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Ireland's political and cultural magazine
— June – July 2013
T
HE Government is pretending to proceed
with the appointment of a planning reg-
ulator. Traditionally, when councillors
voted to rezone land with no regard to
reason, central government did nothing. The
national spatial strategy and other democrati-
cally-driven national and regional plans as well
as local-authority development plans have been
largely flouted by councillors acting as private
representatives to vested interests, as opposed
to public representatives. If you owned property
and shouted loud enough you could get council-
lors to rezone lands in the frenzy of short-termist
greed that was our own tiger. For example Meath
zoned land for , housing units when just
over , were needed; Waterford zoned for
forty times what it needed; Louth thirty-eight
times. The effect was that, instead of development
being channelled into priority areas, it could go
wherever the most aggressive (or, post-tiger, liq-
uid) landowner wanted it to go.
Technically the Minister for the Environment
always had the power to intervene, even if he only
extremely rarely exercised it. He had a discretion
and Irish ministers don’t like to be seen interfer-
ing with the exercise of democracy at a council
level – it’s what makes us Irish, and why our plan-
ning is the worst in the rich world.
Mostly it was left to do-gooders, locals or An
Taisce to expose the flouting of plans, either by
appealing to An Bord Pleanála which for the last
generation has largely been studiously applying
plans or, sometimes – usually with less effect –
to the courts which are reluctant to interfere,
you’ve guessed it, with democracy in the plan-
ning process.
Sometimes when a minister did intervene he
got a flea in his ear. In , lands at the Park
Village in Carrickmines, close to the M in Dún
Laoghaire-Rathdown, were rezoned to the district
centre by councillors, in the course of drafting
the county development plan. However, an order
from John Gormley, then Green Party Minister for
the Environment, directed councillors to reverse
the rezoning. When the landowners sought a judi-
cial review of the Minister’s decision, the High
Court ruled he had acted outside his powers.
During his tenure John Gormley added several
worthy requirements as to how Councils should
zone land but there was nothing to stop them
flouting the requirements, short of still-reluctant
Ministerial interference or the appeals or litiga-
tion of do-gooders etc.
The Planning Tribunal recommended
in its report last year that the Minister for
the Environment’s ability to give directions
to Regional Authorities and Local Planning
Authorities should be entrusted to a planning
regulator. The idea was that the regulator would
just get on with ensuring the regional plans and
local authority development plans were imple-
mented, without political interference. A better
recommendation would be that the regulator
would be obliged to ensure compliance at the
point of introduction of a plan. In other words
if a local development plan did not comply with
a regional plan, when it was up for adoption, the
regulator would change it so it did. If a regional
plan did not comply with the national spatial
strategy the regulator would change it so it did.
Of course much would depend on who the regu-
lator was. If it were Michael Woods or Joe Walsh,
for example, it probably wouldn’t make much
difference. If it were a judge like Peter Kelly or
Colm MacEochaidh, though perhaps not Alan
michael smith
environment
New planning
regulator can be
ignored
If we’re serious about planning we need a judge
assessing all plans at the point of creation for
compliance with superior plans
Mahon, you might expect zealous, expeditious
and imaginative enforcement of the full weight
of the law in the event a plan fell short of what
the planning hierarchy demanded. If the obliga-
tion to ensure compliance were at the point when
a zoning is made – ie it was immediately referred
to the judge for an assessment – we could be guar-
anteed, more or less, good planning.
This would have also tied in with another of
the Tribunal’s key recommendations – that the
national spatial strategy be put on a statutory
basis. Somewhat inconveniently for the logic of
this schema, Minister for the Environment, Phil
Hogan, has recently announced not the enact-
ment statutorily of the spatial strategy, but its
abolition. Nobody noticed or cared.
The Tribunal also recommended that the
Regulator should also have wide powers to inves-
tigate “systemic problems in the planning system,
including possible corruption”. The regulator
would “conduct reviews (including spot-checks)
of any aspect of the work practices and/or pro-
cedures of planning authorities, including those
relating to applications for, refusals of, and grants
of planning permissions, and to do so without
advance notice”.
He or she “should also keep the planning sys-
tem under review and carry out relevant research
activities in order to ensure that corruption risks
are identified and corrected as they arise and,
more broadly, that the planning and develop-
ment system is functioning optimally”.
Anyway, according to Minister for Housing
and Planning, Jan O’Sullivan TD, “The Government
has given its commitment to implement the rec-
ommendations of the Mahon Tribunal and [its]
decision represents a milestone in that regard…
Evidence based, proper forward planning
is essential for our country’s future. We need to
ensure that the decisions we take regarding local
and regional development facilitate sustainable
development and enhance the lives of our citi-
zens and the communities in which we live. The
Planning Regulator will provide an additional and
important check on the quality of forward plan-
ning decisions”.
Not just that. According to the Minister Hogan,
“The implementation of this important recom-
mendation is another tangible reform that will
achieve the Government’s goal of restoring and
maintaining public confidence in our planning
system. The independent Planning Regulator will
review and assess all forward planning functions
by local authorities – such as the drafting of city
and county development plans. The Regulator
will have the power to advise the Minister to reject
or overturn part or all of a plan where it is not up
to scratch. This advice will be published. The final
decision to act will rest with the Minister of the
day, and the Minister will be accountable to the
Oireachtas for his or her decision”.
Are you following? Do you see what happened
there? The two ministers misled their public.
They pretended their measure was implement-
ing the Planning Tribunal report. In fact it’s not
a regulator, it’s an advisor. The Minister can and
will often overturn the advice. Advice is not regu-
lation. Ask a banker.
Even the Irish Planning Institute (IPI) – a
sort of hermaphrodite hybrid which represents
planners and planning – welcomed the new reg-
ulator. IPI Public Relations Officer Henk van der
Kamp said: “An independent planning regulator
is one of the recommendations from the Mahon
report that the Institute welcomed. The Institute
welcomes in particular the fact that planning
research, education and investigation will form
part of the functions of the Regulator”.
Mr van der Kamp continued: “It is clear that
there is a need for a body to carry out, commission
and disseminate planning research, expertise and
best practice. The research and education work
of the regulator however requires expertise. In
order to be effective the Office of the Planning
Regulator must be properly staffed and resourced
for the long term. Ensuring the research and edu-
cation work of the regulator is relevant, timely
and accessible will be a key challenge”. Hank van
der Kamp was author of the feeble report last
year which reviewed the recommendations
contained in the Planning Review published in
June , which itself assessed the application
of planning legislation and policy “informed by
complaints and observations received in relation
to decisions made by seven planning authorities”,
including Dublin City and Minister Hogan’s own
Carlow. Depressingly, playing his due role in a
whitewash, van der Kamp rubberstamped nine
of the recommendations and quibbled that the
other three had gone too far.
So when it came to the regulator it wasn’t
surprising that van der Kamp fronted a sectoral
whitewash – failing to note that the new office
was advisory not regulatory. An Taisce too issued
a warm congratulation to the Minister, imput-
ing adherence to the recommendations of the
Planning Tribunal. No one else, apart from Frank
McDonald in the Irish Times, issued a cheep. And
so our interminable journey via planning purga-
tory to poor facilities and lower quality of life,
continues. Just look around you.
Meath zoned land for
124,173 housing units
when just over 2,000 were
needed, Waterford zoned
for forty times what it
needed
“
Sad clowns
