Thursday, 11 November 2021
Saincheisteanna Tráthúla - Topical Issue Debate
Last Friday, a landmark judgment in the case of Cork County Council v. the Minister for Housing, Local Government and Heritage, the Attorney General and the Planning Regulator laid bare the rot that exists at the heart of the planning system. I preface my remarks by saying that this is not a criticism of the Office of the Planning Regulator as distinct from the manner in which the current officeholder has made recommendations to the Minister's office, which displays a fundamental lack of understanding of the relevant planning law. The action of the Minister to reverse the decision of Cork County Council on foot of the advice of the regulator was something that would offend a first-year law student.
Cork County Council had no alternative but to judicially review the decision of the Minister. The point to be decided was one that had been decided more times than most law students care to forget. This case should never have darkened the door of the courthouse. The judgment confirmed, as so many other judgments had confirmed previously, that local authorities must have regard to general ministerial guidelines. They are not required to follow them slavishly. It was implied by the regulator that these guidelines were mandatory. Knowing this was wrong was the equivalent of knowing that one plus one equals two. Mr. Justice Humphreys filleted the Office of the Planning Regulator and the Department. An eminent planning senior counsel has described this planning judgment as one of the most accurate and scathing he has seen. What is striking about the judgment is the frustration of the judge at the obvious fundamental lack of knowledge of the Planning Regulator of the basic principles of planning law.
Issues with the Department's planning policy department are not new. For example, I have put parliamentary questions to the Minister and a reply I received was intentionally, Jesuitically misleading. Subsequently, the Wexford county manager's report relied unlawfully on that reply to recommend an unlawful, inappropriate measure to the councillors in County Wexford. On the basis of this judgment, we can no longer trust the responses that Deputies receive from the planning section of the Department. We can no longer have confidence in the assistant secretary who is responsible for planning policy and who allowed the Minister to pursue an unlawful attempt to reverse the decision of the elected members of Cork County Council. We can no longer have confidence in the Planning Regulator. As Mr. Justice Humphreys pointed out in paragraph 70 of his judgment, the basic lack of legal knowledge displayed would have been sufficient grounds for the judicial review.
The Minister is now on notice that he has a significant problem in both the Office of the Planning Regulator and the planning policy section. It is clear that the head of the Office of the Planning Regulator has not got the legal planning knowledge or the skill set to maintain his position. He has had his homework corrected by the High Court and received no grade, NG. The defence offered by him is that this case was the equivalent of "the dog ate my homework". The regulator occupies a quasi legal position and his continuing in his current position undermines the Office of the Planning Regulator and the performance of its functions. It removes certainty from the planning system generally. I say, with regret, that the Planning Regulator is not fit for his position. The Minister must appoint somebody who has the skill set for the position. If he does not, I fear the contamination effect might reach his office. As a result of this landmark judgment the following question arises: who regulates the regulator? Quis custodiet ipsos custodes?I ask the Minister of State to make a statement.
For the record, I would not normally allow some the statements that have been made to be made, but I am conscious that the Deputy is extrapolating from the decision of an eminent judge. That decision is already in the public domain.
I should point out that this is still potentially before the courts, so I am restricted in what I can say about the specifics of the case. I will reply with fact.
In the first instance, my role of Minister of State with regard to the planning system is primarily to provide a policy and legislative framework under which planning authorities, the Office of the Planning Regulator, OPR, and An Bord Pleanála perform their statutory functions. The legislative framework chiefly comprises the Planning and Development Act 2000, as amended, and the planning and development regulations 2001, as amended. Members of the Houses of the Oireachtas introduce and debate legislation which the OPR then enforces. As we are elected by our peers and the citizens of this State, the primacy of Members of the Dáil is appropriate.
Recommendation 10 of the final report of the Mahon tribunal recommended the establishment of an independent planning regulator, which led to the establishment of the Office of the Planning Regulator on 3 April 2019. The Deputy will be aware of the outcome of the report of the Mahon tribunal and the corruption, which we have now tackled, that existed in our planning system. Other recommendations included the introduction of a register of lobbyists, limitations on political donations and stronger whistleblower legislation. While I will not comment on the particular aspects of the judgment on which it is open to the State to appeal, I will emphasise the importance of the role of the OPR as part of ensuring the effective implementation of the plan-making process. Ultimately, where the OPR considers that aspects of a plan do not conform with national and regional policies or proper planning and sustainable development, the regulator issues a notice to the Minister recommending that powers of ministerial direction be engaged. The decision on whether to issue a direction is ultimately a matter for the Minister and there are safeguards in the legislation relating to the accountability of the Minister to the Oireachtas. This is a critically important underpinning of the plan-led approach which flowed from the Mahon tribunal.
In accordance with the code of practice for the governance of State bodies, the Department has an oversight agreement with the OPR, the purpose of which is to ensure clear service ownership, accountability, roles and responsibilities of both the Department and the OPR with a view to ensuring that the OPR is discharging its statutory functions in an efficient and effective manner and commensurate with the resources allocated to it to enable it to discharge those functions.
The agreement identifies the distinctive roles of both organisations, their mutual commitments and expectations, and provides the basis for ongoing engagement between them. I am satisfied that there are good arrangements in place for accountability to the Oireachtas and governance of the Office of the Planning Regulator. We continue to keep the legislative provisions under review, particularly in the context of the planning review currently being led by the Attorney General, which is due to report in September next year. It will provide a fitness test for the whole planning area. Any legislation required on foot of that review will be enacted before the end of the year, which is a very ambitious target, given the complexities of the planning system, which processes 27,000 applications per annum of which only 10% are appealed.
I wish to make two further points. The Planning Regulator has a job to implement and be guardian over a plan-led system that this Oireachtas has approved with a shared vision from a national planning framework right down to our local plans. The current occupant of the Office of the Planning Regulator is a highly professional individual who discharges his functions with considerable thought and merit on a daily basis. He does not take any decision lightly when recommending a direction ultimately to the Minister who decides in respect of the Oireachtas.
The assistant secretary with responsibility for planning in our Department is a highly respected individual who has done great work and given great service to the State. I had the privilege of being in County Wexford recently and saw the leadership that Tom Enright is giving there as chief executive. There are many innovative projects which I have not seen in other local authorities. They seek to future-proof employment. Key infrastructure is being delivered in County Wexford, bringing many jobs to the county. The work by the executive and the councillors in underpinning those policy decisions, including taking hard decisions on revenue-raising mechanisms, is exemplary.
One of the headlines when the Mahon tribunal was completed and the creation of the Office of the Planning Regulator was announced was, "New regulator will restore confidence in planning system". I prefaced my opening remarks by saying that this is not a criticism of the Office of the Planning Regulator, as distinct from the manner in which the current officeholder is discharging his duties. There was a basic failure by the Planning Regulator and the Minister of State's office to properly consider the established law in the area. The law is not the issue here; it is the lack of understanding of those who are supposed to understand it.
A second-year law student faced with a straightforward question about the established law and precedent regarding section 28 ministerial guidelines and section 31 ministerial directives would revert in 20 minutes with the unequivocal answer. Two High Court cases clearly established the following - in case the Minister of State is thinking of appealing. Ministerial guidelines are not prescriptive or mandatory, based on the decision in Brophy v. An Bord Pleanála in 2015. Section 31 of the 2000 Act does not entitle the Minister to impose by direction his own views on the proper planning and development of the area over those who are elected members of a planning authority based on a decision in Tristor Limited v. the Minister for the Environment, Heritage and Local Government in 2010.
I ask the Minister of State to explain the rationale and motivation for proceeding with the section 31 directive when both he and the Planning Regulator were aware of the case law? If they were not, they most certainly should have been. The question I asked originally was who regulates the regulator. The answer is that it is the Minister of State. I think he should do his job for the sake of the county development plans being prepared and save the rest of us from judicial review proceedings to no end because of the basic lack of knowledge by the current Planning Regulator in advising the Minister of State incorrectly.
For the past five minutes, I have listened to a Deputy blacken the names of highly respected public officials who have given great service to the State. I robustly defend their actions. I know how hard they work and how well they are doing in their roles. In his annual report, the Planning Regulator's detailed explanation of planning decisions taken throughout the country is exemplary. Safeguards are built into the system through the primacy of the Oireachtas. We hold the Planning Regulator to account with the Minister deciding whether to pursue a direction or recommendation issued to him. In any case we must take all the factors into consideration.
The county development plan process is working well. In general, local authorities are passing all their county development plans and meeting their obligations on them. Under the national planning framework, there is significant capacity for housing delivery across the 31 local authorities. Nine local authorities need to increase their housing delivery by 100% while another 13 need to increase by 250%. There is significant capacity for us to build on the opportunity provided by the Covid-19 crisis. At one stage we had a system that provided enough zoned land to cater for an additional 10 million people but without correct infrastructure to underpin that development. Through the plan-led system the Oireachtas has put in place, the Office of the Planning Regulator is a guardian into ensure we never go back to that day again and that the right development takes place in the right place. I am proud of the development of the OPR and the role of my Department in ensuring that. Nothing backs up assertion like the fact of 27,000 planning applications approved every year.