Here is the NIRSA submission on the Public Consultation Draft of the Guidance Manual for Managing and Resolving Unfinished Housing Developments published by the Department of Environment, Heritage and Local Government. It was submitted last Thursday 13th January.
NIRSA welcomes the publication of the draft Guidance Manual for Managing and Resolving Unfinished Housing Developments by the Department of Environment, Heritage and Local Government. Given the nature and scale of the unfinished estate phenomenon in Ireland, and their various associated problems, it is vital that a strategy, including appropriate policy and statutory instruments, is developed and implemented to address and resolve the issues these estates face.
General comments and recommendations
Whilst we welcome the Department’s public consultation draft, and feel it is a step in the right direction, we are of the opinion that the guidance manual needs significantly more work if it is to be effective in tackling the various issues that unfinished housing developments face. Indeed, without significant changes to the proposed way forward we would envisage many estates progressing very little from their present circumstances over several years. In particular, there are nine general concerns that need further attention.
a) The lack of compulsive mechanisms to ensure that issues are resolved. The proposals in the draft manual are highly voluntaristic in nature and seek to encourage, rather than compel, various stakeholders to address specific issues. It is proposed that all elements of Site Resolution Plans (SRPs) are negotiated between stakeholders, with discretion left to Local Authorities as to whether to pursue stakeholders with available legislative instruments. This voluntary nature makes it likely that some stakeholders will seek to avoid addressing the problems developments face. There is thus a real risk that the guidance will not achieve its stated aim of finalising the development of incomplete estates. In addition, given the centrality of SRPs as the prime mechanism to address issues related to unfinished estates, this instrument should be detailed very early in the document.
SRPs should be composed of compulsory elements which are rigorously enforced to ensure compliance.
b) The lack of time frames. The present proposals are not accompanied by any proposed time frames for development and implementation. This is a significant oversight that will potentially lead to enormous drift and the potential for very little to happen over lengthy periods of time to rectify the problems of unfinished estates. Issues of health and safety, for example, need immediate attention. Some estates have been in their present state for a number of years. The delay in recognising the seriousness of the unfinished estates phenomenon, the time taken to undertake and analyze the DEHLG Survey, and the time taken to formulate this consultation document has meant resolutions to existing problems have already considerably delayed corrective action. The absence of time frames will extend the delay to action even further as stakeholders drag their feet to suit their own agendas.
Time frames should be added to the various steps involved in SRPs and this timetable should be rigorously enforced.
c) The lack of conflict resolution mechanisms. Whilst the manual sets out the idea of SRPs, it does little to spell out how such SRPs would work in practice or how to resolve conflict between stakeholders within SRPs. Given the varying vested interests of stakeholders there is significant potential for conflict, especially around issues of finance and liabilities. This is especially the case whilst SRPs are voluntaristic in nature as stakeholders seek to minimize their risk and costs and maximize their benefits. Without a well defined conflict resolution mechanism for managing SRPs the danger is that many SRPs will stall and little progress will be made to address the problems facing estates.
A conflict resolution mechanism should be devised that will ensure that SRPs do not stall and fail.
d) The lack of clearly defined SRPs suitable for different kinds of estates. The manual talks of a spectrum of unfinished estates, but only provides a broad description of a SRP. It would be much more useful to present a typology of unfinished estates accompanied by model SRPs, with defined policy instruments and pathways mapped out to resolve the issues facing each kind of estate. These should be also summarized in tabular form. This would provide much clearer guidance on the expected routes of resolution and outcomes in relation to different kinds of unfinished estate. It is acknowledged in the document (p. 33) that some sites might be assessed as not having a viable future, and one model SRP should outline what happens in these cases (which is not done at present). The case example provided in Appendix 3 is far too thin on detail and substance to fulfil the role of a model example SRP.
A typology of unfinished estates should be devised and ideal type SRPs set out for each category, including well defined policy instruments and pathways to resolution. This should include cases where a SRP has designated an estate as being unviable.
e) The absence of embedding within wider housing, planning and public policy strategy. The manual discusses a range of potential statutory instruments that might be used by Local Authorities when negotiating with stakeholders. However, there is little attempt to embed the approach taken to resolving unfinished developments within wider housing, planning and public policy strategy, including the National Spatial Strategy, National Development Plan and four year economy recovery plan. There is a single page (p. 29) that discusses unfinished estates with respect to core planning strategies (development and local plans, regional planning guidelines) and wider housing policy concerning public housing and sustainable communities. This isolates SRPs from the wider context of, and initiatives in, planning and housing policy that should be providing vital framing for SRP formulation.
The approach to resolving the problems facing unfinished estates needs to be embedded within and framed by wider housing, planning and public policies.
f) The lack of a single agency tasked with ensuring that SRPs are properly formulated and implemented. Without sufficient oversight, it is likely that the process of developing SRPs will drift significantly meaning:
- they will vary in form enormously across the country;
- there will be variances in their delivery and execution (leading to a ‘postcode lottery’ with respect to resolutions reached depending on the competencies and efficiencies of local authorities);
- conflict in the resolution process will be ineffectively and inefficiently dealt with.
A single agency charged with oversight will ensure that SRPs are pursued as envisaged, that they are consistently applied across the country, that there is a skilled hub of expertise and experience for mediating conflict in SRPs, and that SRPs are aligned with other strategic policies relating to local core strategies (development and local plans, regional planning guidelines) the National Spatial Strategy, National Development Plan, and so on.
A single agency should be appointed to oversee and be responsible for the successful delivery and implementation of SRPs. In our view that should be the Housing and Sustainable Communities Agency. This agency should be sufficiently resourced to undertake the task.
g) The need for greater clarity on the parameters of estates needing SRPs
The manual uses the DEHLG’s national housing development survey to initially define those estates that SRPs will be applied to. Further narrowing of the remit is undertaken by excluding “developments that are substantially complete and might only have minor outstanding issues that are normally addressed by the taking-in-charge or maintenance processes”. Neither does the document focus on dwellings that are being occupied or dwellings that have not commenced and will not therefore be causing problems in relation to safety or visual impacts. There are a number of problems with these parameters. First, the DEHLGs survey is limited to post-2007 estates and there are estates completed prior to 2007 that have issues that need redress. Second, just because an estate is considered ‘complete’ does not mean it does not have issues that need redress. For example, a completed estate might have low level of occupancy that makes an estate management company unviable and therefore is missing adequate services such as street lighting or bin collection or communal electricity to power sewage treatment plants. Third, because houses are occupied does not mean an estate does not suffer from problems relating to road surfaces, lighting, sewage, and amenity areas. Fourth, SRPs do need to consider dwellings not yet commenced to assess whether such dwellings are desirable and viable
There is a need to revisit the parameters defining what unfinished developments will be tackled through SRPs; this will be aided by the taxonomy recommended in point d above which should identify the problems faced by different kinds of estates.
h) The issues of finance, resourcing and NAMA. The draft manual is very thin on the issues of finance (a single page, p. 28), a crucial element in the ability to be able to tackle most issues facing estates. The manual has little to say about what happens when a developer is insolvent and therefore little or no credit is available. The manual also offers little on the possible mechanisms and risks associated with different financial approaches. A second gap in the discussion is the resourcing of the SRP process in a time of declining municipal capacity; how will resources be made available to stakeholders to facilitate SRP creation and implementation. Finally, the manual is relatively silent about the role of NAMA in the process of resolving issues on estates within their portfolio.
There is a need to set out all the possible mechanisms to overcome financial shortfalls, including a cost benefit and risk analysis of different approaches. The resourcing of the SRP process should be clarified. In addition, how NAMA will operate with respect to SRPs, including the office within NAMA who will be responsible for negotiation, needs to be agreed and set out.
i) The issue of estate management. Many unfinished estates, especially apartment complexes but also some housing developments, were conceived as being run as private developments that would be serviced by estate management companies, rather than being taken in by Local Authorities. Many such estate management companies have become insolvent or are unable to discharge their duties because there are not enough residents to provide sufficient fees. In these cases, existing residences are suffering from a number of issues such as a lack of proper services with respect to bin collection, lighting, sewage treatment, security. The issue of estate management is not dealt with in the manual.
There is a need to include estate management companies as a stakeholder group for SRPs and for the issues faced by residents when an estate management company goes bust or cannot operate effectively to be covered by SRPs.
Brendan Gleeson and Rob Kitchin
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January 30, 2013
Some Thoughts on the Introduction of a Planning Regulator
Posted by irelandafternama under #Commentaries | Tags: An Bord Pleanala, An Foras Forbartha, Department of Environment, Ireland, Mahon Report, NDP, NSS, planning, planning regulation |[2] Comments
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:
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 21st 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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