‘Myths and realities’ of contemporary planning law

In his keynote address to the 2025 Law Society Environmental and Planning Law Committee Conference, Mr Justice Gerard Hogan of the Supreme Court outlined his ‘six myths and three realities’ of contemporary planning law.

Explaining the increase in judicial reviews in such matters, the Supreme Court judge told the Blackhall Place conference (13 November) that modern planning environmental law was extremely complex.

Mr Justice Hogan cited both the Constitution and the Aarhus Convention when he outlined his ‘six myths’ of the planning process. 

Rejecting the notion that the constitutional provisions on property rights were a serious obstacle to reform, the judge said that, with regard to organising modern society, “virtually every piece of legislation interfered with property rights – quite often in a far-reaching way”.

Misleading comparisons

The Supreme Court judge also said that calls by some to insert a constitutional right to housing overlooked that countries commonly cited as models — such as the Netherlands, Sweden and Finland — operated weak-form judicial review, unlike Ireland’s strong-form system, making comparisons misleading.

He added that Spain’s right to housing was largely programmatic and non-justiciable, similar to Ireland’s article 45.

He also said that claims that courts routinely quashed planning decisions on trivialities were largely myths.

If applicants succeeded in challenging planning decisions, this was because courts must apply mandatory statutory requirements in order to uphold the rule of law, the Supreme Court judge explained.

These mandatory rules were drafted and enacted by the Oireachtas and not by the courts, he added.

The Planning Act already took the probability of success into account, he explained.

The judge added that the “substantial-grounds requirement hasn’t proved to be the panacea that people thought it was going to be”.

In the first of his three ‘realities’, Mr Justice Hogan referenced his own Pembroke Road Association judgment as evidence that “the present planning and environmental law is almost impossibly complex”.

Access to legal advice

He suggested that an important question was if planning authorities had “sufficient access to highly specialised legal advice necessary before major decisions are taken”.

Citing as an illustration Friends of Ardee Bog v An Bord Pleanála, Mr Justice Hogan’s second ‘reality’ was that: “Virtually every large-scale infrastructure and housing project is challenged by way of judicial review, with attendant delays.”

His third ‘reality’ was regarding the increased number of judicial reviews in planning matters post-Aarhus: “Modern planning environmental law is extremely complex, very difficult to apply, and the chances of applicants succeeding are now quite high.”

Domestic updates

In her update of domestic developments in climate litigation, Suzanne Murray SC outlined the elements that had to be taken into account in the planning process.

These span European directives including Regulation 2021/1119, the RED, the Paris Agreement, and Government policy as laid out in the NPF, section 143 of the Planning and Development Act 2000, and the Climate Action and Low Carbon Development Act 2015, which contains section 15. 

With so much complexity, the ‘discretionary remedy’ of judicial review “is coming more and more to the fore, particularly in the planning and environmental cases, and particularly in renewable-energy cases,” the SC said.

In her contribution, the senior counsel cited three judgments – Save the South Leinster Way, Friends of Killymooney Lough, and Coolglass Wind Farm – allowing that the Supreme Court judgment in the latter, expected in December, might differ.

Initial uncertainty 

In her discussion of the already commenced chapter one of part nine of the 2024 Planning and Development Act, chair of the Environmental and Planning Law Committee Rachel Minch clarified “some initial uncertainty” about the new judicial-review procedures in the act.

“It only applies to decisions made under the 2024 act and to relevant bodies as defined, so, for example, it wouldn’t apply to judicial reviews of EPA and MARA decisions,” Minch explained.

The SC added that sections 50 and 50A 58 continued to apply to decisions made under the 2000 act, and section 50B continued to apply to challenges and decisions made both under the 2000 act and the 2024 act.

Regarding section 180 of the 2024 act (suspension of duration), which has already been amended to broaden its scope, Minch explained that this provided a procedure to suspend the running of the duration of a permission during judicial-review proceedings from the date they are commenced to their final conclusion.

Under part nine of the 2024 act, the date of commencement is the date on which the motion seeking judicial review (JR) is issued.

“But if it's a JR under the 2000 act, it's perhaps open to interpretation as to whether it's the date on which the substantive motion issues, or whether it's the date on which the leave application is lodged.

“So perhaps when you're giving notice, you may wish to refer to both dates,” the SC suggested.

Clearly-defined date

The 2024 act clearly defined the date on which proceedings are finally concluded, she added.

“And what's important to note there is that it's not necessarily the date on which the proceedings in their entirety have concluded. It can also be the date on which it's confirmed by a decision of the court that the validity of the permission in question is no longer being challenged in those proceedings,” Rachel Minch clarified.

The SC added that the section applied only to certain types of permissions and did not, for example, apply to:

• Retention,
• Retrospective,
• Outline permissions, or
• extension of duration decisions.

“It also now applies to relevant permissions that were granted under the 2000 act in respect of which judicial-review proceedings under the 2000 act have been brought.

“And in fact it can apply whether the proceedings were brought on, or after, the date of the coming into operation of section 180, but also those which were brought before that, and may even have concluded,” she explained.

The two preconditions are that the development to which the permission relates must not have been substantially commenced and that the permission has not expired.

“But otherwise if you have proceedings in being or which have already concluded, and there's still life left under your permission, you can give notice to be able to avail of the suspension provision,” Rachel Minch concluded.