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Gregory Jones QC,

Chairperson,

An Bord Pleanála Review Group,

c/o Department of the Environment, Community and Local

Government,

Custom House,

Dublin 1

[by email to ABP.Review@environ.ie]

18th November 2015

Dear Gregory,

1. Introduction 1.1 The Irish Planning Institute (IPI) welcomes the invitation to make this submission

as part of this extremely important and timely review of An Bord Pleanála (ABP).

1.2 This submission was prepared with the input of senior members of the planning

profession serving on the IPI Council, IPI Committees and a specially convened

working group. It also draws on submissions from IPI members received by the IPI

following the announcement of the review by the Minister.

1.3 Whilst the review of ABP is welcome and timely in the context of the projected

increase in construction activity in future years it is important to say that change

should not occur for the sake of change. Any recommended changes by the Review

Group to the role and administration of ABP should be supported by clear evidence

demonstrating that there are problems being experienced in specific areas and the

various options recommended to address these problems. The IPI will support

change where there is a clear evidence based case for making such changes.

2. About the Irish Planning Institute 2.1 Founded in 1975, the IPI is the all-island professional body representing

professional planners engaged in physical and environmental planning in Ireland.

The Institute’s mission is to advance planning by serving, improving and promoting

the planning profession for the benefit of the community and the common good.

The IPI represents c.700 planners from across the public, private, semi-state and

academic sectors. It is also affiliated to the European Council of Spatial Planners

(ECTP) and has international links with the Planning Institute of Australia (PIA)

and the New Zealand Planning Institute (NZPI).

3. ABP’s Role in the Planning System 3.1 The primary role of ABP is a planning appeals body, with the vast majority of its

cases (approximately 80%) relating to “normal” appeals. It also has a role of a

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“decision maker in the first instance” in relation to Strategic Infrastructure

Development (SID), Compulsory Purchase Orders (CPO), Local Authority

Appropriate Assessment cases, Strategic Development Zones (SDZs) and State

Authority Developments. A very small part of its cases relate to appeals relating to

Building Control, appeals under the Air and Water Pollution Acts and Exempted

Development Referrals.

3.2 Recommendations made in this submission generally relate to the main aspects of

ABP caseload, “normal appeals” and SID, but we believe many of the procedural

recommendations can be equally applied to other cases handled by ABP.

3.3 At the outset the Institute wish to emphasise that the third party appeals mechanism

has been, and is always likely to remain, a key part of the Irish planning system.

Appeals systems are a feature of public administration in Ireland and in this context,

ABP as an appeals body has generally functioned quite well since its inception.

When the decision making process is properly administered, ABP provides a high

degree of confidence and transparency in the planning system. It should be noted

that third party appeals are almost unique to Ireland and do not exist in many other

countries worldwide. Whilst there are positives and negatives to a third party appeal

system, this submission does not consider these, as it is assumed that this will

continue to remain a feature of the Irish planning system. One of the key benefits

which should be noted of such a third party appeals system is that in the context of

United Nations Economic Commission for Europe (UNECE) Convention on

Access to Information, Public Participation in Decision-making and Access to

Justice in Environmental Matters (usually referred to as the “Aarhus Convention”),

Ireland is often cited as a good example of how to meet the requirements of the

Convention. Whilst IPI have not carried out research in this area, it is known that

other countries who are considering a third party appeals system look at the Irish

example.

3.4 In terms of its role as a planning appeals body, the independence of ABP is of

paramount importance and should be protected. However, it is equally important to

safeguard the organisation’s reputation and integrity as a decision making body and

a crucial aspect of this are clear and transparent reasons as to how decisions are

reached.

3.5 Certainty should be a key benchmark of any planning system and in the IPI’s view

it is preferable to take time to arrive at a robust, high quality decision which is not

vulnerable to litigation rather than placing the emphasis on arriving at any decision

quickly. Judicial Reviews in recent years have increased, particularly related to

applications involving Environmental Impact Assessment (EIA) and Appropriate

Assessment (AA). This has caused a great degree of uncertainty in the planning

system and has resulted in increased project costs and timelines, particularly in the

development of strategic infrastructure.

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3.6 The forthcoming establishment of the Office of the Planning Regulator (OPR)

should have no particular implications for the operation of ABP assuming ABP will

continue to operate as an independent appeals body. The planning research role of

the OPR is likely to be a positive contribution to the work of ABP and the planning

system generally, as this will provide further material to facilitate evidence based

decision making. The IPI supports the establishment of the OPR and continue to

request that this be expedited by the Minister.

3.7 It has been suggested by some parties that the review of ABP is similar to the

independent review of the Environmental Protection Agency (EPA) presented to

the Minister in May 2011. However it must be noted that the EPA is very different

to ABP as, unlike the EPA, ABP is not a licencing body, rather it is a quasi-judicial

body. One difference between such bodies is that the EPA as a licensing body has

the ability to review licences and revoke and change the terms of such licences.

ABP as a quasi-judicial body makes a decision on the application as presented to it

and generally has no further involvement in the development thereafter.

4. Structure and Management of ABP 4.1 For this submission the structure of ABP has broken down into four distinct areas

as follows:

1. Planning Inspectorate – The planning Inspectorate carry out the technical role

of assessing planning files and make recommendations to the Board.

2. The Board – The Board make the decisions having regard to inter alia the

technical assessment carried out by the Inspectorate.

3. Management – The Chairperson is also effectively the equivalent of the Chief

Executive Officer (CEO) and is supported by a management committee.

4. Administration – The administration section provides support to the planning

Inspectorate and the Board, as well as providing general administration services

related to the running of the organisation.

The IPI generally supports the current structure of ABP as it maintains the

necessary degree of independence between the Inspectorate and the Board. It is

essential that any changes continue to maintain this independence.

Appointments to the Board 4.2 Additionally, the IPI supports the current system of appointments to the Board,

where various nominating bodies as defined in the relevant legislation, nominate

representatives for consideration by the Minister when positions on the Board

become available. The idea behind the nominating process is to ensure a cross

section of society is represented at Board level and the period of time for the

appointment of an ordinary Board member (5 years) is designed to promote a

turnover of Board Members. The process for the appointment of the Chairperson is

with a term of 7 years, is again designed to promote a turnover of Chairpersons.

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4.3 In recent years there has been a situation where the terms of many of the Board

members expired at the same time and this led to a situation where the number of

Board members dropped to 4, rather than the approved number of 10. This did cause

delays in the processing of files and resulted in a narrow cross section of society

being represented at Board level.

4.4 It is recommended that consideration should be given to altering the existing

legislation to prevent a situation where a large number of Board members come to

the end of their terms at the same time as this can result in significant problems to

the operation of the Board.

Corporate Governance 4.5 We note that the ABP’s Chairperson’s letter to the group of 12th August 2015 states

that efforts have been made to modernise the corporate governance of ABP and this

is welcome. While we accept that there is no “one-size-fits-all” approach to

corporate governance structures, it is respectfully submitted that it is not

appropriate for the Chairperson to act in the role of CEO of ABP for the reasons

outline below.

4.6 For most organisations the role of CEO is separate to the Chairperson. The primary

focus of ABP must be on its role in terms of robust decision-making. It is therefore

suggested that the duty of care of the CEO role in relation to financial, technical

and administrative matters in terms of running the organisation can potentially

conflict with the quasi-judicial role of ABP. In this context, the IPI suggests that

consideration be given to separating, as is the case in so many organisations

worldwide, the role of the CEO and Chairperson.

4.7 It would appear that the need for the Board to address corporate governance issues

such as financial, technical and administrative matters risks being onerous and

diverting the resources of the Board away from the adjudication of files. The

primary reason for their nomination in the first instance and subsequent

appointment to the Board relates to their decision making role not their

management role.

4.8 It is therefore suggested that a new executive structure be put in place to deal with

matters of corporate governance, freeing the Board members to focus on the core

decision making functions of ABP. In order to avoid confusion, there may be some

merit in giving Board members an alternative title (e.g. Commissioner), reflecting

its role as effectively a “Planning and Development Commission”. Another model

may be that set out in the Ombudsman Act 1980, as amended.

5. Policy Context and Development Consents for Large Projects 5.1 The intersection between the planning permission process with other development

consent and licensing systems is often confusing, repetitive, counter-intuitive and

impractical, particularly for members of the public. A full consideration of the

efficiency of co-ordination of the innumerable development consent and licensing

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systems is beyond the scope of this consultation. However, key problems in this

regard include:

Poor public understanding of different consent mechanisms (e.g., the planning

process, consent under the National Monuments Acts, consent under the

Foreshore Acts and the various environmental licensing consent processes) and

lack of training and education programmes regarding same.

Differing procedures for consent mechanisms such as differing periods of

public consultation, requirements to pay fees (as either developer or third party),

decision-making periods, competent authorities, appeal procedures, etc.

Lack of single portal for information relating to applications seeking consents

under various consent systems.

5.2 These factors result in uncertainty for developers, investors and members of the

public. The factors further could be considered to be obstacles to effective

implementation of the Aarhus Convention.

5.3 In considering these comments it should be noted that ABP is designated as the

Competent Authority in Ireland for “Projects of Common Interest (PCI)”. PCI

projects relate to the energy sector and are specific projects designated by the

European Union which interconnect electricity and gas networks across national

borders. In summary, ABP’s role as the Competent Authority involves collating

and co-ordinating the issuing of all the consents and decisions required from all

relevant authorities and monitoring compliance with time limits. Consideration

could be given to a similar role for ABP in relation to development consents for

large scale projects which require multiple consents from a variety of consenting

authorities. Generally, there are not many of these projects in any given year but

where they do occur this type of co-ordination role would contribute to project

delivery and would hopefully make the consenting process more understandable

for the public. The situation around Foreshore Licensing is likely to improve when

Foreshore Licencing becomes the responsibility of ABP.

6. Functions of ABP and their Evolution over Time 6.1 In terms of ABP functions, it should be noted that these have evolved over time

since its inception and new functions continue to be assigned to ABP. In general,

the IPI welcomes the allocation of new functions and sees this as a natural evolution

of the role of ABP over time. The IPI emphasises that the skillset and training of

our members is well suited to adapting to new functions. Whilst the IPI may have

expressed views in the past in relation to the allocation of SID functions to ABP

and to the SID process generally, our members as professional planners have

demonstrated their ability to embrace and work with these new functions. Our

members have adapted to change, e.g. the introduction of SIDs, SDZs, etc. in the

past and can do so again in the future if/when additional functions are allocated to

ABP.

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6.2 Previously during the Celtic Tiger years, ABP handled a much more significant

case load (a peak of approximately 6,600) than it is currently experiencing

(approximately 1,800) so it is evident that the current organisational structures and

staffing levels, which the IPI is recommending be maintained, already facilitate the

efficient and timely discharge of ABP functions as long as caseloads are managed

appropriately.

6.3 In particular the IPI supports the principle of aligning the foreshore consent system

with the planning system as envisaged by planning legislation. Current provisions

for planning of the foreshore area are unclear, which has led to litigation (e.g.

Fingal County Council v. Kennedy [2015] IESC 72). Moreover, many projects

with strategic significance in spatial terms, have had to be considered separately

through both systems whereas a more coordinated system of consent procedures

would be beneficial to all parties. The IPI supports the principle of marine spatial

planning. As many areas of economic activity have implications for the conflicting

claims on the maritime area, spatial planning is the appropriate mechanism to deal

with such conflicts and there is no inherent reason why planning should be

confined to land rather than water.

7. Operational Matters 7.1 This section relates to day to day operational matters of ABP and makes

recommendations as to how these could be improved. It should be re-iterated that

these recommendations are based on views expressed by IPI members who have

been interacting with ABP for many years. Many of the recommendation are not

radical but are practical suggestions to make the operational aspects of ABP “work

better”. They reflect the use of modern technology (e.g. e-planning, GIS, etc.) as

well as the practical problems being experienced when interacting with ABP. Many

existing operational procedures in ABP have evolved over time and do not appear

to have been comprehensively reviewed. The IPI was involved in a User Focus

Group for the Plean-IT system in 2014 and through this it became apparent that

many of the procedures are overly complicated and outdated.

Timeframes, Case Management and Approach 7.2 Timeframes for determination of cases are a significant issue for all parties

involved in the planning system but particularly developers of strategic

infrastructure such as transport, energy and water infrastructure, as these are all

prerequisites for delivery of other developments including residential and

industrial.

The current statutory objectives for ABP determining “normal planning

appeals” is 18 weeks. In 2014/2015 approximately 80% of all such appeals are

determined within this period.

The current statutory objectives for ABP determining SIDs is approximately

26 weeks. Up to the end of 2014 approximately 56% of all such applications

were determined within this period.

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7.3 Having regard to the above statistics, which are the two most common case types

handled by ABP, consideration should be given to addressing the issue of

timescales for determinations. It is acknowledged that ABP have a procedure for

prioritising cases involving developments and this is welcomed but it is limited in

its scope. In support of the suite of policy documents at national level that support

job creation ABP should examine the feasibility of establishing a system whereby

in respect of planning appeals those applications which have capacity for

employment generation should be given highest priority. Section 126 of the

Planning and Development Act 2000, as amended allows the Minister to prescribe

a specific period for decision making in respect of a particular class/classes of

development. This could be used to inform the prioritising of economic projects.

An Bord Pleanála has periodically put in place structure to address the timeframe

issue (e.g. presentations by Inspectors directly to Board members, the use of

quorums, fee per case inspectors, “Project Free Flow” etc.) demonstrating that this

review is a significant opportunity to address a persistent source of concern.

7.4 Whilst the 80% disposal rate detailed above is relatively high and consistent over

the past 3 years (and has improved significantly from a low of 20% in 2008), as

ABP cannot always keep to an 18 week statutory objective time frame, the

legislation should be amended to allow ABP to give a more realistic expectation

for particular cases where it is considered at the outset that the timescales may run

beyond the 18 weeks. Without identifying particular cases it has been reported by

IPI members that SID cases in particular can significantly exceed the 26 week

objective, with some cases taking a number of years to be determined. This is

particularly relevant for SID cases and given the relatively limited number of SID

cases in any given year, it should be able to estimate a realistic decision date on a

case by case basis.

7.5 Whilst the delayed timescale is a problem in itself, this is compounded by the lack

of information provided by ABP as to when the case might be determined and this

lack of information about progress of the case is a particular source of frustration

to first parties to cases. When the Board delay the making of a decision a second

time they are not required to give a revised date. It is completely open ended and

very frustrating for all parties who are given no idea as to when the case will be

determined and it results in continued phone calls from parties to ABP seeking

information on the case progress. Legislation/procedure should be updated to

require ABP to issue a revised date. The introduction of a “not to exceed date”

alone would bring some clarity to the parties to the case.

7.6 In general and having regard to Ireland’s obligations under Article 9(4) of the

Aarhus Convention, except in more complex and exceptional cases, ABP should

be tied to statutory time frames for making decisions on “normal” planning appeals

and should not, as a rule, be entitled to exceed a specific statutory time frame.

However, having regard to the varying complexity of files, it is essential that any

such statutory time frame not interfere with the independence of the Board in the

discharge of their functions.

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7.7 Consideration should be given to “delegated decision making” in certain limited

instances, as would be the case in a Local Authority. It is understood that at present

the Board make a determination in every case and this contributes to the significant

workload of the Board. There are some types of cases where the responsibility of

decision making could for example be delegated to the Director of Planning and/or

one Board member. These might include Section 5 referrals where questions in

relation to exempted development arise, appeals in relation to Section 48/49

development levies and first party appeals which generally relate to conditions

only.

7.8 Greater use of “condition only” appeals can lead to a significant improvement and

streamlining of the system. The requirement to consider the appeal “de novo”

where the principle of the development is largely supported by all parties and there

are no third party objections is an unnecessary consideration and a source of

frustration to developers. An example of this might be where an industrial

developer is seeking to locate on industrially zoned lands. The application is made,

there are no third party appeals, conditions attached by the Planning Authority are

considered onerous and the developer is forced to appeal thereby placing the entire

development at risk of refusal.

7.9 Consideration might further be given to the Board committing to expedited time

frames for applications/appeals/referrals, which have little or no requirement for

the circulation of documents to other parties. For example, if no observations or

third parties are involved in an appeal, the Board may be willing to commit to

reducing the time frame by the period usually reserved for circulation of documents

and responses to third parties. In this regard, given that many enforcement

proceedings must be put on hold pending the outcome of a Section 5 referral to

ABP, the IPI recommends that time frames for decisions referrals be considerably

reduced.

7.10 It is recommended that ABP should pilot “delegated decision making” and

“accelerated time frames”, in order to test its reliability and robustness. If this is

piloted it is essential that the decision process remains robust and transparent and

does not compromise third party rights having regard to Ireland’s obligations under

the Aarhus Convention.

7.11 The Institute also recommends that consideration be given to the publication of a

week-by-week time frame for cases (e.g. Week 1: Appeal received; file sought from

Planning Authority; Appeal circulated to relevant parties; Week 3: Appeal assigned

to Inspector, etc.). Making this type of information would at least provide parties

to the appeal with relevant information about the processing of the file. It is not

suggested that document additional file information should be made available, as it

is important to preserve the integrity of decision making and avoid any potential or

perception of lobbying in relation to cases by disclosing information in advance of

the case being determined. In the interests of transparency we also suggest the

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Review Group recommend to the Department of Public Expenditure and Reform

that Board Members, Planning Inspectors, Senior Planning Inspectors and senior

technical and administrative staff become Designated Public Officials under the

Regulation of Lobbying Act 2015.

7.12 In conclusion in relation to timescales, there is a perception that securing planning

permission through ABP in Ireland is a slow process and in some cases there is

evidence to support this. This should however be judged in the context of the

Ireland being unique in having a third party appeals system which adds a layer of

complexity and time that does not exist in other countries, as well as having a high

level of Judicial Reviews. It should be pointed out (and seemingly as highlighted

in An Bord Pleanála’s presentation to the Review Group on 19th August 2015) that

for large complex cases (e.g. road and rail infrastructure) ABP can often determine

these cases as, if not more, quickly than many other countries. Whilst the IPI has

not carried out research in this area it has been reported from our colleagues in

ECTP that in many other countries it can often take years to secure the required

planning consents.

7.13 It is possible that concerns relating to the efficient discharge of ABP’s functions

may be rooted in uncertainty as to the processes being followed and lack of

available information once an appeal or a SID application is made. Whilst there is

room for improvement in timescales, above all else, it is critical that Ireland’s

obligations to ensure public participation in decision making are not adversely

affected by any attempts to reduce the Board’s time frames for discharge of their

functions. Indeed, reducing time frames to the detriment of adequate public

engagement runs the risk of increasing time frames as more files are likely to be

subject to Judicial Review.

Oral Hearings 7.14 Oral Hearings are often a source of much discussion, particularly in relation to the

increasing legal representation and duration of such hearings. Whilst the current

procedures of ABP around Oral Hearings state that the inspector has discretion as

to the conduct of the hearing but must conduct the hearing expeditiously and

without undue formality, it is often the case that this is not the case in reality.

7.15 Oral hearings are important as these provide a significant opportunity for the public

to engage meaningfully in the planning process, however given the excessive legal

formalities that often surround oral hearings the public often feel “intimidated” by

the process. The participatory function of oral hearings is likely to become more

significant in the future in fulfilling the obligations enshrined in the Aarhus

Convention. The participatory aspect could be greatly assisted by the provision of

contextual information relating to the scope of the oral hearing for the benefit of

participants and the wider public. Clearer guidance on oral hearings should be

developed and circulated in advance of each hearing.

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7.16 It is recommended that where an Oral Hearing is to take place all relevant

documents (e.g. First Party responses to Third Party Appeals) should be circulated

in advance so that when the hearing opens issues can be taken “as read” and not re-

iterated. This would expedite the hearing and focus it on its purpose of discussion

of issues. Statements of Common Ground should also be required.

Case Allocation 7.17 Prioritisation of functions and allocation of cases should be a matter of internal

resourcing. Distribution of cases amongst the Inspectorate should be carried out by

a suitably qualified planning professional to ensure that files are distributed to

inspectors with expertise relevant to each specific file in order to ensure quality of

assessment. It is understood from members, that where Inspectors are skilled in a

particular area and internal teams with relevant expertise are allocated to files, this

expedites the processing of the file and can result in the Inspector delivering the file

to the Board for a decision within a 12-14 week period, thereby providing the

opportunity to make the determination earlier that the 18 week statutory objective

period.

7.18 The priority appeals classification system as detailed in the Annual Report should

continue and be developed further for other types of development where pressures

are arising (e.g. residential, and wind energy projects - which are required to meet

the REFIT deadlines). Prioritisation would in no way affect the final decision but

is merely recognising that certain case types at certain times be expedited.

Skills 7.19 Following on from the case allocation by a professional planner to an Inspector

with appropriate skills, consideration needs to be given to the skills, education and

expertise of the Inspectorate. The Institute wishes to highlight that An Bord

Pleanála has worked positively for many years with both the IPI as an organisation

and its employees to provide the necessary training and upskilling needed by our

members employed there. As planning is dynamic and changes over time it is

necessary for planners to upskill in certain areas depending on the case types being

submitted to ABP. This should however not be confused with the planner’s core

skills and training which are based on technical analysis of files and making

recommendations - this is the case from the smallest to the most complex files; the

core skills of the professional planner do not change.

7.20 While the continuing professional development of both the Inspectorate and ABP

is of critical importance to maintaining a robust appeals system, the IPI considers

it essential that the Inspectorate are professional planners in the first instance.

Planners are skilled at working within a defined legal system and with reference to

a broad local, regional, national and international policy framework. The primary

function of professional planners is to plan: to envision sustainable futures for

places and to work in partnership with others in bringing about change in

sustainable, meaningful and effective ways. It is part of a political process aiming

to balance all relevant interests, public and private, so as to solve conflicting

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demands. The ability to take this “helicopter” view is a unique skillset delivered by

planners. The planner is, therefore, distinguished from other sectoral professionals

by its primary focus on the interests of society as a whole, the primary obligation

of planners is to serve the common good. However, having regard to these factors,

it is unclear how any professional other than a suitably qualified professional

planner would be sufficiently competent to assess planning files for the purposes of

making a recommendation to ABP. Having regard to the approach already pursued

in local authorities, and following a review of workloads and the financial

implications, consideration should be given to ABP retaining a framework panel of

professionals with expertise in relevant areas that the Inspectorate and the Board

could consult during the assessment of files. Such a team of professionals could,

for example, include engineers (with e.g. expertise in energy, infrastructural and

transport development), conservation professionals and ecologists. In the same way

that local authority planners invite comments from internal departments including

the Conservation Officer, Environmental Officer, Roads Engineers, etc., putting in

place framework panel of expert professionals available to ABP would likely

ensure continued efficiency in quality decision-making.

7.21 It may also be the case that a limited number of additional “technical specialists”

could be recruited (perhaps on a limited duration contract basis) to deal with

technical issues related to development types and current issues (e.g. AA in the

context of windfarms which is current). However, given ABP’s role and the

availability of technical reports from Local Authority technical officers relating to

such files, it is uncertain whether there is an actual need for such specialists.

7.22 It should be noted that career prospects for inspectors who may wish to move to

senior positions in local authority planning departments can sometimes be

hampered due to a perception that they lack recent forward planning experience

and/or management experience. ABP should consider mechanisms to address this,

perhaps by having arrangements where staff might be seconded to a local authority

for a short period with the local authority staff member working in ABP. An Bord

Pleanála should continually review the skills base of the Inspectorate and target

training within that cohort through PMDS.

7.23 It is the view of the IPI that a planning qualification and membership of a

professional planning institute should be a requirement for Planning Inspector,

Senior Planning Inspector, Director of Planning and Deputy Director of Planning

roles, as it is a requirement of such professional institutes that for example

compulsory CPD be undertaken, thereby ensuring planners upskill on a continuing

basis.

Litigation 7.24 The trend in litigation (and also the large number of public submissions on Strategic

Infrastructure Development applications) is of significant concern but in our view

it is part of a wider challenge for planning arising from public skepticism and

feeling of disengagement.

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7.25 The costs provisions as currently apply to environmental litigation need to be

reviewed. As part of such a review, the IPI recommends that consideration should

be given to putting in place one general set of costs provisions. The current system

is simply giving rise to ever more litigation on the cost provisions themselves. It

also has to be questioned as to whether it is appropriate for the applicant to be

effectively protected from a costs order in all circumstances. There is no deterrent

to an applicant taking proceedings for the sole purpose of delay. If one loses, one

will not have a cost order and one will still have delayed the project, which could

have serious consequences for the viability of the project.

7.26 In addition to concerns regarding costs, provisions applying to environmental

litigation, one potential source of litigation arises from circumstances in which the

Board do not follow the recommendation of the relevant Inspector in making a

decision on a particular file. While the current practice of including a paragraph or

several paragraphs explaining the decision not to follow the recommendation of the

Inspector is instructive, the absence of a more detailed consideration of a file (i.e.

as is otherwise set out in the Inspector’s Report) can lead to significant uncertainty

for developers, members of the public and the Planning Authority. Given this, it is

respectfully submitted that, in circumstances where the Board elects not to follow

the recommendation of the Inspector, the Board be required to prepare its own

report detailing its assessment. This is particular relevant in the area of AA where

the Board make a decision to grant against the recommendation of the Planning

Inspector but do not provide the necessary detailed scientific evidence to complete

the AA process.

7.27 Our members recognise that it is the Board’s role to make the decision but it is

important for a variety of reasons including the professional development of the

Inspectorate and for planning consultants and local authorities that there is clear

and detailed evidence as to how the decision was made. This lack of information

has been cited in a number of recent Judicial Reviews against ABP.

7.28 Article 9(2) of the Aarhus Convention refers to a review procedure “to challenge

the substantive and procedural legality of any decision”. To date, the Irish

government has always maintained that judicial review process meets the

requirement of Aarhus. However, it could be argued that judicial review does not

provide a substantive review in that it is only concerned with whether the decision

maker followed the correct process - it is not a substantive review of the decision.

While it could be argued that the appeal in the first instance to An Bord Pleanála in

the context of a planning application meets the substantive review requirement, it

is considered that there may be a short fall with regard to Judicial Review.

7.29 The IPI considers that any alternative review procedure (i.e. intended to respond to

the requirements of Article 9(2)) would best take place before a court in order to

ensure impartiality and public confidence in the system. Whether or not the review

remains before the High Court or moves to the Circuit Court will of course depend

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on (i) resources and (ii) finality of decision. If it is considered that such a review

would be carried out at Circuit Court level, it is suggested that there would need to

be a limited appeal, as is currently the case. A specialist environmental court has

been mooted in the past, but has never materialised. A specialist court might be of

assistance if the court is to carry out a substantive review as well.

7.30 In conclusion, it is the IPI’s view that ABP should focus on the issues that are

leading to Judicial Reviews, many of which appear to arise where the Board makes

a determination against the recommendations of the Inspector and ensure that the

grounds for litigation should minimised by high quality and procedurally correct

decision making in the first instance, particularly where ABP is making the decision

in the first instance (e.g. SIDs, CPOs, etc.).

Technology and E-Planning 7.31 All documentation related to files under consideration by ABP should be available

electronically and through a single portal. The IPI, in previous submissions to the

Department of the Environment, Community and Local Government has called for

a National Environmental Information Portal, which would also collate all Local

Authority Planning registers within a “one-stop shop” for environmental

information.

7.32 It should further be possible to lodge appeals, applications and referrals to ABP

electronically. In particular, the option of submitting planning appeal and other files

electronically by the Local Authority should be prioritised as the requirement to

provide hard copies of such files does not represent an efficient use of resources at

either ABP or the Local Authority and sometimes results in time delays to cases.

7.33 The IPI notes that ABP is currently developing its Plean-IT system and it is

expected that this will greatly facilitate e-planning, which is identified as a priority

in the Department’s Planning Policy Statement of January 2015. Various elements

of ABP’s work, i.e. SIDs, appeals, Section 5 referrals could have their own layer

for easy location based searching. However, the Plean-IT system should only be

considered as a tool to assist in the decision making process and not a substitute for

the professional planner in the Inspectorate assessing the case. The IPI hopes to

continue to engage with ABP as requested to facilitate the development and

eventual roll out of Plean-IT.

SID Cases 7.34 SID cases commenced in 2007 and whilst there were a few problems in the initial

years as parties adapted to the system, overall SIDs seem to be working well in

overall terms. There are however some procedural aspects which have emerged in

this period that could be improved, this seems to be accepted by ABP given that list

of recommendations has recently been compiled and submitted to the Department

on foot of an internal review.

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SID Pre-planning Consultations 7.34.1 Pre-planning consultations are mandatory for SID developments. Whilst

this is generally a good thing, the value of such consultations is often limited

and focuses on procedural and administration aspects, with very limited

technical advice given. This contrasts with pre-planning consultations with

Local Authority where detailed technical advice is usually the focus. In

some cases, there can be four pre-planning consultation meetings and the

only things that the applicant learns is that the application will be SID and

the procedures around making the application.

7.34.2 It is suggested that consideration should be given to the need for an outline

type permission (although the matter of EIS needs to be overcome). Perhaps

the applicant should simply have a report of compliance with the regional

strategy and proper planning and sustainable development from the regional

authority or national spatial strategy unit prior to lodging the SID

application with ABP - this would provide greater clarity at a higher level

and allow ABP to focus on the local aspects of the case.

Determination of SID Cases 7.34.3 The Planning and Development Act 2000, as amended and in particular the

7th Schedule lists particular developments types as qualifying as SID. Most

projects either fall clearly within or outside the definition in the 7th

Schedule. However, in relation to electricity cases in particular, where

Section 182A specifies the relevant qualifying criteria for SID, the

definitions are unclear and introduce an unnecessary procedural step for the

applicant. For example, for modifications to 110 kV substations and OHLs,

particularly those related to approved windfarms, the applicant has to “ask

the question” through a pre-planning consultation paying the appropriate

fee of €4,500 and usually receives the answer that they already know (i.e.

that the proposed development is not SID). This is an unnecessary

procedural step imposing additional time and financial constraints to a

project. It is recommended that legislation is clarified in this area and

procedural requirements are simplified. Also in the case of private waste

recovery facilities, the process to determine whether it is strategic

infrastructure could be reviewed.

Fees Associated with SID 7.34.4 When fees for SID of €100,000 were introduced this represented a

significant increase from the maximum planning fee of €38,000. However

members have reported that in the context of SID projects, this often

represents only a small percentage of the overall project cost, and, with fees

being based on cost recovery, applicants often receive a refund of a portion

of the fee. Members have advised that the Cost Orders provide a very clear

picture of where the fee has been spent and would commend ABP on this.

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7.34.5 Members have expressed views in relation to the €30,000 fee associated

with Section 146B applications and that in many cases this is an excessive

fee, as such applications often only involve very minor modifications.

Again, whilst the Cost Order often provides a significant reimbursement of

fees (often €20 – 25,000) it is recommended that ABP consider the initial

fees associated with Section 146B applications.

Communication with Local Authorities in relation to SID 7.34.6 Communication to Local Authorities in relation to SID cases should be

reviewed as it appears to be almost ad hoc at times, particularly in relation

to pre-planning outcomes, formal receipt of applications, sending of

observations to the Local Authorities, whether or not there will be an oral

hearing etc.

7.34.7 In SID cases, the IPI suggests that the Board be required to prepare a

separate report to that of the Inspector. This separate report by the Board

would provide greater detail than the usual Direction. The purpose of the

Board’s Report on SIDs would be to provide greater understanding and

clarity in relation to their decision particularly where this departs from the

recommendation of the Planning Inspector.

8. Other Considerations 8.1 As previously indicated, the IPI has following a consultation period, received

submissions from our members which provide some additional practical

suggestions for improving other procedural aspects, particularly the interface

between ABP and Local Authorities. These can be set out as follows.

SDZs 8.2 The consideration of appeals in relation to SDZs must be addressed and the current

review of SDZs by the Department of the Environment is welcome. The IPI trusts

that that work will dovetail with this ABP review. Current legislation only permits

very limited changes to a SDZ on appeal to ABP. This could potentially result in

a scheme being approved that is less ideal than it should be given the pressure to

approve SDZs. Similar to “normal” planning appeals, ABP should be in a position

to request more significant amendments to a scheme on appeal than is presently

the case.

Inconsistency in Relation to Applications on the Same Site 8.3 Members find it a particular source of frustration that repeat applications on the

same site, when determined by ABP, sometimes reach different conclusions where

there have been no significant changes in policy related to the site. It is recognised

that appeals are determined “de novo”, however an inconsistent approach to similar

situations undermines confidence in the quality of decisions of ABP and quality

control should be a key aspect of planning assessments. It is the Institute’s view

that where refusal reasons have been determined in a Board order and a repeat

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application has addressed these refusal reasons1, there should be extreme reluctance

to introduce fresh issues for refusal. Where it is the professional judgment of the

inspector on the repeat application that there is an additional concern this can be

raised in his or her report but be excluded from the recommendation by referring to

the previous ABP decision as the starting point rather than a “de novo”

consideration of the proposed development. Notwithstanding this, however, the

Institute considers that the primary emphasis in decision-making should be on

whether the development is consistent with the proper planning and sustainable

development of an area, as set out in local, national and regional policy, and not

rigid adherence to previous planning precedent on the application site.2

Application of Planning Conditions 8.4 Members have suggested that, overall, ABP’s approach to the application of

planning conditions is beneficial in that, in the absence of a formal procedure for

compliance submissions, more generic conditions often result in fewer barriers to

implementation of permissions. It was also noted that ABP are also less likely to

apply large numbers of pro forma technical conditions, which can create problems

as such conditions are sometimes applied automatically to decisions in

circumstances where they are not relevant (e.g. conditions in relation to the taking-

in-charge of a development, where the development is to be maintained in private

ownership, etc.). Some caution is warranted in relation to the wording of some

standard technical conditions, however, as inexact wording can result in problems

with implementation and compliance.

8.5 However, some members have advised, in particular those in Local Authorities,

that planning conditions can be a source of frustration, in particular those relating

to development levies. Again, it is recognised that appeals are determined “de

novo” and ABP can attach appropriate conditions. In these circumstances

consideration could be given to the use of the Local Authorities conditions in

relation to a grant of planning permission as opposed to conditions that “details

regarding … shall be in accordance with the requirements of the Local Authority”.

In some cases, these details are conditioned by the Local Authority as a result of

protracted pre-planning and Further Information correspondence and to reduce the

final condition to a generic worded condition often results in Local Authority

resourcing issues and time delay issues for the applicant. In practical terms, in

relation to development levies, it would make more sense to restate the monetary

amount specified by the Planning Authority to avoid such issues.

Planning Fees 8.6 Clarification could be provided as to the fee payable for incidental aspects of a

proposed development (e.g. confirmation that fees are not payable for basement

parking, which exclusively serves residential units). Consideration might also be

given to reducing fees for certain kinds of development. For example, the appeal

1 E.g. PL06D.227870 and PL06D.236505 2 E.g. PL27.244578 with reference to PL27.240060

17

fee for retention of a commercial development (€4500) is excessive for some very

minor development (e.g. signage).

ABP Engagement with the Public 8.7 It is recommended that ABP undertake a public information initiative in relation to

its role and range of functions that it performs to ensure the public clearly

understand its role in the planning process. Our previous comments in relation to

Oral Hearings would be particularly relevant in this context.

Regularisation of Quarries 8.8 The discharging of a significant number of cases under this process to date is

acknowledged, however there remain a number of outstanding cases. The

processing of the remainder of these cases would facilitate the Local Authorities in

closing off this body of work.

Technical Workshops with Local Authorities 8.9 Following on from the positive experience of the ABP’s training seminar on

Appropriate Assessment for Local Authority developments this training/co-

ordination element could be expanded. In particular, given the extent to which the

ABP has to seek legal advice, a yearly or twice yearly seminar to disseminate as

much of the advice as possible to Local Authorities and other planning

professionals could be worthwhile. In particular, Local Authorities face similar

challenges, particularly in relation to the application of directives. The organisation

of such workshops could be co-ordinated by the IPI as part of its ongoing CPD

programme.

Requests for Further Information 8.10 In requesting and considering further information from an applicant and, in

particular, where such a request might require design changes, careful consideration

should be given to the rights of third parties who were not involved in the appeal

process to engage in environmental decision-making. It can be that third parties,

who did not make observations on a planning application or seek to appeal a

subsequent grant of permission, may be affected by changes to a proposal made in

response to a request for further information.3 Where such circumstances arise, the

Board should require that the application be re-advertised.

8.11 It is important to re-iterate that many of the issues raised in this section have arisen

from practical experiences of our members in interacting with ABP over many

years.

9. Conclusion 9.1 In conclusion the role of ABP has broadened from just an appeals body to an agency

for change and planning best practice without necessarily always having the

resources or structures to do so. In exercising these roles in the future it requires fit-

3 E.g. PL29S.240735

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for purpose, clear structures which, above all, do not compromise the integrity of

the appeals board. The appeals process, which is a core activity, is marked by a

clear division between the Inspectorate and ABP has been substantially beyond

reproach. This should be maintained.

9.2 The Irish Planning Institute appreciates the opportunity to give its views to the

Review Group and we wish you well with your deliberations. Please do not hesitate

to contact us if you wish to discuss any matters raised further.

Yours faithfully,

Brendan Allen MIPI

Vice President

Irish Planning Institute