Some Thoughts on the Introduction of a Planning Regulator

Yesterday, Minister Jan O’Sullivan appeared before the Oireachtas Joint Committee on the Environment, Culture and the Gaeltacht to outline her Department’s proposals to legislate for the introduction of a Planning Regulator in 2013. The introduction of an Independent Planning Regulator was a key recommendation of the Mahon Tribunal Report published last year. The Tribunal recommended that the Minister for the Environment’s planning policy enforcement powers be transferred to an Independent Planning Regulator who should also be charged with carrying out investigations into systemic problems in the planning system as well as educational and research functions.

The introduction of an independent Planning Regulator, which the Minister has publicly committed to, does not entail a simple ‘bolt-on’ addition to the planning system. It will profoundly alter and transform the entire way in which planning policy has to-date been implemented in Ireland. It is clear from the text of the Minister’s speech that in framing their policy proposals for the forthcoming legislation, the Department is grappling with the many complexities and difficulties at the heart of the problem – that is, that planning is fundamentally a political activity which does not lend itself neatly to simple bureaucratic regulation. In guiding the discussion at the JOC, the Minister posed a series of questions as follows:

• Should the Minister’s powers be fully transferred to an independent regulator or should the final forward planning decisions remain political in nature (i.e. to be taken by the Minister / Government / Oireachtas) with a regulator providing an independent advisory / supervisory role?
• If power is to be fully transferred, how can we ensure accountability by an independent regulator?
• What would be the limits of the regulator’s powers vis-à-vis the planning process and elected members? Is the regulator’s decision final?
• Should the role of a regulator be confined only to situations where a dispute arises over a plan?
• What is the most suitable institutional arrangement for delivery on the recommendation (e.g. new authority or some type of recast of existing framework)?
• If a new authority is to be established how would it interface with the existing institutional framework (planning authorities, regional authorities, An Bord Pleanála)?
• If existing structures are to be used, what entity could take on the function and how can the new function be taken on without eroding capacity to discharge existing roles or without being detrimental or damaging to well established and publicly accepted independent role’? For example, if the plan-making regulatory function is to reside in an existing body such as An Bord Pleanála, might that affect the other functions of the board creating an inherent tension between making the Board making decisions on forward planning, development plans and local area plans as well as individual planning cases?
• Is there not a case for the Regulator to be the person who conducts the fundamental assessment of the performance of the planning system, including an assessment of the effectiveness of the Minister, local authorities and so on rather than becoming a super-non accountable national planning body?

Firstly, it is worth commenting on what the Minister did not say in her speech to the JOC, but which is absolutely critical in framing this debate. It is essential that, as also recommended in the Mahon Tribunal Report, both the National Spatial Strategy and National Development Plan be placed on an explicit statutory footing (as is the case in Scotland, for example). The forthcoming legislation should specify that both the NSS and NDP be reviewed in parallel and be subject to Oireachtas approval. The legislation should place a mandatory obligation on government to jointly review both the NSS and NDP at a minimum each and every eight years; outline precisely what is required to be included in both plans (including delivery and implementation); the procedure by which they are to jointly be reviewed; and provide for transparent public involvement in the process i.e. a staged process similar to that required of local authorities in adopting development plans. The placing of the NSS/NDP on a statutory footing will require both plans to be subject to Strategic Environmental Assessment and Habitats Directive Assessment, – including an analysis of alternative future scenarios – and allow for a public and political debate which is desperately needed.

The placing of the NSS/NDP on a statutory footing will ensure that that national planning policy remains a political activity. However, the regulation and oversight of the system should be independent. There has been considerable reform and improvement of the planning system in recent years with the introduction of multi-level and multi-agency oversight. As a result, the scope for local authorities and/or regional planning authorities to deviate from national policy has been considerably reduced. However, the current system whereby the Department reviews, comments and potentially ‘calls – in’ local authority development plans through Section 31 of the Act needs to be replaced with a system of independent oversight. Planning in Ireland is mired in a public perception of corruption, cronyism and political interference and only an independent regulatory authority will suffice in undoing this perception. In doing this, the Department can get on with the important business of plan-making.

Accountability can be ensured by designing the system so as to be fully transparent through, for example, the full application of the Access to Information on the Environment Directive, requirement for the Planning Regulator to attend at Joint Oireachtas Committees as necessary, an open and transparent appointment process for a fixed term, full publication of all reports within mandatory time limits, and strong legal deterrents against lobbying, etc. The decision of the Planning Regulator should be final. This does not imply that the role of the Planning Regulator is designed so as to be inflexible. As is currently the case between, for example, the Department, the National Transport Authority, the Regional Planning Authorities and local authorities, the regulatory system can be designed so as to allow formal interaction with the Planning Regulator to reach consensual solutions where possible. It is accepted that there could be rare occasions whereby the Planning Regulator fails to act or acts inappropriately and a fail-safe mechanism is required. In such situations the Minister must remain ultimately accountable and the power should rest with the Minister to override the decision of the Regulator. Again, the legislation could be crafted such that, in such rare circumstances, a draft order be required to be laid out before each house of the Oireachtas and could only be proceeded with following a resolution approving of the draft has been passed by each house.

It is not appropriate that the proposed Planning Regulator be merged with An Bord Pleanála. In the same way as the Minister is precluded from commenting on any specific planning application and An Bord Pleanála has no role in the forward planning system, there should be a strict separation of powers. The role of the Planning Regulator should be confined to ensuring that national planning policy is correctly implemented and overseeing complaints against planning authorities. This should include complaints on allegations of corruption, improper procedures or systemic problems and undertaking periodic audits of the planning functions of local authorities – but not extending to a role in reviewing a decision on any specific planning application. For example, the Local Government Ombudsman currently has the powers to examine complaints about how local authority staff carry out their everyday executive and administrative activities in relation to the planning system. These include complaints about delays or failing to take action in relation to, for example, planning enforcement matters. These oversight powers should be transferred to the Planning Regulator.

The introduction of the Planning Regulator does not necessitate the creation of another expensive QUANGO. Throughout the ‘Celtic tiger’ period local authorities employed significant numbers of planners and other professionals to deal with the huge volume of planning applications. With the dramatic fall-off in new development proposals and the proposed reforms of local and regional governance structures, there is considerable scope for suitable professional staff to be seconded from elsewhere in the public service. There is also a plethora of agencies with some responsibilities in oversight, such as the Regional Planning Authorities, the National Transport Authority, the Local Government Ombudsman and the Office of Environmental Enforcement. An innovative and rationalised approach to oversight could yield significant savings and the establishment of a more coherent system. For example, the Planning Regulator could be housed as a sub-unit of the Local Government Ombudsman to ensure administrative synergies are maximised.

Finally, a further important recommendation of the Mahon Tribunal Report, also not referred to in the Minister’s speech, was that the Planning Regulator should be mandated to undertake educational and research functions. There is no doubt that heretofore planning education and public/political awareness of the important role of land-use planning in society has been abjectly lacking in Ireland. The abolition of An Foras Forbartha (similar to the Design Council in the UK) in 1988, the abolition of local rates and political cronyism and ineptitude all contributed to this end. The evidence-base for planning has improved dramatically with the development of tools such as MyPlan and AIRO. However, I am not convinced that a regulatory authority is best positioned to undertake planning education and research. It should be the role of the Department, unburdened by oversight responsibilities and with a new and focused national planning mandate, to lead in this important task drawing on the existing capacities within universities and other private and public bodies. For example, could the Housing Agency be reformulated as the ‘Housing & Planning Agency’ to provide a 21^st Century An Foras Forbartha?

2013 has the potential to be a landmark year. In the aftermath of the economic collapse, exactly fifty years after the introduction of the first planning acts in 1963, twenty-five years after the short-sighted abolition of An Foras Forbarhta and ten-years after the publication of the NSS, we have a once in a generation opportunity to reform the planning system, rethink the role of national planning for our long-term prosperity and to foster a new consensus in the public and political consciousness as to the value of planning in building a nation for the common good. We shouldn’t waste it.

Gavin Daly

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Internal planning review: where to go from here?

Minister for Housing and Planning, Jan O’Sullivan, yesterday published the findings and recommendations of the internal review into allegations of serial malpractice by seven local authorities in administering the planning system. The report comes a full two years after an independent review was first announced by former Minister John Gormley.

The Department’s analysis found that the allegations did not amount to systemic corruption in the planning system.  Contrast this to the findings of the independent Mahon Tribunal earlier this year, which found that the Irish planning system was systematically corrupt reaching the highest level of Government, and the complete lack of value of carrying out an internal review becomes blindingly clear. The Department of the Environment, Community and Local Government is the line ministry with responsibility for local authorities in Ireland and it is inconceivable that a review by the Department would make serious findings against their colleagues in local authorities.

The review finds that there was “no basis in the claims against named planning authority personnel, given that such claims were not backed up by the evidence cited” and that there were “concerns regarding the quality, completeness and objectivity of the evidence provided”. While it is apparent that the Department met with senior local authority personnel to discuss each of the complaints made, it is also apparent from the report that the Department did not meet with each of the complainants. As a result, the review cannot be considered impartial. In fact, the choice of language used in the dismissal of some of the complaints borders on the derisory. It is also unclear as to why the report recommends the appointment of independent expert to review the recommendations in the report when clearly this is the remit of the Department.

The fact is that there is really nothing new in this review. According to Minister Gormley, this report was largely complete as far back as November 2009 and informed his decision to proceed with an independent review. While the current government has steadfastly insisted that the review was not shelved or downgraded upon their coming in to office, it is much more likely that the Government was jolted from passivity into action as a result of the furore that followed the publication of the Mahon Tribunal Report. This raises some serious questions as to the political priority attached to planning reform by the current Government.

In defence of the Department the review was never intended as a ‘witch-hunt’ but an evaluation of processes and procedures. It is also unclear as to the actual value of independent reviews given the experience of the Nyberg, Regling & Watson and Honohan reports on financial governance. These reports created considerable media interest, but little tangible action. However, the only independent planning review of a local authority to date, the Quinlivan Report in County Carlow, revealed some very serious instances of malpractice and cronyism and this is very unlikely to be unique to Carlow.

The Department places much greater emphasis on working within the existing structures to prompt incremental reform and, to be fair, major reforms of the planning system have been implemented in the past few years and significant unseen work is on-going. While each of the complaints are roundly rejected, the report concludes that they do they raise serious matters ranging from maladministration to inconsistency in application of planning policy or non-adherence to forward plans such as development plans. It is clear that there is, at the very least, a significant element of truth in each of the complaints as the report sets out twelve actions that are intended to address current deficiencies in the planning system including some important administrative and legislative reforms. Chief amongst these proposed reforms is the banning of the practice of local area plans being prepared by developers and the recommendation that all material contraventions of development plans by local authorities be vetted by An Bord Pleanála, further indicating a significant lack of trust in the decision making powers of local authority members. The report also recommends new procedures for achieving greater consistency between the decisions of local authorities and the independent An Bord Pleanála which, in many high profile cases, have been at considerable odds.

There can be no doubt that the dysfunctional nature of the Irish planning system over the past decade contributed enormously to the current fiscal, social and environmental problems of the State. The true value of this report may be simply to further strengthen in the consciousness of the public and policy makers of the need to maintain momentum for deepened planning reform. However, the key litmus test of the commitment of this Government will be the forthcoming White Paper on Local Government reform, property taxation and their response to the recommendations of the Mahon Tribunal, particularly the establishment of an independent planning regulator.

Gavin Daly

 

Independent planning reviews: a planner’s response to DECLG claims this week

We’ve posted a couple of times (here and here) about the six planning investigations started by John Gormley but then discontinued with the change in government.  The debate concerning them has reignited in the past few days in the wake of the Mahon Report.

 

It’s time to get serious about unfinished estates

Yesterday bought the tragic news that a two year old boy had died on an unfinished estate near to Athlone.  He had followed his pet dog in through a gap in the fence and drowned in a pool of water.  His family have my deepest sympathy and condolences.

The death is likely to focus attention back onto unfinished estates and what is happening with respect to them.  Minister Hogan has already asked Westmeath County Council for a report on the estate in question.  Our working paper, which sets out the issue in detail can be found here.

Unfinished estates have been posing problems since the start of the crash and building work largely stopped on developments.  The Department of Environment survey in 2011 revealed there were 2,876 unfinished estates in the county.  2,066 have outstanding development work.  1,822 of these have no development activity occurring.

Problems facing estates include incomplete development work, security, health and safety, antisocial behaviour, lack of finance to address issues, lack of sense of place/community, planning and building reg compliance, and negative equity.

We are five years in since the start of the crash and two years on since the announcement by Minister Finneran of the setting up of the unfinished estates advisory board by the Dept of Environment.  That Board only reported in June 2011, with Minister Penrose setting out how the government would tackle what was supposedly an urgent issue.  The Manual followed a few months later.

The solution was: (a) a 5 million fund to tackle health and safety issues on the worst of the estates; (b) Site Resolution Plans (SRPs).  SRPs are stakeholder groups that plan how to tackle issues on an estate by estate basis (stakeholders would be Local Authorities, developers, banks, residents, estate management companies, etc).

The fund is not adequate to address the issues facing estates and is principally aimed at tackling significant health and safety concerns in a low cost way (filling in, fencing off, pulling down unsafe structures, etc).  Here, it must be acknowledged that many of the worst estates have been fenced off (as was the case in Athlone), though often vandalism has opened up gaps and on-going repairs are not necessarily as timely as they should be.  Nevertheless, €5m is a paltry sum and for that kind of minimal investment one would have thought that high priority health and safety issues would have been addressed already.

SRPs are non-mandatory and voluntaristic, time frames are suggestive, there are no conflict resolution mechanisms, local authorities are being given no additional resources to manage the process, and the issue of lack of finance and insolvency is ignored.  SRPs are likely to be slow and haphazard. The aim is to have 300 SRPs in place by the end of 2012, which hardly suggests a speedy response given the number of estates with outstanding development work (a handful per local authority).

Basically, there has been an inadequate response to the issue.  The fund is too small and SRPs are a limited effort, minimal cost approach to unfinished estates that tries to use existing legislation to resolve issues (but largely avoids court cases).  It gives the impression of policy-at-work, but to a large degree pushes the problem down the road to be corrected at a later date by the market.  In the meantime, estates wither on the vine and residents live with the consequences of worst features of the housing bust.

We are long past the point of needing a proper policy to deal with the issue of unfinished estates, one that is backed by finance and stronger powers to local authorities to compel developers/banks to complete works.  A one-off report concerning the estate in question might suggest that action is being taken, but it simply delays further any real change to how unfinished estates are being addressed by the state.

This is an issue that has been for too long kicked down the road; it’s time for a more proactive, muscular strategy.  €5m is 0.16% of the €3bn we’re about to pay back in Anglo promissory notes.  It’s a paltry sum in the grand scheme of things and the people living on them or near them deserve better.

Rob Kitchin

 

Unfinished estates 2010-2011 change

We’ve been working on the 2011 unfinished estates database released by the DECLG last week and computing the changes on an estate by estate basis between 2010-2011.  We have upload all the 2011 data and the 2010-2011 change data onto the AIRO website, enabling users to query all the results for every estate.  To use the site you will need to register.  Once registered, click on the mapping module tab, scroll down and click on ‘+ housing’, then scroll down and select ‘Unfinished estates’.  The module will then load.  To query the estate data click on ‘indicators’ button and select what data you are interested in.

We will exam the data in more detail over the next couple of weeks. Initial examination of the complete and occupancy data reveals that between Oct 2010-Oct 2011:

105 (3.6%) estates had a fall in the level of occupancy

1536 (54%) estates had no change in the level of occupancy

2109 (74%) estates had a change of 2 or less in the level of occupancy

2396 (84%) estates had a change of 5 or less in the level of occupancy

In other words, the vast majority of estates that were in the 2010 database experienced very little change in the level of occupancy between 2010 and 2011.  In fact, the 100 estates (3.5%) with the most positive change in occupancy accounted for 60.7% of all newly occupied units.  The change in occupancy then was highly concentrated into a relatively small number of estates.  These estates have a geographic pattern.  Of the estates that experienced occupancy growth of 40 or more (31 estates), 23 were in Dublin, 3 in Cork, and one each in Waterford, Mullingar, Mallow, Lucan and Ratoath.  That is, they are concentrated in the cities and large towns and their commuter belts.  Huge swathes of the country saw very little uptake of occupancy in their unfinished estates.

Rob Kitchin

 

Unfinished housing estates 2011 update

The Minister for Housing and Planning, Willie Penrose T.D., has issued a press release and short report on the 2011 unfinished housing estate survey 2011.  The data updates the survey undertaken in 2010.

The headline figures

* 2,876 housing developments of two or more housing units were inspected by the Department in the 2011 survey

* 701 developments have no outstanding building work, though they have issues of vacancy, and 109 developments have not substantially commenced.  There are thus 2,066 unfinished housing developments that still require building work.

* 18,638 dwellings were recorded as complete and vacant, a 4,612 (20%) reduction from the 23,250 recorded in 2010.

* 17,872 dwellings are at various further stages of construction – 8,794 are nearly complete (9,976 in 2010) and 9,078 are underconstruction (9,854 in 2010), a reduction of 1,958 from 2010 (9.9%)

* In terms of activity levels, 1,822 of the 2,066 unfinished sites were mainly inactive at the time of inspection with 245 active (in 2010 429 sites were active, a reduction of 43%)

* Of the 247 estates categorised as the most problematic from a public safety perspective (Category 4), 36 have been re-categorised to the less problematic Category 3.

The good news

* There has been a reduction in:  (1) the number of vacant and unfinished properties – (43,080 to 36,510; 15.25%); (2) 701 estates have no outstanding building work though they have issues of vacancy, and 109 have not commenced.

* There have been some improvements in health and safety and infrastructure (fencing, sewage, roads, paths, lighting etc), though these are not quantified in the report.

In other words, some progress has been made on the ground.

The bad news

* At the present rate of correction in terms of occupancy (6,570 per annum) it will take 5 years for the remaining 36,510 units be occupied.

* There are still significant health and safety issues, only 36 of the 247 worst estates were downgraded.  This is a reflection of the lack of access to development funds and the short period of time the local authority fund has been available to redress these issues.

* There is a marginal reduction in the number of incomplete properties (19,830 to 17,872; 9.9%) and there has been a fall in the number of active sites (43%).  In other words, development work is slow to inactive.

What the data highlights is that the housing market is still very weak (and much of the fall in vacancy will be accounted for in rentals) and that funding for development work and for mortgages is very difficult to access.  It also suggests that rhetoric about there only being 12 months or less supply in many counties (as stated by the CIF) or that we need to build 30,000 units per year for the next 15 years needs to be treated with caution, at least in the short to mid term.  Over the long term, we will need additional social and private housing, but we don’t need to start building it right now until the present level of oversupply is worked off and development and mortgage credit become available.  And there is significantly more oversupply in the country than brand new, unfinished developments.  The Census 2011 revealed that there are 294,020 vacant units in the country, probably about 80-100,000 units are oversupply (on a 6% base rate) consisting of unfinished units, vacant one-off houses, empty investment and secondhand property.

We will be working with the updated spreadsheet over the next couple of days to get a fuller picture of the changes and we will load all of the data up into the AIRO website so that estate by estate, and county by county, comparisons can be made between 2010 and 2011.

Rob Kitchin

 

Independent review of planning irregularaties in six local authorities downgraded

As reported by RTE this afternoon, the independent review of planning irregularities in six local authorities, commissioned by former Minister of Environment, John Gormley, has been terminated by the Department of Environment and will be replaced by an internal review instead.  The independent review was to be carried out by a panel of independently appointed reviewers (who have been recruited) and was due to focus on planning processes, systems and policies in Dublin and Cork City councils, as well as county councils in Carlow, Meath, Galway and Cork.  The reason given by the Department is that the format for the review was considered ‘inappropriate’ by Minister for Environment, Phil Hogan TD and Minister of State for Housing and planning, Willie Penrose, TD.

By ‘inappropriate’ one presumes they mean ‘independent’ with a license to ask difficult and awkward questions.  By downgrading the review to an internal process, the Department has left itself open to accusations that it is seeking to narrow the parameters, remit, autonomy, openness and transparency of any review.  Whether such accusations are fair or not, presentation and process are important in creating trust, faith and confidence in the system of governance.  Downgrading a review does not built such sentiment.

There have been many accusations that planning has not worked as effectively as it should in Ireland and that clientelism, cronyism and in some cases corruption has been at work in the system.  An independent review seems entirely warranted to identify issues that need redress and reform.  If planning had been working properly, neither the councils involved, nor the Department of Environment, should have anything to fear from such a review.  Indeed, if that were the case, the review would highlight examples of best practice that other councils might learn from.  The fact that such a review was sought by the last government suggests that this is far from the case.  For an interesting account of planning irregulatories in Carlow, one of the councils that is due for review, see this article in The Village. Also, see this article in the Independent.

The present government were elected in part on a promise to address shortcomings in public administration and the political system – planning falls into the domain of both.  Cancelling an independent review does not instil faith that such a mandate is being persued.  Instead, it suggests that there are issues that need to be buried and glossed over.  We got independent reviews into the banking sector.  We need one with respect to the planning system to either identify and address shortcomings or to create confidence and faith in the planning system.

Rob Kitchin