What does planning set out to achieve?
The physical planning system seeks to facilitate and encourage development within sustainable patterns of settlement whilst fostering protection of the natural and built environment and promoting the efficient use of land and infrastructure. It plays a key role in facilitating delivery of the infrastructure programmes in the National Development Plan 2000 - 2006 (NDP) and in addressing housing supply requirements. The system is directly operated by planning authorities and An Bord Pleanála (our planning appeals body). The Department of the Environment and Local Government provides the essential legislative framework and policy guidance (which we will be covering) and the courts become involved in cases where judicial review is sought.
What is planning practice?
Planning practice is how the planning system works from day to day; it’s the mechanics.
The planning system is generally learned in one of two ways: (1) Through a planning law course, or (2) Through practice and reference to guidance, such as the Department of the Environment’s leaflets. At providing enough know how for participants in the planning process to understand the system and operate the processes involved.
Some people have had some experience with planning; some positive but often more negative. Patrick Shaffrey wrote as far back as 1973:
For to long planning has been a sort of battlefield. On the one hand, some developers considered any outside opinions or comments on their proposals as wearisome and unnecessary, frequently designed to thwart what in their view were sensible and well thought put projects. On the other hand, individuals and organizations were wary of any change, and did not fully realize that social and economic progress does result in physical changes to the environment. As a result, the central philosophy and objective of planning was often lost in the welter or arguments and counter arguments (p. 7).
Before surveying battlefield planning it is useful to start by explaining, briefly, planning’s underlying philosophy.
Planning is essentially a creative activity designed to anticipate, guide and direct, in the common interest, developments which can influence our physical environment in some way or other. Good planning need not be restrictive, or on the other hand allow a free for all, which may benefit a few at the expense of the many. The Planning Acts provide for the involvement of all sectors of society in the process (though whether this provision can be effectively exercised is the subject of much debate). Through planning an attempt is made to control and monitor future development in a well ordered, sustainable, manner. Whether a person likes it or not the Irish Government has laid out the manner by which we must plan for the future.
The Irish Government commenced the formal physical planning of
In August 2000, the Planning and Development Act, 2000 was enacted following detailed consideration of its provisions by the Oireachtas. This Act, which revises, extends and consolidates the legislative basis for the Irish planning system, introduced many significant changes and initiatives designed to introduce a sustainable development ethos into the Irish planning system, increase the efficiency of the system and ensure a strategic approach to land-use planning in Ireland. The Act was brought into force in stages. Some priority provisions commenced by the end of 2000 including those on the supply of housing, on strategic development zones and on the transfer of the Minister's statutory functions to An Bord Pleanála. By
Some of you will be aware of the Planning and Development Act 2000 which has reformed planning law in
Administration of planning
Planning is primarily a service of local government. The two-tier structure of the Irish local government system was established in the 1898 Local Government (
· The Upper tier consists of the larger local authorities – the county councils and the county borough corporations. In 1898 a democratically elected body was established in each of the 33 administrative counties (Temporary has two ridings: north and south). Management of the financial and administrative business of the county was entrusted to this council, which consisted of a chairman and councillors. There were also six borough corporations in existence at the passing of the Act, which became County Borough Corporations with the same power as county councils. They were located in counties, but administratively separate.
· The lower tier of local government consisted of the remaining 5 borough corporations, urban district councils, town commissioners and rural district councils. County councils took over rural district council functions in 1925. This lower tier has a small range of local government functions.
County councils and county borough corporations became very strong after 1898. But with strength did not come efficiency. Nepotism, clientelism and corruption in local government is not just a recent phenomenon. Ministers and civil servants took a to0ugh line in the 1920s and a number were dissolved and replaced by salaried commissioners, who were efficient, had administrative expertise and displayed complete impartiality in the solution of many urgent local problems. They were so successful that it was proposed they share power with the elected members. The post of city manager emerged, first in Cork CBC in 1929; in 1942 this system was extended across Irish local government.
Local government boundaries have been the subject of debate over the years, including the Barrington Report in 1991. But in 1994, the Minister of the Environment, confirmed the retention of the existing administrative boundaries at a local level. Saying they were a strength to be built on.
In the 1940 Management Act, functions of local government are divided into ’executive’ and reserved’ – the former exercisable only by the manager and the latter by councillors. In broad terms, powers reserved to the elected representatives concern policy and financial matters, while the manager is responsible for decisions which involve the execution of settled policy and which, in particular, might be open to political of personal influence. Thus, within the planning system, the councillors adopt the development plan and the manager makes the decision whether to grant or to refuse planning applications.
As an aside, the introduction of the management system has been the single most important development in the history of Irish local government. But councillors didn’t like it. Their grievances were addressed with the City and
All local authorities, except town commissioners, were entrusted with the full range of planning responsibilities in 1964, giving 87 planning authorities for a population of 2.8 million. Under the Local Government) Dublin Act, 1993, this number increased to 88 with the creation of Fingal,
Also, the manager of each county is also, by virtue of the office, the manager of each of the sub-county urban authorities, and thus performs an important co-coordinating role in the context of the multiplicity of small planning authorities.
The main elements of Irish planning
1. DEVELOPMENT PLAN
The main instrument for regulation and control of development is the Development Plan. Each planning authority is required to publish notice of its intention to review its plan, not later than 4 years after the making of a development plan. A new plan must be made every 6 years (ie. 2 years after the notice of the intention to review the plan has been published). The plan states the authority's policies for land use and for development control and promotion in its area. The authority, in exercising control, must consider the provisions of the Plan, and try to secure its objectives.
In general, the Plan shows the authority's objectives for the sole or primary use of particular areas (eg residential, commercial, industrial, agricultural), for road improvements, for development and renewal of obsolete areas, and for preserving, improving and extending amenities. Public participation in making the Plan is important. The public can become involved in the making of the development plan, at the initial stage, when the planning authority publishes its intention to review the plan, at the draft plan stage and if applicable, at the amended draft plan stage. At all these stages, the public can make submissions or observations, within specified time periods, on what is being proposed by the planning authority at all these stages. Notice of the making of the draft plan is published and the draft plan goes on public display for at least 10 weeks, during which time the public may make submissions on its content. Any submissions received within the specified period must be considered before the Plan is adopted. Before a plan is adopted, copies of the draft must be sent to various statutory and voluntary bodies who may be able to give the authority specialist advice.
We will consider development plans in more detail later.
2. DEVELOPMENT CONTROL
All decisions to grant or to refuse planning permission are firstly for the relevant planning authority, and for An Bord Pleanála (the Planning Appeals Board) in an appeal. As we have seen, the Local Government Act, 2001 provides the framework for reserved and executive functions. Reserved functions are performed by elected councillors, executive functions by the authority's manager or delegated officials. Granting or refusing planning permission is an executive function. Under the Local Government Act, 2001, elected councillors can, by resolution, direct the manager to take a particular action. The use of this power for planning applications is restricted, and only occurs in a small number of cases (0.01% of applications in 1999).
All development, unless specifically exempted, needs planning permission. Where there is doubt over what constitutes development, anyone can refer the case to the planning authority for a decision on payment of the prescribed fee. The declaration made can be appealed to An Bord Pleanála, within 4 weeks of the issuing of the declaration, on payment of the prescribed fee. In general, authorities must decide planning applications within 8 weeks of the date of receipt of the application. The applicant or any person who made a valid submission in writing, in relation to the planning application, to the planning authority can appeal to An Bord Pleanála, within 4 weeks of the decision.
In deciding applications, authorities are restricted to considering the proper planning and development of the area concerned, including the preservation and improvement of amenities, the development plan, and any valid, written submissions or observations made on a proposed development. The fee for making a submission or observation on a planning application is currently €20. For details on the fees for making planning applications, you should contact your local planning authority. Where permission is refused, or granted with conditions, the authority must give reasons for the decision. A planning permission normally lasts for five years, but may be extended in certain cases
3. APPEAL SYSTEM
An applicant for permission and any person who has made a submission or observation on a planning application may appeal a planning decision to An Bord Pleanála, the planning appeals board. Appeals must be made within 4 weeks of the decision. In an appeal, the planning application is considered anew by the Board, who examine all relevant issues independently. The Board must, among other things, consider the proper planning and development of the planning authority's area and any submissions or observations received. The Board's decision may only be challenged, within 8 weeks, by judicial review in the High Court. However, the Court may extend this period where it considers that there is sufficient reason for doing so. The Court will not reopen the planning merits of the case. It may only give leave to pursue the review process where it is satisfied that there are substantial grounds for claiming that the Board's decision is invalid or should be quashed. The person seeking leave must also have a substantial interest in the decision making process or had good and sufficient reason for doing so.
4. ENFORCEMENT OF PLANNING CONTROL
Enforcement of planning control is the responsibility of the planning authority. Where development takes place without permission, or where it does not comply with conditions of a permission, the authority may take enforcement action. Under the Planning and Development Act, 2000, planning authorities are obliged to follow up genuine complaints about breaches of planning control within a given timeframe, are entitled to retain fines imposed by Courts for planning offences to help finance more active planning control and can refuse to grant planning permission, subject to the consent of the High Court, to any developer who has seriously failed to comply with a pervious permission. These provisions came into force on
Given that planning practice is heavily dominated by statutory planning, that is by the planning application process, I thought we’d look at some planning statistics! This will make you think about the system as a whole .
In the ten year period from 1991 to 2001 the number of planning applications made to local authorities increased by approximately 80%. The number of planning applications in 2002 was 62,810 which represented a reduction of 17% compared with 2001.
In the 1980s and early 1990s up to 1993 the applications for planning permission fluctuated between 33,000 and just over 40,000. Between 1994 and 2000 there was a constant rise in the figures giving a cumulative increase of over 100% in the seven year period.
The overhead gives the number of refusals and the ‘refusal rates’. The percentage of planning decisions that consist of a refusal (the refusal rate) had shown a consistent decline from 15.1% in 1981 to 7.4 % in 1986. Between 1987 and 1997, apart from 1988, the rate fluctuated between 8 % and 11%. The rate for 2000 was 16.6% and rose slightly to 16.9 % in 2001. The refusal rate fell to 15.9 % in 2002.
The refusal rate is not an indicator of the proportion of applications that end up as refusals, nor should it be regarded as an indicator of the ‘efficiency’ or ‘commitment’ of any individual planning authority. Higher refusal rates might be expected, for example, in areas of high amenity value or in areas under intensive pressures for speculative development.
In 2002, 4,324 planning decisions were the subject of an appeal to An Bord Pleanála - a decrease of 16% over the previous year. The figure does not include reactivated appeals. A small number of appeals - approximately 1% of the total - were disposed of without a formal decision (withdrawn, invalid, etc.). In 2002 the number of formal decisions amounted to 4,276. Slightly less than one in three appeals leads to a reversal of the local authority decision.
Since 1997 applications for outline permission accounted for about one in ten of all applications. In the years 1998 to 2001 this figure increased to 12% in 1998, and to 15% in 1999 and 2000 respectively. In 2001 these applications remained at 13% of the total and decreased to 9% of this level during 2002. It should be noted that the use of outline applications is relatively frequent in some authorities. The ratio of applications for approval to those for outline permissions is approximately 1:4.
The ‘refusal rate’ for outline permissions - at approximately 35% - is more than twice the average rate.
The refusal rate for approvals is approximately one fifth of the average rate. It should also be noted that while outline permissions deferred are 12% of all deferrals. Approximately 45% of all outline applications are deferred.
A decision on a planning application must be made by the planning authority within a period of eight weeks. This period can be extended in two ways. The first occurs when a planning authority requests additional information (S34(8)(b) of the 2000 Act, Art. 33 of the 2001 Regulations). A second procedure, requiring the written consent of the applicant, allows the planning authority to extend the eight-week period. This provision was introduced in a 1976 Act and is now provided under S34(9) of the 2000 Act. Deferrals arising from the applicant’s consent increased as a percentage of total deferrals in 1997, 1998 and 2000: -
· 1997:20%;
· 1998:24%; and
· 2000: 30%.
Under the Planning Acts, councillors can influence development control decisions. (1) S140 of the Local Government Act, 2001 (formerly S4 of the
While only limited use is made of these procedures overall, some authorities do use them to a considerable extent. The S140 procedure was used in 5 authorities, i.e. 5 county authorities account for 100% of the total usage (dominated of course by Kerry which passed 10). The total number of such motions was 27 (a 58% reduction on 2001) the number passed by Council decreased to 23 (a 45% fall on 2001 figure). The number of material contraventions resulting from S140 and S4 motions in 2002 continued to fall by 50% on the 2001 figure to only 5 instances.
The procedure under S34(6) of the Planning and Development Act, 2000 has increased by 20% on 2002. This is the procedure which provides that a development may materially contravene the Development Plan subject to certain procedures being complied with. In this instance a decision to grant planning permission requires the vote of not less than three quarters of the members of the Council in favour. The increase in the number of ‘material contraventions’ in 2002 was in the order of 20%. The overall number of material contraventions passed by local authorities in 2001 was 93. This represented a 30% decrease on the 132 material contraventions passed in 2000. In 2002, 112 material contraventions were passed by local authorities, i.e. a 20% increase on the 2001 figure.
In 2002 almost eight out of every ten applications were for residential development (class 1 and class 2 - houses and domestic ‘extensions’). Figures are available by class of development.
The amount received in contributions has continued to rise since 1987 with an exceptional decline of approximately 2.5% between 1992 and 1993. There was an increase of approximately 26% for 1997, 15% in 1998, 31% in 1999, 27% in 2000, 11% in 2001, and 24% in 2002. Increases or decreases in the figures may be the result of a number of factors such as changes in the rates charged, size and type of developments carried out in a particular year, the overall level of implementation of planning permissions and perhaps increased enforcement of planning conditions.
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