The Death of Local Government

THE DICTATOR
The Twentieth Amendment of the Constitution of Ireland provided constitutional recognition of local government and required that local government elections occur at least once in every five years. It was effected by the Twentieth Amendment of the Constitution Act, 2001, which was approved by referendum on 11 June 1999 and Article 28A was signed into law on 23 June of the same year.
Article 28A reads as follows:

“ 1. The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.
2. There shall be such directly elected local authorities as may be determined by law and their powers and functions shall, subject to the provisions of this Constitution, be so determined and shall be exercised and performed in accordance with law.
3. Elections for members of such local authorities shall be held in accordance with law not later than the end of the fifth year after the year in which they were last held.
4. Every citizen who has the right to vote at an election for members of Dáil Éireann and such other persons as may be determined by law shall have the right to vote at an election for members of such of the local authorities referred to in section 2 of this Article as shall be determined by law.
5. Casual vacancies in the membership of local authorities referred to in section 2 of this Article shall be filled in accordance with law.”

The policy statement issued by the present government in support of its Local Government Bill of 2013 read as follows:

“Local democracy is an essential component of a robust system of representative democracy…Local government involves more than service delivery. Democratic representation and oversight are important elements and local political leadership and oversight can bring greater accountability and responsiveness to local needs than is likely in the case of bodies that operate solely as agents of centralised organisations.

A system of local government that is largely representational and lacking significant functions and responsibilities will, however, be hollow…Local authorities therefore…must have substantial functions and responsibilities.”

The level of involvement of the public in a particular process depends on a number of factors, including the expected outcome, its scope, who and how many will be affected, whether the result settles matters on a national, region or local level, and so on. There is a “ladder” of participation, in which members of the public have the most power—even approaching direct democratic decision-making—with respect to local matters with no impact outside the community.  As situations become more complex and involve more global issues and affect larger numbers of people, the role of individual members of the public diminishes and the role of politicians and public authorities that must bear responsibility for such decisions becomes greater. The involvement of the public can pass through various stages as one climbs up the ladder—from direct decision-making to administrative status, participation, consultation, to the right to be informed only. In addition, different persons may have different status in connection with participation on a particular matter. Those who are most affected by the outcome of the decision-making or policy-making should have a greater chance to influence the outcome. This is behind the distinction between “public” and “public concerned.” Clearly when it comes to deciding what is being built next door to you or at least close enough to dramatically affect your health and happiness, you should have the loudest voice.

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The relationship between central and local government often displays a tension that mirrors the need and desire of communities to govern their own local affairs, especially their immediate environment, and the will of the central government to impose its national “one size fits all” plan over the entire country. A good example of a one-size-fits-all-plan is the NREAP (National Renewable Energy Action Plan), which is dominated by wind energy and accordingly wind farms (lots of them) are an essential aspect of that national policy.

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But what happens if the locals of a particular constituency do not want wind turbines ruining their lives, health and environment? Can they use the local government structures (City and County Councils) to prevent the central government blighting their neighbourhood with industrial wind farms? In other words, what would happen if a County Development Plan banned wind turbines for example?

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The original Section 31 of the Planning and Development Act of 2000 allowed the Minister to issue directions to a planning authority regarding the content of its draft development plan in certain specified circumstances. In essence these circumstances were where the development plan failed to set out an overall strategy for the proper planning and sustainable development of the area or otherwise significantly failed to comply with this Act. There was no guidance provided as to what constituted a significant failure, but an example would be where a Council failed to adopt a housing strategy in terms of Section 96 of the Act (social and affordable housing). The section was clear that the Minister could only exercise this power in exceptional circumstances where there was a clear breach of the Act (as opposed to any political policy).

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Secondly, the power of the Minister only applied in relation to a draft development plan. The Minister had no power to require variation or amendment in respect of a plan already adopted.

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In other words, the original Section 31 allowed the local government structures to decide on their own development needs and strategy (the County Development Plan) and the Minister only interfered in exceptional circumstances, namely where there was a clear breach of the 2000 Act.

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This was clearly not to the current government’s liking and in 2010, Section 31 was replaced in its entirety by s.21 of the Planning and Development (Amendment) Act 2010 (No. 30 of 2010), with effect from October 5, 2010.

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Sections 31(5), 31(9), 31(13)(c) and 31(14) were further amended by s.5(7) and Pt 4 of Sch. to the Local Government Reform Act 2014 (No. 1 of 2014), with effect from June 1, 2014.

These amendments have changed the character of Section 31 completely.
The section now contains twenty subsections (as compared to the original six!).
The flavour of the amended section is accurately captured in the first two sub-sections:

“(1) Where the Minister is of the opinion that—
(a) a planning authority, in making a development plan, a variation of a development plan, or a local area plan (in this section referred to as a ‘plan’) has ignored, or has not taken sufficient account of submissions or observations made by the Minister to the planning authority under section 12, 13 or 20,
(b) in the case of a plan, the plan fails to set out an overall strategy for the proper planning and sustainable development of the area,
(c) the plan is not in compliance with the requirements of this Act, or
(d) if applicable, having received a submission prepared under section 31C or 31D (inserted by section 95 of the Act of 2008) that a plan of a planning authority in the Greater Dublin Area (GDA) is not consistent with the transport strategy of the National Transport Authority, the Minister may in accordance with this section, for stated reasons, direct a planning authority to take such specified measures as he or she may require in relation to that plan.
(2) Where the Minister issues a direction under this section the planning authority, notwithstanding anything contained in Chapter I or II of this Part, shall comply with that direction and the Manager or elected members shall not exercise a power or perform a function conferred on them by this Act in a manner that contravenes the direction so issued.” (my emphasis)

What this means is that the control of the content for a County Development Plan is not ultimately decided by the local government for that area, but by the Minister himself.

Are the local population consulted?
Do I need to answer that question? Of course they are not consulted. The local population are merely informed after the event. Section 11(19) says:

“(19) As soon as may be after a direction is issued to a planning authority under subsection (16), the planning authority shall make the direction so issued available for inspection by members of the public, during office hours of the authority, at the offices of the authority, and may also make the direction available by placing it on the authority’s website or otherwise in electronic form.”

In July 2014, the Minister for the Environment Alan Kelly ordered Roscommon County Council to remove a number of restrictions on the location of windfarms in the county from its county development plan, including a provision of a minimum separation distance of 1.5 kilometres between the nearest wind turbine and an existing or permitted dwelling house. He also scrapped a provision which proposed a minimum distance from dwellings of 10 times the height of turbines.

Before that in Westmeath the previous Minister for the Environment Jan O’Sullivan ordered Westmeath County Council to remove a restriction requiring “industrial” wind turbines to have a setback distance, from homes, of ten times the turbine’s height.

And in a written submission as part of the development plan process, the Department of the Environment has already told Offaly County Council that it believes the identification of any minimum separation distance is premature pending the finalisation of revised windfarm planning guidelines. – See more at: http://www.offalyindependent.ie/news/roundup/articles/2014/09/19/4032600-minister-could-still-overrule-latest-windfarm-restrictions-/#sthash.rOiReKlJ.dpuf

So much for the Twentieth Amendment to our Constitution guaranteeing local government. We are no longer in control of our immediate environment – the Minister and the wind industry are in control.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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3 Responses to The Death of Local Government

  1. cawtdonegal says:

    Neil,

    The Cathaoirleach of Donegal County Council, Cllr. John Campbell (Ind.) has taken a judicial review against the Minister in relation to the section 31 direction issued against variation no. 2 to the Donegal County Development Plan, which set a ten times maximum tip height setback from wind turbines to homes and zoned 6 Freshwater Pearl Mussel catchment sub-basins as not favoured for wind energy development.

    The case reference is Campbell -v- Minister for Enviroment, Community & Local Gov 2014/712 JR and it is listed to return for mention before the end of March 2015. We are very fortunate in Donegal that we have representatives who are willing to stand up for local democracy and the proper and sustainable development of our county. This case raises many points of significant public importance and will help us all understand the shape of this area of law and clarify the lawful scope of a County Council’s role and responsibility in relation to development planning for wind farms, while having regard to national policy.

  2. It will come as no surprise that the councillors in the county with the highest wind penetration (Co. Cork) appear to have little interest in the protection of their constituents once they are elected.
    Counties Roscommon, Offaly, Westmeath and especially Donegal have certainly managed to select representatives who are willing to stand up for local democracy and the proper and sustainable development of their counties.
    Perhaps in County Cork we have voted in the councillors we deserve!

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