Mick Clifford: Could the new housing bill make things worse? 

Committee members and planners have highlighted some of the flaws they believe could hinder development if new legislation is introduced

Housing minister Darragh O’Brien says the planning and development bill is ‘vital and urgent and will update planning and be once in a generation legislation’.

LAST Thursday, the committee stage of the planning and
development bill was completed. Housing minister Darragh O’Brien marked the occasion by thanking everybody involved in what was a long and arduous stage of lawmaking. The housing committee sat for eight weeks, methodically going through over 1,100 amendments in a 700-page bill that, when made law, will impact every citizen in the State in one way or another.

It is, as O’Brien noted, “vital and urgent legislation that will update planning, a once in a generation legislation”. Why, then, is it so contentious? Why are there so many people who are familiar with the proposal who believe its thrust is so misplaced, that it will accrue major cost, which will come dropping slowly over the next decade or so?

The Government, and the housing minister in particular, have invested huge political capital in seeing this bill into law. At a time when the housing crisis is dominating politics, a new planning bill is viewed in those quarters as a vital instrument in hurrying up the building of homes. Even if results do not solidify by the time of the next election, its existence would be presented as evidence that things are going in the right direction.

O’Brien quite obviously believes that the slow passage of the bill is, in some ways, due to political opposition, or a form of filibustering. This prompted him last week to tell the Irish Home Builders Association conference that the bill will pass into law by the summer break “come hell or high water”. He made it sound like dark forces were assembling to scupper the bill. Yet over the course of the committee stage, the bill was repeatedly shown to be flawed in a whole number of areas.

These flaws were, for the greater part, highlighted by committee members, Sinn Féin’s Eoin Ó Broin and the Social Democrats Cian O’Callaghan. Both of these politicians are housing “wonks” in the best sense of that term. They parsed the bill and repeatedly showed shortcomings, particularly in areas like climate change — which is largely ignored in the bill, citizen engagement, the role of local authorities, biodiversity and environmental provisions, legal costs, and the role of An Bord Pleanála. Repeatedly, the minister answering questions — whether it was O’Brien or one of the ministers of state — replied: “We’ll get back to you on that,” or words to that effect. Quite obviously there is a lot yet to be done and a lot that would have apparently gone unnoticed if it hadn’t been parsed to such a degree by the committee’s members.

However, a far bigger issue is how the professionals who will have to operate the system consider the bill. Planners, working in the public and private sectors, will be tasked with operating the bill, and across the board they do not believe it is workable.

As reported on these pages by Cianan Brennan last Friday, nearly 80% of members of the Irish Planning Institute have responded to a survey saying they have no confidence in the bill. The institute stated that the results “reinforce the concerns” of its own council that key recommendations made by planners “were not taken on board”. Last week, the Irish Planning Institute president told its annual conference that the bill “is not fit for purpose”.

Planning objections

One of the main problems with the bill was summed up by planning consultant and media commentator Conor Skehan on Newstalk last week.

“Its central aim is to try to stop people talking appeals and it is fundamentally flawed for that reason,” Skehan told Pat Kenny. “It’s a bill by lawyers for lawyers and is trying to distract from the main issue here, the legal system, which is slow and backward.”

Whatever about his criticism of our learned friends, there is consensus that the bill is largely focused on narrowing the scope for objections, particularly those that result in judicial reviews. Developers have long lobbied that this is the main reason for blockages in the system.

However, it is also the case that the vast majority of judicial reviews in recent years involved objections to Strategic Housing Developments, a system in which planning was fast-tracked by eliminating the decision-making function of local authorities. The system, which was instigated at the behest of developers in 2017 to speed up planning, turned out to be a disaster and was discontinued two years ago. Yet even though that is now history, the current bill wants to narrow the scope of citizens to object if they feel a development contravenes good planning or the law.

Improper resources

Another issue that contributed to slowing down planning was resources. At local authority level, and particularly in An Bord Pleanála, there was a shortage of personnel to drive the process forward.

At one stage in recent years, the board was down to five operational members from a full capacity of nearly three times that.

Resources have since improved, but like other areas, notably in criminal justice, there is a tradition of governments sometimes introducing laws to divert from problems with resourcing.

Despite all that, the bill is now moving on to the next stage in lawmaking. With a fair wind, the minister’s aim of negotiating hell and high water and coming out the other side by the summer might well be on track.

It could be that he has all the aces. Perhaps the repeated concerns expressed by people like Ó Broin and O’Callaghan as well as various lawyers specialising in planning are misplaced. It could be that the minister and his officials know better than the planners who operate on the ground both in the public sector and for developers. It could be that this bill, the first significant piece of law in planning for quarter of a century, will turn out to be robust, operable, and a factor in improving planning.

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The only problem is we may not know for years. If shortcomings and flaws turn up and require remedy it won’t happen until cases begin appearing in court and the long legal process ensues. In such a scenario it could turn out, as some planners have suggested, that the bill will make things worse.
We can only hope that won’t come to pass, because short of major surgery, it is well on its way to becoming law in its current guise.