Dr Orla Kelleher

In recent weeks, journalists, developers, tech entrepreneurs, the Minister for the Environment, and now even the Taoiseach have lined up to blame public participation in the planning system, environmental judicial reviews, and the so-called ‘gold-plating’ of EU law for delaying new housing developments and key public infrastructure projects.

The purpose of this article is to put forward an alternative view: that restricting access to justice in environmental matters is unlikely to speed up the completion of housing and infrastructure (or dramatically reduce the costs).

What it will do is undermine one of the few accountability tools we have left to hold our government to account in the midst of the climate, biodiversity and pollution crises.

First, Ireland has not typically adopted a ‘best in class’ approach, or a ‘gold-plating’ of EU environmental law.

As the Environmental Protection Agency put it in launching its 2024 State of the Environment Report, for too long Ireland has merely aimed to ‘get by’ when it comes to environmental protection, aspiring to only minimum standards and in many instances, not even reaching those minimum standards.

Environmental laws are not just ‘nice-to-haves’. They are what ensures we can live in a clean, healthy and sustainable environment, which is a precondition for our very existence.

Second, it is doubtful whether curtailing environmental and planning judicial review will actually speed up delivery of housing and infrastructure.

This is because judicial review in this field is not just governed by national planning law but also by exacting access to justice standards under the Constitution, EU law, the European Convention on Human Rights, and the Aarhus Convention.

As an EU member state and a member of the international community, these frameworks are not optional. They impose legally-binding obligations on Ireland to set minimum standards for access to justice.

For example, they stipulate that environmental judicial review procedures must provide ‘adequate and effective remedies’ and not be ‘prohibitively expensive’.

Backsliding on existing access to justice rights therefore risks contravening EU and international human rights law norms and generating complex satellite litigation.

The government has already overhauled the provisions on judicial review under its 2024 Planning Act, which introduces more restrictive standing rules for individuals and NGOs, removes the right of appeal to Court of Appeal, and creates a new regime for legal costs in environmental and planning cases.

Legal scholars, practitioners, and even the President have warned that these new provisions may be unconstitutional, could breach EU law, and may be incompatible with the Aarhus Convention.

In a constitutional democracy like Ireland, the government cannot dismantle judicial review, the strongest check on executive and legislative power, and not expect the alarm to be raised.

The upshot of these reforms will most likely be prolonged legal uncertainty which will spur more satellite litigation. Any further emergency legislation to fast track key infrastructure that seeks to oust the supervisory jurisdiction of the courts could also fall foul of the State’s access to environmental justice obligations, with similar dilatory consequences.

Third, there are of course elements of the planning system that could be improved to make it more efficient.

For example, we need policy certainty from government/public bodies on certain kinds of infrastructure (like emissions-intensive projects) to mitigate against protracted delays and to clearly prohibit infrastructure that would lock us into fossil fuels.

Another simple yet effective reform would be making sure planning authorities and An Coimisiún Pleanála are properly resourced and trained. According to the chairperson of An Coimisiún Pleanála, improved staffing has helped to clear a backlog and is already speeding up planning decisions.

Improved education in the rapidly evolving fields of environmental and climate law would help ensure that these bodies can deliver legally sound and well-reasoned planning decisions. Improving the quality of planning decisions is imperative to foster greater trust in the planning system and would obviate the need to go to court.

It is also important to emphasise that there are elements of the planning system that work well. For example, there has been welcome clarity over the last few years about the scope of special legal costs rules for environmental judicial review following a Supreme Court judgment on the issue.

Until now this approach to ensuring legal costs in environmental cases are not prohibitively expensive has worked well. Yet, this has been cast into doubt with a new approach to legal costs rules under the 2024 Act.

Finally, we need to be alert to the risk that the housing crisis is potentially being weaponised to push through a deregulatory agenda in planning and environmental law. Recent reforms to judicial review echo with what author Naomi Klein describes as the ‘shock doctrine’.

This involves a tactic of exploiting the public’s disorientation during a crisis like a natural disaster or terrorist attack (or in this case, a devastating housing crisis) to rush through radical and otherwise unpopular reforms like deregulation and privatisation.

These measures typically favour corporate actors and disadvantage ordinary citizens and residents who are too distracted by the crisis to effectively resist.

In 2025, policymakers have estimated that there are approximately 90,000 housing units with planning permission that have not yet been built.

There is a real danger that judicial review is being cast as the bogeyman but once it has been hollowed out, the same problems with housing availability and affordability will persist. This is because judicial review is ultimately not the underlying cause of the housing crisis.

In recent years, judicial review has been one of the few mechanisms that has successfully held government to account on its climate commitments and ensured that development is aligned with renewables targets.

The housing crisis poses an existential threat to our democracy, but so too does blunting one of the only tools we have to uphold the rule of law. We accept attacks to it at our peril.

Dr Orla Kelleher is an assistant professor of law at the School of Law and Criminology, Maynooth University.