‘That’s Another Fine Mess You’ve Got Us Into’: Sinn Féin, the DUP and the Planning Bill

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.

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  • son of sam

    Still waiting for a Sinn Fein poster to attempt to justify their involvement along with the D U P in the amendments to the Planning Bill.

  • sos,

    You mean apart from the mutual backscratching that seems to go on most of the time, with just a very occasional renegning which will never be forgotten, of course.

  • son of sam

    Looking at The Detail. Tv website,one is reminded of a previous power grab by the same two parties when the Social Investment Fund was mooted.According to today’s story ,this fund seems to have become mired down in bureaucracy .Cynical critics at the time called it “a slush fund”whereby the big two parties could reward their followers .It will be interesting to see if Peter and Martin can resolve this prickly issue!

  • The Raven

    I was involved with some local groups in helping out with applications…applications which had to be in, like, the day before yesterday to meet all sorts of miraculous deadlines. Figures on this, that and the other. Some of these groups were openly told not to be wasting their time as this was a carve-up. I didn’t believe it at the time, until a few days after deadline, I was told that ministers and ministers alone would be making the final decisions. Behind closed doors.

    I truly thought those days were gone. I was wrong. That’s SIF. I suppose to get back to the thread of Planning, I reckon anything is possible.

  • Mick Fealty

    The courts have not allowed the legislature such privileges in forty years (http://en.wikipedia.org/wiki/Judicial_review_in_English_law#Ouster_clauses). The judiciary has a long and consistent record of being extremely jealous of it right to intervene.

    Who in OFMdFM ever thought it would fly? (A ‘judicious’ leak if ever there was one).

  • cynic2

    The more I look at the whole dysfunctional mess from SF’s discrimination in appointments to Red Sky to the Glentoran Letter to the Flegs issue, the eulogies to child killers to the concealment of child rape to Poots determination to destroy the lives of women who need an abortion to this, the ore and more I feel that change is critical but cannot happen while the mass on both sides vote for whatever donkey is wrapped in their flag of choice. This is a incompetent Government devoid of merit. It should go

  • between the bridges

    NI planning laws have been constantly amended to deal with the mistakes made under previous planning laws, expect ‘new’ planning reg’s in 5-7 years…

  • Delphin

    From the AG’s website
    “Chief legal adviser to the Northern Ireland Executive for both civil and criminal matters that fall within the devolved powers of the Northern Ireland Assembly.

    You would think John Larkin QC would advise on clause 15, but as with old Pootsie, they are probably too proud and stupid to ask.
    DUP/SFwith their roots in militant street politics obviously regard the rule of law as optional

  • SDLP supporter

    A very good, informative post. As I’ve said, possibly ad nauseam, this sh*t-hole of a jurisdiction is becoming as venal and corrupt as any of the states in the Deep South, like Alabama and Mississippi, in the thirties to the sixties. Far, far worse than ‘unionist misrule’ up to 1972 and it’s all thanks to the folks who vote DUP and Sinn Fein.

  • Bungditin

    “Indeed, the very threat of court challenge is usually enough to induce probity to planning authorities – this clause will remove that protection.”

    I wouldn’t be so sure. The prohibitively expensive nature of judicial review is out of the reach of most citizens and voluntary organisations. The Planning Service relies on this to mask its systemic violation of European Directives such as Habitats and Environmental Impact Assessment.

    Whilst it is certainly the case that the new clause to limit the scope of judicial review is a further erosion of human rights (a ground for challenge in itself therefore defeating the intended purpose of that clause), it needs to be remembered that planning / environmental justice is only for the rich.

    Ironically, this attempt at further restricting access to legal challenge actually strengthens the argument for the introduction of rights of third party appeal.

  • a-ron

    The Planning Bill 2013 and Review of Public Administration: A fragmented approach to Governance?

    A return to a democratic system of Town and Country Planning (TCP) should have been viewed as heralding a return to what can only be assumed as normalised governance. Shouldnt it? Political indications would have suggested so when the Executive launched the Review of Public Administration (RPA) in 2002. The final outcome of which expects to see DoE (NI)’s powers over development control, transferred to local government. Plans for the major reform followed (2007) for the Planning System, with provisions designed to transfer development plans, policy and development management to 11 District Councils. ‘Elected’ representatives will bear responsibility for Planning decisions.

    It was envisaged that the transfer of Planning functions would take place in 2011, fortunately for us disparities in power sharing postponed the transfer until 2015.

    An ensuing Planning chaos, will ring true if there is a centralisation of planning powers and a return to TCP, which might be made worse by the repatriation of regulatory functions to district councils. RPA is a reform in its entirety which is contrary to lessons learned in the UK counterpart, where it has simply illustrated the negative impacts of structural fragmentation.

    The Executive agreed to the final policy proposals for RPA (2012), with the passage of the (2011) Planning Act- Nobody has addressed the mess this left behind.

    Since then political policy has progressed further with the proposed introduction of a Planning Bill (2013) to enable the Department to introduce streamlining Planning reform measures in advance of the transfer of functions.

    Streamlining of governance or restructuring?

    The political misgivings of both RPA and the Planning Bill (2013) will prove to be yet another ineffective reform of planning and governance.

    The Planning Bill (2013) must fall and RPA must fall with it.

  • son of sam

    According to the B B C website,Mark H Durkan may withdraw the Planning Bill today.

  • David Crookes

    Anyone who believes in civilized democracy will applaud Mr Durkan for standing up to the Stomont gombeenocracy. Three cheers, and well done.

  • son of sam

    There seems to have been a muted response from Sinn Fein in the Assembly today when the Minister pulled the Bill.Could it possibly have been the case that a behind the scenes deal was done with the D U P to back the amendments?From a normally vocal party,it was almost a case of “the dog that didn’t bark”!

  • Tboyle13

    I think the DUP AND SF Should ask ‘US’ The people what problems we have in our coummintys and within Belfast, Instead of The Back Scrathing that is going on within the cousy walls of stormont as Mister_Joe has said. The amount of Unemployment within Belfast as we all know is ricdously high and that instead of having meetings behind closed ‘Doors’ They should open up more doors around Belfast and show the ‘US’ the people a bit of Support instead of that Fairytale Lovey dovey media politics that is Aired when we have the likes of Obama and the Queen here and when they leave we get off Kelly and Adams ‘Storomont is at a Crisis’. Another thing I think SF should focus more on the people of both communitys instead of foucsing on a dream of a United Ireland when they could be thinking of a United Belfast.