The social contract at the heart of the planning process is broken

As an old saying goes, no Irish property developer can sit down for their Christmas dinner without having submitted at least one major planning application before the holiday season.

Now they are rushing to take advantage of the “fast track” process of applying directly to An Bord Pleanála for Strategic Housing Developments (SHD) before this legislative route is finally closed next month.

What is behind this unseemly scramble is that the developers involved believe they would have a much better chance of getting planning permission for their proposals from the board than from local authorities such as Dublin City Council, in particular for skyscraper “build-to-rent” projects which would not comply with the stated provisions of the city or county development plans.

Many local authorities are currently in the process of revising their development plans – statutory documents that are supposed to govern how the areas they administer will be developed over the next five or six years. Thus, community groups, conservation organizations such as An Taisce and others with a direct interest in the planning studied the drafts and prepared their submissions.

This is all part of a democratic process that culminates in the adoption of development plans by elected councillors. As the Supreme Court held in 1991, these plans form “an environmental contract between the planning authority and the wider community, embodying the planning authority’s promise that it will regulate the private development of a consistent with the objectives set out in the plan”.

However, the Supreme Court ruling has been overshadowed by a series of Ministerial Planning Directives issued over the past six years that contain “Specific Planning Policy Requirements” (SPPR), which allow An Bord Pleanála to approve projects in accordance with their terms “even where the objectives of the development plan or the local development plan concerned may indicate otherwise”.

Section 28 of the Planning Act 2000 provided that the Minister for Local Government “may at any time issue directions to planning authorities relating to any of their duties under this Act and planning authorities [including An Bord Pleanála] take these orientations into account in the exercise of their functions”. These guidelines were advisory rather than mandatory.

That all changed in 2015, when Alan Kelly – then local government minister and now Labor leader – issued a set of planning guidelines which, for the first time, included SPPRs covering flat design standards, in response construction lobbying. Federation of Industry, which claimed the standards set by Dublin City Council were “unbuildable”.

Reduced standards

Instead of simply being obliged to “take into account” the Ministerial Planning Guidelines of Article 28, local authorities and An Bord Pleanála were required to implement SPPRs established by the Minister which reduced space standards , dual aspect ratios, floor-to-ceiling heights, balconies and even storage – all intended to “prevent planning authorities from specifying conflicting [that is, higher] standards”.

In response to lobbying from Property Industry Ireland, a division of Ibec, Kelly’s successor Simon Coveney introduced legislation – the Planning and Development (Housing) and Residential Tenancies Act 2016 – to allow developers to apply directly to An Bord Pleanála for 100- SHD programs as well as houses or apartments, or more than 200 purpose-built student beds.

Coveney’s successor, Eoghan Murphy, who resigned from his Dáil seat last April, further reduced apartment design standards by issuing mandatory guidelines in March 2018 to ease the build-to-let development model, without “any restriction on the mix of housing”. like “co-living” schemes – with minimum room sizes as low as 12m² – which he likened to “very trendy boutique hotels”.

What is stated in the draft development plan is important and the citizens of Dublin must take it seriously

In December 2018, Murphy promulgated “guidelines” on urban development and building height, based on the idea that taller buildings were needed to increase urban density and reduce sprawl.

Planning authorities were to not only “actively pursue” building height increases, but also to facilitate high-rise proposals that met its liberal “development management criteria.”

The contentious schemes drew widespread opposition from local residents, TDs and councilors, but none of that counted for anything in the vast majority of SHD cases. Many aggrieved opponents have challenged An Bord Pleanála’s decisions by seeking judicial reviews from the High Court, leading the council to spend €8.2 million – 71% of its running costs – on legal services in 2020.

Controversial diets

Just before Christmas, council granted planning permission for three controversial housing projects in Dublin involving a total of 1,097 flats – the vast majority of them being built for rental – in Milltown Park, Ranelagh; Redcourt, Clontarf and Clonkeen Road, Blackrock, faced a total of over 600 objections, including one from Dún Laoghaire Rathdown County Council.

Although the DHD ‘fast-track’ process is coming to an end, the mandatory SPPRs remain in place and ensure that statutory development plans drawn up by local authorities are no longer worth the paper they are printed on. Indeed, they have “destroyed the confidence of citizens in the planning process”, according to the Dublin Democratic Planning Alliance, which wants their repeal.

This alliance of more than 60 residents’ associations says the SPPRs are “intrinsically undemocratic and trample on development plans in which the public has participated… leading to building permit awards that are beyond belief.” They have “essentially privatized and deregulated the planning system, to the detriment of the fabric of our places and our society”.

Meanwhile, a public consultation on the draft Dublin City Development Plan 2022-2028 is underway, with February 14 the deadline for submitting proposals. It is a gigantic production. The draft itself is 814 pages, with an additional 437 pages of appendices, plus a lengthy register of protected structures, including over 100 additions, some “clarifications” and some minor deletions.

What is stated in the draft development plan is important and the citizens of Dublin should take it seriously. However, so long as the ‘special planning policy requirements’ of the mandatory Ministerial Guidelines remain in place, planners in Dublin City Council – and those in other local authorities – will have to adhere to their terms, which amounts to a travesty of the democratic planning process.

Frank McDonald is a former environment editor and current chairman of Temple Bar Residents, which is affiliated with the Dublin Democratic Planning Alliance.

Louisa R. Loomis