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The housing crisis has many causes but nimbyism is not one of them

Public participation in the planning system is an essential part of a healthy housing market, and Ireland is very low down the European table

What we build will last 100 years, so it is important to get it right. Photograph: iStock

Lorcan Sirr
Sun Jun 18 2023 - 07:00

Much has been made of individuals – particularly residents’ associations – pooling their resources to try to block developments in their own area.

But despite how it is often portrayed, this isn’t something that happens exclusively in affluent areas, and it’s not just residents’ associations or local people who dislike certain proposals – politicians often get involved as well.

In 2017 and in 2021, Taoiseach Leo Varadkar lodged observations to proposals in his constituency, the first to the redevelopment of Brady’s pub on the Navan Road, and the second to the Dublin-Galway cycle greenway passing through a park in Castleknock. Joan Burton of Labour also wrote to Dublin City Council about the Brady’s pub proposal, as did Fianna Fáil’s Jack Chambers about the greenway.

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“Four-story apartment blocks are a design model which has long fallen into disfavor [sic],” Varadkar wrote about the Brady’s plan – somewhat ironically given he led the government that subsequently removed height caps for apartment blocks.

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Sinn Féin regularly gets criticised by government parties for protesting against planning applications. The Social Democrats have also come under fire, as have Independent TDs. It seems they are all at it.

And although there is little that is defensible about the last decade’s crop of politicians who delivered more housing dysfunction than housing, there’s nothing wrong with this. I would support anybody’s right to make observations supporting and objecting planning applications.

Under article 29 of the Planning and Development Regulations 2001-2023, any individual can make a submission objecting to or supporting a planning application. This isn’t about so-called nimbyism; it is a good thing. These “third-party observations” are a key part of public participation in the planning system and society more broadly. The more ignored and excluded people feel, the greater the extremes they end up going to. People should have a voice.

In a 2016 study measuring citizen engagement in planning across 32 European countries, Ireland came third from bottom. Things have worsened since then

In other jurisdictions that voice is not only heard but – and here is the trick – it is listened to. The secret to maintaining participation in the planning system while simultaneously reducing the number of appeals, is to engage with communities early in the process, before any application is lodged, and to continue that engagement. In this way developments don’t end up with voluminous objections or in the courts, and development happens cheaper and faster.

In a 2016 study by TU Delft in the Netherlands measuring citizen engagement in planning across 32 European countries, Ireland came third from bottom, just beaten to the wooden spoon by Spain and the Czech Republic (Lithuania, Denmark and Sweden were top dogs). Things have worsened since then.

Rather than adopting best practice, the recent Planning and Development Bill – which seems to bear the fingerprints of the property industry – seeks to further prevent the public from meaningful participation in the planning system, including restricting residents’ associations taking legal reviews of decisions by An Bord Pleanála.

Of course, like any form of best practice, meaningful engagement takes effort. But why bother with that when it is easier to weaken the system itself – and then push for reducing participation through regressive legislation?

Although the planning system has always been criticised by disgruntled and vested interests of various hues, most people felt it was fair and above reproach. In recent years, however, this view has been seriously undermined.

The amount of housing “held up” by planning appeals is often misrepresented. In 2021 just 5.6 per cent (some 2,076) of all planning permission granted nationally was appealed

From the time of Simon Coveney’s tenure as minister for housing, An Bord Pleanála was beset by poor governance.

The former deputy chairman, Paul Hyde, was charged last March with nine counts of failing to comply with planning law.

More recently, interim chairwoman Oonagh Buckley, a former senior civil servant, took issue with two members of the judiciary who deal with planning cases, calling them “activist judges”. At the time the remarks were made, she had just apologised for previous remarks she had made about solicitor Fred Logue, whose legal firm represents a large number of residents’ associations taking judicial reviews against contentious development proposals. The firm is a specialist in environmental and data protection law.

This kind of commentary undermines public confidence in the objectivity and independence of the board and the planning process.

The amount of housing “held up” by planning appeals is often misrepresented. The Dublin Democratic Planning Alliance has collated this data. In 2021 just 5.6 per cent (some 2,076) of all planning permission granted nationally was appealed (and remember the applicant can be one of the appellants). At the same time, there are sites with planning permission granted for more than 70,000 housing units lying dormant.

[ Irish planning system one of world’s ‘most bureaucratic’, conference told ]

Over the past couple of years, An Bord Pleanála has lost or conceded more than 90 per cent of decided judicial reviews taken against its Strategic Housing Development (SHD) decisions. The reason for the board losing so many judicial reviews is not “activist judges” or a single super-solicitor, but the poor legislation that was the basis of its poor decisions in the first instance. The reason for so many judicial reviews being taken was that judicial reviews were all the legislation allowed for: SHD applications went directly to An Bord Pleanála, with no right of appeal. Residents’ associations had no choice but to take a judicial review, if they could afford it.

What all of this points to is that, instead of weakening the Irish planning system, we should be strengthening it. The Local Government Management Agency estimated last autumn that we are short some 541 planners for local authorities alone.

An Bord Pleanála needs another 60 or so to deal with additional workloads of land tax appeals and new offshore energy applications, as well as its existing backlog of some 27,000 housing units post-Covid and implosion.

At the back of a lot of the criticism of the planning system is a mistaken presumption that landowners have a right to develop their land, and therefore the planning system – with its pesky public participation – is interfering with that right. There is no such right

These 541 new local authority planners would cost about €33 million a year to fund. Councils have been allocated just €5 million. At the same time, planning application fees are just €65 for a house where the cost of processing that application is more than €600. Councils cannot increase the application fees – only the Minister for Housing can do that, yet the fees haven’t changed since 2001. More undermining of the system.

At the back of a lot of the criticism of the planning system is a mistaken presumption that landowners have a right to develop their land, and therefore the planning system – with its pesky public participation – is interfering with that right. There is no such right, however – “It is well settled that property rights, as protected by the Constitution, are not absolute” as then High Court judge Iarfhlaith O’Neill wrote in 2009 – and therefore no such interference.

No landowner can have a legitimate expectation of planning permission.

We have essentially the same planning system today as we did when we were building 90,000 houses a year. It’s too easy, too populist and too lazy to eye up the planning system as being something ready for dilution and deregulation. What we build will last 100 years, so it is important to get it right, and public participation in the planning system is an essential part of that.

Dr Lorcan Sirr is a senior lecturer in housing at the Technological University Dublin

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