Planning serves community not individual
THE recent High Court’s decision in Wicklow County Council Vs Fortune to make a demolition order against an unauthorised structure in Wicklow puts the interests of the individual ahead of the common good and does little to enhance public confidence in the planning system or planning profession.
Following a lengthy enforcement process, Mr Justice Hogan quashed an order to have the “chalet” style house demolished, ruling that the landowner had an inviolable constitutional right to her home under Section 40.5 of the Constitution. In this instance, the house had previously been refused planning permission by both Wicklow County Council and An Bord Pleanála on the grounds that the applicant could not demonstrate a need for a dwelling in this highly- sensitive location and that road access was substandard. Mr Justice Hogan decided to overrule these concerns on the grounds that the house could not be seen from the public road declaring that “one does not need to be a planning or traffic specialist to see that the site does not present a real and immediate traffic hazard”.
Planning is a specialised, professional discipline and the “common good” is the core value of the Irish planning system. Planning is much more than development management (formerly known as “development control”) which is unfortunately the perception of many. Planning is a democratic process that is enshrined in law. The development plan, adopted by elected representatives after a lengthy period of public consultation and engagement, forms an environmental contract between a local authority and the community. The planning system, through the development plan, seeks to balance the best use of resources while protecting our environment, providing for sustainable development and taking into account the constitutional property rights of all citizens in a just and equitable manner.
Development plans set out the overall blueprint for an area, ensuring that all development is sustainable in economic, social, and environmental terms and that the existing and future population has access to adequate housing and essential infrastructure, such as schools, roads and medical facilities. These plans protect the vitality and viability of our villages, towns, and city centres and facilitate places of employment through economic development.
The High Court decision undermines these efforts by putting the interests of the individual ahead of the interests of the common good. It serves to reward those who have blatantly disregarded the planning system and compromises the realisation of the policies and objectives adopted by the local councillors in the development plan, on behalf of the residents in that area. Their environmental contract has been broken.
Unauthorised development results in unsustainable use of land and threatens the future implementation of the development plan which is there to ser-ve the community not the individual.
Planners, as a profession, ensure that the development management system is conducted in an effective and balanced manner. Non-planners assessing the merits of planning decisions or acting as a planning adjudicator must be mindful that such actions may compromise the work of those who wish to restore the integrity of planning. How this Wicklow decision is perceived may risk undermining the regulatory system. Fundamentally, it also raises serious concerns that a legal precedent may have been set that completely subverts the core of the planning consent process.
The potential implications of unauthorised development are a serious matter for the person carrying out the development. The Planning and Development Acts 2001-2012, provide for a range of penalties varying from fines to imprisonment, according to the seriousness of the case. Publishing guidance on planning enforcement recently, Planning Minister Jan O’Sullivan said: “Those responsible for breaching planning legislation need to know that they will face the consequences of their actions and those that want to see the law upheld need to know that the system has teeth.”
The government guidance on enforcement emphasises that developing a culture of enforcement is critical to ensuring that the planning control system works properly for the benefit of the whole community. This requires the consistent application and enforcement of planning law and it is unfortunate that the Wicklow case may reinforce the perception that anyone can “have a go” and planning can be ignored or not taken seriously. It is these perceptions that have undermined our planning system in the past, leaving planners to pick up the pieces and act as scapegoats for those who actually violated the system.
Rather than undermining planning, it is time that the value of the common good and the role of the planning process and the professional planner in protecting it are upheld. We must escape the notion that the planning system seeks to unfairly confound those wishing to build their own homes. The planning system is, through the policies and objectives contained in a development plan, working to ensure that sustainable housing, along with commensurate services and facilities can be provided in the interests of the common good rather than fulfilling the desires of an individual. It is not a change in the law that we need but an application of the law.
* Mary Crowley MIPI President, Irish Planning Institute
