Forcing the ‘Custodians of the Planning Process’ to do their job.

corrupt officials

Many readers will be surprised to know that Irish planning law does have enforcement procedures. They will be even more surprised to know that the bodies designated to perform this enforcement function are the Councils. This is due to the fact that in Ireland these two entities rarely appear at the same time. Despite our Councils being the designated custodians of the planning process, they seem somewhat reluctant to fully embrace that role.

Many reasons have been put forward by many people for this reluctance to enforce the law, some exaggerated, but possibly all containing an inkling of the truth:

 

  1. Council officials are corrupt.

    “One area where local councillors do retain real power is in planning – planning in terms of land use zoning and planning as in lobbying officials when they (the officials) are deciding which development applications are granted permission, and which are not. And it is in planning that unhealthy practices and relationships have built up over much of the past 30 years: in short, the planning process has been severely corrupted.” (Peter Murtagh, Irish Times, 4 May 2009)

“A Dublin county councillor held more than £60,000 in an undisclosed An Post account at the time of his death, the tribunal has established.
Cyril Gallagher, of Fianna Fáil, denied that he had an account with An Post when interviewed by the tribunal in 1999. He also denied any knowledge of corrupt payments on the council.
Lobbyist Frank Dunlop has claimed he paid Mr Gallagher £1,000 for his vote on the rezoning of lands at Ballycullen in south Dublin in October 1992.
After Mr Gallagher died in March 2000, it emerged that he did indeed have an An Post account, containing £60,603.” (Paul Cullen, Irish Times, 16 February 2006)

bribe

 

 

  1. Commercial interests override private interests.

    “An Bord Pleanála has given the green light for 211 apartments at Clonsilla in north-west Dublin in spite of opposition from politicians and local residents.The appeals board has granted planning permission to Kimpton Vale Ltd for the 211 apartments in three blocks ranging from six to eight storeys in height at lands at Windmill, Porterstown, Clonsilla.The appeals board found that the proposed development would constitute an acceptable residential density in the Metropolitan Consolidation Area and would not seriously injure the visual amenity of the area, would be acceptable in terms of urban design, height and quantum of development.The plan encountered strong local opposition including former Solidarity–People Before Profit TD, Ruth Coppinger, former Labour TD, Joan Burton and a number of elected members of Fingal County Council.Deputy Coppinger told the appeals board that she strongly opposed the proposal and that it amounted to a massive over-development of a suburban housing estate.Deputy Coppinger argued that the proposal would create an anticipated estimated demand for 64 school places – more than two full classrooms in an area where there is school space shortage and adjacent schools at full capacity.Deputy Coppinger stated that she endorsed the views of the local area committee of Fingal County Council that concluded that the scale of the development is not supported by current or planned infrastructure in the area.” (Gordon Deegan, breakingnews.ie, 8 April 2020).

 

3.    Enforcement officials are underfunded, overstretched, and   usually unsupported.

“East Meath Councillors have accused their own council of being a ‘soft touch’ when it comes to enforcing planning conditions against some developers. Furious councillors hit out at the lack of prosecutions in the courts in relation to enforcement orders and have accused the council of being afraid of the legal costs in pursuing cases in the High Court.” (Drogheda Independent, 29 October 2004)

 

 

4.   Elected Councillers and Council employees often have a direct financial interest in the development under consideration.

“A Sligo county councillor has denied that there was a conflict of interest when he proposed controversial road improvement measures at a notorious junction without revealing that he had sold some of the land to the local authority.Fianna Fáil county councillor Jerry Lundy was paid €10,000 by Sligo County Council for 0.15 hectares of land at Rhue, Tubbercurry.The land is close to a crossroads where a 13-year-old girl and a 41-year-old mother were killed last year.Local residents want the county council to make safety measures at Rhue crossroads where the pair died its priority.They are also angry at a decision to close two nearby exits from the N17 first in order to construct a new junction.They maintain that the new junction will increase the volume of traffic in Rhue, and that this could lead to a worsening of the situation.Mr Lundy, who insists that work on the N17 will improve road safety, said there was no conflict when he proposed the measure at the September meeting of the council.”The county council had bought the land three months earlier so it was not my property when I proposed the motion and there is, therefore, no conflict of interest,” he said.” (Marese McDonagh, Irish Times, 19 October 2005)

 

Whatever the political, financial or personal circumstances surrounding the planning process, the law is clear. The Planning and Development Act of 2000 contains a number of provisions regarding the enforcement of the planning process by both Councils (“a planning authority”) and An Bord Pleanala (“the Board”):

(Please note that I have supplied the title and beginning of the applicable sections as some of these sections are very long. If you want to see what the whole section says, look at the Act.)

Section 6: Power of examination, investigation and survey
“A planning authority and the Board shall each have all such powers of examination, investigation and survey as may be necessary for the performance of their functions in relation to this Act or to any other Act.”

 

Section 8. Obligation to give information to local authority
“(1) A local authority may, for any purpose arising in relation to its functions under this Act or any other enactment, by notice in writing require the occupier of any structure or other land or any person receiving, whether for himself or herself or for another, rent out of any structure or other land to state in writing to the authority, within a specified time not less than 2 weeks after being so required, particulars of the estate, interest, or right by virtue of which he or she occupies the structure or other land or receives the rent, as the case may be, and the name and address (so far as they are known to him or her) of every person who to his or her knowledge has any estate or interest in, or right over, or in respect of, the structure or other land.
(2) Every person who is required under this section to state in writing any matter or thing to a local authority and either fails so to state the matter or thing within the time appointed under this section or, when so stating any such matter or thing, makes any statement in writing which is to his or her knowledge false or misleading in a material respect, shall be guilty of an offence.”

 

Section 151. Offence
“Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence.”

 

Section 152. Warning letter
“(1) Where—
(a) a representation in writing is made to a planning authority by any person that unauthorised development may have been, is being or may be carried out, and it appears to the planning authority that the representation is not vexatious, frivolous or without substance or foundation, or
(b) it otherwise appears to the authority that unauthorised development may have been, is being or may be carried out,
the authority shall issue a warning letter to the owner, the occupier or any other person carrying out the development and may give a copy, at that time or thereafter, to any other person who in its opinion may be concerned with the matters to which the letter relates.”

 

Section 153. Decision on enforcement
“(1) As soon as may be after the issue of a warning letter under section 152, the planning authority shall make such investigation as it considers necessary to enable it to make a decision on whether to issue an enforcement notice.”

 

Section 154. Enforcement notice
“(1)(a) Where a decision to enforce is made under section 153 or where urgent action is required under section 155, the planning authority shall, as soon as may be, serve an enforcement notice under this section.”

 

Section 157. Prosecution of offences
“(1) Subject to section 149, summary proceedings for an offence under this Act may be brought and prosecuted by a planning authority whether or not the offence is committed in the authority’s functional area.”

 

Section 162. Evidence of permission
“(1) In any proceedings for an offence under this Act, the onus of proving the existence of any permission granted under Part III shall be on the defendant.”

 

There is certainly no legal reason for the appalling state of our planning system. Why then do we hear of illegal wind farms in Laois, illegal quarries in Galway, illegal roads in Waterford? Name a county and you can be sure that a local resident will have a story about a development that continues business as usual despite being illegal and despite opposition by the citizens affected by its operation.

Perhaps those reasons given by people at the beginning of this piece are true?

 

bribe2

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). His current interest is 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 An Bord Pleanala; appeal; interested parties, lobbying; democracy; political process; general election, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act and tagged , , , , . Bookmark the permalink.

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