The hands of former Attorney General Paul Gallagher and of the property industry are all over the Planning Bill
By J Vivian Cooke
The Planning and Development (Amendment) Bill, 2022
The Planning and Development (Amendment) Bill, 2022 attempts to bring clarity to the legal underpinnings of the planning system which are currently scattered across numerous laws, regulations, and court decisions (at both national and EU levels).
Historical balance between central and local government
The history of planning legislation is of a balance between centralised powers, typically emanating from the Minister and latterly from the Office of the Planning Regulator (OPR); and local authorities’ powers, which in turn have been divided between officials’ and elected councillors’. Too often powers exercisable at either a centralised or local level, have simply not been exercised properly, and many would say local government has not justified the trust that underpins the delegation of such powers as planning permission (in officials) and zoning (in elected councillors).
The Bill is a significant salvo at taking back some of the powers of local authorities by requiring their deference to centralised standards. Whether the requirements will be observed by headstrong local authorities remains to be shown. Equally uncertain is the appetite of the OPR to exercise zealously its powers or of any Minister to sanction councillors in a delinquent local authority who might be party colleagues. Long-standing and egregious failures of planning, including the sprawl of Dublin and one-off housing, have been largely perpetrated in contradiction to national policy due to enforcement inaction rather than action, with such consistency that it must be deemed to be policy inaction.
Unclear if local authorities will defer to the centralisation
The Bill carries forward the often-unenforced logical impetus of the existing system. It is based on a clear hierarchy for strategic planning and policy in which subsidiary plans are obliged to be materially consistent with all policies that are above them in the hierarchy. The hierarchy descends from National to Regional to Local Authority to Local. Under the Bill, the Minister will set out certain aspects of important policy in National Planning Statements which contain directives that purport to be binding, termed National Planning Policies and Measures (NPPM).
The history of planning legislation is of a balance between centralised powers, typically emanating from the Minister and latterly from the Office of the Planning Regulator (OPR); and local authorities’ powers, which in turn have been divided between officials’ and elected councillors’
New planning procedures
Regional assemblies must draft Regional Spatial and Economic Strategies (RSES) that are “materially consistent” (the term is significant: “comply with” would have been stronger, requiring, as it does, positive action) with the specific directives in NPPMs, and support overall government goals; while both national and regional documents aim to coerce often recalcitrant local authorities in their individual Development Plans which drive the planning permissions they issue.
The Bill sets out a process common for all actions provided for in law which, the drafters fear, might not necessarily be observed in the political process. Each individual step, in both policy drafting and permission-decision-making, is explicitly laid out in comprehensive step-by-step detail. The requirements for consultation, notification, review, compliance, appeal and deadlines are all stipulated in statutory process maps.
Within these policy constraints, local authorities can, as now, give effect to national standards in ways that they deem appropriate to local circumstances; this may be valuable in preserving the democratic legitimacy of the planning process and, in addition, because local authorities have better knowledge of conditions on the ground.
Compliance and Enforcement
Errant authorities, whose subsidiary document diverges from a higher-level policy instruction are legally obliged to amend their policy documents to take such steps as are necessary to make it materially consistent with national, regional or local standards. Moreover, coherent planning objectives are pursued by obliging regional and local plans to have an internal, or horizontal, consistency with the authority’s other formal policy documents in areas such as housing, transport and climate action. It remains to see what will happen if authorities fail to amend as required. The longstanding experience has been that correcting the flouting of such directives inevitably depends on intervention by the often-reluctant OPR or by beleaguered individual litigants. The Bill maintains the current status of OPR enforcement actions against local authorities which are recommendations to be implemented at the discretion of the Minister, but they probably should be changed to be mandatory.
This legislative review project has been misled from its conception by exclusively focusing on the wrong goals – consistency, efficiency and speed.
A legal obligation doesn’t necessarily lead to compliance. It would, for example, be better if a standing body — the powers of the OCR could be increased — were to be charged with — and employed personnel who were scrupulous and determined, indeed passionate and fired up about — taking action to enforce compliance. And if the standing body were properly funded. It would ensure that local authority development plans and individual planning decisions complied with planning policy. This is what was envisaged in the recommendation from the Planning Tribunal to establish a Planning Regulator. Unfortunately, lobbying means that we got a regulator for propriety but an advisor for compliance.
Much of the Bill is a reiteration and refinement of the existing approach to planning rather than a radical new departure. However, some proposed changes have the potential to create difficulties.
Locus Standi for Individuals and Limited Companies
If the Bill works in practice, developers will know better, before submitting a proposal for permission, by what standards their proposal will be judged and by when a definitive decision will be made. The building industry has, largely self-servingly, identified inconsistent planning decisions and the threat of legal challenges as a major obstacle to designing and financing urgently needed new private residential developments and, through extensive lobbying, appears to have convinced the Department of Housing of this spurious argument.
Too much of the adverse comment that the Bill has been subjected to has focused on the proposed changes to how planning decisions may be reviewed in the courts perhaps because it is the easiest criticism among many more complex ones that the discourse is avoiding. Section 249 (10) (c) will permit legal challenges to be initiated only by a party that will “be directly or indirectly materially affected by the matters to which the application relates”, the meaning of which “shall not be limited to an interest in land or a financial interest”.
Tellingly, self-appointed developer lobby group, Property Industry Ireland, has been lobbying for: a 15-point agenda including “proportionate cost risk” for people taking a case, as well as a call to “raise the entry bar for making a challenge”, and that any applicant “must be able to show some connection to the area”.
The criterion has already evolved over the years in legislation from “substantial interest” to “sufficient interest” to “material interest” as proposed in the Bill it is quite tightly defined. This reflects the received wisdom at government levels that NGOs and residents are of dubious worth to the system: and of course of lobbying, often ventilated in the compliant property sections.
Significantly, however, despite being critical of this section, the Law Society’s Rachel Minch, told the Oireachtas Committee on Housing that “There are [only] rare cases where a court finds an applicant does not have sufficient interest”.
If the applicant is a limited company, it among other things must have a constitution which includes objects related to the promotion of environmental protection which are relevant to the case under appeal.
However, individual members of an affected but excluded company will as always be able to take appeals and then legal challenges in their own names, especially if they engage as individuals early in the process.
Administrative Cost Scheme
That planning actions will be undertaken without the protections afforded by limited financial liability should be mitigated by a proper enactment of the Administrative Cost Scheme envisioned in Section 250, the details of which will be fleshed out in secondary legislation. In order to be valid, this scheme will need to comply with both the Irish judgment in the Heather Hill case, (that litigants challenging planning permissions on environmental grounds are entitled to a special Protective Costs Order (PCO) for all, and not just some, of their grounds of challenge) and the principles of the Aarhus Convention – on which Heather Hill was of course grounded – which give legally enforceable guarantees that justice should be financially accessible for environmental litigants.
Too much of the adverse comment that the Bill has been subjected to has focused on the proposed changes to how planning decisions may be reviewed in the courts
If the proposed Administrative Costs Scheme proves to be over-restrictive, it will no doubt be struck down since the EU generally gets its laws applied. However, until the scheme’s details are published, this is moot. But, without a financial interest in preserving lawyers’ fees in such cases, Village sees no reason to presume, as many in the legal profession have, that the scheme will be an obstacle to access to the courts merely because it departs from the established rule that “fees follow the event”, though it will be important to monitor its effect on those litigating in the public interest who are employing lawyers on a ‘no foal, no fee’ basis, which is many of the most important at the moment.
Aarhus
The Aarhus Convention creates legal obligations of access to information participation in decision-making and rights of appeal which the Bill cannot avoid, although evidence given by the Department of Housing suggests it is determined to test just how much it can get away with. Where the spirit of Aarhus is expansive and inclusive, the Bill’s is narrow and exclusionary.
It should be admitted that Aarhus balances the desirability of public participation and the necessity of providing physical infrastructure adequate to the needs of the public. An unswerving commitment to the quality of all new developments is the best way to resolve individual conflicts between these competing societal imperatives.
Exempted Development Declarations
During pre-legislative scrutiny, opposition TDs, Eoin O’Broin and Cian O’Callaghan, highlighted the usefulness of the current provision for any member of the public to oblige a planning authority to issue an Exempted Development Declaration (EDD) stating its opinion about whether development planning permission is required for specified works. The new Bill’s section 8 will only allow the owner or occupier, or the person authorised to carry out the work, to ask for an EDD and the ability of a third party to obtain the determination will be extinguished. The rationale the Department of Housing gives for this change is that third parties querying the exempted status of a development will instead in future be directed to the enforcement process but that is infamously undynamic due to a national culture of deference to the holders of property rights – making this very much a retrograde step for enforcement of good planning.
Public Participation
According to acting assistant secretary in the Department of Housing’s planning division, Paul Hogan: “A key policy aim of the new legislation was to ensure that to a greater extent, major debate is focused on the plan-making rather than the planning application stage…The way we see it is that the area plans should be the first stage. That is where people get involved to influence and shape what can happen, informed by appropriately tailored national guidance and a national plan”. This is a good starting point that activists, developers and government should be able to agree on.
A recent article by housing academic, Lorcan Sirr, in the Irish Times, notes the very real correlation between best practice, including proper consultation (which might be deemed to suit the public), and avoiding delays (which might be deemed to suit developers): “In a 2016 study by TU Delft in the Netherlands measuring citizen engagement in planning across 32 European countries, Ireland came third from bottom, just beaten to the wooden spoon by Spain and the Czech Republic (Lithuania, Denmark and Sweden were top dogs). Things have worsened since then.
Rather than adopting best practice, the Planning and Development Bill – bearing the fingerprints of the property industry – seeks to further prevent the public from meaningful participation in the planning system, including restricting residents’ associations from taking legal reviews of decisions by An Bord Pleanála.
Of course, like any form of best practice, meaningful engagement takes effort. But why bother with that when it is easier to weaken the system itself – and then push for reducing participation through regressive legislation?”.
RSESs don’t address the comprehensive agenda that comprises Sustainability
It is somewhat depressing that the objectives of RSESs as defined in section 27 (2) (b) seem to elevate the economic perspective in a jarring and unorthodox move away from the sustainability standards that are endorsed by the UN, EU, OECD and others: “The objectives of a regional spatial and economic strategy shall be— (a) to support the implementation of the National Planning Framework, and (b) to support the economic policies and objectives of the Government”.
RSESs are to support government economic policies but not its policies on climate action, environment, transport, or heritage; and there is little elsewhere in the Bill to shift the orientation of policy from an economic agenda to one that embraces a concept of planning that is anchored in sustainability and excellence, in the era of climate and biodiversity crises; and indeed modernity and its focus on high standards.
Section 249 (10) (c) will permit legal challenges to be initiated only by a party that will “be directly or indirectly materially affected by the matters to which the application relates”, the meaning of which “shall not be limited to an interest in land or a financial interest”
Material Contraventions
The Bill, retains, with some small adjustments, too many of the means by which material contraventions can be approved — that cut across good planning at the moment.
Indeed, exceptions will not, under the Bill, be limited to local government. Although section 7 (3) states that a “Development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required”, section 7 (5) allows exactly such exemptions by ministerial regulation to either individual developments or entire classes of developments. The broad power to dispense with environmental impact or appropriate assessments under section 7 (5) (b), if public consultations are required by any other law prior to the grant of permission is simultaneously the most overlooked and one of the most foolish provisions in the bill.
In fact, EIAs are always welcome because of the requirements they impose to conduct assessments of alternatives to the development; outline mitigation measures; provide photomontages in the cases of EISs; and provide the context of plans for sites that have already been subject of an EIA and adjoin the applicant site.
It is invidious to grant this broad ministerial discretion to circumvent always desirable safeguards for the environment and the EU will not, in any event, stand for it.
Possible Legal Challenges to new provisions
There is a suspicion that the Attorney General who initiated this Bill, Paul Gallagher, steered elements of the Bill knowing that they were legally fragile but keen, perhaps after his years soldiering in private practice on behalf of property developers – to at least finally get them teased out, if necessary in court actions arising from the Bill.
There will almost certainly be swift challenges to the following provisions if they are enacted: section 249. (15) (a) (iii) limiting the jurisdiction of the Court of Appeal; section247 (15) (b) preventing High Court decisions from being appealed to the Supreme Court except in cases involving article 34.5.4° of the constitution and; section 466 (3) which does not provide an administrative avenue of appeal for a planning authority decision’s relating to strategic development zones.
Becoming entangled in satellite litigation would be an outcome that directly contradicts the bill’s stated purpose of bringing certainty and clarity to the planning process. Yet, Tom Flynn, representing the Planning, Environmental and Local Government Bar Association predicted, perhaps inevitably, that these issues – the new grounds for judicial review and the administrative cost scheme – would “end up with a wall of litigation” which would take years to grind to a conclusion. He further held the opinion that the ability for the Commission under section 249 to seek a stay in judicial reviews in order to correct non-material errors in facts or law, was created undesirable ambiguity of the status of planning decisions granted in such circumstances. The possibility was raised that, rather than allow construction of approved developments to begin more quickly, the practical effect of section 249 would lead developers to wait out the 8-week deadline in which judicial reviews will be permitted to be initiated.
Similarly, preventing parties seeking judicial review from raising issues that were not included in their submissions to the original application will encourage participants in straightforward planning applications to submit catch-all submissions in order to preserve the right to raise an issue at appeal should the need arise. It may also be challenged where it provides an opportunity to avoid EU law which is unconcerned with whether the point of EU law has been raised during the planning process. In attempting to avoid rare incidences where High Court challenges are obstacles to development, the Bill, if unchanged, would bog all applications in the new process in an avalanche of unnecessary paperwork at their inception.
An objective perspective suggests the best approach.
Flawed Premise
This legislative review project has been misled from its conception by exclusively focusing on the wrong goals – consistency, efficiency and speed. It obsesses over measures such as setting statutory mandatory timelines for all consent processes. But this will create an incentive for inspectors, planners and commissioners to make quick decisions rather than correct decisions. Parking for this purpose the scandals revealed in the practice of An Bord Pleanála in the last two years, by May 2021, Justice Richard Humphreys had already identified “a certain laxity in scrutiny [on the part of An Bord Pleanála inspectors], involving in effect the cutting and pasting of developers’ materials, without adequate critical interrogation”.
By contrast, if the Bill had dedicated itself to the objective of achieving the best plans and decisions that guaranteed, through mandatory wording, sustainable developments, then the clarity and certainty desired would be achieved as incidental outcomes of consistently good decisions which might achieve a consensus that precluded challenge. As it is, the stated purpose of the Bill treats consistently good decisions the same as consistently bad decisions – just so long as they are consistent.
If it was going to be heavy on law, the Bill should have legislated for sustainability and excellence, not speed and efficiency.
Yes to law, but not to law that lays down the wrong principles
Unfortunately, while Village will concede that the emphasis on consistency is welcome, much more fundamentally it needed a lawyer concerned with sustainability and excellence, not with speed and efficiency, the developers’ short-term concern. This Bill has Paul Gallagher written all over it. The sad irony is that a less partisan lawyer would have been the best person to formulate changes to the system since the principal problem is that too many provisions are not at the moment legally binding.
A legal obligation doesn’t necessarily lead to compliance. It would, for example, be better if a standing body — the powers of the OCR could be increased — were to be charged with — and employed personnel who were scrupulous and determined, indeed passionate and fired up about — taking action to enforce compliance
Sustainability and excellence
Sustainability and excellence should have been enshrined in exchange for speed and efficiency. Since they continue — extraordinarily — to be treated as minor concerns it is inevitable that those who suffer from their failures will continue to use tooth and claw to challenge them. Perhaps the ineffectual Greens should have focused more on what they think a planning system should aim to achieve but they have added little to the discussion bar inexpert barkings about Aarhus.
A key point that seems to have escaped all commentators is that concessions to property developers would be more palatable if they were part of a system that balanced concessions by genuinely aiming for clever ‘win-win solutions: for example, providing a model of excellence in the criterion for planning permission (to which no developer should object, provided there is no reduction in profit) — if for example “excellence in design” were added to the current “proper planning and sustainable development”, as the standard necessary to get planning permission.
Shocking failure to legislate for grown-up win-win solution
A grown-up solution in the era of climate change, biodiversity collapse and housing crisis is consistency, sustainability, excellence and, in exchange, efficiency and speed. The deficiencies in what legislators have envisioned from this Bill can only be described as shocking.
Correction: An earlier version of this article incorrectly referred to ‘Property Industry Ireland‘ as ‘Planning Institute Ireland’.
