We now have a new contender to add to the collection of misjudged, irrational and counter-productive legislative initiatives; the 2013 Planning Bill.
This began as a relatively well-intentioned attempt to tweak the current planning system in advance of handing over most planning powers to the new local authorities in 2015. However this has evolved into a farce through a number of ill-conceived interventions made jointly by Sinn Féin and the DUP. First, they would not let it through the Executive unless it included prioritising “economic development” in a way that made the Bill cumbersome and controversial (see http://bit.ly/XN159t ). They then made two further amendments at one of the Bill’s final stages and these now seem to have turned the Bill toxic.
These late amendments have deep significance. The first, which now makes up Clause 4, gives OFMDFM powers to establish “Economically Significantly Planning Zones” (ESPZ). These are a version of the Simplified Planning Zones introduced by the Thatcher government and potentially can be used by OFMDFM to suspend the entire planning system over part, or all of Northern Ireland.
There has been no hint at how OFMDFM would use these zones and no purpose or objectives are given in the Bill. However, the clause does have a number of implications – first, it gives powers to remove virtually all the planning responsibilities held by the Department of the Environment (i.e. the SDLP), thus having constitutional significance. Functionally it also allows planning protection to be suspended over any area OFMDFM want.
The planning system is there to guarantee that the public interest is reflected in any development and to provide opportunities to lever in wider economic, social and environmental benefits from developers; these features could go in an ESPZ . It has been insinuated that these powers could either be used by OFMDFM to threaten the Minister of the Environment, or to directly intervene on behalf of some development (i.e. developer), such as those taking forward the retail complex at Sprucefield, a blanket permission for fracking, or perhaps facilitate another badly-needed golf course.
However, the second late amendment, which now forms Clause 15, is the most sinister and shows a distain for core democratic principles. This proposes the prohibition of Judicial Review on any planning decision, apart from where there are grounds for challenge on EU or Human Rights law.
This effectively frees any Northern Ireland planning authority (DoE, Planning Appeals Commission, OFMDFM and in the future, Councils) from complying with domestic law when it makes a planning decision; in other words, it frees these bodies from the rule of law. This is really quite a remarkable proposal and a recipe for complete chaos in planning and property development.
Can you imagine a developer wanting to invest in Northern Ireland if they thought they would not have the protection of the law when their planning application is being considered? They would have no guarantee that statutory time limits would be complied with, or that they would not be blackmailed or discriminated when it came to awarding planning permission.
Planning powers were taken off local authorities in Northern Ireland in the 1970s because they abused these responsibilities for sectarian purposes; yet here we are, just about to give Councils back these duties and we’re removing the power of citizens to challenge such corrupt practices in the courts. Indeed, the very threat of court challenge is usually enough to induce probity to planning authorities – this clause will remove that protection.
It is also really unclear how these provisions will help the economy – no one has established the benefits (or costs) of these proposals or identified who will benefit (or suffer) the most. In fact, they are so badly drawn up, they will probably discourage further investment in Northern Ireland.
These amendments alter some of our core rights, yet they have not been included in any party political manifesto, in the Programme of Government, nor subject to any public consultation. Is this really democracy at work? Indeed, we first heard of these proposals in the Economic Pact announced by David Cameron at the time of the Fermanagh G8. Here it was noted that in return for a few economic benefits, Sinn Féin and the DUP agreed to use Northern Ireland as an experiment for these Thatcherite planning policies.
In some ways, we have got used to the DUP engaging in irrationality when it comes to government matters and the intent behind these clauses would appeal to their neo-liberal economic policy. It is however a mystery why Sinn Féin would think that it was in the public interest to suspend citizen rights and remove the final line of protection against of sectarian discrimination in the planning system.
On 14th October, the Minister of the Environment, Mark H. Durkan, leaked the legal advice he had received on these clauses. This confirmed what most of us had assumed – that they were illegal for a host of reasons, including being incompatible with the European Convention of Human Rights and that the Assembly does not have the powers to meddle with our rights in such a fundamental way.
The consequences of this leak are quite profound; it means that the Bill cannot now proceed without inevitable legal challenge, further destabilising the economic context for development the Bill was supposed to support. Indeed, Sinn Féin and the DUP now either embarrassingly withdraw these clauses, or the entire Bill inevitably heads to the courts.
For this reason, a wide range of opinion, encompassing major construction interests, environmental NGO’s, community organisations and academic experts now think the best way forward is simply to collapse the Bill and start again. This is clearly not the way to create a confident and competent climate for all that investment Sinn Féin and the DUP appear to want so badly that they will trample on our rights.
It also means that the Assembly’s consideration of the Bill has been a fantastic waste of time; how much does it cost to engage our well paid MLAs in nurturing the Bill this far through the legislative process? What are the economic costs incurred by all the other stakeholders that have engaged with the legislation? This is hardly a positive economic outcome.
However, we should be really grateful if the Bill is now dead. But let’s use this opportunity to take stock; in the future let’s not be pushed into making policy on a devolved matter because No.10 wants us to. Let us ensure the public have a say on such major proposals and let us make sure political parties flag up their intentions in their manifestos. Let us base future law on good solid evidence of cause and effect. And for God’s sake, let’s make our legislation legal.