The UK government has pledged to outlaw “go-away” payments for individuals who decide to retract planning objections. There is a set of new laws being drafted, however, the haste to appease the public’s outrage may have led to legislation that is not fully thought through, potentially leading to unplanned consequences.
The proposals put forth by the Minister for Housing, Darragh O’Brien, are initially hard to dispute. Their introduction followed a string of incidences where money was either sought after or offered to dismiss planning objections, inciting public discontent which demanded a robust response.
This commitment resulted in the proposal of a law to criminalise asking for money in exchange for not contesting a local authority planning decision at An Coimisiún Pleanála, the newly restructured An Bord Pleanála. This rule will also apply to the judicial reviews of An Coimisiún Pleanála decisions.
Moreover, it will be illegal to request money in order not to highlight official concerns to local authorities or An Coimisiún Pleanála – actions that might lead to appeals and judicial reviews. Similarly, anyone cancelling an appeal or judicial review will need to officially state that the revocation “does not aim to secure any payment or service to the advantage of any person”.
The enforcement of these measures can strengthen the planning system’s trustworthiness, which ideally facilitates development in line with societal requirements and principles. Yet, the truth remains that individuals have often utilised the planning system to ensure their interests are protected. Specifically, it serves as a tool to guarantee that other’s plans do not adversely impact one’s property value or its enjoyment.
It’s not uncommon for individuals to choose to appeal to An Coimisiún Pleanála or pursue a judicial review citing technical errors in the planning legislation or a disregard for the law. However, these actions are often dictated by pure personal profit motives rather than for the reason presented. A substantial portion of these objections aren’t grounded in genuine planning concepts, but are more closely connected to potential financial losses or profits. Indeed, people may express their opposition under the supposed worry for the bat population inhabiting the neighbouring trees, yet in reality, they’re worried about how the construction of 300 rental-purpose apartments in their serene suburban area could affect property values. The disharmony between this accurate state of affairs and O’Brien’s alleged aim to reinstate the moral integrity of the planning system is worrisome.
A scant few would take issue with the suggestion to ban those who seek monetary benefits from lodging planning objections. Instances are rife where individuals, irrespective of their personal stake in the issue, object to planning proposals on fraudulent or artificial reasons with the objective of extracting finances from the development firms. The situation becomes less clear when individuals affected by the proposed development expect money to revoke their objection. In instances, their intention could be blatant blackmail, while in others it might arise from a sense of pragmatism and risk aversion.
In any lawsuit, a person who appeals to An Coimisiún Pleanála or seeks a judicial review has no assurance of victory, regardless of their true intentions. From this perspective, demanding a payout from a developer to retract an appeal or judicial review is akin to settling a personal injury case at the doors of the High Court. The motivation can be identical: guaranteed result and cut-down legal charges. This reasoning holds true for those who have lodged a sincere objection and are proposed a monetary incentive by the developer to abandon their grievance.
If the Government, as anticipated, goes ahead and bans the choice of “settling” appeals and reviews – whether real or fabricated – certain outcomes can be predicted.
The initial benefit of accelerating the planning system aligns with the objectives of housing policy. However, there is a second aspect to consider – that only affluent individuals will remain capable of exploiting the planning system. This is due to the financial barriers of potentially being involved in a High Court case for a judicial review and facing costs if unsuccessful. This might deter individuals and smaller parties including residents’ associations from initiating an appeal or a judicial review as their bargaining power will diminish.
This could potentially be acceptable assuming it was part of an intentional plan to reduce unjustified appeals, expedite the construction of homes, and refocus the planning system on its real purpose. That purpose being to promote sustainable social and economic growth in keeping with national policies, therefore enhancing living conditions and the environment for citizens.
Yet the origins of these new regulations – a response to an RTÉ Investigates programme and various other media reports – challenges this idea. It appears as if the Minister is on the brink of establishing a two-tiered system where the wealthy and the poor are subjected to different rules.