The Irish planning system has been dragged backwards
Power has been recentralised, sidelining democracy. Did the tribunals teach us nothing?
Padraig Flynn at the Mahon tribunal in 2006. Photograph: Cyril Byrne
Development is regulated because land is finite, and construction is expensive. The planning system is where the alignment is found between the short-term commercial interests of the developer and the longer-term interests of society and the economy to ensure that the built environment is “planned” coherently. Controlling development through planning permission also means potential mistakes can be rectified on paper before construction begins.
Unfortunately, the Irish planning system has come under sustained attack in recent years from various sources. Whereas some of the criticism of the system has a basis in fact, much of the commentary is ill-informed and undermines a system that has worked not perfectly but very well for more than 55 years.
Local participation in planning decisions has been a particular target of critics. Minister for Housing Eoghan Murphy has asserted that “objection culture is one of the most serious challenges facing the system”. In a planning regime that is predominantly development-led, and where property rights are protected by the Constitution, meaningful public participation is vital.
The case of the Apple data centre in Athenry, Co Galway, is often cited as an example of the dysfunctionality of the planning system and the power of “objectors”. The reality is that Apple got its planning permission quicker in Ireland than they did when they moved to Denmark. It was the subsequent legal proceedings that moved slowly and was the real cause of delay. The solution here is not to limit the legitimate ability of the public to make observations or objections, but to ensure they are dealt with in a time that is reasonable.
These calls “to tackle nimbyism” are a threat to open and transparent public engagement, and risk driving public participation into the courts or into the shadows. As our European planning colleagues know well, the system works better for everyone – local authority, community and developer – to have early and open engagement, when there are opportunities to respond and to adjust proposals and avoid potential subsequent challenges.
Open participation in the planning system is important because some groups, organisations and individuals can exert more power and influence than others. Many of the policy changes that emerge from these power imbalances have been made on the grounds of the nebulous concept of “developer viability” rather than proper planning and development.
Whereas public involvement in the planning system has been getting a lot of attention, very little has been paid to political agendas and a significant shift in power to central government. Increasingly, we have seen a series of interventions in the planning system that seek to thwart the ability of the public and locally elected representatives to make planning decisions that are of local but also sometimes national importance. Governance of the system is becoming increasingly ambiguous.
Given we have local elections in less than two weeks, it would appear that many current and potential councillors are unaware of how much their role has been curtailed.
For example, section 28 of the Planning and Development Act 2000 gave ministers powers to issue “guidelines” to local authorities on planning matters. These guidelines are not mandatory, but local authorities are required to have regard to them. Section 28 ministerial guidelines do not need the approval of the Dáil to be issued. Section 29 ministerial “directives”, on the other hand, which are obligatory to follow, do need Dáil approval.
When he was minister for the environment, Labour’s Alan Kelly introduced a new form of section 28 “mandatory guidelines” in 2015 for the purpose of issuing directives to both the local authorities and An Bord Pleanála but that conveniently avoided Dáil scrutiny.
These have been used to impose reduced apartment size standards on councils, to introduce new and competing residential uses such as build-to-rent and to overturn height limits. No matter what work has taken place locally by elected representatives preparing their county’s development plan – one of the key functions of councillors – unelected, unaccountable civil servants in central Dublin can now effectively determine any planning policy they wish, and impose it on cities, towns and villages, ignoring what is locally appropriate or has been voted for, and causing disruption to the cycle of development.
Ireland has a long history of planning scandals. At various times since 1963, additional protections have been introduced to register lobbying, to make councillors accountable for standards in public office and to introduce an independent appeals board and the oversight of a planning regulator. This was all with the intent of making the participants accountable, and the process open to public scrutiny and outside the reach of political interference. It should also be remembered that the establishment of an independent planning appeals board (An Bord Pleanála) and an independent planning regulator were both born out of scandals.
The centralisation of power back into the Department of Housing, Planning and Local Government is a potential step back to a time of too much political influence over the planning system. It also shifts the locus for exerting influence for achieving beneficial policy changes and other favourable outcomes from local councils to the Custom House, where the senior policymakers are not subject to the Lobbying Act.
A view could be taken that the recent appointments of the Minister for Housing’s former principal planner and assistant secretary general as the new Planning Regulator and chairman of An Bord Pleanála respectively do not exactly send a message of any intention to relinquish control. These are the people deemed most suitable by the Minister for the roles, but the optics of the revolving door of former authors and defenders of ministerial policies into high-level positions of planning power are not good.
During the Celtic Tiger, an excess of political influence resulted in an excess of the right housing in the wrong locations; this time it will result in the wrong housing (student rooms, small costly rentals) in the right locations. The consequences of both have economic, social and environmental costs.
Participation levels the playing field between those with influence and those without. Transparency and clear systems of governance give confidence in the system, mitigating legal action and costly delay. The recentralisation of power erodes the hard work and expensive tribunals that went into creating a strong and credible planning system and puts control back again into the hands of ministers and civil servants. Most critically, it sidelines democracy.
Orla Hegarty is assistant professor of architecture in the school of architecture, planning, and environmental policy, UCD. Dr Lorcan Sirr is senior lecturer in housing in the school of surveying and construction management, Technological University Dublin