Accelerating Infrastructure? (1)
“The blueprint for reform”?
AI has made no contribution to this Post.
Since Independence, the process by which infrastructure is developed in the State has evolved piecemeal. The Government’s 136 page Accelerating Infrastructure Report and Action Plan (3 December 2025) (“the Plan”) is the most wide-ranging review of how infrastructure is developed in the history of the State.
The Plan describes itself as “the blueprint for reform” (p36). If its “actions” (p11) are implemented, the planning system in Ireland will see ongoing change and litigation for at least the next two years (p71) and almost certainly much longer.
This Post, and that to be published next week, provide commentary on the Plan. Beauchamps and William Fry have published straightforward summaries, short and longer respectively.
The Plan proposes 30 “Actions” under four “Pillars” (p8). The four Pillars are;
Legal Reform (within which the Plan focuses almost entirely on Judicial Review, “JR”)
Regulatory Reform
Delivery and Coordination Reform
Public Acceptance
This Post will focus on Legal Reform and next week I will look at Regulatory Reform and some other issues raised by the Plan.
This Post looks at;
the context in which the Plan is presented
the barriers to development identified
some general points regarding JR relevant to the Plan
some of the specific reforms to JR (upon which I comment) advocated by the Plan
other legal reforms
some conclusions
Most of the last three sections are available only to paid subscribers.
THE CONTEXT
The Executive Summary boasts that “capital investment in Ireland has never been higher.” (p7 and see p20) Without getting into a debate on the figures, what’s referred to here is, of course, an allocation of monies, not spending. Making provision for spending is of no effect unless the projects in respect of which monies have been allocated proceed. The Plan is about ensuring the latter.
“Ireland’s infrastructural omnishambles”
(Irish Times, editorial, 6 December 2025, p19)
It is widely agreed that Ireland has a “legacy of underinvestment in capital infrastructure” (paid subscribers can read my Posts of 10 April 2025 and 3 December, 5 November and 30 July 2024). The Plan estimates the deficit at 25% (by reference to other European countries) (p20). There might be legitimate debate about whether such deficit is attributable to factors as nebulous as “the relative lateness of Ireland’s industrialisation” (p7) or its “relatively recent transition to high-income status” (p19)...or whether much more recent political failure is to blame. Either way, this Government appears serious in its attempts to address the deficit.
“Infrastructure projects in Ireland must navigate a complex legal and regulatory landscape. This encompasses EU Directives, national legislation, and a broad array of policies and guidelines. Over time, the volume and intricacy of these frameworks have grown substantially. This complexity is further heightened by an expanding body of case law, driven by the increasing number of judicial reviews of planning and regulatory decisions and referrals to the Court of Justice of the European Union...The cumulative impact of this burden slows project timelines, inflates costs, and introduces uncertainty for developers...”
This statement will be widely seen as accurate by developers, planners and planning lawyers.
Its final phrase, “...while offering little evidence of proportionate environmental or social benefits” (p26) (for which no evidence is cited) will be controversial.
The Plan “focuses on a series of actions that can accelerate the provision of critical infrastructure. Critical infrastructure, for this purpose, means electricity network, water and transport infrastructure...However, many of the actions and resulting reforms will bring important benefits to infrastructure delivery more broadly.” (p8)
THE BARRIERS TO INFRASTRUCTURE DEVELOPMENT
“Current regulatory and legal processes are acting as significant barriers to the timely delivery of infrastructure” (p39) which are “individually serious but collectively decisive” (p28). “Ireland’s barriers to infrastructure delivery point to a system that is overly-complex, sequential and fragmented across legal, regulatory and operational lines.” (p37)
“Fragmented governance structures, lengthy planning processes, and limited coordination across sectors” (p21) have created “development timelines [that] have in many cases doubled compared to the development cycles typical of just 20 years ago” (p7).
Increasing timelines are attributed to “twelve key barriers” (p7) as follows (p25);
public opposition
regulatory processes which “increase complexity without necessarily improving outcomes”
risk aversion which drives “a culture of caution”
increasing JR “contributing to uncertainty, longer timelines and higher cost”
consequences of JR (listed as a separate barrier)
insufficiently coordinated approvals apart from planning permission which are necessary for many developments
slow process (it is “unclear” that current procedures “add value” relative to the time taken)
inconsistent planning decisions and timelines (unspecified)
lack of prioritisation/coordination between State agencies
procurement challenges
uncertainty of Government funding
construction sector capacity
Only five of the twelve barriers can reasonably be described as legal/regulatory barriers and only one (without counting it twice) is legal.
JUDICIAL REVIEW
Little more than a year after enactment of the Planning and Development Act 2024 (“PDA 2024”), and before all of its provisions are effective (including those relating to JR), “further reforms are necessary” (p39).
The objective of the Government’s legal reforms is to “balance individual rights with the common good” (p44). It is optimistic to suggest that this daunting task can be achieved in even 136 pages, especially in a predetermined context of “Accelerating Infrastructure”.
The legal reforms are intended to reduce delays by “streamlining judicial review processes, clarifying legal thresholds, and enabling faster responses to legal precedent.” (p14) Amending thresholds, whether regarding the need for planning permission or environmental assessment (see below), is a potentially consequential but discreet reform. Responding better to case law (see my Post next week) is not a legal reform at all. The Plan’s proposed legal reforms focus almost entirely on JR as a barrier to the development of infrastructure.
“Government will progress fundamental reform of the judicial review system...” (p40).
Further ‘Reform’ Premature?
The Programme for Government of June 2020 referred to the reform of JR and Part 9 PDA 2024 was intended to effect same. This reform has not had opportunity to prove itself because ‘Part 9 Judicial Review’ only applies to planning decisions taken under PDA 2024 (s279(1)(a)). Planning decision-making is dealt with by Part 4 PDA 2024 which has not yet been commenced. The Plan proposes amendments to enacted measures which have not been brought into effect.
The Amount of Judicial Review
It is not possible to make a detailed assessment of the extent to which JR is a barrier to infrastructure development from the statistics quoted in the Plan.
The Plan refers to an “increasing number of judicial reviews” (p26) and to cases in the Planning and Environment Division of the High Court increasing by 43% between 2023 and 2024 and by 30% to date between 2024 and 2025 (p39). The Plan states that An Coimisiún Pleanála (“the Commission”) is currently facing 135 JRs.
These figures tell us little about the extent to which applying for Judicial Review is a barrier to infrastructure development because we do not know;
over what period the cases were lodged
the identity of the applicants. In 2024, 39 of the 143 Judicial Review cases served on the Board were instigated by developers who had been refused permission (An Bord Pleanála Annual Report and Accounts 2024, 30 June 2025, p21).
what the cases concern. In 2024, 22 Judicial Reviews were served on the Board concerning Residential Zoned Land Tax, Vacant Site Levies or derelict site decisions – none of which had any connection with infrastructure development (Ibid.)
The figures provided in the Plan do not establish that JR is a barrier to infrastructure development.
Fred Logue, a leading Judicial Review practitioner, produces data to show “that the number of judicial reviews is decreasing year on year, and in particular...the ones taken by ordinary members of the public, are decreasing very significantly.”
What Judicial Review is and its Context
“Judicial review is radically different from appeal. In an appeal, the Court is concerned with the merits of a decision appealed. In judicial review, the Court is concerned with its legality. On an appeal, the question is ‘right or wrong?’ On [Judicial] review, the question is ‘lawful or unlawful?’” (Holland J, Monkstown Road Residents Association v An Bord Pleanála [2022] IEHC 318 §58) (on which topic paid subscribers can see my Post of 27 November 2025)
While some JR does have a significant effect on development, that is only the case where there has been a significant legal error in the relevant approval. The Plan does not doubt that infrastructure development should be undertaken subject to the rule of law. To say otherwise is to invite a development free for all, something akin to what Humphreys J colourfully referred to in Protect East Meath Ltd v Meath County Council [2023] IEHC 69 §1, 44/5) as a “building-site Darwinism”. An unregulated ‘free for all’ is good for no-one.
It is important to understand that the Courts will not quash a planning decision where a legal error is;
a mere technicality (see, for example, Humphreys J in Croft v Dublin City Council [2025] IEHC 656 §1)
“harmless” (paid subscribers can see the case law referred to in my Post of 24 April 2025)
Further, JR is a discretionary remedy. Even if legal error is found, the Court may choose not to exercise its discretion to quash the decision in issue. It may instead, for example, make a Declaration as to the law and allow the decision to stand or it may simply choose not to exercise its discretion at all.
Some Specific Issues
The Plan makes various statements regarding JR upon which I comment as follows.
“Even minor errors can result in multi-year delays...” (p26) Where decisions are quashed and remitted, the question as to the length of time it takes to make a new decision is for the decision-maker, not the Court. For example, following Kemper v An Bord Pleanála [2020] IEHC 601, the Commission took four years to make a second decision on the Greater Dublin Drainage project (see Case Study at p121). The Court already carefully considers the point in the planning process to which a matter should be remitted.
“Procedural flaws...often result in full quashing of permissions rather than targeted remedies” (p27). Any such issue is largely dealt with by the new ability of the Court to correct “errors” and amend rather than quash the impugned permission (s288 PDA 2024).
The discussion of legal reform in the Plan focuses on the Court process and JR. In fact, the majority of planning and planning law does not involve court procedures still less JR. All of my work is advisory. My clients and I hope that none of it sees the inside of of a court room. Much of that work, however, is complex. Meaningful reform of planning law must be much wider than JR procedure.
