Planning law in Ireland has struggled to reconcile the imperatives of national, regional and local interests. With the coming into operation of the 2010 Planning and Development (Amendment) Act, a balance seems to have been achieved between the perspectives of good planning and local democratic accountability.
It's 50 years since the planning system was established in Ireland. The 1963 Local Government (Planning and Development) Act was modelled on the British Town and Country Planning Act of 1947 but adapted to reflect the institutional structure of Irish local government with its division of powers between the elected members and the county manager.
Decisions on planning applications recognised as susceptible to political patronage, were allocated to the manager. Making development plans was a function reserved to the councillors but, unlike in Britain, there was no requirement for a public local inquiry or to obtain ministerial approval. The expectation of the legislature and the then department of local government was that the draft plan prepared by officials would be put on public display. Only when this consultation was over would both draft and submissions be considered by councillors, who had the power to make changes to it but were unlikely to do so to any significant extent.
The legislative emphasis half a century ago was on roads and addressing dereliction. "Zoning" was not even mentioned in the 1963 Act but plans had to contain objectives "for the use of particular areas for particular purposes". This local autonomy for a function considered to have limited political potential was an innocuous element of the planning system for its first two decades but has since proved to be weakness.
By the early 1980s, the national institute for physical planning and construction research, An Foras Forbartha, reported problems from the plan-making function in Co Dublin, the only part of the country where land values were significant and there were pressures for development opportunities. Warnings went unheeded.
Eventually, the Tribunal of Inquiry into Certain Planning Matters and Payments had to be established in 1997 to investigate a number of zoning decisions in the Dublin area going back to the mid-1980s.
One of the core principles underpinning the major amending and consolidating Planning and Development Act of 2000 was that the planning system for the 21st century was to be strategic.
To facilitate co-ordinated provision of public services, regional authorities had been established in the early 1990s by grouping local authorities. In an attempt to set a context for rezoning while preserving the autonomy of elected councils, the 2000 Act introduced a hierarchy of spatial plans - local area plans, development plans, and regional planning guidelines, with the latter providing a framework for the plans of the local authorities.
Regional planning guidelines (RPGs) addressed matters such as population projections and settlement strategies having regard to transport and water infrastructure in the region. Hitherto, in making a development plan, each of the 88 cities, counties and towns was pretty much an island, required by legislation to take into account only issues relating to their administrative area. The 2000 Act required plans to "have regard to" the relevant RPGs.
This wording probably was intended to respect local autonomy but undermined the entire concept of a co-ordinated and strategic approach to plan-making.
Court case
When a case was taken by a Kildare councillor challenging the Meath County Development Plan on the grounds that it did not have due regard to the guidelines common to both counties, the High Court held that the obligation imposed by the Act on planning authorities to have regard to regional planning guidelines did not require them "rigidly or slavishly to comply with the guidelines' recommendations or even necessarily to adopt fully the strategy and policies outlined therein".
The effect sidelined RPGs as an element in the strategic hierarchy of land use plans. Thereafter, planning authorities overzoned with impunity, which resulted in unfinished housing estates and inappropriate developments on the periphery of towns. The judgment in McEvoy v Meath County Council 1 I.R. 208 was given in September 2002, but despite an amending Planning Act later that year and another in 2006, it was not until the enactment of the 2010 Planning Act that the statutory linkage between national policies, regional guidelines and development plans was re-established.
The 2010 Act introduced the requirement for development plans to contain a "core strategy" or statement demonstrating that the zoning contained in the plan is consistent with relevant RPGs and ministerial policies in relation to national and regional population targets. Henceforth, zoning is to be the outcome of an evidence-based mechanism rather than a discrete and arbitrarily-discharged function.
There is no legal impediment to down-zoning or de-zoning because, with remarkable foresight, the drafters of the 2000 Act took care to provide in section 10(8) that there is no presumption land zoned for a particular purpose in a development plan will remain so zoned in any subsequent plan.
Implementation of the new core strategy mechanism reduced the quantum of residentially zoned lands from 42,058 ha in June 2010 to 11,113 ha at the end of 2011. Further reductions can be expected as more development plans are reviewed and updated to comply with the 2010 Act.
The final report of the planning tribunal acknowledges that the planning function is particularly likely to give rise to corruption because of the financial opportunities created by rezoning. This report emphasises the importance of transparency in defeating the risk of corruption, which "thrives in shadows and darkness". The Mahon Report makes recommendations on planning matters, including increasing transparency in the development plan process but does not recommend removing councillors from this process altogether because there is no reason to suppose that elected members are more prone to corruption than other individuals.
The Government is considering these and other recommendations and it is likely that the Planning Acts will be further amended in 2013.
* Dr Berna Grist BL is senior lecturer in planning law at the School of Planning and Environmental Policy, UCD, and a former board member of An Bord Pleanála. She is the author of An Introduction to Irish Planning Law, just published by the Institute of Public Administration ( ipa.ie)