Northern Ireland’s Planning Bill and “economic development”
In Northern Ireland (NI), the Planning Reform Act 2011 provided for the reform of planning policies in preparation for the transfer of planning powers to Local Authorities in the future, portrayed as a further step in advancing democratic control in NI. Certain projects of significant impact will remain under the control of the Minister for the Environment, similar to strategic infrastructure projects in the Republic of Ireland (RoI).
The Planning Bill was formally introduced to the Northern Ireland Assembly on 14 January 2013 and received its Second Reading on 22 January 2013. A public consultation on the provisions of the Planning Bill finished in March 2013.
One issue in the Planning Bill that has gathered considerable attention, and most of it negative, is the shift from relying on “sustainable development” as the primary criteria for assessing development projects to an equal, or some would argue an overriding, consideration for “economic development.” Of course “sustainable development” already includes consideration for environmental, economic and social well being for today and tomorrow. So either the drafters of the Bill do not seem to understand the meaning of “sustainable development,” or they do and they want to shift attention, and authority, to economic considerations to the detriment of environmental considerations.
In this context, one is reminded of Frank McDonald’s assessment years ago that for the then Fianna Fail government, sustainable development meant development that must be sustained.
As part of the public consultation, the Northern Ireland Environment Link (NIEL), an umbrella organization for eNGOs in NI (see more below), submitted comments on the Planning Bill. Here are NIEL’s comments on the relevant sections of the Bill that attempt to give economic consideration equal or superior authority to sustainable development.
NIEL Comments on Clauses 2 and 6 of the NI Planning Bill:
“Clause 2 (General function of the Department and the planning appeals commission)
The concept of ‘promoting well-being’ needs further clarification – what are the criteria for ‘well-being’ and who decides how or whether these are met?
A clear definition of ‘sustainable development’ should negate the need to include a further objective of ‘promoting economic development’ (see following paragraph).
NIEL believes that including the objective of ‘promoting economic development’ within this clause is unnecessary and unhelpful. We are concerned that the Bill provides a statutory duty to consider the promotion of economic development in the planning process (where it never was before). The economy is already an integral part of ‘sustainable development’, and so repeating it explicitly essentially increases its weight in any assessment of considerations (and suggests a misunderstanding of the term ‘sustainable development’). While the Minister has stated that this does not give economic considerations determinative weight (Hansard, Planning Bill: Second Stage), there is a clear risk that the clause could be interpreted differently by different planners, or subsequent Ministers.
There are major questions introduced by this clause: How is the ‘promotion of economic development’ defined (for whom, and on what timescale)? Who determines what it is? Who assesses it? In light of these questions, the clause seems to increase scope for (and even invite) litigation, leaving the system open to legal challenges by any who are refused development permission or those who object to specific applications. The NI planning system is not equipped to define economic need, therefore in order to reach conclusions on economic benefits as a material consideration (which this clause will require), the authorities are likely to rely on assessment of developer-submitted materials. These submissions are likely to be biased in favour of the development they are proposing / promoting.
There is a danger in explicitly stating the promotion of economic development as an objective of the planning system because it frames the economy as competing against the environment – rather than recognising that the two must be fully integrated (the environment is the envelope within which the economy exists). A true economic valuation of natural capital / ecosystem services within NI would support economic development as well as promoting an educated and responsible attitude toward the environment. An understanding of this, along with ‘sustainable development’ should be reflected in the Bill. Having a separation of one aspect rather than recognition of their inter-relationships within the concept of sustainable development, undermines this and invites confusion and difficulties in practical determinations.
If economic factors are to be given particular emphasis, and thus potentially more weight, the precautionary principle (PPS1, paragraph 13) is likely to be ignored. It is important to appreciate that the over-riding public interest argument (stated in PPS1) can only really be used convincingly with regard to state-backed infrastructure or defence developments and cannot normally apply to commercial activities which are primarily in the interest of the person or company promoting them. Failure to comply with the precautionary principle as set out in PPS 1 could lead to legal challenges.
Clarification is required on the difference between ‘furthering’ and ‘promoting’; is there a ‘hierarchy’, or what is the difference in emphasis?
‘Good design’ needs further clarification – what are the criteria and who decides? Does ‘good’ refer to aesthetics, function or both? While we are aware of multiple design guides in NI, there needs to be clarity on which carries the most weight. In all of these issues, ill-defined concepts will increase the time needed to process applications, running counter to the aim to speed the process, and encouraging litigation.
NIEL suggests the following wording for clause 2(a):
“(1) Where the Department or the Planning Appeals Commission exercises any function under Part 2 of this Part, the Department or, as the case may be, the Commission, must exercise that function with the objective of furthering sustainable development, which secures:
• Protection and enhancement of the environment;
• Economic prosperity; and
• A strong, healthy, just and equal society.”
* * * * *
Clause 6 (Determination of planning applications)
A key principle of planning is that it considers issues related to the use and development of land. In introducing the assessment of economic advantages and disadvantages, the planning system could be used for a purpose for which it was not legally designed. Clause 6 seeks to expand the issues that planners need to take into account and, as a consequence, the NI planning system will no longer be able to rely on the stability of 40 years of case law that have determined the boundaries of planning considerations – this will have to be redefined, through a series of legal challenges, to establish case law. This will inevitably introduce a great deal of instability and delay into the planning system in NI, potentially making it unworkable.
The inclusion of considerations relating to economic advantages and disadvantages creates significant scope for litigation and escalating challenges between competing developers. It gives objectors considerable weight, where any person who thinks they may be personally economically disadvantaged as a result of a planning decision (for example, one developer losing out to another) may make a valid objection to an application. As a result, this clause could seriously slow down the planning system. We stress that the planning system is intended to operate in the public interest rather than the interest of the private sector or the interests of any individual developer (PPS1 General Principles).
Furthermore, in relation to assessing economic advantages and disadvantages, it is clear that a development application may be submitted with a strong business case for job creation and high estimation of turnover and hence proposed economic benefit. However, there is no clear mechanism by which planning authorities may assess the quantitative negative implications which a development may have on, for example, our tourism market, other public goods, other proposed developments or local communities.
For the reasons stated above, and in the interests of streamlining the planning system, NIEL believes that this clause should be removed from the Bill.”
Northern Ireland Environment Link (NIEL) is the networking and forum body for non-statutory organisations concerned with the environment of Northern Ireland. Its 62 Full Members represent over 90,000 individuals, 262 subsidiary groups, have an annual turnover of £70 million and manage over 314,000 acres of land. Members are involved in environmental issues of all types and at all levels from the local community to the global environment. NIEL brings together a wide range of knowledge, experience and expertise which can be used to help develop policy, practice and implementation across a wide range of environmental fields.
These comments are made on behalf of Members, but some members may be providing independent comments as well. If you would like to discuss these comments further we would be delighted to do so.
Prof Sue Christie, Director
Northern Ireland Environment Link
89 Loopland Drive
Belfast, BT6 9DW
P: 028 9045 5770
Northern Ireland Environment Link is a Company limited by guarantee No NI034988 and a Charity registered with Inland Revenue No XR19598
irish environment Editor Notes:
Below are Clauses 1, 2 and 6 of the Planning Bill:
B I L L
Amend the law relating to planning; and for connected purposes.
BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows:
Statement of community involvement
1. In Article 3A of the 1991 Order (statement of community involvement) after paragraph (2) add⎯
“(3) The Department must prepare and publish a statement of community involvement within the period of one year from the day on which this paragraph comes into operation.”
General functions of the Department and the planning appeals commission
2. (1) In Article 10A of the 1991 Order (sustainable development)
(a) for paragraph (1) substitute —
“(1) Where the Department or the planning appeals commission exercises any function under Part 2 or this Part, the Department or, as the case may be, the commission must exercise that function with the objective of ⎯
(a) furthering sustainable development;
(b) promoting or improving well-being; and
(c) promoting economic development.
(1A) For the purposes of paragraph (1) the Department or, as the case may be, the commission must (in particular) have regard to the desirability of achieving good design.”;
(b) for paragraph (2) substitute⎯
“(2) For the purposes of paragraph (1), the Department or, as the case may be, the commission
must take account of ⎯
(a) policies and guidance issued by ⎯
(i) the Department;
(ii) the Department for Regional Development;
(iii) the Office of the First Minister and deputy First Minister;
(b) any other matter which appears to the Department or, as the case
may be, to the commission to be relevant.”.
(2) In section 1 of the 2011 Act (general functions of Department with respect to development of land) ⎯
(a) for subsection (2)(b) substitute ⎯
“(b) exercise its functions under subsection (1) with the objective of ⎯
(i) furthering sustainable development;
(ii) promoting or improving well-being; and
(iii) promoting economic development.”;
(b) after subsection (2) insert ⎯
“(2A) For the purposes of subsection (2)(b) the Department must (in
particular) have regard to the desirability of achieving good design.”.
(3) In section 5 of the 2011 Act (sustainable development) ⎯
(a) in subsection (1), for “objective of furthering sustainable development.”
substitute “objective of ⎯
(a) furthering sustainable development;
(b) promoting or improving well-being; and
(c) promoting economic development.”;
(b) in subsection (2), after “must” insert “(in particular) have regard to the desirability of achieving good design and”.
Determination of planning applications
6. ⎯(1) In Article 25 of the 1991 Order (determination of planning
applications), after paragraph (1) insert⎯
“(1A) Without prejudice to the generality of paragraph (1), the reference in that paragraph to material considerations includes a reference to considerations relating to any economic advantages or disadvantages likely to result from the granting of or, as the case may be, the refusal of
(2) In section 45 of the 2011 Act (determination of planning applications), after subsection (1) insert⎯
“(1A) Without prejudice to the generality of subsection (1), the reference in that subsection to material considerations includes a reference to considerations relating to any economic advantages or disadvantages likely to result from the granting of or, as the case may be, the refusal of planning permission.”.
For a complete copy of the Planning Bill, see: NI Department of the Environment www.planningni.gov.uk/index/advice/advice_legislation/advice_all_legislation.htm
NIEL full Submission on NI Planning Bill (March 2013) www.nienvironmentlink.org/cmsfiles/policy-hub/files/Consultations/Planning/Planning-Bill-consult-NIEL-FINAL.pdf
International Institute for Sustainable Development (iisd), “What is Sustainable Development.” www.iisd.org/sd/
Interview with Minister Alex Attwood, Department of Environment, Northern Ireland, on planning and other issues, in Podcast section of irish environment.