In recent decades we have developed a plethora of regulatory bodies, covering a wide range of economic and social activity, including the Commission for Regulation of Utilities, ComReg, and the Irish Aviation Authority. While all of these bodies deal with different sectors, they also have major commonalities: how to regulate monopolies or dominant firms. Their number and diversity of practice does not make sense.
One of the big problems for regulators is that they are asked to do too much, given too many objectives, where the political system has not set any criteria by which competing objectives are to be weighed. The principles to be applied by regulators should be simple and clear, and should set out the primacy of the public interest.
Ultimately, it is up to the political system to arbitrate between competing objectives. When I was a member of the Northern Ireland Authority for Energy Regulation from 2002-2006, we were charged both with delivering a secure electricity system for Northern Ireland at minimum cost for consumers, and also with tackling climate change. While fully supportive of addressing climate change, I felt it was up to Stormont politicians, not the regulator, to decide how much Northern Ireland consumers should pay to reduce carbon emissions.
In a 2017 speech to the Law Reform Commission, then Chief Justice Frank Clarke commented: “Every time there is a new form of right or obligation created, we create a new body. Sometimes there is a regulatory body, and a regulatory appeal body... our system of ad hoc bodies set up on a one-off basis to determine rights and obligations in a whole range of areas is unwieldy.”
Our unwieldy planning system is delaying provision of much-needed housing and infrastructure to tackle climate change, and adding to the cost of delivery
The speech also highlighted the complexity of different systems of appeal to the courts or judicial reviews from decisions of regulatory bodies, creating fertile ground for procedural disputes. He argued that “a much more straightforward, simple and streamlined system would make it much clearer for parties”, and could reduce disputes.
We have become used to a three-tier system of planning decisions, where local authority decisions are appealed to Bord Pleanála, and then frequently onward for judicial review. The new Planning Bill envisages retaining this three-layer process. Our unwieldy planning system is delaying provision of much-needed housing and infrastructure to tackle climate change, and adding to the cost of delivery.
One of the major problems with the planning system is that it gives too little weight to the public good, and in practice can often seem like a Nimby charter. It is disappointing to hear the Government explaining that the new Planning Bill will not dramatically curtail the ability of individuals to appeal decisions where the public interest demands urgent action.
[ How to reform the Irish planning system in three stepsOpens in new window ]
We know that the public good requires us to expand renewable energy such as wind turbines and solar, as well as the network of wires to connect them to the grid. Yet often the desire to retain the status quo by those living near new investments makes it difficult and time-consuming to get through the regulatory hurdles and appeals maze. Local interests trump the aim of tackling climate change.
Likewise, any new housing proposals seem anathema to some homeowners – so no wonder we have a housing crisis when so many projects become mired in lengthy appeals and reapplications.
All this is not to argue against proper planning, but to have a system with well-founded planning decisions that weigh up the public good, that stand up on appeal, and where the courts can largely stay away
To me, recent decisions of Fingal County Council on Dublin Airport seem to pay little attention to the wider public good of the airport for Ireland. In turning down an application to expand the clearance facilities for those travelling to the US (and likely to be invisible except from the apron), the possible impact on local roads was cited. However, much of the additional transatlantic traffic this would serve consists of passengers transiting the airport from elsewhere in Europe, who never set foot outside the airport complex.
All this is not to argue against proper planning, but to have a system with well-founded planning decisions that weigh up the public good, that stand up on appeal, and where the courts can largely stay away.
Mr Justice Clarke also remarked: “It is fair to say that Ireland has not been good at implementing in a clear, coherent and easily approachable way our obligations under a variety of EU environmental directives.”
While part of the problem may lie with fudging of EU text needed to get agreement, the outcome is often a mess. Other EU countries do not seem to have the same problems as ourselves in planting trees, building homes, or investing in renewables. Maybe we can learn from them.
