More on that Sect 28 Amendment

machiavelli

Since my last blog on the sleight-of-hand S28 amendment of the Planning and Development Act of 2000 (PDA2000), a number of very interesting theories have bubbled to the surface. We all love a good conspiracy theory, so let’s have at it.

.
The apparent advantage of a blog over more traditional forms of publication is its immediacy. The drawback is its lack of reflection time / peer review / spotting the mistakes. Once it is out there, the genie is out of the bottle, and any mistakes you subsequently notice can only be met with an “oh sh*t, I never saw that”, but nothing more.

.
I have opted for immediacy over formality and hindsight, so here goes and damn the torpedoes – it’s a stream of consciousness moment.

.
To recap, on 29th December 2015, Section 1C was inserted into Section 28 of the PDA 2000. The effect of this was to give a Section 29 peremptory character of a directive to a Section 28 guideline without those democratic necessities so irksome to a Cabinet Minister, namely the approval of the Oireachtas and that pain-in-the-arse to end all pains-in-the-arse, public consultation. I mean “public representative” isn’t a serious moniker, is it?

.
Once that was established, we began to ask why? The popular answer was that it was to force through the Matchbox Apartment Guidelines, with the second favourite being the 2006 Wind Farm Guidelines; but this was when I reminded people of the presumption against retrospective legislation. This is really a practical device, as retrospective legislation is a pain and offends the principle of certainty, which says that a citizen must be able to plan his or her life with certainty by knowing what the law is at the time that they make their plans. If these plans, which were legal at the time that they were made, can be retroactively criminalised or nullified, society would be a miserable place and the law would lose any credence of legitimacy.

.

Accordingly, unless the PDA2000 amendment made it abundantly clear that it had retrospective effect, in addition to the previous guidelines containing peremptory / mandatory language, I could not support the retrospectivity arguments. My position on that has not changed, if anything it has become more steadfast.

.
Back to the Matchbox Apartment Guidelines (MAG). These were published on the 22nd December 2015, whereas the PDA 2000 amendment was signed into law on 29th December 2015. Assuming that the Minister was aware of the presumption against retrospectivity (I am sure that ex-barrister Alex White will have told him, in any event), he could either have made it clear in the amendment that it was to have retrospective effect – which he did not – or he could have delayed the publication of the MAG until after the amendment went through, as that would mean that the MAG would now be enforced by 1C (particularly since the RIAI and the CIF had already rubbished the MAG as being impossible to actually build).

.
So what was it really for? Well, if you continue to read the amendment, you will see that it goes on to amend Section 34. In essence, and this is the real kick in the teeth as far as local democracy goes, the amendment to section 34 says that where ‘specific planning policy requirements’ (defined in the Act as “such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including An Bord Pleanála, in securing overall proper planning and sustainable development”) of guidelines differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the county development plan. In other words, where, for example, a CPD specifies a minimum distance between wind farms and residences, and these are not to the Minister’s liking (or IWEA’s), the Minister just needs to issue guidelines reducing that clearance distance and because this guideline is backed up by Section 28 (1C), the CPD is negated to the extent it differs, which means that the local authority might as well comply and amend their CPD accordingly.

.
That might be a slightly simplistic interpretation (see the excellent comment on my last blog by Darren O’Donovan on possible interpretations of 1(A); 1(B) and now 1(C)). However, stay with me as this is where it gets truly Machiavellian.

.
To quote my learned colleagues at CAWT Donegal:

.
“Just before Christmas the Chairman of Donegal County Council, Cllr. John Campbell, was granted leave by the High Court to challenge the section 31 Direction issued by the Minister for the Environment, Labour’s Alan Kelly. This case is just one of 17 wind farm related actions in the High Court in 2014. As regular readers of this blog will know the Ministerial Direction sought to reverse variation no.2 of 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 Minister eventually issued the Direction to Donegal County Council on 3 October 2014 but this was under subsection 31(11)(a)(ii) of the Act and was done without the appointment of an Inspector as provided for under subsection 31(11)(b). This is significant, if the Minister had appointed an Inspector any subsequent direction issued would have been made under subsection 31(16) of the Act and would have had “immediate effect and its terms are considered incorporated into the [development] plan” (subsection 31(17)). The failure to appoint an Inspector leaves uncertainty as to when, if at all, the County Development Plan has been amended as per the Ministerial Direction. Furthermore, the Direction issued by the Minister failed to set an effective date or a deadline, nor is an effective date or deadline provided for in the Act, within which elected members must comply with such a Direction under subsection 31(11)(a)(ii).

From media reports (as no minutes are yet available) the issue of the Ministerial Direction was not raised at any of the subsequent Donegal County Council meetings before Christmas and no motion was ever put to the elected representatives to adopt the Direction and amend the development plan accordingly. It is important to note that the making and amending of a development plan is a reserved function of the elected representatives. While the elected members may have little choice but to accept such a motion to change the plan, as Directed by the Minister, nevertheless changes to a development must be adopted by resolution of the elected members before taking effect. Any effort by the Council Executive to amend the plan without a resolution of the elected members would appear to be unlawful. Therefore, despite the Direction being issued on 3 October 2014 the variation as passed on 30 June 2014 remains in force.”

.

What if I was to suggest that the Minister can simply avoid any of these annoying challenges to his authority if he can achieve a Section 29 and/or Section 31 impact using a Section 28 guideline without all of those irritating democratic checks? I don’t know how John Campbell’s challenge is progressing, but this amendment (1(C)) makes it moot, as even if the Minister was to lose that litigation (and he will), he can simply issue the same wording as his prior directive (s29) or Direction (s31) in terms of Section 28 (1C) and the Donegal County Council (or any other Council with the balls to defy the Minister) will be overruled and their CPD amended. If that litigation is still in progress, it may as well be abandoned, as the court will not rule on a moot point.

.

Of course, this raises the question: Are our illustrious Ministers capable of such ingenious plotting? I will leave that question with you.

.

In celebration of immediacy over introspection, I look forward to your (positive) criticisms.

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.
This entry was posted in Academic Research; Peer-Review Process; Medical Journals, Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, Law; High Court; Leave To Appeal; Environment, lobbying; democracy; political process; general election, Paudie Coffey; series compensation; Fine Gael; Alan Kelly; Alex White, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act and tagged , , , , , , , . Bookmark the permalink.

5 Responses to More on that Sect 28 Amendment

  1. Michael Duffy says:

    What if! There are literally hundreds of rural housing estates with what is now termed “Developer provided water services infrastructure” see par 5.4 Donegal CoCo Taking in Charge policy May 15 in which it states Dept is currently carrying out an assessment of DPWSI as in many cases will require upgrading. It is proposed that any new Dept strategy shall be incorporated in TIC policy.

    An upcoming HC case will test S180 (2) compelling a LA to TIC such infrastructure. A precedent could cost up to €0.5Billion

    It is possible, no likely, most ot these DPWSI will require remedial work into €100,000’s each. Has IW got the Min to insert a mud-guard?

    • Goodness me, the permutations keep coming. Another very interesting perspective. Again, is the Minister ahead of the game or are we just uncovering new problems that he never thought about?

  2. Jeff Colley says:

    I have a stupid question on the 29 Dec amendment – one which I can’t imagine the officials wouldn’t have checked. But here goes nothing:

    The act says that the minister may issue guidelines that LAs are required to apply, or something to that effect.

    But are guidelines defined in Irish or European law?

    This is the definition of guideline from Black’s legal dictionary (US):

    “A practice that allows leeway in its interpretation.”

    thelawdictionary.org/guideline

    If such a definition applies here, does the amendment – or the likes of the apartment guidelines as a first (even premature) use of the legislation – pass that test?

    • Hi Jeff
      Not a stupid question at all – you raise a good point. None of the PDA Acts or amendment Acts define “guideline” which means it must be given its ordinary meaning. As you have pointed out, in its ordinary (or dictionary) sense a ‘guideline’ is something that allows flexibility of interpretation, and that everyday meaning was originally the gist of Section 28. The amendment 1C seems to contradict that ordinary meaning of “guideline”, and similarly seems out of kilter with the reaminder of the section. However, despite that created anomaly, the 2015 amendment Act did not insert a definition of ‘guideline’ into the Interpretation section of the primary Act, so that contradiction exists. How will the courts treat that? That is anybody’s guess but at the very least they will have to interpret 1C extremely restrictively given the apparent anomaly with the rest of the section (the “sui generis” approach). At best, they might be persuaded to strike it down as being void for vagueness.

      As I pointed out in the second blog – the apartment guidelines were published before the amendment Act, so it (1C) does not apply to those guidelines. I think it is aimed at CPDs that don’t toe the line of governmental policy.

  3. Pat OBrien says:

    Thanks indeed Neil

    Cheers

    Pat

    On 21 February 2016 at 14:14, The Law is my Oyster wrote:

    > Neil van Dokkum posted: ” Since my last blog on the sleight-of-hand S28 > amendment of the (Planning and Development Act of 2000 (PDA2000), a number > of very interesting theories have bubbled to the surface. We all love a > good conspiracy theory, so let’s have at it. . The apparent” >

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s