Social contract at heart of planning process is broken

There’s an old adage that no Irish property developer can sit down for his Christmas dinner without having lodged at least one major planning application in advance of the festive season.

Now, they’re rushing to avail of the “fast-track” process of applying directly to An Bord Pleanála for strategic housing developments (SHDs) before this legislative route is finally closed next month.

What’s driving the unseemly scramble is that the developers involved believe they would have a much better chance of getting planning permission for their proposals from the board than from local authorities such as Dublin City Council, particularly for high-rise “build-to-rent” schemes that would not comply with the stated provisions of city or county development plans.

Many local authorities are now in the process of revising their development plans – statutory documents that are supposed to govern how the areas they administer will be developed over the next five or six years. So community groups, conservation bodies such as An Taisce and others with a direct interest in planning have been studying the drafts and preparing their submissions.

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It’s all part of a democratic process that culminates in development plans being adopted by elected councillors. As the Supreme Court ruled in 1991, such plans form “an environmental contract between the planning authority and the wider community, embodying a promise by the planning authority that it will regulate private development in a manner consistent with the objectives stated in the plan”.

However, the Supreme Court judgment was trumped by a raft of ministerial planning guidelines issued over the past six years that contain “specific planning policy requirements” (SPPRs), which allow An Bord Pleanála to approve schemes that comply with their terms “even where specific objectives of the relevant development plan or local area plan may indicate otherwise”.

Section 28 of the 2000 Planning Act provided that the minister for local government “may, at any time, issue guidelines to planning authorities regarding any of their functions under this Act and planning authorities [including An Bord Pleanála] shall have regard to those guidelines in the performance of their functions”. These guidelines were advisory rather than mandatory.

That all changed in 2015, when Alan Kelly – then minister for local government and now leader of the Labour Party – issued a set of planning guidelines that, for the first time, included SPPRs covering apartment design standards, in response to lobbying from the Construction Industry Federation, which claimed that the standards being set by Dublin City Council were “unbuildable”.

Reduced standards

Instead of being obliged merely to “have regard to” section 28 ministerial planning guidelines, local authorities and An Bord Pleanála were required to implement SPPRs laid down by the minister that reduced space standards, dual-aspect ratios, floor-to-ceiling heights, balconies and even storage – all intended to “preclude planning authorities from specifying conflicting [that is, higher] standards”.

In response to lobbying by Property Industry Ireland, a division of Ibec, Kelly’s successor Simon Coveney introduced legislation – the 2016 Planning and Development (Housing) and Residential Tenancies Act – to permit developers to apply directly to An Bord Pleanála for SHD schemes of 100-plus houses or apartments, or 200-plus purpose-built student bed-spaces.

Coveney’s successor, Eoghan Murphy, who resigned his Dáil seat last April, reduced apartment design standards still further by issuing mandatory guidelines in March 2018 to facilitate the build-to-rent model of development, with “no restrictions on dwelling mix”, as well as “co-living” schemes – with minimum room sizes as low as 12sq m – which he likened to “very trendy boutique hotels”.

What's stated in the draft development plan is important, and citizens of Dublin need to take it seriously

In December 2018, Murphy promulgated Urban Development and Building Heights “guidelines”, based on the notion that taller buildings were needed to increase urban density and reduce sprawl.

Planning authorities were required not only to “actively pursue” increased building heights, but also to facilitate high-rise proposals that complied with his liberal “development management criteria”.

Contentious schemes have attracted widespread opposition from local residents, TDs and councillors, but none of this counted for anything in the vast majority of SHD cases. Many aggrieved objectors challenged An Bord Pleanála’s decisions by seeking High Court judicial reviews, resulting in the board spending €8.2 million – 71 per cent of its operating costs – on legal services in 2020.

Controversial schemes

Just before Christmas, the board granted permission for three controversial housing schemes in Dublin involving a total of 1,097 apartments – the vast bulk of them build-to-rent – in Milltown Park, Ranelagh; Redcourt, Clontarf, and Clonkeen Road, Blackrock, in the face of a total of 600-plus objections, including one from Dún Laoghaire Rathdown County Council.

Although the “fast-track” SHD process is now coming to an end, mandatory SPPRs remain in place and effectively render the statutory development plans drawn up by local authorities no longer worth the paper they are printed on. Indeed, they have “destroyed the faith of citizens in the planning process”, according to the Dublin Democratic Planning Alliance, which wants them repealed.

This alliance of more than 60 residents’ associations says SPPRs are “inherently undemocratic and ride roughshod over development plans in which the public has participated … leading to grants of planning permission that are beyond belief”. They have “essentially privatised and deregulated the planning system, to the detriment of the fabric of our places and our society”.

Meanwhile, public consultation on the draft Dublin City Development Plan 2022-2028 is under way, with February 14th the deadline for making submissions. It’s a mammoth production. The draft itself runs to 814 pages, with a further 437 pages of appendices, plus a lengthy Record of Protected Structures, including over 100 additions, some “clarifications” and a few minor deletions.

What’s stated in the draft development plan is important, and citizens of Dublin need to take it seriously. However, as long as the “special planning policy requirements” of mandatory ministerial guidelines remain in place, Dublin City Council’s planners – and those of other local authorities – will have to abide by their terms, in what amounts to a mockery of the democratic planning process.

Frank McDonald is a former environment editor and current chairman of Temple Bar Residents, which is affiliated with the Dublin Democratic Planning Alliance