The Context

The quality of our individual lives depends, in part, on the quality of the community to which we belong, including its physical characteristics, amenities and services.  Some can and do live isolated from others, in remote places, largely self-sufficient, content with contact with only a few neighbors and an occasional foray into a village or town.  Many lived such lives on the island of Ireland only several generations ago.  Now most live in close proximity to others, often many others, sharing land and space for public purposes.  Contemporary life is complex and complicated and getting pleasure out of our communal life can be difficult.

If we want that communal life to offer the most opportunities and pleasures, we need to engage with planning and development efforts.  Leaving these efforts to others assures that private vested interests, centered on financial or commercial advantages for a few, will control the process and we may well not like what comes out of such a process.  Just look around at what happened during the last several decades as a result of a process dominated by developers and people who made money off chaotic and unsustainable residential and commercial developments.  See “Booms, Busts, Ghosts and NAMA:  Irish Planning at its Worst,” in the Reports section of irish environment.

Local citizen participation in the planning process is critical.  Many have criticized the domination of planning and politics by “localism, cronyism and clientelism,” so we need to be very clear about what kind of “local” participation is helpful.  There is a constant struggle by local interests that want to see development that sustains public resources and benefits serving the community against local interests that want to develop land because there is money to be made for the local landowners, the developers of that land, local auctioneers and solicitors who participate in the transactions, and even local authorities that earn income from development rights for infrastructure and other public purposes.  

In this article we will explore some of the failures of local authorities in the planning arena and how local participation, or citizen activism, needs to exert influence over the local authorities.  To document this issue, we will look at recent reports by An Taisce and An Bord Pleanála, an academic paper on regional planning, and a High Court decision.  Another view of local participation can be found in the video interview with Gerry Crilly of Dunleer, County Louth in the current Podcast section of irish environment.

An Bord Pleanála

Some of the more contentious planning disputes are appealed to An Bord Pleanála and the scope and results of its work give us a clue as to the source of some of the planning problems.

At the beginning of 2009 the Bord had on hand 2,636 cases, it received 3,786 new cases, and determined 5,090 cases in 2009.  In 2009 the number of oral hearing requests in relation to normal planning appeals was 74 and the number of hearings held was 13. Normal planning appeals arise from decisions by planning authorities on applications for permission for the development of land.  Such appeals accounted for 91% of the intake of cases in 2009. This workload was handled by 159 staff members, which represents the average number of staff employed during 2009 (down from 167 in 2008).

Nine percent of local authorities planning decisions were appealed to the Board, and 34% of local planning authority decisions appealed were reversed, about the same as in 2008. Dun Laoghaire/Rathdown (18.8%), Dublin City (18.3%), Fingal (15.2%) had the highest levels of decisions appealed. Areas with the highest rate of appealed decisions overturned by the Board were Donegal (59.5%), Roscommon (53.3%) and Longford (48.0%) while those with the lowest rate of appealed decisions overturned were Cork City (22.0%), North Tipperary (26.0%) and Waterford City (26.9%).

The higher numbers of appeals come from the areas where, it can be assumed, the prices of and profits from developments are the highest, and so the high stakes make the appeal process worthwhile.  The higher numbers of reversals come from border regions where the planning process may fairly to be said to be dominated by “localism, cronyism and clientelism.”  These statistics on the source of many unsustained planning decisions reinforce other recent studies. See “Booms, Busts, Ghosts and NAMA:  Irish Planning at its Worst,” in the Reports section of irish environment.

Since January 2007 and the commencement of the relevant provisions of the Planning and Development (Strategic Infrastructure) Act 2006, the Board became the planning consent authority for strategic infrastructure projects in the energy, transport and environmental areas (whether promoted by the public or private sector), including rail transport, gas pipelines and electricity generation and transmission. It also became responsible for determining applications for compulsory acquisition relating to gas, airport and railway projects.  Certain local authority development applications and

associated compulsory acquisition cases also became classified as strategic infrastructure in the 2006 Act.

Six of the eight strategic infrastructural projects submitted for approval under the Planning and Development (Strategic Infrastructure) Act 2006 were approved, and 2 refused approval.  For an assessment of the different roles of the Bord on normal planning appeals and on appeals for strategic infrastructural projects, see the Interview with Ian Lumley, Heritage Officer of An Taisce in the Podcast section of irish environment.

During 2009, High Court judicial review proceedings arising from the Bord’s decisions and procedures in relation to appeals and other matters were instituted in 16 cases.  Leave applications for judicial review were refused in 5 cases.  In 2009 High Court Judgments were given in 14 substantive cases, 12 of which went in favour of the Board and 2 against.  In addition the Board consented to the quashing of one of its orders where a procedural defect was identified.

High Court Case of McMahon vs. An Bord Pleanála

An example of a recent High Court decision that supported rational sustainable planning is McMahon vs. An Bord Pleanála (December 2010).  In that case, An Bord Pleanála overturned Galway County Council’s grant of planning permission for a 31-house development outside Kinvara town.  The housing estate was to be located on a blind curve on the main road to Ballyvaughan and the Burren area within a 100 km per hour speed zone.  The project also in effect extended the boundaries of the town.  The Board ruled that the project was contrary to proper planning and sustainable development of the area, particularly because it would result in traffic hazards and risks to people, and because of the unplanned, unsustainable manner in which the town boundaries were extended.

In a well-reasoned and carefully thought-out opinion, Justice Peter Charleton first addressed a knotty procedural issue (whether the late submission of objections to the Bord was grounds for dismissing the appeal – it was not).1  The Court then upheld the substantive decision of the Bord overturning the County’s grant of planning permission.  In very clear, forceful language Justice Charleton found that the local authority is bound to follow the well-grounded principles of proper planning and sustainable development that are embedded in statutory development plans, principles adopted to protect the “priceless heritage of generations of work within the countryside, as reflected in our landscape and in the separation of town from rural areas.”  The Court noted that the environment that the planning codes are designed to foster and protect is an invaluable economic resource, especially for tourism.  This aim of the planning codes serves as counterweight to the constant claim by developers that they bring jobs and economic benefits through their developments.  The Court held that the decision of the Board rightly rejected the planning permission on grounds of the traffic hazards and unplanned extension of the town in an important tourist area.

Indicating that it “was very difficult to understand” the County’s approval for such a development, Justice Charleton concluded that under the Planning and Development Acts, An Bord Pleanála is an appeal body and that “the reasoning of its decisions should be studied at local authority level.”  It can only be hoped that not only the Bord’s decision in this case will be granted precedential effect, but so will Justice Charleton’s opinion.  So as not to suggest that the Bord always gets it right, see An Taisce v. Ireland & Ors, [2010] IEHC 415 (25 November 2010) where Justice Charleton quashed the planning permission issued by An Bord Pleanála for continued use of a quarry in County Monaghan.

“Dublin 2026, the Future Urban Environment.”

In a special edition, the Journal of Irish Urban Studies (December 2010) has published a series of articles entitled “Dublin 2026, the Future Urban Environment.”   The articles focus on the urban environmental implications of planning in the Greater Dublin Area with particular emphasis on the interrelationships between planning policy and development trajectories in the region.  One of the articles, by Dr. Brendan Williams, Cormac Walsh and Ian Boyle, investigates the land use and growth pattern that is emerging in the Greater Dublin Area, relying extensively on economic and social statistical evidence.  The authors argue that strategic decision-making on development issues needs to made at the functional regional level if national development policies are to be effectively achieved.   A Functional Urban Region (FUR) is defined as “the geographic space appropriate for the comparison of economic development in urban areas,” a concept that grows out of the concentration or clustering of economies and competition in a geographical setting.  The article makes clear that despite the plethora of development policies and guidance — National Spatial Strategy, Regional Planning Guidelines, National Sustainable Development Strategy, National Development Plan, and others — there has been a lack of serious implementation and support at local level for any coordinated development strategy.  Rather development is proceeding in a random, inefficient pattern with little consideration of the existence of social amenities, and decisions by local authorities are approving developments that conflict, sharply at times, with regional planning guidelines.  Lobbying from landowners at local level has more influence than planning policies, there has been corruption in the planning process, and we witness the triumph of “individual or local benefits over the general public good” as a result of such “advocacy-based planning decisions.”

After analysing smart or managed growth versus unmanaged or dispersed development in the GDA, the authors conclude the urban regional market of Dublin and similar cities has expanded beyond traditional city and county boundaries with residences, employment, investment and development of all kinds now regional in nature rather than local.   The authors urge administrative agencies to acknowledge this reality in their planning and development organizational structures.  The authors conclude that “What is needed … is a more robust implementation of the ‘rules’,” and a doing away with the “divergence between rational policymaking and how it is interpreted on the ground. “

An Taisce

An Taisce-The National Trust for Ireland has published This Place Matters, an important, and smartly titled, report that provides A Guide to Public Participation in the Development Plan Process (2010).  It both encourages citizen activism and shows ways for being active in the planning process.  As one of the important voices raised against unsustainable development over decades, it is always worth listening to An Taisce.

With changes in the Planning and Development Act between 2000 and 2010, in large part as a result of European Union legislation and rulings from the European Court of Justice, the Guide notes that “the general content of development plans has moved from simple development management (i.e. the regulation of land use) to environmental management (i.e. a more holistic ecosystem management approach.”   A host of environmental policies and regulations have come to influence development plans, including Strategic Environmental Assessments, Habitats Directive Assessments, Strategic Flood Risk Assessments, and others.  The business of formulating and implementing development plans has become a complicated process that requires experienced and professional guidance.

An Taisce explains clearly how and when development plans are put together and why it is critical to participate in the formation of these plans.  Since planning permission does, or should, require that the proposed project comply with national, regional and local development plans, it is crucial that those plans reflect the views and interests of the community at large and not just the narrow vested interests of developers and those who profit off commercial developments.

Analysis of the key issues that need to be addressed so that any plans fulfill the goal of  “proper planning and sustainable development” is provided.  Those issues include energy scarcity and climate change, economic transformation and sustainable employment, reversing car dependency and implementing sustainable transportation objectives, protecting and improving water resources, halting biodiversity loss, and social integration and quality of life.

The Guide also offers a way to review and understand what a development plan is and what it attempts to do.  The Guide helpfully explains when people can make submissions to the local authorities, what kinds of information should be included, and even the format of the submission (e.g., provide brief bullet points as an executive summary of the submission, which can be cut-and-pasted by the county planners for their report for the local councilors).  It also urges people to engage in lobbying of local councilors who are responsible for decisions, both for adopting plans and granting planning permission.   We can be assured that the local landowners, developers and others pushing for private interests have lobbied and will continue to lobby those councilors.

As the Guide notes, the policies embedded in sustainable planning laws unfortunately have not been put to practice in the field by local authorities.

Conclusion

Based on these recent analyses, local planning authorities have largely ignored national, regional and local plans in considering planning permission applications. An Bord Pleanála overturned a third of local authority planning decisions, including over 50% of decisions from some counties.

The clear consistent message is that the national and regional sustainable development plans, as well as other environmental protection policies and procedures, must function as prerequisites for any local plans and planning permissions.  To the extent that An Bord Pleanála, and the courts, require adherence, even strict adherence, to national, regional and local development plans as a prerequisite for planning permission, it becomes increasingly important for everyone to participate in the formation of those development plans.

A consensus is forming about what happened to undermine the Irish planning process, and what corrections are needed.  The unsettled issue is how these reforms are going to reach the local authorities.  How do we provide the financial and other resources to educate, train and professionalise the planning staff at the local level, as well as the local councilors who have the final say on plans and applications, at least initially.

In the meantime, we must rely on the likes on An Taisce and people like Gerry Crilly in Dunleer to protect our environment, and hope that An Bord Pleanála and the courts do the same.

1 The objectors filed their submission to the County Council late but the County sent a formal acknowledgement of the submission to the objectors.  When the objectors filed an appeal to the Bord, they noted that they had filed a submission that was acknowledged by the Council, a prerequisite for their appeal.  Justice Charleton held that the Board considered the appeal requirements at their face value, including that a County-acknowledged submission had been made by Notice Parties, and the Bord need not, indeed could not, look beyond that facial validity to question whether it was timely or untimely.

Robert Emmet Hernan, Publisher, irish environment

Resources:

An Bord Pleanála, Annual Report 2009. www.pleanala.ie/publications/index.htm

McMahon vs. An Bord Pleanála [2010] IEHC 431 (08 December 2010).

Dr. Brendan Williams, Cormac Walsh, Ian Boyle, “The Development of the Functional Urban Region of Dublin: Implications for Regional Development Markets and Planning, Journal of Irish Urban Studies (December 2010).

www.uep.ie/news/researchpubs.htm

An Taisce-The National Trust for Ireland, This Place Matters: A Guide to Public Participation in the Development Plan Process (2010). www.antaisce.org/developmentplans/PlanningToolKit/Resources/tabid/679/language/en-US/Default.aspx

An Taisce’s website for communities and planning process www.antaisce.ie/Default.aspx?alias=www.antaisce.ie/developmentplans

See, “Natural Wealth Accounts”, “Landscape Character Assessment”, “One-Off Housing”, “Smart Growth”, and “Urban Sprawl” entries in the iePEDIA section of irish environment

See, “Booms, Busts, Ghosts and NAMA:  Irish Planning at its Worst”, and “Biodiversity and Planning: Developing Connectivity for Sustainability: Irish Biodiversity Forum and Northern Ireland Biodiversity Group’, in the Reports section of irish environment

See the interviews in the Podcast section of irish environment with Frank McDonald, Environment Editor, The Irish Times; Malcolm Noonan, Green Party Mayor of Kilkenny; Frank Convery, Chairman, Comhar Sustainable Development Council; Ian Lumley, Heritage Officer, An Taisce The National Trust for Ireland; Dr. John Barry, Reader in School of Politics, International Studies and Philosophy, Queens University Belfast, Northern Ireland; and Gerry Crilly, National Council, An Taisce (current issue)