The rate of judicial review in Ireland is "off the charts," the Director of Housing and Planning at the Construction Industry Federation has said.
Speaking to RTÉ's This Week, Conor O'Connell said: "The rate of judicial review per million is 26 in Ireland, it is less than five in the UK."
"We have a serious problem with the constant objection to all sorts of housing enabling projects," he said.
Mr O'Connell cited the Dublin Drainage Scheme as an example of judicial reviews slowing down the delivery of housing.
Judicial reviews are a court process, separate to the planning process, and occur after a planning decision has been made.
Solicitor Fred Logue specialises in planning and environment litigation, he said that a judicial review succeeding means a serious legal error has been made.
"If there's a very high success rate (of judicial reviews), that's a symptom of bad decision-making or bad applications," Mr Logue told RTÉ's This Week.
"As somebody who's taken hundreds of judicial reviews, they're not taken on minor points.
"They're usually taken on very substantial points, which are related to the quality of development.
"There's always a tension between the quantity of development and the quality.
"What the planning process does is strike a balance between quantity and quality, and for many of the housing projects that I've worked on, the legal issues arose because the applicant was looking for too much development and sacrificing quality.
"That includes things like access to high-capacity public transport, making sure that there's adequate daylight in buildings so that you don't have to have the lights on in the middle of the day, and having appropriate levels of public open space, which is basically playgrounds and parks.
"If you want to build more units, you can sacrifice some of those, but then you're introducing risk that if that is granted planning permission, then somebody can judicially review it to enforce some of those standards."
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The Planning and Development Act 2024, which is being phased into action, will update the parameters relating to judicial reviews.
Mr O'Connell said that he disagreed with some of Mr Logue’s remarks.
"When the builder goes to apply for planning, you go into the planning authority, the local authority, and you have your pre-planning meeting, and you have a discussion about what's feasible in relation to that particular site.
"Planning Policy in Ireland seeks for high-density development of a certain scale, in other words, to maximise the number of units with all the good standards in place that are there in the building regulations.
"A builder doesn't just apply for anything that they want.
"They apply in conjunction with what is stated within the local area plan, what is stated within the county development plan," Mr O'Connell said.
He added that some judicial reviews are taken for "minor legal reasons" such as a page missing.
Assistant Professor from UCD School of Architecture, Orla Hegarty, said that she was concerned the pushback on judicial reviews is from the property lobby seeking to lower standards.
"It's very disappointing to see people calling for unpicking regulations," she said.
"I think restricting access to the courts when actually the courts are just looking to make sure that the law is followed and that where mistakes are made, that they are corrected."
She added: "I would defer to the chair of the Bar Council, who says that we need better quality decision making so that we have fewer judicial reviews, and he said that it's the process is about ensuring state agencies consider the consequences for citizens and act lawfully and rationally."
"Our planning process is based on good governance, which means that anybody can make an observation or submission that doesn't hold up the process. It's part of the process," Ms Hegarty said, adding that transparency is a vital part of the process.
"We never hear people talking about procurement policy and the flaws in Government procurement policy that are causing problems in our housing system.
"We don't hear about the funding delays.
"We don't hear about capacity building and expanding the market beyond the players that are there at the moment."
In a statement to RTÉ's This Week, the Department of Housing confirmed that there are a large number of uncommenced planning permissions.
The Dublin Housing Supply Pipeline report from the first three months of this year found there were 44,505 units permitted but not commenced in Dublin. The vast majority of these (88%) are apartments.
The department added that Budget 2026 reduced VAT on apartment sales to 9% in order to activate dormant planning permissions.
Developer doesn't know his next project
Construction director for MKN Property Group, Brian McKeown, does not know what site he can develop once his current project at Hollystown in Dublin is completed next year.
"Primarily, I've always had at least two if not three sites going at the one time, normally an infill, brownfield site and then a big open site," Mr McKeown said.
McKeown's family business bought a large site in Fosterstown in Swords, Co Dublin, in 2018, but between delays from the planning process and judicial reviews, the area still cannot be developed.
"About 12 months ago, we decided we would start over with another planning, and we're hoping in the new year now to get another planning scheme in for that same site," he said.
The original planning for the site was for 1,000 housing units. The new planning will be for just over 700 units.
"I've paid close to €1,000,000 on planning fees at this moment in time," Mr McKeown said.
"That's before I've done anything on site ... the grass is knee high, it's just sitting there."
Mr McKeown said the cost of all the delays will be added to the final cost of the properties.
"If I don't make money, no different than any other business, I go out of business," he said.
A new planning application means that the site could once again be open to judicial review. Mr McKeown said he is "quietly confident" that it will get planning but with judicial reviews ", who knows".
Mr McKeown currently has 11 employees and one crew on his one active site. At the beginning of this year, he had three crews working for him.
"If I don't have planning, I'm not working," he said.
"It's trying to get a pipeline to work, that's the issue that we have.
"I can't see beyond this site at this moment in time.
"When I've finished this time next year. I've nowhere to go."
Mr O'Connell said the story of MKN property is typical of what's happening around the country.
"Every house builder that's trying to deliver housing they are subject to extreme delays," he said.
"We are extremely concerned about the pipeline from later next year into 2027 and onwards," Mr O'Connell said.
"From a housing perspective, we're running out of land with services."
Mr O'Connell welcomed the Department of Housing advertising for a housing czar, as there are so many agencies potentially involved in any housing project that need to be coordinated for infrastructure delivery.
Ms Hegarty said she was concerned that the job ad for the Deputy Secretary in the Housing Activation Office in the Department of Housing did not require housing industry experience.
"It is concerning that they're saying somebody doesn't have to have knowledge of housing infrastructure, capital investment or planning policy.
"These are technically complex areas, and we see very broad-brush, simplistic solutions being presented all of the time.
"I think whoever is in that role needs to have a really good understanding and some independent advice about how the process actually works."
