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

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.