The chair of the Bar council has hit back at criticism of rising numbers of planning judicial reviews, saying “better quality” decision-making by planning authorities would mean fewer reviews.
Seán Guerin SC said the courts must apply the law and our laws, made by the people’s representatives, include some regulations imposing higher standards than those required under EU law.
He was speaking amid claims by politicians, including Taoiseach Micheál Martin, Uisce Éireann, developers and others, that rising numbers of judicial reviews were contributing to delays in housing and other development.
Some rules, whether they are based on European or domestic law, were very important for citizens, he said.
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He could not understand why, for example, the Greater Dublin drainage scheme project has become “something of a calling card” for critics of the judicial review process.
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Critics complained permission for that project had been quashed as unlawful on “just one ground” but that ground related to releasing quantities of waste water into Dublin Bay, he said.
A mandatory requirement of EU law meant the planning authority had to get the opinion of the Environmental Protection Agency on that release but it had failed to do that. That was not the fault of the judicial review system, he said.
Better-quality decision making would mean fewer judicial reviews, he said.
There were 147 challenges alone in 2024 to decisions by An Bord Pleanála, now An Coimisiúin Pleanála, with more expected in 2025.
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In a wide-ranging interview with The Irish Times before the opening of the new legal year, Mr Guerin, in response to the Taoiseach’s comments that the courts should not “ultimately” be where planning applications “get determined”, said there is “no question” that planning decisions are not for the courts.
Judicial review is “not about the courts substituting their opinion on planning matters for decisions by planning authorities”, he said.
It is about ensuring that decisions by State agencies which have consequences for the lives of individual citizens are “lawfully and rationally” made in accordance with law.
It is “incumbent” on those responsible for administrative decision-making to have systems and mechanisms that ensure their decision-making meets that “relatively low” bar, he said.
The courts, he said, are “not interested” in “technical” points raised in judicial reviews and are “very willing” to say such points are not a reason to quash a decision.
The courts have taken steps, including establishing a specialist planning and environment division of the High Court, aimed at speedier determination of cases, he added.
Addressing other issues, Mr Guerin said “good progress” has been made towards restoring criminal legal aid fee levels following recession-era cuts, and the Bar council expects the Government commitment to restoration to be reflected in the budget.
The big question for the longer term is achieving restoration of the link between barristers’ fees and public sector pay, he said. That is “critically important” because inflation would otherwise erode the real value of payments.
Asked about the scale of legal costs here, he said the “consistent comment” at a recent Ireland for Law event in New York, promoting Ireland as a venue for deciding international legal disputes, was that legal services here “are considered very good value by international standards”.
While he accepted that professional legal services here are “expensive for ordinary people”, he said all kinds of professional services are expensive, including architects and doctors.
