The long slow march to a functional housing market has hit yet another roadblock; the incipient fetishisation of judicial reviews and the risk that this procedural legal tactic will be promoted to the status of last bulwark between us and the end of democracy as we know it.
As prices continue to rise, homelessness increases and the papers are full of stories of young people heading to Australia for a better life, it seems hard to believe we are seriously going to have a national argument about whether or not things have got to a stage where the right to seek a judicial review of a planning permission should be restricted.
Last week, a group of residents in Ranelagh took an eleventh-hour judicial review over MetroLink; a mega project that will transform the city and for which we have been waiting decades. Likewise the Dublin drainage scheme, which has the potential to unlock large amounts of housing, is stalled in judicial review seven years after getting planning permission.
The individuals behind the reviews cannot be faulted for using the tools available to them for advancing their own interest but it is hard to see how it is in the wider public interest.
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Tweaking rules for judicial reviews will not solve the problem
What is proposed by way of reform is pretty minimal: some sort of test will be applied as to the likelihood of success before a review can be brought and only people directly affected will be allowed bring them.
Possible limits to the fees that can be claimed from the State by parties bringing judicial reviews are to be put out to public consultation.
The Government’s caution is a reflection of the knowledge that they will have a fight on their hands. The Attorney General – its legal adviser – would seem positively disposed to making changes but he has also warned they will face concerted, vocal and well organised opposition.
The situation is not helped by a pretty poor understanding among voters – and commentators if the weekend radio shows are anything to go by – of what judicial reviews actually are. There seems to be an equally poor awareness that, although they may be relatively few in number, they have a disproportionate impact on large and often important projects.
The various supporters of the status quo seem to be leaning into this ambiguity.
Killed at judicial review
The first thing the Government needs to get across is that a successful judicial review is not the same thing as a court saying something should not be built. Usually a project is killed at judicial review because someone involved in the process did not follow the letter of the law. The reviews are silent on the wider merits or otherwise of the project.
Last week, the courts overturned planning permission for a 221-bed student accommodation development in Santry because the developer had made errors around planning notices and signs.
The judge in question made a point of saying these were not trivial matters because they affect the right of the public to object to developments. He also added that the size of the development was irrelevant.
His comments encapsulate the problem the Government faces. Judicial reviews have a David and Goliath quality to them; a resident association is on an equal footing with a large developer if it has a good lawyer. Reversing that dynamic is not a good look politically.
The Santry case also illustrates the flaw in the argument for leaving things the way they are because there are relatively very few judicial reviews taken and the solution to the housing crisis lies elsewhere.
The most often quoted statistics in this regard are those compiled by the Dublin Democratic Alliance. They say that in the last 12 years there have been 360,000 planning decisions, of which 25,000 were appealed and 800 were judicially reviewed. The majority of the reviews succeeded.
The issue here is the relative importance of the projects that were judicially reviewed. As well as the three mentioned above, almost one in five housing units approved under the last big housing initiative – the ill-fated Strategic Housing Development (SHD) measures – was quashed or stalled by legal action. That is 32,000 or, to put it another way, a year’s worth of new homes.
The reasons for quashing SHD planning permissions ranged from inadequate bird surveys to insufficient evidence around overshadowing. Depending on your perspective, these are trivial issues or good reasons to oppose efforts to limit judicial reviews.
Given the opposition that even the modest changes it proposes to make will face, it is not surprising that the Government is looking to sidestep the issue by exempting important projects from planning. This is hardly an ideal solution. It is always a good idea to be sceptical when the State seeks to expand its powers.
But it is a logical response to a situation where the existing process has become a weapon of choice for the wealthy, the nihilistically ideological and the bloody-minded.
