The Government has promised to ban “go-away” payments for people who withdraw planning objections. New laws are in the pipeline but, as with most legislation that has its genesis in a knee-jerk reaction to public anger, they do not seem to have been terribly well thought out and may have consequences far beyond what is intended.
At first glance it’s hard to take issue with the proposals from Minister for Housing Darragh O’Brien. They came in the wake of a series of reports about people either seeking money or being offered money to drop planning objections. There was palpable public annoyance about it and a strong response was felt to be warranted.
It turned out to be a commitment to make it an offence to look for money in return for not appealing a local authority planning decision to An Coimisiún Pleanála, the reformed An Bord Pleanála. The same will apply to judicial reviews of An Coimisiún Pleanála decisions.
Seeking money to not make formal observations to local authorities or An Coimisiún Pleanála – which opens the door to appeals and judicial reviews – will also be prohibited. Likewise, anyone withdrawing an appeal or judicial review 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”.
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All of the above should boost the credibility of the planning system which, in theory, exists to make sure that development happens in a way that is compatible with society’s wider goals and values.
But the reality is that the planning system has long been a route through which individuals can safeguard their own interests. In particular, it’s the way to make sure that someone else’s plans don’t negatively affect you, either by reducing the value of your property or your enjoyment of it.
People may appeal to An Coimisiún Pleanála or seek a judicial review based on a technicality of the planning legislation or a failure to follow the letter for the law, but their motivation is often one of pure self-interest. Many objections really have nothing to do with the high-minded ideals of urban planning and everything to do with financial loss or gain. People may dress their objection up as deep concern for the welfare of the bats living in nearby trees, but what they are really concerned about is the impact on property prices of 300 built-to-let apartments being developed in their corner of leafy suburbia. The conflict between this reality and O’Brien’s apparent desire to restore the ethical purity of planning system does not bode well.
[ Planning appeals: When developers are the ones offering go-away moneyOpens in new window ]
Very few would object to the proposal to ban people seeking money not to make planning objections. There are plenty of examples of people with absolutely no skin in the game objecting to planning applications on spurious or contrived grounds in order to extract money from developers. Things get a little greyer when it comes to people who are affected by a development seeking money to withdraw an objection. In some cases their motivation might be straightforward extortion. But in other cases it might be a mixture of pragmatism and risk aversion.
As with any adversarial process, someone who makes an appeal to An Coimisiún Pleanála or seeks a judicial review has no guarantee of success, regardless of how genuine their motivation might be. Viewed through this prism, seeking a payment from a developer to withdraw an appeal of judicial review is really no different from settling on the steps of the High Court in a personal injury case. The motive can be the same: certainty of outcome and reduced legal costs. The same argument applies to people who have made a genuine objection and are offered money by the developer to drop their complaint.
If, as it seems, the Government goes ahead and outlaws the option to “settle” appeals and reviews – both genuine and contrived – then a couple of things will happen.
The first one is that it should speed up the planning system, which is a win as far as housing policy goes. The second is that only the well-off will still be able to weaponise the planning system, as only the well-off would be able to bear the risk of ending up in the High Court seeking a judicial review, losing and having to pay costs. Individuals and small groups such as residents’ associations would need to think twice before bringing an appeal or a judicial review, as their leverage is going to be curtailed.
This would all be fine if it were part of a deliberate strategy to discourage unwarranted appeals, speed up house building and return the planning system to its stated purpose: “to facilitate sustainable social and economic development in line with national policies, and therefore encourage improvement in living standards and the environment for citizens”.
But the genesis of the new laws – a reaction to an RTÉ Investigates programme and various other news stories – rather belies this notion. It looks rather like the Minster is about to create a situation of one rule for the rich and another for the poor.