Planning Bill signals a quiet coup on our democracy

The bill has no real safeguards or oversight from the Oireachtas on new powers, and proposes to limit the role of the courts in holding these and other actors to account, writes Attracta Uí Bhroin

Housing Minister Darragh O'Brien  promised to enact the Planning Bill by the summer recess 'come hell or high water'.

A silent and deadly coup on our democracy will be executed with the completion of key stages of the Planning Bill in Dáil Éireann next Wednesday. 

Ironically, this effective coup is going under the radar, while everyone is getting all excited about the democratic outcomes from the local and European elections this Friday. It will be done and dusted in around 12-and-a-half hours, less time than the 15 hours the polling stations are open for. 

Truth be told though, what the Dáil passes on June 12 will undermine significantly the powers of those elected on Friday to local Government or the European Parliament, because it centralises extraordinary powers in the hands of ministers, the Government, and to a large practical extent — the planning regulator.

These powers will affect the impact of local councilors and our Irish MEPs. 

The bill has no real safeguards or oversight from the Oireachtas on these new powers, and proposes to limit the role of the courts in holding these and other actors to account. 

It will be a coup in all but name, including in failing to deliver on the causes it is masquerading under — housing and climate, which are central to the rhetoric of the bill’s champions: Darragh O’Brien and Eamon Ryan.

It is hard to think of any legislation with more profound and direct implications for how we experience our day-to-day lives, from where we live, work, learn, and play, and what facilities there are or are not. 

Key to all of that are the frameworks and blueprints for how our areas are developed in regional plans and strategies and county development plans.

The bill has a whole hierarchy of powerful mechanisms which force these frameworks and plans into alignment, with decisions centrally made by Government or the minister responsible for planning. 

They effectively remove “the say” of local councillors on a whole range of key decisions on their region, city or county, or make it very hard to deviate from controversial decisions centrally made.

The inevitable legal fights on European and local issues from all of this will negatively impact on housing and climate action, according to Attracta Uí Bhroin. Picture: Gareth Fuller/PA

These mechanisms surround the National Planning Framework — new instruments such as national policy statements decided by Government, which will need to be conformed to in powerful “expedited directions” from the minister, forcing variations to the regional spatial and economic strategies or to county development plans. 

And they will affect “urgent directions” from the minister, to vary county development plans, providing extraordinary discretion on how such powers could be invoked given their broad terms of reference. The planning regulator has a key role in these.

However, local election literature from Fine Gael, Fianna Fáil, and Green Party that I have seen still push their role in county development plans and in representing “your concerns” for “your areas”. 

They either don’t realise, or fail to mention, how their role will be altered and emasculated given what their Government colleagues are enacting in the Planning Bill

Centralised power may be appropriate where crises need to be solved, but then you absolutely also need strong Oireachtas oversight and accountability — including before the courts — to prevent abuse, and this is where this bill is woefully deficient.

For MEP candidates from the Government parties who focus on their track record or priorities as future legislators at European level, they too are curiously silent in taking issue with how changes in the bill on rules over judicial review intend to make it substantially more difficult to uphold existing and future European environmental law. 

Ensuring such compliance here in Ireland, will now be one hell of a fight. The inevitable legal fights on European and local issues from all of this will negatively impact on housing and climate action. 

Lawyers across the board, academics, NGOs, and planning professionals have highlighted the bill will cause delays, and uncertainties undermining delivery. 

This compounds other issues in the bill, which is more about facilitating permissions and flexibility driving wealth creation, doing little or nothing to ensure delivery. It also compromises the ability to fight the worst types of development.

At a recent construction and property industry conference, Housing Minister Darragh O’Brien promised to enacted the bill by the summer recess 'come hell or high water'

So the expectation is after Wednesday, the Government will steamroll the Seanad’s separate, important constitutional role in scrutinising one of the largest, most important pieces of legislation ever enacted in the State. 

It will only have around two weeks to consider it, with no amendments expected to be accepted. When the guillotine falls on this short Dáil debate, most of the bill will be set in stone. 

This includes two new report stage amendments approved by the Cabinet, which delete key clauses which expressly required planning bodies to consider their obligations under the Climate Act when executing their functions under the bill.

Those changes, and 413 others in 61 pages of amendments from Mr O’Brien, will automatically be included in the bill in the guillotined debate without proper scrutiny.

So, if you care about your local area, environmental law, European law and democracy, please make your voice heard about what the Government is doing in the bill, and not just at the polls on Friday.

• Attracta Uí Bhroin is the law officer of Environmental Law Ireland, and formerly the environmental law officer of the IEN.