Looming changes to draft planning law will make it a crime to demand “go away” money for not lodging or withdrawing appeals against property development.
The move by Minister for Housing Darragh O’Brien reflects concern about objectors exploiting legal loopholes by seeking payments from developers to stop actual or threatened appeals against housing and other building schemes.
A person found guilty of the new offence will be liable on conviction in the District Court to a fine of up to €5,000 or a prison term of up to 12 months – or both a fine and imprisonment.
Almost three decades after the planning tribunal cast light on rampant malpractice in Dublin, a different form of alleged planning abuse came to light in recent media reporting. In one example, secret filming by RTÉ Investigates showed how two brothers filing environmental appeals against housing had been withdrawing them for financial gain.
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Such disclosures were enough to prompt action from O’Brien to amend a mammoth overhaul of planning law. But they were no surprise to people in property circles. “In my experience that wasn’t news to anyone in the sector and who is dealing in planning applications,” said one Dublin developer.
The developer, who declined to be named, told how a person threatened an objection to his planning application when he refused to pay a “finder’s fee” set at 10 per cent of the site value. “The guy basically claimed to have sourced the property for development, which he most definitely didn’t,” he said.
In the event there was no objection. Still, the developer said demands for “go away” money were a “regular” occurrence. “These guys aren’t new to the game.”
The Revenue Commissioners are known to be examining whether tax was paid on certain large payments. But the introduction of a new offence suggests the practice of serial objectors demanding money to stop appeals was not unlawful per se, as some objectors have claimed.
“Criminalisation should have a chilling effect on this mercenary practice,” said Deirdre Nagle, head of planning law at solicitors Mason Hayes & Curran.
Still, she drew a clear distinction between the type of activity outlawed by the new offence and the negotiation of mitigation measures with people who have legitimate concerns about new developments.
“While it is one thing to seek agreement from a developer to mitigate impact by implementing design changes or paying for noise reduction measures on adjoining properties, it is quite another to simply seek payment to ‘go away’,” she said.
“Citizens’ rights to input into the planning process are important in a democratic society, but they should obviously be exercised in the interest of proper planning and not for financial benefit.”
The new ban on spurious submissions and appeals will outlaw demands for money or any other form of consideration in return for not appealing a local authority planning decision at An Coimisiún Pleanála, the new name for An Bord Pleanála.
Demanding money for not proceeding with a judicial review action in the High Court against a decision by An Coimisiún Pleanála will also be an offence. In addition, the prohibition will cover demands for money in return for not making formal observations to local authorities or An Coimisiún Pleanála.
Similarly, any person withdrawing an appeal to An Coimisiún Pleanála or a judicial review action will be required to formally declare the withdrawal “is not for the purpose of securing the payment of any consideration to, or the doing of any other thing for the benefit of, any person”.
O’Brien is working on the basis that these measures will become law this summer.
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