It’s almost hard to believe it now but, at one time, An Bord Pleanála was perhaps the only stand-up institution in the Irish planning system. Throughout the Celtic Tiger, it regularly sent packing some of the most egregious developments permitted by local planning authorities. Its reach was far from perfect, of course. Nationally, An Bord Pleanála reviews fewer than 10% of all planning applications on appeal, leaving its then outgoing chairman in 2011, John O’Connor, bitterly regretting that it could not have done more to take a stronger stand against the worst excesses of the property bubble and its calamitous consequences.
Nevertheless, its rulings did have a significant disciplining effect in setting precedents as a bulwark against the ‘all development is good development’ madness that gripped the Celtic Tiger. An Taisce, for example, previously noted that of the approximately 2,000 appeals it lodged over the ten-year period to 2008, 80% were upheld. And while An Bord Pleanála’s decisions regularly raised the hackles of local politicians, it was one of the few bodies that emerged from the Celtic Tiger with its reputation and good name largely intact and proof positive that, when removed from the malign influence of political clientelism and short-term local development concerns, planners and the planning system could make enlightened, impartial decisions, without fear or favour, for the common good and in the long-term public interest.
Unfortunately, those days are now long gone. The gamekeeper has turned poacher. Today, An Bord Pleanála has become a byword for ineptitude, and its reputation for probity, integrity and neutrality lies in tatters, at least in the minds of many in the public. It gives me no satisfaction to write that and I wish it were otherwise. But for any planner, to watch the fall from grace of this unique institution from its former position of authority at the apex of the planning system should be a matter of deep regret, profound concern and, yes, even anger. It is not An Bord Pleanála’s fault, needless to say, but the consequence of a decade where Fine Gael has single-mindedly pursued an ideological obsession with centralising planning governance at the behest of property developers and to speed-up the consenting process by bypassing local planning authorities, turning it from a largely appellate body to a national planning authority of the first instance, a role which it is uniquely unsuited or resourced for.
Back in 2016, when Fine Gael launched the now-defunct Rebuilding Ireland, I apprehensively blogged on the likely adverse implications for the planning system, and particularly the centrepiece of the reforms, the now soon to be abandoned fast-track Strategic Housing Development (SHD) system, whereby planning applications for largescale residential developments of one-hundred units or more would be made direct to An Bord Pleanála and where decisions were required to be made in just sixteen weeks. I wrote:
“The idea that adequate consideration could be given to such proposals, while fulfilling all requirements pursuant to EU and national law, within these compressed timeframes and without recourse to seeking further environmental or technical information or giving adequate consideration to local concerns or right of appeal, is a recipe for yet another great planning disaster.”
Regrettably, all my fears came to pass, and then some. It wasn’t difficult to predict. The SHD system can only be described as an utter omnishambles, severely eroding public confidence in the planning system and resulting in an upsurge in judicial reviews as the only means to challenge decisions. Tracking data compiled by solicitor, Fred Logue, shows that of the forty SHD judicial reviews decided so far, An Bord Pleanála has successfully defended just three (eight were withdrawn). Forty-five others are pending. According to its most recent annual report, An Bord Pleanála has shelled out over €8 million in legal fees, out of a total operating expenditure of €31 million. That’s right, a quarter of its annual budget! In fact, given the scale of its reversals, almost half of its legal expenditure was to pay the legal costs of those who took proceedings against it.
To make matters worse, in a very serious recent development, its deputy chairperson and head of the SHD division, Paul Hyde, whom, it is reported, once co-owned a yacht (called ‘Dark Angel’) with Minister Simon Coveney and subsequently appointed by former Minister Phil Hogan, is now under investigation over multiple allegations of conflict of interest, including charges that he granted planning permission for a development owned by his brother and sister-in-law which he did not declare. In the meantime, An Bord Pleanála has been forced to undertake an audit of hundreds of decisions made by Mr. Hyde to ensure there are no further possible improprieties. If the current investigation launched by Minister O’Brien bears out these accusations, GUBU doesn’t adequately cover it.
I do not think it is any exaggeration to say that the legacy of this period in An Bord Pleanála’s history will be looked back upon with similar disdain to that of Robert Moses infamous, hubristic attempts to reconstruct New York in the early 20th Century. No longer able to simply ride roughshod over planning regulation, as had been the case throughout the Celtic Tiger, the solution for development capital in the post-Celtic Tiger period was simple—regulatory capture. Particularly in Dublin, and spurred on by Fine Gael’s unctuous kowtowing to the property industry—such as the swingeing retrenchment of apartment size and building height regulations alongside NAMA’s fire sale of development land—has seen the rubber-stamping by An Bord Pleanála of tens of thousands of Build-to-Rent (BTR) units across the city to the extent that they comprised over 80% of all residential schemes applied for or granted in 2020 — a situation which even Dublin City Council supremo, Eoin Keegan, recently described as totally “unsustainable” and with the potential to have, “significant long-term adverse impacts on the housing needs of the city”.
Perhaps the supply-at-all-costs zeal of An Bord Pleanála would be justified if it had any effect on… well, supply. But as of February 2022, figures compiled by the Dublin Democratic Planning Alliance show that, of the approximately 70,000 SHD units permitted to date, commencement notices had been submitted for just 13,000. What is most alarming, however, is not just the regulatory capture, but the level of ideological capture and the extent to which An Bord Pleanála has unthinkingly imbibed the kool-aid and the ‘obvious truth’ of the mainstream neoclassical economics dogma that flooding the city with hundreds of permissions for overpriced, elite shoebox tenements will somehow miraculously result in more housing supply at lower, more affordable costs. Contrary to the economist media doyens of the development industry, it won’t.
As described by Professor Manuel Aalbers: “The empirical evidence invalidates the economic truism that oversupply must lead to declining prices and that rising prices are a result of undersupply”. The reason is quite simple and not really very difficult to comprehend—real estate developers and the financial and political system, more generally, have no interest in falling property prices and will only increase supply to the extent that it will not depress market prices. Unwittingly, all An Bord Pleanála has achieved in its craven abandonment of progressive planning values is to become a useful appendage to the development industry in the speculative, rentier assetization of property values or what Architect Alan Mee coins the ‘planning-industrial complex’, or in old money, an ‘urban growth machine’. I do not believe any self-respecting planner signed up for that.
At last year’s Housing Agency’s Annual Conference, An Bord Pleanála’s Director of Planning, Rachel Kenny, predictably defended An Bord Pleanála’s administration of the SHD system and, while on the one hand acknowledging that judicial reviews affected less than 10% of SHD housing units and that public opposition to new housing developments had not changed much in the past 15-20 years, on the other lamented that planning applications had become more adversarial with high levels of opposition, a situation which she described as unusual in Europe, justifying further legal and planning reform, and even parroting the development industry line that the only reason for increasing numbers of judicial reviews is because ‘objectors’ get a free ride on costs.
The lack of self-awareness here was quite staggering. There was no introspection whatsoever of the fact that An Bord Pleanála had lost pretty much every SHD judicial review taken against it or, less still, of the quality of the units being permitted. Instead, specific opposition to high-volume, low-quality BTR units was lumped into a generalised opposition to ‘housing’. Ms. Kenny rhetorically asks, “Who speaks for future residents…those that need homes?”. The answer is, An Bord Pleanála does! Fair enough, they might counter that it is simply applying ministerial guidelines. But as Mr Justice Humphreys wrote in one judgement on an SHD application:
“The clear language of the ministerial guidelines sends the message that the reasonable exercise of planning judgement requires that an enthusiasm for quantity of housing has to be qualified by an integrity as to the quality of housing. Among other obvious reasons, and speaking about developments generally rather than this one particularly, such an approach reduces the prospect of any sub-standard, cramped, low-daylight apartments of today becoming the sink estates and tenements of tomorrow.”
It’s a sad indictment when a High Court judge exercises more planning foresight and agency than An Bord Pleanála. But here we are.
Slides from An Bord Pleanála’s presentation to the Housing Agency’s Annual Conference 2021
The reality is that, despite what is constantly reported in the media, there is very little fundamental or widespread public opposition to new housing developments in Ireland. The increase in judicial reviews in recent years simply directly mirrors the growing frequency in cases where decisions by An Bord Pleanála overrule agreed statutory development plans, which have been consulted upon with local communities and adopted by their local elected representatives. This is a situation that is unusual in Europe. Take, for example, the controversial Holy Cross College SHD development in Dublin of 1,614 BTR units comprising 70% tiny studios and one-beds. Here the local planning authority, Dublin City Council, expressed ‘alarm’ at what was being proposed but, despite its strenuous opposition, An Bord Pleanála simply went ahead and granted it anyway, using ‘Specific Planning Policy Requirement’ legislative directives introduced by former Fine Gael minister Eoghan Murphy to override democratically determined local development policy.
One has to ask what is the point in engaging in detailed public consultation and planning exercises to achieve consensus amongst all stakeholders on what is envisaged for a local area, only for it to be summarily ignored? It should come as no surprise, in these circumstances, that people seek access to the courts to challenge these decisions, as their only recourse to this breach of contract. Indeed, Dublin City Council has even had to take An Bord Pleanála to court on two separate occasions to defend the integrity of its development plan. Yet still, of the 381 SHD applications determined to date, just 84 have been subject to judicial review (22%). Overall, a tiny fraction of housing developments permitted nationally is subject to judicial review. Tens of thousands of units have been granted without any legal challenge whatsoever and are, in principle, ready to go—although, you would not know this by reading the pages of the national newspapers.
But here is the crux. The truth hardly matters. Just like in 2016, instituting a self-perception of failure amongst planners through constant criticism to generate a self-governed desire amongst them to adherently ingratiate their values to better meet short-term political objectives of governing ideologies, the same is happening again today. Neoliberalism fails forward, achieving its goals by whatever means necessary, often capitalising upon its own chronic failures to implement ever more regressive and anti-democratic planning ‘reforms’. Recently, for example, Minister for Planning, Peter Burke of Fine Gael has been out on the stump decrying the rise in judicial reviews, which are a direct consequence of changes to planning laws, including the SHD system, which his own party introduced! He quotes business groups who are telling him that the number of judicial reviews is “frightening”, insisting that “it’s so important that we have business leaders, business voices to the forefront”. The level of gaslighting here is again quite something. Before the introduction of SHD, you could count the number of judicial reviews against housing developments annually on the fingers of one hand, if at all.
Regrettably, debates on the future of the Irish planning seem destined to go the way of the English planning system which has gained an unenviable reputation in recent years for having undergone a rapid succession of reforms and counter-reforms as a consequence of persistent anti-planning rhetoric from the political right to make planning more market-oriented. As noted by planning scholars, Graham Haughton and Phil Allmendinger, the near-perpetual state of reform has created the very conditions of crisis instability that helps feed the perception of constant failure that the ideological right thrives upon and, in repeatedly failing to achieve their marketised outcomes, they can simply continually blame the planning system and try, and fail, again on the basis that any failures were simply well-intended experiments that went wrong and always someone else’s fault.
Right on cue, along comes Minister Burke’s recently announced establishment of a Planning Advisory Forum stuffed full of all the usual suspects from Property Industry Ireland, Irish Institutional Property, the Construction Industry Federation and, of course as always, that erstwhile Fine Gael contrarian advisor Conor Skehan who recently proclaimed that, if you cannot afford to live in Dublin, you should just simply move somewhere else. According to the Terms of Reference for the forum, the main objective of the exercise is to ensure “increased clarity and streamlining” of planning legislation in the context of the “major debate, particularly on the scale of housing requirements”, “the needs of the future population of new and expanded communities” and “the nature of planning decisions, which require careful balancing of public policy, public participation and environmental issues”. Call me old-fashioned, but I thought planning was about the public interest and the common good? Are environmental issues not amongst the most important public policy issues?
Regardless, we all know what this is code for—deregulation. Having previously unsuccessfully proposed a bill, again at the behest of the property industry, to effectively abolish public access to justice in planning cases, which was condemned by the Free Legal Aid Counsel and many others as offending both the Irish constitution and EU law, this latest initiative has all the hallmarks of a workaround attempt to give legitimacy to these reactionary intentions by co-opting organisations like An Taisce, the Environmental Pillar and, of course, the Irish Planning Institute. One wonders why we give credibility to such charades. The planning system does not require ‘reform’. We need to stop ‘reforming’. It has already produced all the permissions we need for many years of supply. What it needs is proper resources and for the incessant, destructive meddling by development lobbyists, which precipitated the current dysfunction in the first place, to cease. As for An Bord Pleanála, it is beyond time that it shunned the fast-track limelight and retreated back to being the relatively obscure, prosaic and largely progressive, far-sighted institution it once was. We need it, but it will take some time for public trust in its shattered reputation to be restored.
Gavin Daly
Irish Planning Blog 