Our broken planning system holds development to ransom

Glanbia's current plant in Belview, Co Kilkenny

Colm McCarthy

May 23 2021 02:30 AM

A cheese plant in Kilkenny or a housing development in the Dublin suburbs cannot proceed without planning permission. Permission can be denied by decision of the planning experts at the local authority or at An Bord Pleanála. It can also be withheld indefinitely to the point where the project is placed in jeopardy despite positive verdicts from both, through the persistence of objectors through the courts.

The decision by An Taisce to appeal the unfavourable decision of the High Court on the Belview cheese factory raises broader issues about the planning system. Glanbia had secured planning permission from Kilkenny Co Council in 2019 which survived an appeal to An Bord Pleanála, thus satisfying both layers of the professional planning process.

An Taisce then appealed to the High Court, lost again last month, and promptly sought leave for another joust, the fourth, at a new venue, the Court of Appeal. The application for leave to appeal will be heard on June 15 and An Taisce has already indicated that they will appeal further if they lose again, next time with an expedition to the European Court in Luxembourg. Should Glanbia clear all future fences in what has become an endurance steeplechase, they will be several years late with their project and may have to refuse milk supplies from farmers. They could become discouraged and abandon the project altogether.

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The behaviour of An Taisce has attracted widespread criticism, including from the Taoiseach, but they are only doing what objectors generally are free to do with housing proposals. Through repeated appeals, they can impose, often with all-party support from local TDs and councillors, so much delay and cost as to frustrate developments which have satisfied the professional planners. It is fair to ask whether it was the intention of the planning acts to confer this prerogative on objectors. They are entitled to a voice, but not to a veto. In the middle of a severe housing affordability crisis, which can only be addressed through lowering prices and rents through extra supply, the planning system and the almost costless resort to judicial review favours repeat objectors even when they lose.

In a case last year in west Dublin, objecting residents argued with disarming candour that extra supply would lower house prices in the area. If the Government, and the opposition parties, are agreed that housing, especially in Dublin, has become unaffordable, greater supply and downward pressure on prices and rents is the inevitable prescription. These objectors were basing their case on the explicit frustration of Government policy.

Throughout the Dublin area and in some of the provincial cities, it has become far too difficult for developers to secure usable and reasonably prompt planning permission, even on land zoned residential. Delay is expensive, as are lawyers, planning consultants and public relations wizards, all adding to the break even price for new build houses and apartments. Building regulations and energy ratings add further cost. In some areas of Dublin, the most common model on the market is a top-of-the-range BMW. The typical first-time buyer would be content with something affordable that passes the NCT.

Instead, judges are getting involved in the minutiae of design, including matters which prospective purchasers are best placed to assess, such as the adequacy of windows and daylight penetration in winter. One case included a judicial expedition into the alternative grazing venues for bird species currently accommodated on a site for housing development. If it was the intention of the planning acts that these matters should be resolved in the courts, what role remains for the professional staff at the county councils and at An Bord Pleanála?

Roughly 4,000 of Dublin-area residential units are currently held up at judicial review, a figure which should be compared by politicians with the 135 units in Maynooth whose block purchase by a commercial company caused such a furore over the last fortnight. The outcry provoked the Government to legislative action but there are no proposals to unblock the schemes for 4,000 units, approved by the planning authorities but stuck in the courts, which are ready to go.

Under current Irish arrangements, objectors at the various stages, including court actions, do not have to establish a significant interest in the housing development which they seek to frustrate. It is open to a Dublin resident to object to a kitchen extension in Kerry without ever having gone to the Kingdom and there are serial objectors who traverse the country to An Bord Pleanála hearings on these missions. It is right and proper that anyone affected by a proposed development has a chance to get it stopped or modified, but the system has become penal for developers and too accommodating of serial objectors. One scheme, for around 600 units at Raheny in north Dublin, has been, at the last count, through nine trips to the council, ABP or the courts, having set sail back in 2015. This exceeds the size of the Maynooth block purchase four times and has never, so far as I know, merited a mention in Dáil Éireann.

Housing Minister Darragh O’Brien needs to consider whether the serial objectors, having lost at the professional stage (the county council and An Bord Pleanála) should have unlimited, and almost costless, access to endless replays in the amateur arena of the courts. This is becoming a judge-led, not a developer-led, housing affordability crisis. The planning system is broken.