The NI Planning Bill 2013: A goldmine for lawyers, a field day for objectors and a mess for the rest of us?

19 views

Planning law isn’t something that usually excites a lot of people, but hidden away in the Planning Bill, published on Monday 14th January is something that should arouse even the most flaccid of neo-liberals.

Taken for granted by most of us, the planning system should act on behalf of all of us to ensure that any development that goes ahead is in “the public interest”. There are a whole range of things that planners take into account in weighing this up – economic, social and environmental issues and unlike other areas of public policy, should take a long term view to safeguard Northern Ireland’s assets for future generations. Clearly we are not all going to agree on how we balance these issues (re. Sprucefield, one of houses in the countryside, windfarms, Runkerry…) but current legislation does at least attempt to enshrine a sense of proportion between these objectives.

However, the new Bill undermines all of this by ensuring that the Department of the Environment (DoE), the Planning Appeals Commission, and ultimately our new local authorities, must place additional weight on economic development in their planning decisions. Although this does look reasonably innocuous, it represents a very fundamental shift in what we use the planning system for, turning away from reasoned and balanced regulation to a market-led free for all. One would have thought we had learned the lessons from such an economic approach, what with the Republic of Ireland and its ghost estates on our doorstep, but apparently not (see for example, http://irelandafternama.wordpress.com/2011/05/09/planning-in-ireland-during-the-boom-and-possible-reforms/ ).

The Bill looks like an even worse idea when you start to consider how these new provisions would work in practice.  At present a planning decision is based on the very characteristics of the development site – whether it is likely to cause local traffic problems, destroy a local habitat, undermine our heritage or have some other unacceptable impact on the local neighbourhood. These are important factors in protecting the places where we live and for providing a stable context for property investment and other forms of economic activity. However, under the provisions of the new Bill, all these issues could potentially be set aside if the developer can make a claim that it contributes to economic development .  It will allow developers to “purchase” planning permission by claiming that a proposal would create more jobs that it would actually deliver, or by perhaps making a ‘donation’ to a local economic development fund set up solely for the purpose of securing planning permission.

Yet Northern Ireland already has the most liberalised planning system across these islands, it simply does not need to further dismantle its system of land use regulation. Indeed, we should rather learn from the experience of the loosely regulated nations (Ireland, Greece, Spain…) that while we can build our way into a crisis, we can’t build our way out. Indeed, the much tighter planning regulations of those European countries that are doing well (Germany, Scandinavia) suggest the links between planning and the economy are far more complex than our Government suggests.  It also highlights what a poor grasp out Government has on how to effectively use the levers of policy and regulation for the long term benefit of the region – they clearly don’t get the purpose of a planning system, proven in 60 years of its more enlightened application elsewhere.

The proposals are very poorly thought out.  The Department of the Environment employs no economists, so how would a developer’s claims be tested? What about displacement of jobs rather than additionality? Do we now expect all those making a planning application to also complete a complex economic assessment along with the rest of the paper work?  And the fact that the Bill also allows economic disadvantages to be taken into account opens the door for potential competitors to challenge any planning decision because of the impact on existing businesses.  As someone with a good grasp of planning law, my view is in an attempt to free up planning regulation, this only gives more bullets to those wishing to frustrate the normal decision-making process with legal challenges.

The fact that such a neo-liberal approach to planning is being promoted by an avowedly social democratic Minister is rather absurd, particularly when one considers that he is really carrying on previously failed attempt to introduce similar provisions by previous DUP Ministers. In 2009 Sammy Wilson tried to prioritise economic development in a ministerial statement, which was then successfully challenged through the courts. Edwin Poots then tried to introduce these provisions though a new policy (PPS24) which the current Minister decided not to take forward after seeing the results of public consultation. – 77% of respondents opposed its introduction.  In announcing his decision on PPS24, Minister Attwood noted:

“The majority of those who responded to the public consultation opposed the policy set out in draft PPS24. Many of those who were in favour considered that the content of the draft did not materially move the issue forward and that the content was imprecise and lacked definition. Many rightly argued that economic considerations are already a factor in planning decisions and are already dealt with in a balanced way alongside other material considerations, including social and environmental factors.

 Others who responded to the consultation feared that implementation of draft PPS24 could compromise sustainable development or conservation objectives, undermine existing planning policies, or prioritise short term financial gain over longer term sustainable growth. Some people who supported the policy questioned the need for it.

(See: http://www.planningni.gov.uk/index/policy/policy_publications/planning_statements/pps_24__draft__economic_considerations.htm )

Isn’t it strange that the same Minister is now trying to enshrine the same principles into law? If the public had an opportunity to give their view on the legislation, they would probably respond in the same way. To get around this tricky situation, the DoE is suggesting that consideration by the Environment Committee would suffice, knowing that the main parties have already signed up to this in the Executive.   This is deeply cynical and a clear manipulation of our governance principles, given what a significant alteration to our planning system this represents.

This is not the place to describe how the legal complexities of the Bill’s provisions will simply fix the planning system in favour of developers and against our local term public interest  – one can only hope that the Assembly’s scrutiny function will have a duty to draw these out.  I can however, pinpoint at least four important reasons why the DoE should not progress with this Bill:

  1. It is not needed – economic development is already taken into account, albeit balanced with other important factors;
  2. It is counter-productive – the Bill introduces several poorly defined clauses that create new and rather glaring loopholes for developers and other objectors to challenge the DoE’s decisions. It’s likely to be a goldmine for lawyers.
  3. It is contradictory – it asks planners to both uphold sustainable development (i.e. balancing social, economic and environmental objectives) and also prioritise economic development. Puzzle that one out.
  4. It is insidious. The DoE are suggesting there is no need for public consultation for the Bill as these issues have been previously discussed. This is not true – they know what the public would say about this if they gave them a chance.

This Bill is dangerous and frankly, it’s a mess.

  • claudius

    I haven’t studied the current proposals but the previous planning regs were far from perfect. There were no clear guidelines for approval but policy led decision making. This meant that a planning decision was based mostly on a subjective view of the planner responsible for assessing the case. Planners dealt with specific areas thus one planner may have refused an application but another may have approved it had it been within his geographic area of control. A catch all for planners was that the project did not match the architectural integrity of the area. What this meant in reality was that no matter how cutting edge the design was if the buildings surrounding it looked crap then the proposal must look crap also hence the number of architecturally bland buildings we have. I could go on but hopefully this system is an attempt to make policy more objective when it comes to the decision making process.

  • http://www.secondnature.ie Michael

    In a sensible and rational world these two objectives don’t have to be mutually exclusive. Sustainable Development and Economic priority can go hand in hand – if and only if there is a robust, consistent way to understand and measure sustainable development. If you know that over time we as a nation need to be moving away from over exploiting resources, moving away from destroying habitat, moving away from fossil fuels, moving away from using persistent chemicals etc etc then that is all that matters. How this is done can be a driver of economic development and activity.

    This is the theory here and the practice in hundreds of municipalities in Scandanavia, mainland Europe, and North America. They prove the approach works.

    However going by the OFMDFM work on sustainability – which sets the policy direction on it here I’m afraid the best you will get is a mish mash of energy this and EU directive that with no genuine understanding of what it means or how it could really deliver success. Each Sustainable Development plan is a roll call of stuff already being done by Departments and brought together as if it makes any difference.

    Since the poorly-heeded Sustainable Development Commission disappeared there is no authoritative independent voice on advising government, business, society on how to effectively approach these issues. There is no public forum for interaction with the reality and consequences of sustainability and unsustainability.

    I have never heard a politician from any of the big five say anything remotely notable about sustainable development in 15 years of listening out for it. Fairly depressing.

  • prolefodder

    This is an interesting intervention (perhaps from an ‘insider’ within the Planning Service?) on an important issue. Another example of the absurdity of our official government thinking on balancing ‘economic’ objectives with others (social, political, environmental) was this morning’s Good Morning Ulster ding dong between Attwood and Jeffrey Donaldson on the former’s refusal of planning permission for John Lewis in Sprucefield. What that ‘exchange’ (as usual one could not edify it by calling it a ‘debate’). It, like the above post, raises a much more important question than the mistaken (but dominant) casting of planning, sustainable development or environmental protection ‘against’ economic objectives. What the planning bill reveals is the limited view of ‘economic’, namely, as the article indicates a ‘neoliberal’ view of economic development as requiring deregulation, to view planning as effectively a ‘pro-developers’ charter, the ‘public benefit’ from planning to be limited to ‘jobs’ and not jobs and not other community benefits or what used to be called the public good ‘planning gain’ dimension of planning etc. This Planning Bill should be seen as a piece with the rhetoric and strategy of ‘rebalancing the NI economy’ i.e. ensuring NI is open for business….wide open.

  • http://www.stratagemInt.com Quintin Oliver

    Can I throw in a point about the public consultation elements of this?

    (Declaring an interest, of course, as Chair of http://www.consultationinstitute.org )

    First, consultation is not a vote; it is a ‘consultation’ (fresh ideas, option appraisal, testing, balance of opinion)

    Second, N. Ireland is the most consulted part of this planet – do we need more? Can’t we do it better, instead?

    Third, the last place you want to end up is in the courts – that only examines the *process* rather than the *content* of the subject at hand.

  • Angry Planner

    ” And the fact that the Bill also allows economic disadvantages to be taken into account opens the door for potential competitors to challenge any planning decision because of the impact on existing businesses.”

    Must admit I haven’t had time to read the whole Bill but this strikes me as being the typical NI approach of trying to keep everybody happy, even those with mutually opposed interests, only to end up pleasing no one. dPPS24 was simply a wheeze by Poots after Wilson’s 2009 Statement was thrown out by the High Court, obviously someone is very keen to try and get the principle of it introduced in some way. With the current position on economic development it mainly comes down to jobs, if a proposal is only going to create a handful then that gets little determining weight, its all the other so called benefits that are harder to quantify.

    What makes this so potentially harmful is the total Uriah Heep mentality that the senior management of DoE Planning have towards Ministers and politicians who desperately want their local favourite businessman’s application approving that they disregard professional judgement to give the politically acceptable outcome. I know of one case where a haulage firm wanted to relocate to a rural area just outside a town to facilitate a major development on their original site. Although a major industrial estate was just a short distance away, the applicant claimed that the roads into it were locked at night and he needed 24 hour access to the site, together with my line manager we told our Divisional Manager that this was total crap and there were no gates or closing times in the industrial estate. He ignored us and signed the application as an approval, it was pretty obvious he was being leaned on because people further up wanted the major development to proceed ASAP.

    Sadly that’s just the tip if the iceberg of questionable decisions that I know of.

  • Bungditin

    It seems obvious that the pressure on Alex Attwood to amend the Planning Bill, yet avoid public consultation, is coming from the First Minister and his DUP colleagues in the Executive.

    The article rightly points out the Duper’s drive to prioritise economic factors, from Sammy Wilson’s bungling attempt to introduce an illegal ministerial statement, to Edwin Poots’s “bull in a china shop” approach at railroading through a planning policy that was clearly biased in the interests of the DUP’s developer friends.

    It now seems that Alex Attwood, who cuts a lonely figure round the Executive table, has capitulated to the pressure of the First Minister and agreed to introduce this economic policy by the back door. Most embarrassing is that he is trying to pass it off as his own great idea.

    Unfortunately for Alex, the consequences are now becoming clear. Having taken his capitulation on the Planning Bill as a sign of weakness, Peter Robinson is now publicly humiliating the environment minister by undermining his authority and seeking to wrestle control over retail planning policy away from him, in an attempt to reverse the John Lewis decision.

    It clearly is the case that the Environment Committee is now being cynically used by the Executive and DoE to do their dirty work and give this Bill passage without proper public consultation. Sadly, with one notable exception, the committee members haven’t the wit to realise they are being duped with a capital DUP!

  • amghobsmacht

    The attitude to buildings here flabbergasts me and drives me to tears.

    It seems the only way to save a building is to stick a fleg on it…

    Does this mean, in theory, some eejit (with the relevant financial backing) could buy City hall, or St Annes or the Culloden and ‘cowp’ it if they can produce a series of Christopher Morris style pie charts & graphs which ‘prove’ that it’s in the economic interests of the to have St Anne’s et al turned into a multi story car park?

    As the chap in the link below said, why not demolish Dunluce and turn it into a hotel or drain Lough Neagh to make way for an Asda….

    http://www.1690andallthat.blogspot.com.au/2012/02/my-hole-in-one.html