After the publication of the Accelerating Infrastructure – Report and Action Plan last December, the Department opened a public consultation on the proposed introduction of a scale of legal fees for such reviews. 

The proposed scale of fees is based on information set out in the Report on the Regulation of Costs Payable in Matters Prescribed on Foot of Section 294 of the Planning and Development Act 2024, published last December.

Context is key

This consultation comes at a time of heightened focus on delivery of housing and infrastructure. The debate centres on the impact of judicial review on the planning and development process, with the Report and Action Plan highlighting concerns about a rise in judicial reviews. 

Yet data reviewed by the Law Society indicates that judicial review case numbers fell by 19% in 2025 compared with 2024 – alongside shifts in both who is bringing challenges and the types of decisions under review. Notably, judicial review sought by developers has increased, while reviews sought by members of the public have decreased.

Real root causes

The blame placed on judicial reviews brought forward by individuals masks the real root causes of the issues impeding development of housing such as:

• Chronic lack of investment in the justice system, with resulting backlogs and delays.
• Practical challenges, like capacity constraints in the energy grid, or the lack of adequate water infrastructure.

In our submission, the Law Society opposes the introduction of the proposed scale of fees for many reasons – including the fact that the proposed scale of fees is contrary to Article 9 of the Aarhus Convention, which requires that review procedures must be fair, equitable, timely and not prohibitively expensive. 

Furthermore, it is questionable whether the proposed scale of fees is compatible with EU competition law. There is a likelihood that the scale of fees may be capable, in principle, of giving rise to anti-competitive effects. 

The proposed scale of fees departs from the normal rule of ‘costs follow the event’. It also embeds a principle of ‘means rather than merit’ determining whether an applicant can initiate a judicial review. In practice, this will constitute an insurmountable obstacle to access to justice for many individuals and small businesses. It will be contrary to the principle of access to justice, and indeed the principles of the Aarhus Convention. 

It seems surprising that the proposed scale of fees is modelled on the system that applies in England and Wales – a system which itself is currently subject to scrutiny by the Aarhus Compliance Committee. 

Fairness and democracy

The Law Society believes that access to justice remains a core democratic principle in any reasonable society and that a robust planning process is good for everyone. 

While judicial review is an essential part of the justice system and one of the direct manifestations of the right to access to courts, it has a significant importance in environmental matters. 

When used appropriately, judicial review serves a valuable role in ensuring accountability within the decision-making processes of public and private bodies. It is important that any changes that may be introduced to the legal system and judicial review process are fair, balanced and proportionate.

We want your input

Earlier this month, the Government published the General Scheme of the Civil Reform Bill 2025, which is notable as it aims to reform key aspects of judicial review and seeks to introduce reforms in relation to discovery and civil procedure. We welcome input from practitioners on any aspects of the draft legislation. 

• Contact policyteam@lawsociety.ie.