Good planning and local accountability: where does the balance lie?

Berna Grist highlights the risks of corruption in localised planning structures and how the Planning Act 2010 and new regional authorities can improve transparency.

Courtesy of her presentation to eolas’ seminar on planning, UCD-based planning law specialist Dr Berna Grist reviewed the development of Irish planning legislation over the past 50 years. In tandem with this, she highlighted the tensions that have always existed between developers, local politicians and those civil servants charged with the responsibility of carrying out the various planning decisions arrived at in a fair and equitable manner.

She specifically pointed out that there are risks of corruption inherent in the financial opportunities created by the re-zoning and development of land and added: “This particular matter was highlighted publically by An Foras Forbartha back in 1983. Yet we still ended up in the position of having to establish a tribunal of inquiry into a range of planning matters and corrupt payments between 1997 and 2012.”

She continued: “The Mahon report clearly points out that the outcome of numerous planning applications submitted in the past was determined by a ‘who you are and who you know’ mentality.

“Adding to this was a local reluctance to take action, should it be required, against developers who may well be local employers with a very high profile within their communities. The fact remains, however, that we must have a planning process that is totally transparent.”

The components of the current planning system in Ireland comprise a development plan, development controls and the relevant enforcement measures. Development plans set out the development objectives of the planning authorities. Development control measures provide an assessment of individual planning applications for specific projects, while enforcement measures focus on the steps which can be taken by planning authorities against unauthorised development.

Guidelines

During her discussion of the impact made by the Planning Act of 2000, Grist specifically highlighted the way in which regional planning guidelines (RPGs) had been sidestepped, courtesy of legal interpretation.

This, in turn, had led to the imbalance between development and infrastructure that so characterised the years of the Celtic Tiger. The consequences of this development are now apparent for all to see. Most notably, they take the form of excessive zoning, remotely located housing and the spectre of ‘ghost estates’ throughout the country.

The specific case referred to was that taken by Kildare county councillors McEvoy and Smith against Meath County Council. In essence, the applicants sought an order declaring that in adopting a development plan for the Meath County area, the specified county council failed to have “due regard” to the strategic planning guidelines for the greater Dublin area and that in consequence the plan was void and of no effect. They also sought an order quashing Meath Council’s decision to adopt the plan.

“The 2000 Act required planning authorities required to ‘have regard to’ RPGs when making a development plan,” Grist explained. “However, the judgment specified that the term ‘have regard to’ does not require rigid or slavish compliance or even to adopt fully the strategy and policies in the guidelines. Thereafter, the flood gates opened.”

According to the UCD academic, the issue of over-zoning was more satisfactorily addressed courtesy of the 2010 Planning Act. Specifically, this provided a role for the Environment Minister, regional authorities and the National Transport Authority at every stage in the plan-making process. It also ensures that a structured consultation procedure will take place, leading to an issue of direction regarding adopted development plans.

Regional assembly oversight

“Significantly, there has been a 30 per cent reduction in the area of residentially zoned land between June 2010 and June 2012,” she confirmed. Returning to the issue of ‘who guards the guards?’ or put another way ‘what steps can be taken to ensure the transparent enforcement of planning legislation?’, Grist felt this a would be a function ideally suited for transfer to the proposed regional assemblies, as a means of eliminating conflicts of interest that arise at local level.

Under the ‘Putting People First’ vision for local government, three regions will be established:

• Southern;

• Eastern and Midlands; and

• Connaught-Ulster.

Their key role will be that of providing a strategic planning and oversight function. The main specific functions of the regional assemblies will include the adopting and overseeing the implementation of regional strategies plus an oversight of local authority performance and implementation of government policy.

“The current regional planning guidelines will be augmented as regional spatial and economic strategies, to be adopted by the regional assemblies,” Berna Grist further explained. “Relevant agencies will be required to input to, and adhere to, the strategies. There will be an enabling provision in legislation for a strategy formulation or oversight role for regional assemblies in relation to other strategic functions.

“In this context, I see no reason why the assemblies should not have responsibility for RPGs plus new regional spatial and economic strategies.

“Special expertise will be required in the enforcement of planning matters. The reality is that people will have greater confidence in an impartial enforcement body.”

Berna Grist concluded: “There remains a requirement for total transparency on all matters relating to planning. The public outcry regarding the corrupt practices followed in the past has highlighted the anger that exists throughout Ireland regarding the legacy of ghost estates and the issues that came to light courtesy of the Mahon Tribunal.

“There must be total community buy-in to the planning procedures put in place for the future.”