A regulator could ensure that development plans complied with best planning practice, writes Michael Clifford.

BACK in the mid-2000s a friend remarked to me that we were living in the land of boybands and tribunals.

The boybands have since grown up and become something else. The tribunals transmogrified into commissions of investigation, with hearings in private rather than public, and have multiplied like rabbits. Now that the public inquiry has been moved behind closed doors, there appears to be a lot more of them. Anytime a government sniffs trouble on the breeze, a commission is opened up and run out the long finger.

Unfortunately, that’s the way we do things in this country. The very least that might be expected is that when a tribunal or commission finally reports, its recommendations are taken on board and acted upon. After all, if there is a tacit acceptance that a government transfers powers to an inquiry, surely there is cover enough for the government to act on what the inquiry says needs to be done to avoid the same trouble.

All of which brings us to the mother of all inquiries, the tribunal which examined “certain planning matters and payments”. This started life in 1997 to examine how a leading Fianna Fáil politician trousered 30-grand at the 1989 general election. Ray Burke resigned at the outset of the inquiry — most likely aware of what was awaiting him down the line.

By the time the tribunal finished its 15 years of work, Bertie Ahern had also resigned, having been mangled in one assembly line of the inquiry’s work.

The tribunal uncovered multi-layered corruption in the planning process. This took many forms. There were the big bucks for the big boys, and small brown envelopes for a coterie of councillors who were willing to sell their souls for a few grand.

There was also another more insidious form of corruption uncovered. In examining hundreds of planning decisions a pattern emerged with large groups of politicians, particularly, but not exclusively, from the main parties.

These individuals binned best planning practice repeatedly to bow before the march of developers. In this, they saw a confluence of interest between developers’ short-term goal of turning a buck, and their own immediate concerns of the next election. Here, the long-term was jettisoned for the short-term. The “common interest”, as defined by the cornerstone 1963 planning act, was sacrificed for the exclusive interests of politicians and developers.

This was dressed up by many of these councillors under the ‘pro-development’ label. Some councillors found themselves in thrall to developers who promised to bring jobs and temporary prosperity to an area, irrespective of the long-term consequences. In its own way, it mirrored Donald Trump’s approach to climate change, in which he sees heightened concern for the planet’s future only as a retarder for jobs in the present.

No brown envelopes were exchanged for favours in this form of corruption. Some councillors saw their reward in political donations. Others just convinced themselves they were acting in their community’s best interests, which just happened to be their own short-term interest. All ignored the harm that they were doing in this form of developer-led planning.

It was this sort of stuff, as much as the venal corruption, that must have prompted the tribunal chairman Alan Mahon in his final report in 2012 to strongly recommend the establishment of a planning regulator.

A regulator could ensure that development plans complied with best planning practice. Where there was a suspicion that best practice was being sacrificed for special interests the regulator could intervene to stop it.

When the Mahon report was published everybody agreed this was a sound idea. Five years later, on the 20th anniversary of the establishment of the planning tribunal, the enthusiasm has waned in some quarters.

Currently, the Planning and Development Act, which will see the setting up of an office of planning regulator, is going through the Oireachtas. Now, it would appear, the Government and some others, see the regulator’s role more that of an adviser.

The act proposes that the regulator not have the power to intervene, but instead will refer anything that looks dodgy to the minister of the day. He or she, in turn, will examine it and exercise the power to act or simply leave things as they are.

Housing Minister Simon Coveney set out his reasons in a recent debate on the bill: “I do not subscribe to the view that the political system cannot be trusted and that therefore we need to set up independent regulators to take all decisions in the implementation of policy.”

On the face of it, ensuring that the planning process is subject to democratic and public accountability in the Oireachtas seems reasonable. The Government position has received support from the likes of Labour’s Jan O’Sullivan and the Greens’ Eamon Ryan, who both have good records on planning.

But this is not about personalities. Form has dictated that politicians of all hue are eternally susceptible to influencing by vested interests in a manner that a statutory regulator would not be.

There are other considerations. One element of our planning system that badly needs addressing is consistency. Best practice and guidelines are relatively consistent, but allowing the final say with a minister of the day won’t enhance that.

Take two recent incumbents in the environment portfolio. John Gormley and Phil Hogan had very different interpretations of good planning. Advice from a regulator — had one been in place during their respective tenures — would most likely have been heard or heeded in very different ways. As such a regulator as adviser is largely a redundant entity to be ignored or manipulated as the minister of the day sees fit.

Sinn Féin’s Eoin O’Broin is among those who claim that Mahon’s recommendation has been effectively ignored.

“Thousands of people across the State are living with the consequences of decades of bad, corrupt and negligent planning decisions,” he says. “In an effort to make sure corruption on the scale witnessed in the past doesn’t happen again, the Mahon Tribunal recommended that ‘the minister’s… ability to give directions to regional and local planning authorities should be entrusted to a planning regulator.

“Unfortunately Minister Simon Coveney’s intention appears to be to create another toothless tiger.”

That’s how things stand at the moment. Time passes. The jaw-dropping detail of corruption that emerged from the tribunal fades from memory. The other stuff, the inexplicable decisions which didn’t involve direct money for favours, is easily forgotten. Life gets back to what we’re told passes for normal.

The Tribunal’s existence alone did reduce the amount of corruption in the planning system, but it is still there in all its forms.

What’s the point in setting up an expensive inquiry if at the end of it all the Government refuses to implement evidence-based recommendations?


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