Consistency and speed to the detriment of Quality and Sustainability

PB July-August 2023 July-August 2023 67

The history of planning legislation is of

a balance between centralised powers,

typically emanating from the Minister [and

latterly from the OPR]; and local authorities’

powers, which in turn have been divided

between ofﬁcials’ and elected councillors’

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 Oce of the Planning Regulator (OPR); and

local authorities’ powers, which in turn have

been divided between ocials’ 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 ocials) 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-o housing, have been largely

perpetrated in contradiction to national policy

due to enforcement inaction rather than action,

with such consistency that that it must be

deemed to be policy inaction.

Consistency and speed to

the detriment of Quality

and Sustainability

The hands of former

Attorney General

Paul Gallagher and of

the property industry

are all over the

Planning Bill

By J Vivian Cooke

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).

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 eect 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

Pul Gllgher: hnds ll over Bill

ENVIRONMENT

68 July-August 2023 July-August 2023 69

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.

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

diculties.

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 aected 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

The criterion has already evolved over the

years in legislation from “substantial interest”

to “sucient 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 sucient 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 aected

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.

That planning actions will be undertaken

without the protections aorded 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

Some re determined not to

see the issue s: qulity

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”.

group, Property Industry Ireland, has been

Administrative Cost Scheme

68 July-August 2023 July-August 2023 69

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 eect

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 – bearingr the

ﬁngerprints of the property industry – seeks to

further prevent the public from meaningful

participation in the planning system, including

restricting residents’ associations taking legal

reviews of decisions by An Bord Pleanála.

Of course, like any form of best practice,

meaningful engagement takes eort. 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.

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.

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”

Poor-qulity sprwl: the Bill hs no solution to it

70 July-August 2023 July-August 2023 PB

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 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 eect 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 application in

the new process in an avalanche of unnecessary

paperwork at their inceptions.

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, eciency 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 eect 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 eciency.

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

eciency, 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.

Sustainability and excellence

Sustainability and excellence should have been

enshrined in exchange for speed and eciency.

Since they continue — extraordinarily — to be

treated as minor concerns it is inevitable that

those who suer from their failures will continue

to use tooth and claw to challenge them. Perhaps

the ineectual 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, eciency and speed. The deﬁciencies

in what legislators have envisioned from this Bill

can only be described as shocking

The 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 be better if the OCR

were charged with, and employed personnel

who were scrupulous and determined, indeed

passionate and ﬁred up about, taking action to

enforce compliance

Everyone wnts speed but qulity must not

be sidelined