SC says State should take action against `unscrupulous developers'

The State should consider taking legal action to recover "massive profits" made by unscrupulous landowners and developers as a result of corruption in the planning process, according to the chairman of the Bar Council.

Introducing a Bar Council seminar on the Planning and Development Act 2000, Mr Rory Brady SC said he had no doubt that the Flood tribunal's revelations would encourage anyone involved in the planning process "to think long and hard before they act in an improper manner".

Mr Brady said the prospect of being detected and having one's conduct analysed in a public inquiry would be "a huge deterrent against wrongdoing" and was "probably the best insurance policy that future generations will have" against a repetition of such irregularities.

He acknowledged the positive role played by the Flood tribunal legal team. When its work concluded, the State should take legal action against corrupt officials and councillors who had breached their duties of trust to the community, as well as those who had benefited from it.

Referring to the controversial "affordable housing" provisions of last year's Planning Act, Mr Brady said it was not unreasonable that local authorities should receive some return, in terms of housing sites, from the enhanced value of land created by their own rezoning decisions.

"I believe that the introduction of the power to impose an obligation to provide `affordable housing' is an important step in seeking to correct an imbalance in our property market . . . It is a price well worth paying so as to ensure an equitable housing policy," Mr Brady added.

Ms Nuala Butler, a barrister, told 170 participants at the seminar on Saturday, including several planners and local authority officials, that the Supreme Court's ruling on part 5 of the Planning Act, which deals with the housing issue, meant its Constitutionality was now "immutably fixed".

Future litigation could only challenge how the provisions were applied in particular cases, not the general principle of reserving a proportion of land at its agricultural value for affordable housing. In most cases, she believed developers would have to negotiate with local authorities on the issue.

Though it was not yet known whether councils would exercise their discretion to reserve up to 20 per cent of sites for affordable housing, Ms Butler said some might attach less onerous conditions in their housing strategies in order to attract more private sector development.

Dealing with changes in judicial review proceedings under the legislation, Mr Garrett Simons, a barrister, said it remained to be seen whether objectors challenging planning decisions on the basis of public interest would be deemed by the courts to have a "substantial interest" in such cases.

Mr James Connolly SC told the seminar that it was not only planning decisions which might be overturned by judicial review, but any administrative decision adversely affecting property or amenity rights which could be held to be unreasonable or unlawful.

Mr Eamon Galligan, a barrister, said the enforcement provisions of the new legislation provided a framework for dealing more expeditiously with brea ches of the planning code by curtailing retention applications and shifting some of the burden of proof to the defendant.

The seminar was chaired by Mr John Gallagher SC, a leading member of the Flood tribunal's legal team.