Mick Clifford: Rushing the new planning bill on a wing and a prayer is storing up problems

The bill will impact everyone in the State and the haste to get it passed into law in its current form will create problems that will persist in the long term

The last major planning act came into being in 2000 and was designed for a different country. A housing crisis and the existential threat of climate change give further major impetus to getting this right.

Cian O’Callaghan of the Social Democrats sounded perplexed, distressed even, like he just couldn’t get his head around what he was being told. 

Beside him, Sinn Féin's Eoin Ó Broin had the cut of a man who was trying to reel in his shock. The two politicians looked pretty tired as well and why wouldn’t they? The meeting they were attending had begun eight hours and 45 minutes earlier. 

During that time, they had been attempting to excavate the entrails of a proposed law that will impact on every man, woman and child in the State.

“I’m confused now, that there could be a conflict,” Mr O’Callaghan said. “I’m finding it difficult to understand… I don’t find the explanation satisfactory.” 

Opposite him, Junior Minister Niall Collins looked like a man who desperately wanted the question to go away. “I didn’t say there were conflicts,” he replied. “I said maybe. It’s going to be looked at.” 

What was being discussed was one of 1,100 amendments to the new planning bill, a vital law that is desperately needed. 

This is the committee stage in the making of the law, where the proposed legislation is put through the ringer, parsed and probed, tested and adjusted, so it will be fit to eventually be sent out onto the nation. 

The law at issue here is desperately needed right now. The last major planning act came into being in 2000 and was designed for a different country. A housing crisis and the existential threat of climate change give further major impetus to getting this right.

Sinn Féin housing spokesperson Eoin Ó Broin said the new bill is 'a good example of how not to make legislation'. Picture: Gareth Chaney/Collins

The exchange between Mr O’Callaghan and Mr Collins referenced above came at the end of a long day in which phrases such as “it’s going to be looked at”, “we’ll get back to you on that”, “the minister will give an undertaking”, “that’s a good question”, and different versions of the same thing were repeated time and again at the Oireachtas Housing Committee. 

Mr Collins had been preceded in the hot seat by fellow junior minister Malcolm Noonan and the previous day by their colleague Kieran O’Donnell. At times, all bore the confused countenance of strangers in a strange land.

On Tuesday, Housing Minister Darragh O’Brien was in attendance. One has to suspect his junior colleagues are of the belief that this is his baby and he should be in situ for the whole of for the birthing process rather than getting them to effectively take the heat for him. 

For what transpired at the committee through the week should be of alarm to anybody who takes seriously the making of law, and right now there is probably no more consequential law being processed than the new planning bill. 

If it isn’t got right here, it will be parsed and probed in the courts over the coming years at a high cost to everybody and every entity from State down to citizen.

Here’s a snippet that captures the flavour of what was transpiring earlier on Wednesday. Sinn Féin’s Mr Ó Broin was questioning junior minister Mr Noonan on the dearth of provision for transport in the plan.

They say there are two things you should never watch being made, sausages and legislation,” Mr Ó Broin said. 

“I say that because what we are witnessing is a really good example of how not to make legislation… [this is] an issue that is not peripheral to good quality planning in the 21st century, in fact it is absolutely central. 

"That is what happens when you ask a former Attorney General an a bunch of lawyers to go off and do the first draft of a bill… it speaks to the frailty of the legislation we have in front of us.” 

Normally, a Government representative would push back hard against such comments. Mr Noonan did not, largely because he hadn’t a leg to stand on. Seated beside the minister, the departmental officials shuffled some papers.

The previous day, when Kieran O’Donnell was in the chair, the fare was more of the same. On an issue related to biodiversity, in response to a question from Mr Ó Broin, Mr O’Donnell read from a script.

“I’m don’t understand, I’m sorry,“ Mr Ó Broin replied. Mr O‘Donnell consulted with officials and read it again. The Social Democrats’ Mr O’Callaghan asked for some clarity. There was further consultations about sections of the bill.

“They’re technical in nature,” Mr O’Donnell said.

“Oh, that always worries me,” Mr Ó Broin replied.

The bill is 700 pages long, reputedly the third largest ever tackled. When it was published last November, Darragh O’Brien described it as “the cornerstone for Irish planning for the coming decades”. 

The department release at the time said it had “undergone months of Oireachtas scrutiny and stakeholder engagement”. 

That may well be the case but the scrutiny to which it was subjected last week suggests it still has a way to go before it will be anyway fit for purpose.

Each session at the committee last week lasted for in excess of eight hours. (The videos are available on the Oireachtas website and make for exhausting viewing). A question arises as to whether such a timetable is advisable in dealing with an issue of this import. 

Having this bill passed into law would give Darragh O’Brien a feather in his cap, exhibit A in showing how he and the Government are getting things done.

The urgency to get it through committee stage, and by extension rushed into law, is at odds with the complexity and far reaching consequences of what is being processed.

The bill is, according to the department, the “culmination of intensive review led by the Office of the Attorney General”. This is the framing that Mr Ó Broin referenced on Wednesday. 

Former AG Paul Gallagher is one of the foremost legal minds in the State. During his time in government he had a reputation as a prodigious worker. 

Overseeing the drafting of this bill was a huge task. A major issue around planning in recent years has been how often applications have ended up in the High Court and the prominence given to a lawyer in drafting the bill is understandable in that context. 

Yet, the flaws, queries, unanswered questions that arose during the week suggests an overarching focus on legal issues may have been at the cost of having some planning expertise driving the whole thing.

The element of the bill that has so far attracted most attention is a provision that would make it more difficult to challenge planning decisions in the courts. 

Yet the fare on view last week suggests that while the forthcoming law will have been legally proofed, unintended consequences will arise. 

For instance, in a planning application, an issue might crop up about biodiversity. The law will be watertight, but may well end up at odds with a decision by a local authority that is based on best planning practice in a particular situation. The same goes for all other areas.

These things can be addressed and rectified with proper scrutiny and a willingness to go back to the drawing board. Changes, however, will take time. 

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And right now, if the timetable is anything to go by, the imperative is to get the thing done and passed before the end of the Government’s term. Housing is still destined to be the main issue at the next election. Having this bill passed into law would give Mr O’Brien a feather in his cap, exhibit A in showing how he and the Government are getting things done.

That’s the nature of politics. But sometimes the cost of chasing a few votes is just far too high and will persist long into the future. Such is the danger here. Proper planning affects everybody and all aspects of how we live, never more so than today. 

Rushing the new bill on a wing and a prayer is storing up problems for tomorrow.

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