The height of confusion has rival regulators slugging it out

Paul McNeive

An Bord Pleanála stance appears to be changing

April 01 2021 02:30 AM

Our planning system is in a state of flux. In what looks like a well-intentioned powerplay, Dublin City Council (DCC) and An Bord Pleanála (ABP) have been battling in the courts over the interpretation of planning legislation and separately, the ABP permission for 614 residential units on the former RTÉ land has been quashed.

At the heart of the former matter is the North Lotts and Grand Canal Docks Strategic Development Zone in Dublin docklands. There are various issues involved but the key dispute is over building heights. Complications arose because, whilst the original planning scheme permits six and seven storey development, subsequent national policies such as Rebuilding Ireland and Ministerial guidelines on taller buildings and apartments, promote greater height and density.

Central to the controversy has been developer Johnny Ronan, who has made a series of planning applications complying with those latter guidelines. However, the High Court recently ruled that ABP did not have jurisdiction to override the original planning scheme and grant planning permission. The court’s view was that the guidelines should be incorporated into the revision of the original planning scheme. Part of that decision has been appealed by the developer.

In the latest twist, last month ABP rejected DCC’s own revision of the planning scheme, saying that the review was a “missed opportunity to accommodate much needed residential and commercial space” and that a future review of the planning scheme should clearly demonstrate how the requirement to increase building heights should be met.

Dublin docklands is well capable of taking taller buildings and the frustrating thing about these disputes is that they are delaying development, which the Strategic Development Zones were intended to simplify and “fast track.”

There appears to be a shift in the dynamic at ABP, changing from what the market would have regarded as a conservative body, poised to routinely overturn planning permissions, into a more positive and pro-development stance. Interestingly, ABP’s rejection of the DCC amendments, involved overturning two of its inspector’s reports.

Whereas planning decisions traditionally followed predictable lines, the imposition of a swathe of national plans, guidelines and policies on top of local plans, which are often ten years old, has seen local authorities increasingly relying on new national policies, to set-aside existing plans.

This has caused a series of judicial reviews of planning decisions nationally. Whilst these involve just a small percentage of the 30,000 or so planning applications made every year, of which 7pc are appealed to ABP, they tend to be the high-profile cases. An example is the permission granted by ABP on the RTÉ land. Similarly to the docklands site, the developer applied directly to ABP under the 2016 scheme to “fast track” applications for over 100 units. The judicial review process appears to have led to the identification of an administrative error, leading to ABP consenting to quash the permission.

A new factor is the Office of the Planning Regulator (OPR) and Niall Cussen, the Chief Executive, confirmed that “where necessary and appropriate, the OPR may conduct a review of a local authority, or ABP, in respect of the systems and procedures used in performing it’s planning functions”. He said that “current debates and challenges in the system may abate over the next 18 months or so”.

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The height of confusion has rival regulators slugging it out

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