independent evaluation of the planning review report june 2012 · planning, ms jan o’sullivan,...

Hendrik W van der Kamp, MScEng, FIPI, MIEI

Town Planner

1, Woodstown Court

Knocklyon

Dublin 16 E-mail [email protected] - Mobile 087 2020387

Independent Evaluation of the Planning Review Report June

2012

March 2013

mailto:[email protected]

2

Contents Page

Summary 3

1 Introduction 4

2 Methodology 5

3 Task 1 6

3.1 Introduction 6

3.2 Dublin City Council 6

3.3 Cork City Council 9

3.4 Carlow County Council 9

3.5 Meath County Council 11

3.6 Galway County Council 12

3.7 Cork County Council 14

4 Task 3 15

4.1 Introduction 15

4.2 Action 1 16

4.3 Action 2 18

4.4 Action 3 18

4.5 Action 4 19

4.6 Action 5 20

4.7 Action 6 21

4.8 Action 7 22

4.9 Action 8 22

4.10 Action 9 23

4.11 Action 10 24

4.12 Action 11 24

4.13 Action 12 25

5 Task 4 26

5.1 Introduction 26

5.2 The Six Themes 26

5.3 Quality of Planning Recommendations and Decisions 28

5.4 Discretionary nature of the planning system 29

5.5 Code of Conduct 30

6 Conclusions 31

7 Recommendations 33

Figures

1 Flowchart

3

Summary

This report provides an independent evaluation of the Planning Review Report 2012. The

evaluation of the analysis of the complaints against six planning authorities is based on a

desk analysis of the planning review report as well as meetings with all six planning

authorities. Based on this examination, it is concluded that the scope of the planning

review report was unable to examine the quality of planning decisions. As this was the

subject of the complaint in relation to two planning authorities, it is recommended that

additional research is carried out. The conclusion that complaints are not justified is

appropriate in most cases. However, in the case of Cork County Council it is considered

that insufficient analysis is presented to enable a definitive conclusion to be drawn.

Complaints against specific individuals have not been substantiated and they have been

appropriately rejected.

While many of the recommendations are appropriate and justified by the analysis of the

complaints, for a number of recommendations wider planning considerations rather than

the direct conclusions of the Departments review, would seem to be the motivation for

such recommendations. For example, the report of the Mahon Tribunal, which was

published just before the Planning Review Report. Analysis of the twelve proposed

actions suggests that those actions that relate to procedures, consolidation of legislation or

guidelines and issues of communication should be implemented and that these actions are

likely to be effective. For other actions, however, while the objectives may be worthy,

some concerns are noted. This is particularly the case for the actions that propose a

structured dialogue between planning authorities and An Bord Pleanála, changes in the

procedures for material contravention and limiting the scope for preparation of draft local

area plans by private interests.

In addition to the actions proposed in the report, three additional recommendations are

made. First, it is recommended that the Department liaise with relevant local authorities

and undertake a research project to examine the quality of planning decisions in terms of

consistency with the policies contained in the statutory planning documents. Second, it is

recommended to prepare a code of conduct for the preparation of planner’s reports and

An Bord Pleanála inspector’s reports to ensure they demonstrate high standards of

transparency and consistency in the interpretation of development plan policies. Third,

the degree of discretion that appears to exist in the interpretation of development plan

policies and that may be particularly relevant for large and more complex development

projects, is undesirable and it is recommended that the relevance of the ‘plan’ component

of the development plan, as distinct from the ‘written statement’, should be increased by

adopting a greater use of graphical representation of policies on the development plan and

local area plan maps.

Finally this report covers only six of the seven planning authorities included under the

Planning Review. No reference is made to the Chapter in the Planning Review on

Donegal County Council due to the fact that that Chapter is the subject of Judicial

Review proceedings currently before the Courts.

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1 Introduction

Following a tender issued in July 2012, I was appointed by the Minister for Housing and

Planning, Ms Jan O’Sullivan, T.D., as planning expert for the independent evaluation of

the Planning Review Report 2012 which the Minister for Housing and Planning

published on 12 June 2012.

The Terms of Reference of the contract require the planning expert to do four things in

light of the findings made by the review1:

1 To review all documents and other materials created in the course of this

Planning Review that relate to the themes identified below.

This was done in the form of a desk analysis of the planning review report2 incl. its

appendices analysing the findings in terms of the complaints that were reviewed, the

conclusions from this assessment, and the recommendations that were based on these

conclusions. This is covered in section 3 of this report.

2 To engage, insofar as considered necessary, with the original complainants

and/or the relevant planning authority in relation to the findings of the review as they

related to the above themes if deemed beneficial/appropriate.

This was done in the form of meetings with all of the six planning authorities. The

outcome of these meetings informed the desk analysis and is also covered in section 3 of

this report.

3 To advise if the proposed recommendations follow consistently from the review

report and assess what measures, additional to the actions and recommendations already

made, may be required to ensure a comprehensive outcome to the process.

Insofar as the recommendations follow from the analysis of the complaints, this was done

in the form of the desk analysis combined with the results of the meetings with the

planning authorities and is covered in section 3 of this report. Insofar as the

recommendations follow from a general analysis of the six themes, this was done in the

form of desk analysis combined with the results of the meetings with the planning

authorities and is covered in section 4 of this report.

4 To identify and elaborate on those actions and recommendations.

In section 4 of the report the actions are analysed and conclusions are drawn. In section 5

additional recommendations are covered.

1 Appointment of Planning Expert for the Independent Evaluation of the Planning Review Report

2012, Description of the goods or services required. 2 Planning Review to assess the application of planning legislation, policy and guidance within

the development plan and development management systems at local level and to inform further

policy development, Planning Review Report, Department of the Environment, Community and

Local Government, June 2012

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2 Methodology

The methodology that was adopted consists of four distinct tasks. Task 1 is a desk based

analysis of the planning review report with the purpose of testing internal consistency of

results, conclusions and recommendations. Task 2 consists of dialogue in the form of

verbal or written communication with the six planning authorities. Separate meetings

were held with all of the six planning authorities. It was considered not necessary to meet

with the complainants because of the clarity of the complaints and because proper

investigation of some complaints would require additional research that is outside the

scope of this report. Task 3 examines each of the proposed actions by testing these

against criteria that were agreed with the Department. Task 4 considers additional

recommendations independent from the findings of the report.

The external expert was asked to review the following six themes:

Communication of planning policy

Pre-planning application records

Local Area Plans preparation

Factoring in of socio-economic considerations

Structured dialogue between planning authorities and An Bord Pleanála

Gaps in the statutory guidelines.

In addition to these themes the planning review report presents a comprehensive analysis

of specific complaints. In view of this, the adopted methodology is to examine how these

complaints were considered, analysed and how conclusions and recommendations were

reached in relation to these complaints. One of my observations (confirmed by responses

from individual planning authorities), is a degree of confusion about the role of the

planning review report in that it appears to do two things:

Assessment of specific identified complaints

Assessment of procedures under the six themes.

My conclusion is that these two activities are distinct and must be approached separately

in the methodology. The review of how the specific complaints were addressed, analysed

and led to conclusions and recommendations is addressed under task 1. The review of the

actions as they arose from the review of procedures independently from the specific

complaints, is carried out under task 3. Because the meetings with the planning

authorities were used to inform both the complaints analysis and the general procedures

analysis, task 2 provides an input into both. The methodology is summarised in figure 1.

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Fig. 1 - Flowchart

3 Task 1 3.1 Introduction

This section of the report consists of a desk analysis of the planning review report incl.

appendices. Some additional documentation was provided by the Department and by

planning authorities. The desk analysis was further informed by meetings with the

individual planning authorities.

For each of the six planning authorities this section of the report presents a review of the

analysis of the complaints as contained in the planning review report. In the case of each

planning authority, the source and nature of the complaint or complaints was identified in

consultation with the Department and with the planning authority itself. This was

considered important in order to be able to assess the appropriateness of conclusions and

recommendations based on the analysis of the complaints. The actual complaints were

sourced in correspondence items as contained in the appendices to the review report.

These correspondence items are referred to in each case.

3.2 Dublin City Council

In the case of Dublin City Council five complaints are identified. These complaints are

identified as follows3:

The planning authority has acted systematically in disregarding its own

development plan

The planning authority pays insufficient regard to Ministerial Guidelines

3 Letter from An Taisce to Minister John Gormley, T.D. 5/10/09.

TASK 1

TASK 2

TASK 3

TASK 4

Desk Study Meetings

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The planning authority encourages applicants to lodge planning applications that

contravene policy

Certain persons are accused of impropriety

The planning authority fails to properly enter pre-planning consultation records in

the public domain.

The first two of these complaints refer to the quality of the decision on a planning

application, i.e. whether the planning authority sufficiently takes into account certain

matters when it comes to a conclusion to grant or refuse planning permission. The

planning review does not provide any analysis of the quality of the decisions as such. The

reason for this is understood to be that the Department must take due account of the

limitations on Ministerial power under the Planning Acts where the Minister shall not

exercise any power or control in relation to any particular case with which a planning

authority or the Board may be concerned.4 Instead, the report focuses on a statistical

analysis of decisions by the planning authority compared to decisions by An Bord

Pleanála. Such a statistical analysis can be based on: refusal rates (the percentage of

planning authority decisions that are refusals), appeal rates (the percentage of planning

authority decisions that are appealed) or reversal rates (the percentage of decisions that

are overturned on appeal). Of these three metrics, only the third can be interpreted as an

indicator of quality of decisions. While the report suggests that in terms of reversal rates a

comparison between Dublin City Council and other planning authorities in the country

was carried out, there is no explicit analysis provided. The analysis does point out that the

number of cases is small in relation to the overall number of cases and the planning

authority points out that a relatively high proportion had a difference between the

Inspector’s recommendation and the Board’s decision. It is my conclusion that the

statistical analysis is of limited value in assessing the merits of the complaints but it is

understood that the reason for the limited analysis is because of the restrictions imposed

on the Minister in relation to assessing individual decisions on planning applications.

This is accepted.

It is clear to me that different interpretations of development plan policies by different

individuals (including professional colleagues) are possible and relatively common and

that such different interpretations leading to different outcomes of a planning application

are more likely in large and complex development proposals than in small projects. The

reasons for this are: (a) more policies throughout the development plan are invoked, and

(b) the development plan may be less prescriptive than in the case of a smaller

development.

In the absence of a qualitative assessment of the actual cases quoted by the complainant,

it is my view that the conclusions in the planning review report are reasonable, i.e. that

the reversal rate is not high, that the proportion of decisions where the Board overturned

its inspector’s recommendation was high and that the cases may not be randomly

selected. The conclusions clearly state that the complaints are not justified.

4 Planning and Development Act, 2000, section 30 as amended.

8

While I agree that it cannot be concluded from the cases submitted by the complainant

that there has been systematic disregard of the development plan, it is also not possible to

conclude from the cases that such disregarding did not take place.

Given the nature of the complaints, in my view a systematic research project to address

this question may be required: i.e. whether different decisions are justified by different

interpretations of the development plan which can be expected to occur, or whether such

different decisions suggest disregard of the development plan. Such a research project

should include the question whether the Board’s decisions where these depart from the

inspector’s recommendation, are consistent with the policies of the development plan.

This recommendation is further developed in section 5.3.

I agree that complaints against specific individuals have not been substantiated and that

they have been appropriately rejected. The conclusion that proper record-keeping is in

place in the planning authority is also appropriate.

The planning review report makes recommendations under six bullet points of which the

first and fifth are not recommendations but conclusions.5 The first recommendation

(second bullet point), that best practice procedures in Dublin City Council should be

considered for adoption in other planning authorities, is justified in my opinion.

The second recommendation (third bullet point) is the recommendation for a structured

dialogue with An Bord Pleanála. It is considered that this recommendation while not

directly linked to the consideration of the complaints is grounded in a general intention to

support best practice on the part of the Department and provide for greater consistency

in decision making and application of planning policy across planning authorities.

The third recommendation (fourth bullet point) is about review of decisions of An Bord

Pleanála. I agree that the need to review An Bord Pleanála decisions is justified by the

analysis. It is an important principle that Board decisions act as a precedent for similar

subsequent planning applications. It is noted that the recommendation includes the

elected representatives. Although the making of planning decisions is an executive

function and An Bord Pleanála has no role in policy making, I accept that elected

representatives have an interest in planning decisions and therefore need to hear this

feedback.

I consider that there is no basis in the analysis of the complaints with regard to Dublin

City Council to support the fourth recommendation to direct all proposed grants in

material contravention of the development plan to An Bord Pleanála. In other words,

there is no evidence to suggest, nor has it been alleged, that the granting of planning

permissions that would materially contravene Development Plan is a particular problem

in Dublin City Council. However, I understand that this recommendation is based on a

more general consideration of review of planning procedures as arising from the Report

of the Mahon Tribunal.

5 Planning Review Report, p. 30-31.

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3.3 Cork City Council

In the case of Cork City Council I conclude that the letter of complaint is that of 27/3/09

from Mick Murphy to the Minister but that the actual letter does not contain the

complaint. I conclude that the complaint is effectively mentioned in the correspondence

with the Ombudsman. The complaint is identified as follows6:

Inability to see the pre-planning minutes

The fact that not all meetings are referred to as pre-planning meetings.

The conclusion in the planning review report that there is an ambiguity which gives rise

to genuine difference of interpretation of the question whether the records of a pre-

planning meeting should be put on the file prior to or after a decision is made on the

planning application, is logical. The conflicting results between the opinion of the

planning authority (based on legal advice) and the conclusion by the Ombudsman is an

adequate basis for this conclusion. Equally, the recommendation that this should be

addressed is logical and supported by evidence.

It is also worth noting that a pre-planning meeting under the relevant section cannot

always be linked to a particular planning application. The pre-planning meeting may have

taken place a considerable period prior to the lodging of a planning application, it may

refer to someone different to the applicant, or it may relate to a larger or smaller site area

than the subsequent planning application. There may not always be a link between a pre-

planning meeting and a subsequent planning application that would facilitate the putting

on the file of that planning application the records of a pre-planning meeting. Pre-

planning consultations can be on behalf of several interested parties and only the

consultations with the final applicant are likely to be put on the file. It may also be

ambiguous what constitutes a ‘pre-planning meeting’. For example: issuing of

information is not a pre-planning meeting, nor is a meeting with non-planning staff (e.g.

engineer), although a pre-planning meeting may be followed by meetings with (other)

engineers and the question arises whether such subsequent meetings should form part of

the pre-planning meeting.

3.4 Carlow County Council

In the case of Carlow County Council three complaints are identified. These complaints

are identified as follows7:

Circumvention of statutory legislation on a systematic basis

Apparent favouring of certain planning applicants

Endemic wastage of public finances.

These complaints were investigated in considerable detail because of a report that was

commissioned by the Carlow county manager separate from the Department’s planning

6 Letter from Mick Murphy to the Ombudsman 11/2/08. This letter is not included in the documentation but

referred to in an e-mail from the Ombudsman to Mr Murphy. 7 Letter to Minister John Gormley T.D., 23/2/10.

10

review. This report (referred to as the Quinlivan Report8) was commissioned not directly

because of the complaints that had been made, but because of concerns expressed in

auditor’s reports9. I am satisfied that the analysis presented in the Quinlivan Report also

however includes the specific complaints. This is because Mr Quinlivan met the

complainants.

To the extent that the complaints and concerns expressed in the auditors reports had

merit, the Quinlivan report recommended changes in corporate governance. The

recommendations were accepted and it is understood that these have been implemented

by the county manager. Although it is not always clear from the planning review report

whether the conclusions are based on the Department’s own analysis or on the findings of

the Quinlivan Report, I consider the conclusions in the planning review report to be

appropriate. In summary, these conclusions are that the concerns arising from the

auditor’s reports were legitimate but that these have been adequately addressed by the

changes made in the internal procedures by the county manager. I should point out that

this does not necessarily mean that the complaints that were made to the Minister, were

considered justified as the Quinlivan Report clearly had a wider scope than just those

complaints.

I consider that the complaint about waste of public finances is of limited relevance

because a county manager is accountable to the elected council and ultimately the

electorate. A complaint from a citizen about waste of public finances is of limited value

as opinions may vary on what constitutes waste of public finances. In this regard it is also

relevant to note that there are channels available for members of the public to complain

about such matters. e.g. through the annual reporting procedure of the auditor as was

pointed out to me by the planning authority.

It is noted that there is no disagreement about the need for changes and that these changes

that are proposed by the county manager are adequate and appropriate. In these

circumstances it would be my view that no recommendations are necessary. However,

three recommendations are made in the planning review report. It is noted that the

summary of recommendations contains seven bullet points, but only three of these are

recommendations, the remainder are conclusions.

The first recommendation is to update the development management guidelines. This

recommendation is not specifically related to a conclusion from the complaint analysis

but it is understood that there is a general recognition that policy needs to be up to date,

accessible and relevant for planning authorities. The updating of the development

management guidelines would seek to achieve that.

The second recommendation is for a public awareness campaign. Given the conclusions

about negative public perception this recommendation would appear to be appropriate.

This issue is developed in more detail in section 4.13.

8 Carlow Local Authorities Corporate Governance Issues Review, October 2010.

9 Statutory Audit Report to the Members of Carlow County Council for the year ended 31 December 2008,

Local Government Audit Service, DoEHLG.

11

The third recommendation is to continue to review the progress made in the changed

procedures within Carlow County Council. This recommendation seems appropriate.

3.5 Meath County Council

In the case of Meath County Council two complaints are identified, although it is agreed

with the planning authority that these address a single issue of concern. The complaints

are identified as follows10

:

The planning authority was too responsive to certain landowners and not to others

The planning authority reneged on promises made to landowners and acted

inconsistently.

The planning review report concludes that there is no basis for the complaint(s) because

there was adequate justification on planning grounds for a change in policy direction and

because adequate communication with the developer was maintained. Based on the

detailed response from the county manager set out in correspondence, the conclusions of

the Department based on that correspondence and a subsequent meeting, as well as my

own meeting with the county manager and planning staff, I am satisfied that it is

appropriate to conclude that the complaint is not justified.

The report includes recommendations listed under three bullet points11

. Only the third of

these contains a recommendation as the others are conclusions. This recommendation is

to remove the possibility for draft Local Area Plans to be brought forward by landowners

or prospective developers. Based on the conclusion that the complaint is not justified,

there seems little justification for this recommendation arising from the review of the

complaint. However, it is recognised that given concerns expressed elsewhere (in

particular through the Report of the Mahon Tribunal) there may be justification for

including this recommendation.

In this regard it is noted that the Department refers to the complaint (referred to as ‘the

case’) as raising two issues: the conduct of the planning authority and whether it is

appropriate for local landowners to bring forward draft local area plans: …”is it

appropriate, in the context of eliminating the developer-led approach and relying on a

plan-led approach to forward planning, that Section 18(6) should provide for the

bringing forward of Local Area Plans by landowners and prospective developers (as well

as community based groups)?12

The second issue however is not raised by the

complainant. The developers and the planning authority were acting within legal

provisions for preparing local area plans at that time. My conclusion is that no

recommendation is necessary because the conclusion was that the planning authority

acted properly and that the complaint was not justified.

10

Letter to Minister John Gormley, T.D. 9/11/08. 11

Planning Review Report, p. 52-53. 12

Planning Review Report, p. 52.

12

3.6 Galway County Council

In the case of Galway County Council five complaints are identified as follows13

:

The planning authority has acted systematically in disregarding its own

development plan

The planning authority has shown particular disregard for ecological impacts on

EU designated sites

The planning authority pays insufficient regard to submissions from the NRA

The planning authority pays insufficient regard to An Bord Pleanála decisions

Certain persons are not competent.

The first four of these complaints refer to the quality of the decision on a planning

application, i.e. whether the planning authority sufficiently takes into account certain

matters when it comes to a conclusion to grant or refuse planning permission. The

planning review does not provide any analysis of the quality of the decisions as such.

Instead it focuses on a statistical analysis of decisions by the planning authority compared

to decisions by An Bord Pleanála. Such a statistical analysis can be based on: refusal

rates (the percentage of planning authority decisions that are refusals), appeal rates (the

percentage of planning authority decisions that are appealed) or reversal rates (the

percentage of decisions that are overturned on appeal). While the report suggests that in

terms of reversal rates a comparison between Galway County Council and other planning

authorities in the country was carried out, there is no explicit analysis provided. The

analysis does point out that the number of cases is small in relation to the overall number

of cases and the planning authority points out that a relatively high proportion had a

difference between the Inspector’s recommendation and the Board’s decision. It is my

conclusion that the statistical analysis is of limited value in assessing the merits of the

complaints but it is understood that the reason for the limited analysis is because of the

restrictions imposed on the Minister in relation to assessing individual decisions on

planning applications.

The overall conclusion in the report is that it is impossible to conclude from the cases

quoted that there would be systematic disregarding of the development plan, legal

obligations or submissions from other agencies. This conclusion is valid. The sample of

cases is small, and in any event, it is acknowledged that little can be read into the fact that

An Bord Pleanála appeals in a specific subset of cases lead to outcomes that are different

to planning authority decisions.

However, it is also not possible to conclude from the cases that such disregarding did not

take place. The analysis simply does not examine these matters. In other words, it is my

conclusion that the report correctly concludes that it cannot be concluded from the

selected cases submitted by the complainant that there has been systematic disregard of

the development plan, legislation or submissions, because of the fact that it is quite

normal for different interpretations of the development plan policies to occur and that this

13

Letter from An Taisce to Minister John Gormley, T.D. 23/3/10.

13

is supported by the high proportion of cases where the Board decided to depart from its

own inspector’s recommendation. The Department points out that it also has to take due

account of the limitations on the Minister in the decision making process on individual

planning applications. This is accepted.

Given the nature of the complaint, a proper analysis requires in my view a systematic

research project to address this question: i.e. whether different decisions are justified by

different interpretations of the development plan, or whether such different decisions

suggest disregard of the development plan. Such a research project should include the

question whether the Board’s decisions where these depart from the inspector’s

recommendation, are consistent with the policies of the development plan. This

recommendation is further developed in section 5.3.

I agree that complaints against specific individuals have not been substantiated and that

they have been appropriately rejected.

In terms of recommendations, the planning review report lists four bullet point

recommendations.14

Numbers one, two and four of these bullet points are

recommendations, the third is a conclusion. The recommendations are as follows:


Minister’s advice for review of An Bord Pleanála decisions

Reference of material contravention decisions to An Bord Pleanála.

The first recommendation is the recommendation for a structured dialogue with An Bord

Pleanála. It is considered that this recommendation has no foundation in the conclusions

from the consideration of the complaints and is more likely grounded in a general

intention on the part of the Department to provide for greater consistency in decision

making and application of planning policy across planning authorities.

It is agreed that the second recommendation (that the Minister should remind planning

authorities of the need to review An Bord Pleanála decisions) is justified by the analysis.

It is an important principle that Board decisions act as a precedent for similar subsequent

planning applications. It is noted that the recommendation includes the elected

representatives. Although the making of planning decisions is an executive function and

An Bord Pleanála has no role in policy making, I accept that elected representatives have

an interest in planning decisions and therefore need to hear this feedback.

It is considered that there is no basis in the analysis of the complaints with regard to

Galway County Council to support the third recommendation to direct all proposed grants

in material contravention of the development plan to An Bord Pleanála. I understand that

this recommendation is based on a more general consideration of review of planning

procedures as arising from the Report of the Mahon Tribunal.

14


14

In summary, the complaints address the quality of decision making. The analysis carried

out by the Department did not address the quality of individual decisions for the reasons

already outlined. Instead, it focused on procedures, acknowledging that the decision itself

is a matter of professional judgment. The conclusions in the planning review report are,

as a result, limited and perhaps this cannot be avoided. It is suggested that a macro

statistical analysis of the reversal rate would be the best key performance indicator to

judge ‘systematic failures’ in planning authorities. In the absence of such analysis, the

conclusions are considered adequate although somewhat limited. It is considered that no

recommendations are necessary and that two of the key recommendations while they

have merit in the broader review of planning procedures are not directly justified by the

analysis of the complaints.

3.7 Cork County Council

In the case of Cork County Council one complaint is identified. The complaint is about

the position of ‘liaison officer’ and the role in the planning process and is identified as

follows15

:

Certain provisions under the Planning Acts are being systematically subverted and

elements of the decision making process are undocumented and hidden through

the involvement of a liaison officer.

The conclusion in the planning review report is that ...”the liaison officer is primarily an

examiner of the socio-economic aspects of applications within the framework of existing

planning policy.”16

This conclusion appears to say that the role of the liaison officer is

proper within the administrative procedures to implement the Planning Act and that

proper procedures have not been breached in relation to decision making powers, or

transparency of the process. However, the role of the liaison officer in relation to the

planning officer is not made clear in the report. For that reason, the analysis remains

implicit or insufficient to draw the conclusion that ...”there is no policy difficulty with the

role of the liaison officer.”17

From the information provided in the report, it is not

possible to see how that conclusion is based on facts. For example, it might be the case

that the liaison officer writes a report after the planner’s recommendation is written, or

that the liaison officer writes a recommendation instead of the planner. It remains unclear

where the report of the liaison officer (and presumably a recommendation) ‘sits’ in the

process of reaching a recommendation and decision on a planning application or whether

such an officer is involved in all planning applications.

A recommendation is made that an independent planning consultant should or might be

appointed to consider the functions performed by the liaison officer in the context of the

planning system as a whole. This recommendation is vague and no justification for this

recommendation appears to be found in the analysis.

15

Letter from An Taisce to Minister John Gormley, T.D. 29/3/10 16

Planning Review Report, p. 14. 17


15


In the previous section of this report the review report was considered in terms of its

analysis, conclusions and recommendations arising from the consideration of specific

complaints against planning authorities. While it is acknowledged that the analysis of the

Department went beyond the consideration of the complaints as such, it is clear from the

report that the complaints did trigger the review and they were specifically referred to in

all correspondence to the planning authorities. In the interest of clarity as well as

accuracy of my task, it was considered essential to separate the consideration of the

themes and general recommendations based on that, from the consideration of the actual

complaints. It was made clear in the meetings with the managers that this separation of

tasks was appreciated and that the mixed treatment of complaints and general review of

procedures, led to potential confusion and sometimes concern on behalf of the managers

and their staff.

Under the terms of the contract the planning expert is to be engaged to undertake a

thematic evaluation of the planning review report and its associated proposed actions in

order to support independently informed conclusions. The planning expert is to assess the

actions and recommendations having regard to the six themes identified and propose

further recommendations as appropriate. The six themes are:

Communication of planning policy

Pre-planning application records

Local Area Plans preparation

Factoring in of socio-economic considerations


Gaps in the statutory guidelines.

Task 3 consists of a systematic review of the proposed twelve actions having regard to

the six themes. For each of the proposed actions the following tests are applied:

Does the action follow in a logical sense from the conclusions in the report?

Will the action be effective and how effective?

Are there possible disadvantages to the action that can be anticipated?

Are there significant disadvantages in terms of resources, democracy etc.?

4.2 Action 1

Under this action it is proposed that all proposed grants of permission by a planning

authority in material contravention of their own Development Plan would automatically

go to An Bord Pleanála for final determination while also providing for a public

notification and participation process.


16

It is my view that there is no basis provided in the analysis of the complaints or the

conclusions, for this change in existing procedures. It would appear that the reason for the

action is partly the suggestion that the quality of planning decisions may suffer where

councillors are directly engaged in the decision making process. However, there is no

support found for this suggestion in the Department’s analysis sections for the planning

authorities where this is a recommendation (e.g. Dublin City and Galway County). It

would seem that the recommendation is based on a recommendation contained in the

Report of the Mahon Tribunal.


The action may be effective where inappropriately used discretion by the elected

representatives would lead to poor decisions. However, in order to know how effective

such an action would be, it would be desirable to establish the number of material

contravention cases nationwide where the elected representatives direct the Manager to

contravene the Plan, although it is acknowledged that even with small numbers the

symbolic effect may still be present. Where the city or county manager proposes the

material contravention in accordance with good planning practice, the action is likely to

have limited effect as the Board might be expected to make a decision similar to that of

the planning authority if it is in accordance with the proper planning and sustainable

development of the area. Information obtained from city and county managers suggest

that most material contravention decisions are initiated by the manager rather than by the

elected representatives.

The material contravention procedure is provided for in the legislation to allow a

development proposal that is considered to be in accordance with proper planning to be

granted permission where it would otherwise need to be refused because it conflicts with

the development plan. This is in my view an appropriate mechanism recognizing that at

the time of adoption of a development plan, new developments or trends during the

lifetime of the development plan cannot always be foreseen. In particular in the context

of recommendations made elsewhere by me to encourage a greater degree of detail in the

plan element of the planning documents, it is necessary to allow material contraventions

from time to time. It could be considered that the procedure of material contravention

should be removed and replaced by the variation of development plan only. However,

this is beyond the scope of this report.


The action appears to conflict with two key principles in the Irish planning system: the

distinction between reserved and executive functions and the role of An Bord Pleanála in

relation to planning policy. Under the first principle the power of policy making is given

to the elected representatives at local level. While such policies must be consistent with

policies adopted at higher levels18

they are nonetheless locally adopted policies. By

18

This is sometimes referred to as the ‘Russian dolls’: each lower level of plan making in the planning

hierarchy must be consistent with (‘fit inside’) the policy at one level higher which in turn must be

17

referring all material contravention applications to An Bord Pleanála a ‘prima facie’

assumption is made that these decisions may not be trusted. The second principle is that

An Bord Pleanála has no policy making role in the planning system. While it interprets

policy, it does not write policy. By referring all decisions to contravene an adopted policy

to the Board for determination, suggests that the Board is the appropriate body to

determine the change in the policy. This is not the case and might lead to

misinterpretation of the role of the Board.


In terms of resources the proposed action might lead to unnecessary appeals which have

resource implications. This is because the decisions would be automatically referred to

An Bord Pleanála for decision. In terms of democracy it might portray a level of ‘distrust’

of the local council which is accountable to the electorate.

4.3 Action 2

This action proposes that the Department will urgently prepare and publish a

consolidation of the Planning Acts and Regulations, and thereafter prepare to place these

on a statutory footing in recognition of the complex and evolving nature of the planning

code.


The action is stated to be based on the analysis in relation to all of the six planning

authorities. However, there appears to be no reference to this issue of complexity and

evolving nature of the planning code as having contributed to the actual or perceived

complaints. The issue is not mentioned in any of the recommendations that are made in

relation to the individual planning authorities in the report. While the action is not

directly related from the conclusions of the report it is understood that the complexity of

legislation can give rise to misinterpretation and the recommendation is justified on that

basis.


The action will be highly effective in terms of minimising scope for misinterpretation of

the legislation which is complex. However, it does not mean that it would be effective in

relation to the complaints raised.


No.


consistent with the policy at one level higher and so forth. The plan levels are from top to bottom: national

spatial strategy, regional planning guidelines, county or city development plan, local area plan.

18

No.

4.4 Action 3

Under this action, the Department will address the problem of differing interpretations of

Section 247 of the Act. At present there is an inconsistency between what the Act says

(and specifically does not say under Section 247) and what the Guidelines say.


Yes, there is clear evidence of a difference of opinion (based on legal advice) between the

planning authority and the view of the Ombudsman’s office. This needs to be clarified.

The conclusions have established that there are different interpretations and such

ambiguity is highly undesirable, creates operational difficulties for planning authorities

and might contribute to negative perceptions by the public.


The action may advise that documentation relating to a pre-planning meeting is only

placed on the application file after its decision. If this is the case the action will be

effective. If however the action advises that documentation relating to a pre-planning

meeting must be put on the public file before a decision is reached, this may create

problems already referred to.


A pre-planning meeting under the relevant section cannot always be related to a particular

planning application. The pre-planning meeting may have taken place a considerable

period prior to the lodging of a planning application, it may refer to someone different to

the applicant, or it may relate to a larger or smaller site area than the subsequent planning

application.


I agree with the concern that was expressed to me that the inclusion of pre-planning

meeting records on the public file before a decision is made may lead to a presumption

that a decision on the proposal has been made. A planning application is considered on its

merits and the planning acts are very clear on what issues the manager must take into

account in arriving at the decision. Equally, the planner dealing with the file is similarly

constrained. It is only when the planning application is made that issues are considered.

Observations made in the first five weeks of the planning application (which must be

considered by the planner) should be based on the planning application documentation,

not on advice given to the applicant in advance of the planning application being lodged.

There is therefore no democratic interest served by making such records available to

potential third parties making observations on the planning application.

19

4.5 Action 4

As part of the consultation process on the draft Guidelines on Local Area Plans the

potential amendment of 18(6) of the Planning and Development Act 2000 is being

examined with a view to prohibiting the bringing forward of draft local area plans by

landowners / prospective developers.


Where this issue arose, in the case of County Meath, the planning review found that the

planning authority acted correctly in the matter raised by the complainant. However, it is

acknowledged that the preparation of planning documents by private interests may lead to

negative perceptions and that the action might be seen to assist in improving the public

image of the planning system.


A legal prohibition would prevent a repetition of a complaint as that was made against

Meath County Council and in that regard the action would be highly effective.


Based on the principle that the adoption of a Local Area Plan is a reserved function, and

assuming that good principles of corporate governance exist with regard to the interaction

between a planning authority and private landowners and their representatives, there is in

my view no reason why landowners should be prevented from preparing a masterplan or

action area plan that could form an input into the preparation of a Local Area Plan which

would have to be subsequently considered and adopted by the planning authority. The

proposed prohibition runs the risk of creating a legal impediment where good planning

policy might benefit from such an initiative now or in the future.


The effect of the action may be to require more resources within the planning department

to be devoted to plan preparation than might otherwise be the case. During times of high

numbers of planning applications resources in the forward planning sections of a

planning department may be stretched.

4.6 Action 5

The Department will comprehensively review the existing Development Management

Guidelines (last updated in 2007) to take account of all relevant findings of this review

and of any further recommendations made under the next phase.


20


authorities. Existing systems and procedures for reviewing decisions of An Bord Pleanála

that exist in Dublin City Council are seen as suitable for adoption elsewhere.19


The action lists specific revisions, all of which would be considered to be effective.20

This is further explored in the next section of this report.


No.


No.

4.7 Action 6

The Department will consider and develop further mechanisms (both statutory and non-

statutory) to ensure timely, responsive, adaptive, focused communication of planning

policy e.g. a mechanism such as statutory Planning Policy Guidance Statement(s) within

the relevant overarching statutory Planning Guidelines, non-statutory Best Practice

Note(s) or Guidance etc. These should be publicly available in conjunction with the

relevant Section 28 statutory guidelines.



authorities and in particular on the general feeling expressed by planning authorities that

decision making in planning departments is becoming increasingly complex and that for

that reason, the Department needs to do all it can to clearly articulate policy. A

distinction must be made between policy vs. procedures and legislation. It would seem

that the Department has been criticized for the complexity of legislation arising from

frequent amendments. However, in terms of policy the Planning Policy Guidelines appear

to be clear and consistent.


This action is not clearly formulated and it is difficult to assess its likely effectiveness. It

would seem that existing Government guidance on policy in relation to planning matters

follows a clear and consistent format of a numbered series of guideline documents which

can be identified by the general public on the Department’s website. However, it is

19

Planning Review Report, p. 29. 20


21

recognized that legislation and policy has undergone significant changes in the recent

past and attempts to improve communication to planning authorities and the wider public

of these changes must be welcome


No.


No.

22

4.8 Action 7

The dissemination of best practice examples for internal supervisory / management

arrangements for planning departments, to ensure consistent application of policy in the

decision making process, should be advanced by the Department with the City and

County Managers Association.


This action appears to follow from the conclusions in relation to Dublin City Council

where it was found in the planning review that the structures and process employed by

Dublin City Council to achieve consistency and structured feedback were regarded as

best practice that would merit adoption in other planning authorities.21


Yes, the review demonstrates that both consistency between decisions within a planning

authority and the implementation of the outcome of appeal decisions, is very important in

order to maintain public confidence in the planning system. Internal administrative and

staff management procedures that work well should be disseminated and adoption of

good practices are likely to increase public confidence and the quality of decision making

on planning applications.


No.


No.

4.9 Action 8

The draft Local Area Plan Guidelines for planning authorities to be published shortly for

public consultation, inter alia, encourage effective public and community participation in

the process of preparing and/or reviewing of local area plans. The Guidelines also

provide further guidance to planning authorities and developers and other parties as to

what assurances should be given regarding the preparation of both statutory and non-

statutory plans to ensure that no concrete commitments are given to adopting such plans,

unduly raising expectations and limiting the decision-making powers of elected members.

These also set out clearly the purpose, requirements, preparation, consultation around,

content and delivery of LAPs by planning authorities.


21


23

The action states a fact, i.e. the nature and content of the local area plan guidelines and as

such represents an action already completed. It does follow from the conclusions in the

report where a complainant had the perception that promises were given where this was

not the case or could not be the case. Clarification is therefore welcome.


The action should confirm the legal situation that already exists and in this regard should

be effective.


No.


No.

4.10 Action 9

Without prejudice to Action 10 below, a Circular Letter will issue to planning authorities

reminding them of the need regularly to review planning decisions and policies governing

such decisions, particularly where such decisions are overturned by An Bord Pleanála,

and to take appropriate steps to amend and clarify such policies, with both elected

members and with the public, where appropriate.


While the planning review concludes that continuous review of policies governing

planning decisions is important, it does not conclude that such review is lacking in the

authorities that were assessed. In fact, one such authority Dublin City Council is referred

to as having best practice procedures in this regard.


A Circular Letter is likely to be effective if it is clear in specifying how decisions and

policies can best be reviewed. This issue is further explored under task 4 in this report.

The Circular Letter must also be clear in what is meant by ‘policies governing planning

decisions’. If what is meant is the policies in the development plan, there is a risk that the

planning authorities may argue that the Board does not change a development plan

policy. If what is meant is the administrative procedure by which planning decisions are

arrived at, it is acceptable.


No.

24


There is a potential disadvantage where it is perceived that An Bord Pleanála decisions

would alter planning policies. As the Board does not have a policy making role, it could

be argued that Board decisions that overturn planning authority decisions can only be

seen as resulting in a different interpretation of the policy not a change of the policy

itself.

4.11 Action 10

The Department will examine the introduction of a structured mechanism for dialogue at

a policy level between planning authorities and the Board providing for generalised

feedback from An Bord Pleanála to planning authorities and vice versa ultimately

enhancing the wider planning system.


It is not made explicit in the report how this recommendation follows from the

conclusions. There is no clear example of a difference in understanding between An Bord

Pleanála and the planning authority. In meetings with the planning authorities it was

understood that managers expressed preference for this type of dialogue. However, others

rejected it. It would seem that policies should be clear from written documentation and

planning authority responses to appeals, reducing the need for such dialogue.


It is difficult to see how the action would change the existing situation. Its effectiveness is

therefore doubtful.


A clear disadvantage is the risk of perception of access to the Board by planning

authorities where such access is not available to other appeal parties. As the perception of

the Board as a neutral arbiter on planning appeals is critical, this is a not inconsiderable

risk.


No.

4.12 Action 11

The Department should strengthen the formal arrangements for Ministerial engagement

with the City and County Managers’ Association (CCMA) on planning matters, with a

25

view to meeting at least biannually, and official level engagement with the CCMA

Planning Sub-Committee at least quarterly.


While no conclusions directly refer to this issue, it is clear from the methodology of the

review that the meetings with the individual managers of the planning authorities were

beneficial and important.


Planning authorities are facing common issues and in order to achieve consistency and

mutually learn from best practice the planning sub-committee of the CCMA has always

been and continues to be an important vehicle to achieve quality in administrative

procedures and prevent problems where these might arise. It is likely to be effective if the

Department is included in these communications and therefore the action is likely to be

effective.


No.


No.

4.13 Action 12

Planning Authorities should become more proactive and communicate directly with the

public, notwithstanding the ongoing engagement of locally elected members, in

promoting public awareness and understanding of the planning system, particularly where

significant changes or improvements are underway in order to ensure continued public

confidence in the planning system at the local level.


Yes. The complaints themselves suggest that there is at times a negative perception about

the planning system.


The action may be effective but there is a not inconsiderable risk that where there is a

negative perception amongst the public, a public information campaign may be

counterproductive. A more effective solution may be to concentrate on good planning

policies and actively engage with the public on those policies.

26


As already mentioned it may be counterproductive where the planning authority is

perceived to ‘sell a positive image’. The preparation and publication of planning policies

is a highly appropriate area of local authority activity in which the public can be actively

engaged. A pro-active approach in this regard would seem to be the best way of

improving the perception of the planning system.


Public consultation can be demanding in terms of resources. There is also a risk of

replacing the representative democracy (elected representatives) with participative

democracy. It is therefore important that any such public information campaign is done

with the full support and engagement of the elected members.


In this section of the report, the six themes are considered independently from the

planning review report and possible recommended actions are considered. The

methodology is to examine procedures in the planning system (in particular at the level of

the local authorities) given statutory objectives outlined in the planning legislation. In

other words, the planning legislation is treated as a given and the review will examine

how procedures can best implement the statutory requirements. The criteria for proper

procedures can be seen as comprising of the following:

Consistency (to achieve maximum legal certainty)

Transparency (to avoid implicit decision making)

Subsidiarity (to avoid bureaucracy and retain local democracy)

Efficiency (to minimise cost to society)

Effectiveness (to enhance the value of the planning system for the public good)

Balanced (to protect both the public and private interests)

Flexibility (to avoid stifling of the economy).

Against the background of the planning review report, the planning expert is to assess the

actions and recommendations having regard to the six themes identified and propose

further recommendations as appropriate. Section 5.2 assesses the recommendations under

each of the six themes. Sections 5.3-5.5 present three additional recommendations.

5.2 The Six Themes

Theme 1: Communication of planning policy

Communication of planning policy is ultimately best done by a clear local plan that is

accessible to the public and where the interpretation of policy leaves minimal scope for

ambiguity. Each Local Area Plan or Development Plan must contain a written statement

and a plan. It is ultimately the ‘plan’ where a member of the public can best see what the

27

policies are for a particular area or property. By the checks and balances that are already

in the system, this local plan should be consistent with national policy and there is no

need to have a separate communication channel of such policy in addition to that what is

already available. The main problem that has arisen in the complaints has been a

(perceived or real) ambiguity about policy at local level (e.g. Meath), different

interpretations of a plan (Dublin City, Galway County), or scope for discretion outside

the interpretation of the development plan (Cork, Carlow). A key recommendation that I

propose will be in the area of strengthening the function of the ‘plan’ element as distinct

from the ‘written statement’.

Theme 2: Pre-planning application records

I consider that no recommendations are necessary in addition to those already identified

in the planning review report.

Theme 3: Local Area Plans preparation

While the problems that existed in Meath County Council were regrettable (both for the

planning authority and for the complainants), there was no fundamental problem with the

system itself. For that reason, no specific recommendations are proposed and the action

that is proposed in the planning review report is questioned.

Theme 4: Factoring in of socio-economic considerations

Socio-economic considerations are factored in already through the reference to the word

‘sustainability’ in the planning act. In making decisions on planning applications, both

planning authorities and An Bord Pleanála must consider the proper planning and

sustainable development of the area.22

While the word ‘sustainable development’ is not

defined in the legislation, it is considered sufficiently clear that the concept of sustainable

development is based on the three ‘pillars’ of economic, social and environmental

sustainability. It seems to me therefore that socio-economic considerations are normally

considered as part of the proper planning and sustainable development of the area. No

recommendations are considered necessary under this theme.

Theme 5: Structured dialogue between planning authorities and An Bord Pleanála

I consider that the concept of a structured dialogue between individual planning

authorities and An Bord Pleanála has inherent disadvantages and it appears unnecessary

to me in the light of action 11. However, it is acknowledged that the intention behind the

recommendation is one to improve communication and avoid misinterpretation. I

consider it desirable that An Bord Pleanála would have regular meetings with

organisations in society in order to inform itself of relevant issues. Such organisations

could include professional organisations or industrial sector interests but also the City and

County Managers Association. City or county managers could bring issues to the

attention of the Board through this channel of communication. In this way, the dialogue

would also be more effective.

Theme 6: Gaps in the statutory guidelines.

22

Planning and Development Act 2000 (as amended), section 34.2.a.

28

It is recommended that a ‘code of conduct‘ is developed for the writing of a planner’s

report and recommendation.

5.3 Quality of Planning Recommendations and Decisions

While the planning review has addressed procedural issues, it has not addressed the

quality of planning decisions as such. The reason for this is understood to be that under

the Planning Act the Minister shall not exercise any power or control in relation to any

particular case with which a planning authority or the Board may be concerned.23

Since

the abolition of An Foras Forbartha in 1987 little systematic research of the operation of

the planning system has occurred. It is therefore not surprising that there is a lack of

available research results that might assist in answering the question of ‘quality of

planning decisions’.

It is recommended that a research project is carried out which aims to assess the quality

of planning recommendations based on a randomly selected number of planning

applications. It is considered that it should be feasible to develop a methodology that can

assist in answering the questions raised by the complainant in relation to planning

applications. It is noted that in the 1980s a number of research projects were carried out

of the development management system. These publications could be adopted as a

starting point. For example, one of these reports noted the following conclusion which

shows that the quality of planning decisions can be subjected to systematic research:

…”The linkage between development plan policy and planning control appears to be

weak: only in 24 per cent of cases is direct reference made to the development plan in

arriving at the decision. Another measure of policy input may be the consistency of

decisions on repeat applications. In practice, half of applications where a refusal was

previously issued on the same site, are granted.”24

Important criteria for planning recommendations are: predictability, transparency,

balance. Predictability can be measured by giving a typical development project to be

assessed by two planners independently from each other and review the outcome.

Transparency can be measured by analysing from the planner’s report what issues have

been assessed and if there is an explicit conclusion on each of these issues as well as an

explicit conclusion about the balance of considerations. Balance can be measured by

analysing whether the decision is based on economic, social as well as environmental

aspects. As each planning decision is based on the criterion of ‘proper planning and

sustainable development of the area’, these three aspects must be considered.

In addition, the planning statistics series published for many years by the Department

combined with the statistics produced by An Bord Pleanála in its annual reports for more

than 35 years, could provide an important source of information. These statistics series

could be used to assess reversal rates and appeal rates in different planning authorities

throughout the country.

23

Planning and Development Act, 2000, section 30 as amended. 24

The Development Control System, a survey of the process, An Foras Forbartha, 1986, p. 39.

29

It is recommended that the Department or the research agency carrying out the research,

would actively engage with relevant stakeholders in this research, incl. planning

authorities, An Bord Pleanála, planning associations and non-government organisations.

The experience of these bodies should form an input into the research project. The aims

of the research project should be to identify the extent to which different decision

outcomes on planning applications can result given a policy framework.

If properly executed and with full engagement of sceptics of the planning system,

research results could achieve a high degree of credibility and form an objective basis for

assessment of how well the system operates as well as a benchmark for assessment in

future years (in a similar way in which the development control studies of An Foras

Forbartha carried out in the 1980s and 1990s can form a benchmark for comparison with

today’s planning system).

5.4 Discretionary nature of the planning system

The planning review report makes clear that some stakeholders appear to have a strong

perception that there is a high degree of discretion in the interpretation of development

plan policies as a basis for decisions on planning applications. In my meetings with the

planning authorities, this was not denied and in fact confirmed. The planning review has

not examined this issue because the Department has acknowledged it has no power to do

so. It is my conclusion that the apparent high degree of discretion is undesirable. In

addition to improving clarity of national policy (through recommended actions in the

report) there is too much ambiguity within the development plan itself. This can be

addressed by increasing the relevance of the ‘plan’ part of the development plan or local

area plan, rather than the ‘written statement’ part. Relevant policies that are listed in the

development plan or local area plan and that would affect a decision on a planning

application, should be graphically represented on the development plan map.

There are compelling reasons in my view to at least explore the potential for such a

change in emphasis in the planning system:

The increased availability and accuracy of spatial data using new GIS tools to

accurately represent policies in a graphical format at different scales

The potential to link such information into a national framework (based on

myplan.ie) which would facilitate the determination of a patchwork of

development plan maps for the entire country.

Such an approach would be consistent with the introduction in recent years of policy

maps such as ‘core strategy diagrammatic maps’ and ‘preferred areas for wind energy’ in

development plans. It would also facilitate the identification of possible inconsistencies

between policies in adjoining areas. In my view this approach would not require a

standardization of zoning objectives or symbols to be used on maps, although such a

standardization might be considered.

30

5.5 Code of Conduct

It is recommended that a code of conduct is developed setting out key requirements for

reports by planners in planning authorities and inspectors in An Bord Pleanála and

updating advice on the matter in the planning guidelines on development management.

As these reports present professional judgements, a number of basic principles should be

adhered to. While it is beyond the scope of this report to set out these principles, or to

develop the code of conduct, a number of suggestions are made.

Policies

Decisions on planning applications are based on planning policies that are adopted by

planning authorities. Explicit reference to these policies as well as interpretation of these

policies should be included in the assessment of a planning application. Because policies

can be found in documents for different levels of the planning hierarchy, the code of

conduct should address the question which level in the hierarchy of plans is most

relevant. It is suggested that the policy that is most relevant should be found in the lowest

plan level in the planning hierarchy (i.e. the plan level that is closest in scale and detail to

the site where the development is proposed) and ideally should be represented in a single

map. Individual references to parts of the written statement can be confusing, and

ultimately can lead to different interpretations on the outcome of the planning

recommendation.

While it is appropriate for a planner to refer to higher level policies (e.g. National Spatial

Strategy, or Regional Planning Guidelines), the implications of these policies for the local

level should have been incorporated in the local plan and therefore be already indirectly

considered when referring to the map.

Assessment

The planner’s report must contain a clear written assessment of all of the relevant

planning issues. A good model for such an assessment is formed by the report format

used by An Bord Pleanála inspectors. It is important that the report makes clear to the

public how it is concluded that a proposed development meets or fails to meet a policy of

the plan or in some other way is deficient. This assessment must be done for each issue

independently. While there is no need for ranking or marks, it is important that each issue

is dealt with individually. The report must then provide a composite conclusion which

incorporates the weighting that the individual planner attached to the different issues.

A similar process must be followed by the An Bord Pleanála inspector and ultimately by

the Board (where if the weighting is different from that adopted by the inspector, should

be made clear in the written direction).

An Bord Pleanála

While it is noted that the planning review is focused on planning authorities and

procedures within planning authorities, because the Board is an integral part of the

planning process, it is considered that recommendations cannot be effective if the Board

is not included in these recommendations.

31

Precedent

An Bord Pleanála decisions should form a precedent for a subsequent application that

addresses that decision. Planning authorities should therefore have procedures in place to

ensure that decisions on appeal are evaluated but also that in the case of repeat planning

applications, the outcome of a previous appeal on the same site is properly considered in

the planner’s report.

Equally, An Bord Pleanála should not revisit earlier views. Where a decision is made by

the Board on an appeal and where the applicant has addressed the refusal reasons in that

decision, a subsequent application on the same site for the same development should not

be refused for different reasons.

Needs of Society

It is recommended that the Board should meet professional bodies, NGOs and other

representative bodies on a regular basis. Such meetings should be reported in the annual

report. Included in these meetings should be the CCMA. Annual meetings with the

CCMA would be preferable to the suggested ‘liaison’ as it would be independent from a

specific planning appeal or planning authority.

6 Conclusions

It would seem that a negative perception of the planning system by the public is attributed

to at times perceived inappropriate or inconsistent decision making at local level. The

conclusions of the Report of the Mahon Tribunal would appear to justify such a

conclusion. However, planning is fundamentally a matter of local decision making. Most

planning decisions can and should be taken at local level in the context of appropriate

policies adopted by the elected representatives who are accountable to their electorate.

These policies must be based on the interest of the common good and councillors should

receive education where possible to explain the logic and role of the planning system.

However, local planning policies cannot be adopted in isolation. Under the principle of

the planning hierarchy local policy must be consistent with policies adopted at regional or

national level. In this regard policies issued by the Minister are of course relevant but

these are not the same as guidelines with regard to procedures. The Actions proposed in

the planning review report seem to be motivated by a commitment to reducing

inconsistency of decision making and to generally improving the perception in the

planning system by enhancing its operational transparency. As such, the

recommendations suggest at times that stronger central policies and policy clarification is

desirable. However, notwithstanding these worthy objectives, there is a counterbalancing

requirement to avoid excessive centralization.

My meetings with the county managers and senior staff in the six planning authorities

have confirmed the responsibilities that are bestowed on the local decision making

structure in the local government system in Ireland. In each case, I was impressed with

the degree of care, responsibility, attention to detail and general grasp of the importance

of good governance and sound planning policy. This, coupled with evidence of a genuine

32

belief in good planning and enthusiasm for innovative policies and initiatives suggest to

me that the system as it is working is basically sound. Planning is a local function and is

in my view in good hands given the calibre of management in the local authorities and

the respect that all of the managers and their staff showed to the elected representatives.

My overall conclusion is not only one of confidence in the system as it stands but also

one of warning not to overly centralise decision making or over-prescribe where this is

not necessary. None of the complaints that have been analysed in the planning review

report suggest that such an overhaul of the system would be warranted.

The role of An Bord Pleanála in the Irish Planning system is a very special one. However,

it is not one of policy making and it is my firm belief that the Board should not be seen to

adopt such a role either by its own making or by suggestions from those outside it.

Complaints against planning authorities have largely been adequately analysed and

appropriately rejected in terms of validity in the case of four of the six planning

authorities. In the case of Galway County Council and Dublin City Council, the

complaints have not been fully analysed. This is for reasons stated up front by the

Minister and the Department because of the very nature of the review. This is because the

analysis has been restricted to procedures rather than the content of the decisions. Full

analysis of these complaints will require additional research. In the case of Cork County

Council, the analysis of the complaint appears to be deficient.

In the case of a number of planning authorities recommendations are included even

though the conclusions are that the complaints are not valid. In those cases the

recommendations have been interpreted in terms of general consideration of procedures

rather than recommendations arising from the analysis of the complaints.

In the case of a number of planning authorities complaints were made directly or

indirectly (by suggestion) against certain named or unnamed individuals. It is concluded

that these complaints have not been substantiated and that they have been appropriately

rejected.

A number of the Actions that have been listed in the report are considered worthy of

support and implementation. These are Actions 2, 3, 5, 6, 7, 8, 9, 11 and 12. These

actions are largely focused on procedures, guidance, and communication both within the

planning system and outside it.

For a number of the Actions that have been listed in the report inadequate justification

has been provided in terms of analysis of complaints or procedures. It is my conclusion

that these actions are therefore not justified. These are actions: 1, 4 and 10. These relate

to the automatic referral of cases of material contravention to An Bord Pleanála, the

prohibition of landowners or prospective developers bringing forward draft local area

plans, changes in the communication of national planning policy, and the proposed

structured dialogue of planning authorities with An Bord Pleanála. While the intention

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behind the Action 10 is understood, it is considered that its benefit can be achieved

through Action 11.

Analysis of the six themes in the report leads me to conclude that the function of the

‘plan’ (as distinct from the ‘written statement’) element of statutory plans should be

strengthened. This is relevant under theme 1 (communication). This could significantly

reduce the scope for different interpretations of the development plan or local area plan

between planning authorities and An Bord Pleanála and safeguard the consistency of

decision making on planning applications. Also, a code of conduct is considered

necessary. This is relevant under theme 6.

For the remaining four themes no recommendations are considered necessary other than

those already identified and supported by me.

Given the deficiencies in the analysis of the complaints made in the case of Galway

County and Dublin City, it is concluded that additional research is desirable in order to

fully address the issues raised by the complainant. It seems to me that the issue of the

complaint in relation to Cork County Council (role of the ‘liaison officer’) should be

further addressed under the ‘code of conduct’.

7 Recommendations

It is recommended to implement actions 2, 3, 5, 6, 7, 8, 9, 11, 12 as outlined in the

planning review report.

It is recommended not to implement actions 1 and 4 and to implement action 10 in

amended form (effectively in the form of action 11).

It is recommended as an additional action that a research project is carried out

which aims to assess the quality of planning recommendations based on a

randomly selected number of planning applications. It is recommended that the

Department or the research agency carrying out the research, would actively

engage with all stakeholders in this research, incl. the complainant.

It is recommended as an additional action to investigate the scope within the Irish

planning legislative system to increase the significance of the ‘plan’ part of the

development plan and local area plan, in comparison with the ‘written statement’

part, based on mainland European planning models.

In order to improve consistency and transparency in decision making on planning

applications, it is recommended as an additional action that a code of conduct is

developed setting out key requirements for reports by planners in planning authorities and

inspectors in An Bord Pleanála. It is recommended that the practice of ‘liaison officer’

should be further addressed as part of this code of conduct.

independent evaluation of the planning review report june 2012 · planning, ms jan o’sullivan,...

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