisions, followed by a 30pc increase this year.
Ministers and officials believe the JR process, where a planning decision is referred to the courts to test whether the basis of a decision was lawful, is instead being used to delay or force re-assessments of decisions taken by competent planning authorities.
Proposals in the Accelerating Planning report include legislative changes to make JRs less attractive to legal practitioners – by capping the fees involved, by codifying the law on JRS including who has legal ‘standing’ to take cases.
Given the robust protections in the Constitution for citizens to challenge decisions by State bodies, any legislative action to restrict those rights is likely to have a limited impact.
However, the explosive growth of JRs is in significant part a reflection of the increased scope to challenge the basis of planning decisions that are currently obliged to comply with complex, overlapping and voluminous planning, environmental and other legislation.
In practice, a JR can be taken where objectors believe some part of that complex mix has not been addressed in the planning process proper, including in Environmental Impact Assessments (EIA) .
The Government now plans to introduce more specific and better defined planning requirements, including for EIAs, to cut the scope for judicial reviews by reducing the possible grounds for a challenge.
Currently, applicants, including Government looking to deliver critical infrastructure, as well as planners, are in effect forced to second guess the most extreme interpretations of voluminous legislation – making applications bigger and more expensive to produce.
Other elements in the report – which is focused on delivery of electricity, water and transport infrastructure – including allowing stages of planning and permitting to be happen concurrently rather than in sequence, as currently happens.
A regulatory simplification unit will work to reduce the regulatory burden on planning applicants for infrastructure while in future any new legislation, including adoption of EU rules, will be done with a view to narrower and better defined implementation to minimising unforeseen consequences.
Scrapping a so called External Assurance Process, whereby Government departments and agencies need an outside view before pushing ahead with schemes, will reduce delivery times by months.
The plans also involve significant civil service reform, that if carried through, would mark a significant cultural shift for officials by encouraging greater risk taking and encourage officials to facilitate acceleration of schemes rather than looking to challenge spending.
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