Poor legislation the foundation of problems in planning system

Legal challenges have become the main source of delays and uncertainty in our system, writes

THERE is such a long-established pattern of trying to change planning systems that it has almost become a sport — seemingly irresistible to politicians.

Calls for change usually follow one of two patterns: frustration about one big planning decision, or excitement about a fashionable system in another country. Here, the biggest complaints centre on the delays and uncertainties of the system.

A common pattern in all of this is to concentrate on immediate problems while forgetting that planning is mostly about looking ahead.

Everyone grumbles when a housing development is prohibited on a 100-year floodplain, yet when a flood occurs, everyone asks: ‘How could they let my house be built where flooding happens?’

Many are surprised to learn that the biggest source of complaints about delays and uncertainties in the Irish planning system arises from legal challenges.

The ordinary planning system — county councils and An Bord Pleanála — is the only public service that is legally bound to deliver by specific time limits, while the courts have no time limits.

This is a real problem. A large and rapidly growing concern has been caused by judicial reviews that challenge planning decisions, usually those made by An Bord Pleanála. Many of these are successful and they are readily taken because the Aarhus Convention allows citizens to inexpensively challenge decisions that may affect the health or environment of the community.

There needs to be a recognition that judicial reviews are symptoms of poor legislation and legal practices, not planning. Attempts to limit or remove access to judicial reviews is a mistaken targeting of symptoms and not causes.

A large and unacknowledged problem is the poor quality of Irish legislation due to incorrect or partial transposition of EU directives in response to lobbying — particularly by the construction and agricultural sector.

It is arguable that any reform of planning should begin with a reform of the legal system. Indeed, many of the current problems have arisen as unintended consequences of well-intentioned attempts to respond to lobbying that sought to reduce the control of the planning system.

Could it be that the way to deal with judicial reviews is to get rid of their causes with better legislation, while also addressing the speed and reliability of the legal system?

The legal system is struggling to cope with the emergence of the need for technical evaluation, often caused by judgments of the European Court of Justice which follow the more rigid logic of a civil system — in comparison to the more practical, case-by-case approach of Irish common law.

Attempts are being made to address this issue. The current Programme for Government — Our Shared Future — includes the objective to reform the judicial review process through the establishment of an Environmental and Planning Law Court.

It is envisaged that the new court would be managed by specialist judges. It is proposed to model this system on the existing Commercial Court, which is widely regarded as being a success.

In this instance, ‘specialist judges’ means specialists in planning and environmental law. It is important to note that this is not the same thing as being a specialist in either planning or environmental practice or science.

This is a crucial difference of the Commercial Courts — which deal entirely with ‘man-made’ matters such as contracts and taxation.

Issues in land-use planning, and particularly the environment, deal with matters that require wide and deep specialist knowledge. Moreover, they deal with matters that are highly dynamic, often changing rapidly. For this reason, most specialist courts in other countries use a combination of lawyers and technical experts.

A Planning and Environmental Law Court is likely to increase the speed of proceedings, but it is unlikely to increase the certainty of outcome. It will also not address the vulnerability caused by poor Irish environmental legislation, nor planning and regulatory procedures that are not fit for purpose.

The best outcome would be the establishment of a specialist court based on a recognition of the need to configure these courts to include specialists. The system would have minimal or no overlaps with the established statutory roles, especially of local authorities, An Bord Pleanála and the Environmental Protection Agency.

The worst outcome would be the prospect of having courts where a judge would begin to make decisions based on their personal (non-specialist) opinions.

Other reforms that would dramatically reduce the workload of the planning system could include measures to significantly expand the rules for ‘exempted development’ from a need for planning permission. These make up the majority of applications, like house extensions, and most could be dealt with by a set of ‘rules’ and a letter of agreement in advance from nearest neighbours.

We also need to increase funding to expert environmental authorities. A twintrack approach of published surveys of the effects of projects combined with proper management plans for our designated habitats would help protect biodiversity.

The UK government is introducing “the most radical reforms to our planning system since the Second World War”. All land will be designated as either ‘development land’ or ‘non-development land’. ‘Development land’ would cover all existing urban areas and planned extensions, and would have no restrictions on permitted land use. The role of local elected representatives would be ‘streamlined’, so that they would have no say over planning applications.

There will be calls here to do the same, despite the reality that this system looks likely to fail spectacularly.

It fails to engage with the complexities of modern development that need to take account of issues such as flooding, proximity to hazardous industrial sites, protection of natural or cultural heritage, as well as integration with plans for water, power and public transport.

Let us never stop trying to improve our planning system, but let us do so by fixing the biggest problems first.

‘The way to tackle judicial reviews is to get rid of their causes’