Attracta Uí Bhroin: New Planning Bill provides fertile ground for corruption and extortion
Housing Minister Darragh O’Brien. The new Planning Bill not only centralises power but pushes back on safeguards and public accountability.
Many of us were glued to the TV last Monday to watch for yet more gory details of more problems in the area of planning in Ireland.
Most people typically switch off when you mention “planning”. Not so this week. I am going to be very careful in commenting on specifics but what I will say is this: We all need to take stock and respond in a meaningful way to address the serious concerns and issues highlighted through the programme. We also need to be careful to avoid dog-whistles and allowing the implementation of knee-jerk measures which ultimately weaken our planning system.
This has never been more important with the new Planning and Development Bill now starting the legislative process in the Dáil last week, and the opportunities and risks that legislation now presents. The Government is already pushing a deeply negative narrative around those exercising rights in the planning system.
But to be clear, when I heard about allegations of people using the planning appeals system solely to extract benefit, I felt physically sick. In Ireland, we are used to the term “hello money”. But this practice has been termed “goodbye money”. In other words: Mr Developer pay me and I will go away, and withdraw, or not make an appeal against your development, which will delay it. I felt sick for two reasons.
Firstly, I felt for those impacted directly and indirectly by such practices. The programme depicted this graphically. It showed a young couple looking dejectedly at an idle development site and developers frustrated by the impact on their business. Few could not relate that the appeals system appears open to exploitation.
Secondly, I could see this distract us from a simple fact — most people engage for the good when they engage in the planning system, often at great personal cost to themselves. It’s important to keep this matter in perspective. We must resist any effort to leverage this to push back on the appeal system, and in particular the right of a third party to appeal — by someone other than the owner/developer.
Why is an appeal so important? In Ireland, there is no automatic right to develop. A major benefit is conferred on you in terms of value and use when you get planning permission. Often with that comes a negative impact on the interests of someone else — either directly or indirectly. So planning decisions need to weigh and balance the differing interests involved.
That doesn’t always go well. Why? Most planning decisions are made at local authority level, but these councils have been starved of resources. A deficit of 541 planning staff was reported in a Joint Oireachtas Committee recently. Planning legislation is also notoriously complex, as it also has a multiplicity of EU and International legal considerations to address, and constantly evolving case law. So there’s a significant potential for some decisions to go wrong. There’s also the potential conflict of interest for councils who rely on business rates and fees from development for their funding.
The appeals system of An Bord Pleanála has been a key support for the operation of our planning system. For sure there have been issues within the board — but don’t throw the baby out with the bath water. When you look at the facts from the Office of the Planning Regulator’s 2021 report, just 7.5 % of decisions were appealed, and a staggering 76.7% of those were vindicated with the original decision being reversed or varied on appeal.
Most people accept an appeal decision. It is a process most suited to solve the issues of concern to them about a development, rather than judicial review in the courts which is ultimately about the lawfulness of the decision made, not the nature of the development. I am also angry at the developers who don’t use provisions in planning legislation to provide evidence to the board, so such exploitative appeals can be dismissed, and/or who fail to report it to the gardaí for investigation and potential criminal prosecution. They also incentivise such exploitative behavior with their buyoffs. They too are complicit in compromising the system, and displacing the role of An Bord Pleanála from making decisions based on the evidence before it.
Developers will argue that they simply want to bypass the delay of the appeal, assuming they will ultimately be allowed to develop. So then what is the story with the delays as that appears to be a root cause of the problem by providing the circumstances in which this extortion can thrive?
An Bord Pleanála’s annual reports tell us about the number of appeal decisions made within the period, and the rate of 58% in 2021 and 46% in 2022 warrant some focus, given the fear of delay.
So what should be in focus is Minister Darragh O’Brien’s failure to resource the board adequately. Let’s be clear, under existing legislation he had the power to replace board members when they retired and increase the size of the board. Instead, he effectively reduced the number of board members available to a crisis point. He and his colleagues in Government have created this environment where the backlog and delays and the fear of them can be exploited. Fertile ground for extortion.
The solution should be to focus on sensible, clear, and robust legislation; and support and resource decision-makers.
But to add insult to injury, the new Planning Bill not only centralises power, but pushes back on safeguards and public accountability. This is likely to stimulate even greater controversy, opposition, and even more delays. There are also new limitations to the right of appeal in the new bill.
Worse still, the new cost rules on Judicial Review and the Legal Aid scheme in the new Planning bill could generate claims designed only to milk the system. These claims could be carefully constructed to tick the necessary boxes and fly below the radar. The bill does away with the safeguards intrinsic in the current system, and also risks compromising your Human rights.
The new Planning Bill is writing a blank cheque for extortionists.
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