Mick Clifford: Planning bill may be a solution that's not fit for purpose
'It is difficult to escape the feeling that the planning bill is a rushed job to make up for lost time in which the imperative is to get things moving fast to alleviate the housing crisis ahead of the next election.'
The new planning bill is moving through the Oireachtas at a fair old clip. For the last few weeks, it has been subjected to what is called pre-legislative scrutiny.
Here, the housing committee examines the draft heads of the bill to see whether it will make good law and what should be changed.
Worryingly, there are indications that it falls short in a few crucial aspects and it has the signs of being a rushed job.
The Planning and Development Bill 2023 is the first major overhaul of the planning system in 23 years.
Like much else in political life right now, it was initiated in response to the housing crisis.
Developers in particular are adamant that the system in existence is slow, cumbersome, and a major hurdle to getting homes built.
Whether or not that opinion holds water, it was certainly high time that new legislation was drafted to reflect the changes in development and society at large today.
On Tuesday, Attracta Uí Bhroin of the Irish Environmental Network told the housing committee that the whole process was starting out from the wrong place.
“Something of this magnitude is a once-in-a-generation thing,” she said.
“It will impact every soul on this island. It is incumbent on us to get this right and public consultation is key and the public has been excluded from this process.”
At an earlier meeting of the committee, departmental officials said that public participation in the process is vital, yet it would appear that the level of real engagement — as opposed to simply receiving submissions — with the public and the broader construction and planning sectors has been less than optimum.
This theme was visited at the committee last week also when the Irish Planning Institute and the Royal Town Planners Institute were in attendance to give their tuppence worth.
Towards the end of the meeting, Sinn Féin’s housing spokesperson Eoin Ó Broin attempted to encapsulate what had been heard over the preceding hours.
“The rationale for the bill is to clarify, consolidate and streamline the legislation underpinning of the work the witnesses do every day as professionals,” he put to the witnesses.
“I am not hearing in their commentary that they are convinced the bill as it stands does those things. Is that fair?
“We do not know,” the IPI’s Gavin Lawlor replied.
“We have had limited time with the bill.”
He said the intent of the bill was laudable, but it contained a significant amount of change.
“The concern on our side of the table is that it is like spot the ball or spot the difference. That gives rise to nervousness regarding the quality of the legislation … our concern relates to the issues we have not yet spotted.”
Some of the issues that have been spotted have raised more than eyebrows.
The bill contains provisions for planning authorities, including An Bord Pleanála, which is soon to be renamed the Planning Commission, to be fined if they don’t meet prescribed deadlines for giving decisions.
Oonagh Buckley, the chair of ABP, rhetorically asked the committee whether this made sense.
She asked: “Is an approach whereby fines from the public purse are paid to developers the best way to deal with delays?”
“Or are there other effective measures that could to taken?”
Among these, she suggested, were better resources.
Everybody always needs more resources.
But in this instance, those from the local authorities, and ABP planners, wholeheartedly agree that state resources in this area are sorely lacking.
On the same day that Buckley gave evidence to the committee, representatives from Wind Energy Ireland and the Irish Institutional Property echoed her opinion on the futility of a fines regime and the need for beefing up the state’s planning infrastructure.
Everybody recognises that the current system is not fit for purpose, not least on how slow it operates.
The response to that is to threaten planning authorities that they better get the finger out or fines will be applied and accumulate.
Is that really the best way to modernise and drive efficiencies in the system?
Or is it just a morsel that was thrown in to show that the government is really, really serious about tackling the housing crisis?
Something similar applies to the concerns expressed by various parties to come before the committee about changes to how decisions can be challenged.
A feeling has grown among developers and the government that judicial reviews are the bane of the planning process. Judicial reviews are taken when a person or group believes that a planning decision may contravene the law.
There has been a huge increase in judicial reviews in recent years, much of it down to the making of bad law, particularly in the area of strategic housing developments which was a three-card trick brought in by the last government — and since abandoned — to speed up the process.
The new bill promises to make it more restrictive for interested parties to bring a judicial review.
At Tuesday’s committee meeting, solicitor Fred Logue pointed out why this approach actually contravenes aspirations towards good planning.
“Judicial review is a measure designed to protect the environment,” Logue told committee member Eoin Ó Broin.
“The delay it causes is the price worth paying to protect the environment and human health. The judicial review system was the one thing that has worked. It quashed unlawful decisions, it did it fairly and it exposed lots of stuff that mightn’t have (come out) if judicial review wasn’t taken.
“In development, the bad drives out the good. If we don’t have a system of stopping the bad development getting pushed through, we will never get the good development that my colleagues and the architectural profession are talking about.”
The scrutiny will continue over the coming weeks.
It is difficult to escape the feeling that this is a rushed job to make up for lost time in which the imperative is to get things moving fast to alleviate the housing crisis ahead of the next election.
That’s no way to plan a country, but it’s par for the course for how things are done in many facets of public life.
