Oireachtas Joint and Select Committees
Thursday, 3 February 2022
Committee on Public Petitions
Consideration of Public Petitions on Unauthorised Developments: Discussion (Resumed)
Mr. Barry Kehoe:
By way of introduction, my name is Barry Kehoe and I am director of services for transportation, planning and economic development at Westmeath County Council. I am accompanied by Mr. Cathaldus Hartin, senior planner with responsibility for delivering the daily planning functions of the local authority. I welcome the opportunity to address the Joint Committee on Public Petitions and to provide assistance on matters related to the aforementioned petitions. In this regard, it should be noted that the council has engaged extensively with respect to all developments to which the petitions relate. Such engagement constitutes prolonged enforcement and associated legal actions and in this regard a brief summary of the history associated with the sites is set out in appendix 1. This is included for the record but does not form part of the council's statement to the committee today.
Westmeath County Council has been engaged in planning enforcement activities in this area for many years and it is acknowledged that there are several developments on and adjacent to the lakes and the River Shannon that do not have the benefit of planning permission. In some cases, the development in question predates the Planning Act of 1963 and in other cases, development took place on an incremental basis over the years without recourse to the planning authority. Other development may have been undertaken in blatant disregard of planning laws and it should be noted that the council remains actively engaged in enforcement proceedings in suspected cases of unauthorised development, save for circumstances in which the Statute of Limitations applies.
The council monitored the hearing of the committee held on 9 December 2021 and welcomes this opportunity to give the council's perspective on the general planning issues raised. By way of opening, it is considered that an Oireachtas committee is not an appropriate forum to ventilate legal arguments on particular cases, which have already been subject to court hearings and may be subject to ongoing legal action now or in the future. Furthermore, this is a public meeting, none of the affected parties is present or represented and the council does not benefit from the protection of privilege that is in place for Members of the Oireachtas. It has been noted that Tidebrook Limited, to which one petitioner would appear to be associated, is listed in the Legal Diary as having an ongoing High Court action against Portaneena Marina Limited, which is the subject of the petition. Rather than discussing the individual cases, I refer members to the factual position from a council perspective, which is set out in the appendix to this statement.
In terms of general planning enforcement issues, having regard to the general issues raised at the previous meeting of the committee, the council comments as follows. While the local authority is charged with the implementation of the Planning Acts, including planning enforcement, it is important to note that the council is not all-powerful in this respect. The successful implementation of the planning system requires the co-operation of a large number of stakeholders, including the council but also landowners, developers, business people, the courts, Departments, State and semi-State agencies and local communities.
It is the case that the council has, on many occasions, prosecuted individuals and companies to the full extent permitted under the law and has nonetheless failed to achieve planning compliance. While the legislation provides for the council to take direct action, this is not always practical or reasonable. The process associated with securing these orders can be lengthy and costly and can carry significant risk for the council. In this context, the council must, in all matters, be mindful of consequences associated with interfering with citizens' rights, property rights, proportionality and legal and financial risk.
We recognise the concerns expressed by the petitioners in respect of the current legislative provisions in this area. Planning legislation has evolved significantly since the introduction of the Planning and Development Act 2000, undergoing extensive and incremental amendment. Significant challenges have been presented in terms of alignment between national and European legislative frameworks, as evidenced in the increasing rate of challenge to planning decisions, many of which are based on environmental matters. As such, the frameworks within which the council operates are complex and subject to legitimate challenge. In this regard, the council welcomes a recent initiative by the Department to carry out a full review of the Planning Act.
A lacuna exists in our planning legislation in that it is not possible to regularise development in instances where an environmental impact assessment report, EIAR, or Natura impact statement, NIS, is required as part of an application for retention permission. Previously, a mechanism existed under the substitute consent process, as set out under Part XA of the Planning Acts, which allowed parties to apply to An Bord Pleanála for permission to regularise permission for certain developments considered to be non-compliant with provisions of EU law. However, following the Supreme Court decision of 2020 in the matter, certain provisions of this substitute consent legislation were struck down regarding the requirement to demonstrate "exceptional circumstances" for regularisation. The decision also highlighted the requirement that members of the public should be able to participate in the process from the initial stage. Consequently, the conditions under which substitute consent can be availed of are extremely limited and apply in exceptional circumstances only, as must be determined by An Bord Pleanála.
It should be noted that the removal of development in such circumstances can have further unintended and unwanted negative environmental impacts. It is the case that a conviction for contravening the Panning Acts constitutes a criminal offence and, as such, there is a significant burden of proof attaching to the prosecuting authority.
This burden makes planning enforcement a much slower and more complex process than is realised by some observers and leads to delays that are very frustrating for impacted third parties. It is also the case that the defendants in such cases often mount vigorous defences due to the seriousness of the charge. In addition, some courts can be reluctant to convict, having taken all of the circumstances into account. As with all matters, the council must make decisions on the action that is appropriate in any case based on a careful consideration of the issue, its local and wider impact, bearing in mind the human and financial resources available to it as well as the risk in terms of legal and other costs.
Westmeath County Council is actively engaged with and committed to the enforcement of the Planning Acts, as determined by the Oireachtas. It is actively engaging in the legislative review that is under way under the Office of the Attorney General and the Department of Housing, Local Government and Heritage.