Review of Planning and Development (Amendment) Act 2010

Minister Phil Hogan has promised to review the Planning and Development (Amendment) Act 2010 (PDAA), passed into legislation by the Greens in the last government.  The main thing he seems to want to change is the executive power of his own office.  As reported in the Irish Times, Minister Hogan said: “Giving enormous powers to the minister of the day is unhealthy and not the way to deal with planning matters. Each region has different strengths. Centralisation of powers and planning functions in the Custom House is not the way to exploit that potential.”  This seems to follow directly from the programme for government, where it is stated: “We will make the planning process more democratic by amending the 2010 Planning and Development Act to allow for detailed public submissions on zoning, and to rebalance power towards elected representatives.”  That programme of government also states that it wants to “abolish the position of County Manager and replace it with that of Chief Executive, with a limited range of executive functions. The primary function of the Chief Executive will be to facilitate the implementation of democratically decided policy.“

Without seeing a fuller, more detailed statement on the new government’s intentions with regards to changes to the PDAA 2010 one can only surmise what the logic is here.  At first glance, it looks progressive, placing decision making into a more democratic frame – removing powers from the Minister and County Managers and placing them into the hands of democratically elected officials.  I would be all for such a move if: (1) I felt that the officials understood their obligations and responsibilities with respect to the planning system, (2) they had a competency in basic planning principles and the legal framework guiding their decisions, (3) there was adequate oversight and regulation in the system to stop planning localism, cronyism and clientelism by elected officials, (4) that I felt I could trust councillors to act in the best interests of their counties and country and not follow a path purely designed to get them re-elected and be damned the wider consequences.

A cynic would suggest that the new Ministerial powers were unpopular at the local level because they were used to stop councillors undertaking excessive zoning and giving inappropriate permissions (the result of which led to way too much zoned land and an excess of housing, offices, hotels and retail space).  Local councillors and local TDs want such powers removed so they can get back to business as usual – planning decision making is a key part of their power.  Of course, the Minister could choose not to exercise his executive power, but to leave it on the books in case it is ever needed.  If power is placed back into the hands of councillors without adequate oversights, especially if county managers are going to be simply executive officers and the Custom’s House can’t intervene into poor planning praxis (i.e. two elements of regulation and enforcement are removed), it almost certainly will be needed. There is little to suggest that the system won’t just revert to its former state and practices if oversight is removed, unless other measures are introduced.  And let’s be realistic – it’s a relatively good system on paper, but not in it’s implementation (otherwise we wouldn’t have all the planning issues we presently have with regards to unfinished estates, floodplain development, groundwater pollution, etc).  It’ll be interesting to see if Minister Hogan also cancels the six planning reviews commission by John Gormley presently being undertaken by the Department of suspect planning decisions (as far as I’m aware they have not yet been reported) – the need for such reviews suggest that ministerial powers have value.

He has also said that he is going to introduce a Climate Change Act, which would be very different to that being proposed by the Greens, and also delay any direct elections for Dublin mayor until 2014.

Rob Kitchin

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Programme for Government/Minister for Housing and Planning

Late last week the new Programme for Government was released and yesterday Willie Penrose TD was appointed as Minister of State with special responsibility for Housing and Planning, a so-called ‘super junior position’ in that it comes with a seat at the Cabinet table.

Firstly, I very much welcome that housing and planning have been recognised as being of sufficient importance that they merit a Minister of State, and have an elevated status amongst the junior ministry positions.  They are clearly two key, inter-related issues affecting society.

Housing is about shelter, home, community and neighbourhood.  There are some standout issues to deal with here – unfinished estates, the social housing waiting list, the regeneration of some social housing estates, confidence in the housing market, negative equity, mortgage payments, etc.  Planning is about ordered and organised development; it shapes what is built and should be an important part of addressing the crisis with respect to helping create the conditions for growth and recovery.  Decisions around development affect society into long term, in that what we build now the next generation will inherit, along with its associated costs in relation to servicing, maintenance, energy and fuel, productivity and competitiveness, the environment, and so on.

Below I have pulled out statements relating to housing and planning from the new Programme for Government, excluding the material around mortgages etc, and provide some brief thoughts in relation to some of them (material from the Programme for Government is in italics).  At the end of the post, I set out some of the things that I would like to see the new Minister for Housing and Planning do.

Housing

We will mandate the Minster for the Environment, in conjunction with Local Authorities, to bring forward a coherent plan to resolve the problems associated with ghost estates.  This plan will be developed in cooperation with NAMA.

This has already been done by last government through the expert group set up to examine unfinished estates.  The draft report is already in hand, and draft manual suggesting site resolution plans has been out for consultation.  There is room for improvement, but it will involve statutory changes.  I’m assuming here that the incoming government has an alternative solution that it wants to implement or wishes to refine/extend the plan that has been developed by the DEHLG.

We will introduce a staged purchase scheme to increase the stock of social housing, while achieving the best possible value for public investment. Under the terms of this scheme, leased dwellings will revert to the ownership of local authorities and housing associations at the end of the leasehold period.

As I understand this, it is a revised version of the Social Housing Leasing Initiative in that leased property will not revert to the developer after twenty years, but will become a state or housing association asset.

We will enable larger housing associations and local authorities to access private sector funding for social housing by issuing ‘social housing bonds’, secured on the value of their existing housing stock when market conditions allow.

We will amend the Housing (Miscellaneous Provisions) Act (1992) to require all local authorities and housing associations to register with the Department of the Environment if they wish to access Government subsidies or other supports for social housing provision

We are committed to urban regeneration to revitalise communities in areas such as Limerick to give families a better quality of life.

I would hope that this also means reviving PPP schemes for estates such as St Michael’s and Dolphin Barn, rather than exclusively focusing on the large projects that have attracted more media attention such as Limerick.  There is much social housing that either needs to be replaced or refitted to make more habitable.

We will improve the quality of information available on the Irish housing market by requiring that the selling price of all dwellings is recorded in a publicly available, national housing price database.

We will legislate for tougher and clearer rules relating to fire safety in apartment buildings and will introduce a new fire safety inspection and certification regime.

We will establish a tenancy deposit protection scheme to put an end to disputes regarding the return of deposits.

We are committed to ending long term homelessness and the need to sleep rough.

To address the issue of existing homelessness we will review and update the existing Homeless Strategy, including a specific focus on youth homelessness, and take into account the current demands on existing housing and health services with a view to assessing how to best provide additional services.

In line with our Comprehensive Spending Review, we will alleviate the problem of long term homelessness by introducing a ‘housing first’ approach to accommodating homeless people. In this way we will be able to offer homeless people suitable, long term housing in the first instance and radically reduce the use of hostel accommodation and the associated costs for the Exchequer.

We believe that prevention is better than cure and we will aggressively target the root causes of homelessness. By having a dedicated body to coordinate policy across Government we will target initiatives in cross cutting areas which will aim to prevent as much as possible problems like homelessness.

Planning

We will abolish the position of County Manager and replace it with that of Chief Executive, with a limited range of executive functions. The primary function of the Chief Executive will be to facilitate the implementation of democratically decided policy.

This seems to suggest that county managers will become the puppets of county councillors.  The irony of renaming a job as a Chief Executive and removing executive abilities is entirely absent.

A democratically-decided Regional or City Plan will replace the present top-down Strategic Planning Guideline model.

We will make the planning process more democratic by amending the 2010 Planning and Development Act to allow for detailed public submissions on zoning, and to rebalance power towards elected representatives.

I don’t fully follow these two points because development plans are decided by elected officials in a bottom-up process that is guided by a regional and national framework.  Councillors continue to hold the reserve function and sign off on plans.  Planners help put them together, and they do this inside an Irish and EU legislative framework.   The point seems to be that the incoming coalition view the new process, as directed by the new Planning and Development Amendment Act, as being too much shaped by the central state within a wider strategic framework.  To do away with a strategic planning framework, which this seems to be suggesting, would seem to me to be a major folly – we do need joined up planning across scales – plans need to be harmonised across local, county, regional and national scales so that they work in concert with each other and not against each other.

The POG seems to recognise this as it states: “We will seek to better coordinate national, regional and local planning laws in order to achieve better and more coordinated development that supports local communities instead of the current system that favours developer led planning.”

There is clearly a contradiction here.  Planning is accused of being both too top-down from the centre and developer-led, and yet the power to approve the plans lies in the hands of councillors (although the Minister of Environment has certain veto powers if local plans contravene good practice and legislative conditions).  In my view, planning has to be strategic because it needs to be part of the process for guiding development, growth and recovery to help get us out of the crisis we’re in.  That will involve tough decisions about where we want to concentrate development to create the critical mass – in terms of population, higher order services, infrastructure – needed for places around the country to be competitive in the global economy in terms of attracting FDI. Planning should not take place purely at the local scale, reflecting localism without adequate regard to wider regional and national aims and objectives.  Part of the reason we’re in the mess we’re in is because we had planning that did not take adequate notice of principles of planning, lacked joined-up thinking spatially and sectorally, that did not fully understand its obligations with respect to EU directives and initiatives, that ignored evidence to inform decision-making, and that allowed cronyism, clientelism and localism to operate.  At the same time, planning has to be democratically mandated and people should have a say in the development process.  That said, councillors do need to have a good understanding of their roles, obligations, responsibilities with regards their planning remit and the principles of sustainable and balanced development.  We simply cannot afford to re-establish a weak, laissez faire planning system.

We will improve local transport access by making local transport plans an integral part of local Development Plans. We will force all local authorities to develop a transport plan in conjunction with their County/City Development Plans, and Local Areas Plans.

We will pass legislation to allow local authorities take housing estates ‘in charge’ after three years if there are no significant financial implications for local authorities, and substantially increase existing penalties for those who break planning laws.

We will require local authorities to carry out an ‘Educational Impact Assessment’ for all new zonings for residential development to ensure an adequate supply of school places.

Local authorities will be required to carry out a flood risk report in the preparation of their City and County Development Plans, and will also be legally required to manage flood risk through sustainable planning and development.

We will introduce a single national building inspectorate service.

We will examine what services could be converged between two or more local authorities, such as technology support, human resources and fire services.

We are committed to a fundamental reorganisation of local governance structures to allow for devolution of much greater decision-making to local people. We will give local communities more control over transport and traffic, economic development, educational infrastructure, and local responses to crime and local healthcare needs.

I have no idea what this last statement really means in practical terms, how such devolution will operate, or how communities will gain and exercise control.  It’ll be interesting to see what proposal they come up with.

What I would like to see with respect to housing and planning

That the progress made with the Planning and Development Amendment Act is continued.  That we push forward with joined up planning, with plans at different scales – local, county, regional and national – working in concert with each other, not against each other.

That we eradicate cronyism, clientelism and localism from the planning system, whilst planning remains democratically mandated.

That planning is informed by hard evidence and cost benefit and impact assessments, not anecdote and favour.

That councillors receive mandatory training on their roles, obligations and responsibilities with respect to planning, the logics, principles and practicalities of good planning, and the legislative framework in which planning takes place.

That the power of the reserve function and decision making comes with proper responsibilities and liabilities (e.g., if councillors ignore the advice of planners and others and zone land and give permissions for building on flood plains, those that voted in favour should be personally liable if those properties then flood, etc).

That we meet our obligations with respect to different EU directives relating to water, habitats, etc.

That we address pressing issues with regards to unfinished estates, making legislative changes if needed in order to make progress.

That we start to tackle the social housing waiting list – presently c.120,000 households.

That we continue through with urban regeneration schemes, including trying to get some PPPs back up and functioning, and we re-fit and upgrade sub-standard social housing.

That we make significant progress in tackling the issue of homelessness.

That we make much more progress on producing good housing data across a range of key performance indicators – including house prices – but also commercial property (for which we have no data except that generated by the property sector).

That we take advantage of the opportunities for long term land-banking given the land holdings in NAMA and the DEHLG land aggregation scheme.  We should not sell sites that know we will need in the future for schools and other public facilities back to the private sector at the bottom of the market and then have to buy them back in 8-10 years time for several times the sale price.

That we introduce mechanisms to stop the hoarding of zoned development land, so that it is used in an orderly process.

That the National Spatial Strategy continues to be a key organizing framework for a revised National Development Plan and that coordination with the Regional Development Strategy in the North continues.

A change of government is always a time of opportunity to take a fresh and revitalised approach to issues.  The appointment of a Minister of State for Housing and Planning is a welcome development.  The Minister faces many pressing challenges and hopefully he’ll start to make good in-roads into them at the same time as improving and strengthening our housing provision and planning system.

Rob Kitchin