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Just fix it

Remove corruption and developer-centredness from planning and local governmentCatherine Murphy 

 

Of all the boom-era faults we should be determined to fix, planning and development law and local government design should rank amongst the most urgent. It virtually goes without saying that the present economic difficulties in which we find ourselves are,  largely, a direct consequence of the permissive and reckless relationship that existed between  banks,  the property developing elite and some elected officials – particularly those at local level. Too often  it is solely the Department of Finance that is examined for clues as to the nature of our recent economic collapse. And,  while not proposing in any way to mitigate the responsibility of those responsible for developing and implementing inflationary policies where the property boom is concerned,  it’s clear  that in order to have a property boom you must first have land zoned for development and planning permission granted; responsibility for that lies across the river at the Department of the Environment and amongst Local Authorities. An external investigative process was initiated by the then Minister for the Environment John Gormley TD in 2010, in order to probe alleged planning irregularities identified in Carlow, Dublin City, Cork City, Cork County, Galway and Meath. However, as opposed to continuing and pursuing this type of inquiry, newly appointed Minister for the Environment,  Phil Hogan TD, unfortunately took the opposite approach.

Almost immediately upon assuming office in March 2011 Minister Hogan cancelled the external investigative process  – a disappointing turn of events given that we know the process was well-advanced by the time the Fianna Fáil-Green Party government fell in January 2011. Several planning consultancies had prepared tender proposals and the independent panel of planners to oversee the investigation had been agreed upon. As has been noted by contributors to this publication and others, this decision by Minister Hogan  is widely seen as a massive retrograde step. A view supported by several developments this year alone. The publication of the Mahon Report and An Taisce’s State of the Nation Report , not to mention the conviction of former Fine Gael councillor Fred Forsey for taking corrupt payments, should have set alarm bells ringing in the Minister’s office, but unfortunately the decision to wind up the investigations was not reversed.  A state of affairs confirmed in the Dáil on 3rd May of this year by Minister for Planning, Jan O’Sullivan TD, who confirmed her predecessor Willie Penrose TD had made a policy decision in favour of internal as opposed to external inquiries in the interests of making a saving to the exchequer.

The result of those internal reviews, released on 12th June,  is that there was a finding of no prima facie evidence of corruption in the planning process in the seven local authorities under review. Unfortunately, we do not have the benefit of an independent investigation to reassure us of that conclusion.

We do, however, have the benefit of several examples where external authorities have investigated isolated instances of alleged corruption and malpractice in our planning system.

If we look at one of the complaints that was subject to the original investigation (and investigated by aforementioned internal review) relating to Cork City Council, we can see that the Office of the Ombudsman, conducting a limited survey of nine city and county councils in response to alleged irregularities in Cork, concluded that,  “different local authorities, including Cork City Council, are adopting  different practices and procedures and taking different interpretations of the legislation and guidelines”, and that this, “suggests that there are difficulties of a systemic nature which may need to be dealt with on a systemic basis.”

Such a conclusion is alarming, although in the specific Cork example it’s important to note that the Internal Planning Review stated that the matter was resolved to the Ombudsman’s satisfaction. Nevertheless, if a limited investigation of nine authorities can result in a conclusion such as the Ombudsman’s, surely it is incumbent upon the current government to restore confidence in the system they govern by initiating a fully independent inquiry.

It goes without saying that the Mahon Tribunal is the most exhaustive and comprehensive example of an independent external investigation into planning irregularities conducted to date, albeit far too costly for the taxpayer and far too protracted in its deliberations. Its conclusions scarcely need re-stating – damning, as it was, of the planning system in Dublin and of several elected officials and local authority staff, and scathing in its assessment of corruption which it found had had a malign effect on virtually every level of Irish political representation.

If there was a chance that even some of the activities which Mahon uncovered were happening in other local authorities, then to my mind, for continued public confidence in our planning system, the argument for fully independent investigations of other councils where irregularities have been already identified is a strong one. Admittedly, Mahon’s remit was exceptionally broad; I make no case for an investigation of Mahon’s duration and certainly not its cost – however we can be reasonably sure that an internal Departmental investigation would not have resulted in the same information coming to light.

The final example which came to prominence recently is that of former Fine Gael councillor Fred Forsey. Mr Forsey’s conviction for accepting corrupt payments came about in large part because a third party with detailed knowledge of the misdeeds decided to speak out. We would most likely never have known of the extent of planning corruption committed by Mr Forsey in Dungarvan if there were not a source with such knowledge available. If it’s also the case, as has recently been alleged, that senior members of Fine Gael were in fact aware of improprieties surrounding Mr Forsey in 2007, then the case for impartial and independent investigations into planning irregularities becomes virtually impossible to ignore for any politician concerned about the credibility of our planning authorities. And yet, the Government has not budged.

Beyond the immediate political sensitivity of commissioning independent planning inquiries there is much that the Government could be doing to restore confidence in the planning process, yet progress remains glacially slow. The Mahon Report’s recommendations read like a wish-list of what I, other politicians across different parties and very many in the planning and heritage communities have been advocating for many years.

An independent planning regulator should certainly be advanced as quickly as is practicable. The idea that our planning system is, in effect, without a permanent external audit and oversight mechanism is hopelessly out of date. Ireland, given the country’s history in this area, badly needs a regulator completely free from the possibility of political interference. This was very strongly recommended by Mahon and endorsed by a wide variety of interest groups, politicians and civil society organisations. As a concrete first step, an explicit commitment from the Government on this would instil much confidence in its approach to reform, even in the absence of the independent investigations which are needed.

Enhancing whistleblowing legislation is another action recommended by the Mahon Report. As I mentioned, the case with former councillor Forsey, and indeed the origins of Mahon itself, demonstrate the effectiveness of private individuals coming forward with information  to highlight malpractice. The current legislation in this area is weak at best, and a move in this direction would be a relatively simple procedure  that could offer much in terms of identifying irregularities, particularly if, as Mahon recommends, independent contractors are included.

Quite a lot of the concern directed towards the planning system comes from what the Internal Review Report identified as the inconsistent application of our planning law across different local authorities. One immediate step the Government could take to address this would be to develop a consolidated Planning Act which would incorporate many of the recent positive reforms introduced  over recent years into a single act. This would aid planners and elected officials. Although, of course, the existence of several pieces of planning legislation is not the sole reason the law is applied inconsistently, the development of a consolidated Planning Act would make the law clear, unambiguous and less prone to variation in interpretation. Finally, and perhaps most significantly in my mind, the development of detailed reform of our local government structures is one area  that must be prioritised by the Government. At present we have 34 county and city level authorities; including town councils, we end up with 88 distinct planning authorities as a result. The phasing out of the present local authorities and councillor/county manager system and the move to a regional structure in local government, with at most three or four regional-level elected assemblies holding significant powers, would be amongst the most positive reforms that could be undertaken for the betterment of this State.

Similarly, at community level, the development of district level community-focused councils with a specific remit of ‘place-shaping’ – i.e. empowering communities to respond collectively to local needs in a sustainable way to enhance the economic, social, spatial and environmental life of local residents – would be a move away from the current, and arguably negative, dependence of citizens on local and national representatives. The re-ordering of our planning authorities to mirror this structure, with at most three or four regional authorities, independently regulated and bound by detailed regional and national spatial strategies would similarly do much to tackle the corrupt practices of the past, I feel.

Given the prominence that planning corruption and rampant over-zoning has played in our economic catastrophe, the lukewarm agenda that the present Government  is pursuing in terms of reform is worrying. To Minister O’Sullivan’s credit, she has committed to implementing the 12 recommendations of the Internal Planning Review and the Government  is still to publish its detailed response to Mahon’s findings. However, the pace of reform lacks urgency, which is worrying and highly disappointing after almost a year and a half of what many had hoped would be a government dedicated to wide-ranging reform.

 

Catherine Murphy is Independent TD for Kildare North