26 Jun 2008

Emer, the letter was wriiten in the context of an planning appilcation which the Council had screwed up. The first part of the following post is a reprint of something I wrote middle of last year by way of background to the screw-up. If you take a moment to skim through it, you'll have a better idea of what David Keane's letter was about. I must say, when I came across the Keane letter last year, I had expected its publication to cause much more of a stir. Maybe now, after all that has happened in Clare, and (I hope) an increased general awareness of how dreadfully the locally authorities are handling planning matters throughout the country, the impact of what he - our foremost architect/planning lawyer - had to say will begin to resonate.

From my post of August 2006:

There are so many stories it’s hard to know where to begin. But we’ll give it a shot.

About two years ago a development team led by Len Dineen and Thomas Healy, two businessman of repute who operate in the Midwest, purchased a structure on the outskirts of Ennis. After two (what Len and Tom then believed) successful pre-planning consultations, it looked like their proposal to demolish an ordinary, 1970s era house and replace it with a mixed use development including crèche, health centre, supermarket and other community facilities would be approved as a matter of course.

But, naturally, things like this never go according to plan: a very last minute request for further information arrived on Len’s desk seeking greater detail on items which should have been obvious from the drawings. A bit of a nuisance, but so far so par-for-the-course. The requested information was submitted.

Then, at the very last minute before the Council was due to issue its decision one way or the other, it issued another request for information. Now, this is something Council’s are not supposed to do: they can only get one shot at a Request for Information after which they’re supposed to make their decision. (Now, planners, before you start emailing me, I know you’re allowed seek a ‘clarification’ after a ‘request’, but don’t even think about it. Also, according to press reports there were actually THREE requests issued in the course of the application, which would make matters worse.)

Things were made more complicated by the fact that the second Request for Information was sent to the wrong address where it was accepted by one of Len’s neighbours hours after the statutory deadline had expired. Technically, this meant that Len had received ‘planning approval by default’.

Len and Tom considered the situation before consulting David Keane, the foremost planning lawyer in the country. David confirmed for them what they already suspected: that is, that because the Council had failed to make a decision within the allowed time, they could assume they had their planning. (I managed to get a copy of David’s letter and have reprinted it in full below.)

A bad story, but it’s about to get badder.

In his representations on behalf of Len and Tom, planning expert Dave Keane was quite sharp in his criticism of Clare County Council’s handling of the application, inferring at one point in a report that council officials didn’t appear to ‘have any idea what a planning application is’ The document which contained the criticism would, under normal conditions, have made its way to the planning file.

However, when the relentless Cllr PJ Kelly requested to see the file, Keane’s report was not to be found. Not put off by council excuses (‘sensitive legal documents aren’t usually included on planning files, in case they jeopardise the applicant’s blah, blah, blah’), Kelly found the report and raised it at a Council meeting.  

Now this is really, really serious. First of all, every practising architect out there knows that planning authorities all over the country are abusing the regulations regarding requests for information. Second and third requests (euphemistically referred to as ‘clarifications’) are now routinely issued as a means of dragging planning applications on indefinitely.

Secondly, is does now seem that local authorities are (allegedly, etc.) messing around with public files to show themselves in a certain light.

The rest of us (applicants, architects, etc.) don’t have this luxury. Lately, one of our most talented young architects received a letter from a local authority to the effect that his wonderful proposal was considered ‘poorly designed’ by someone in the planning department. This letter remains on the public file – the architect is powerless to do anything about it.

And five years ago, I personally received a letter from the then Dúchas (allegedly, etc.) accusing me of in some way contributing to the demise of a listed building. The letter was one of the most poorly written documents I’d read, by which I don’t mean that it was shrill, hysterical, repetitive, inaccurate, false and libellous (which it was) but that it was almost not in English. I considered taking legal action but decided not to bother. The letter however, remains on a public file.

This is the text of David Keane's letter:

Dear XXXX

I acknowledge receipt of the documentation in respect of the planning application made by you on 22nd December 2004 ie over eighteen months ago. I note that the planning authority record the application received on 1st February 2005 and perhaps you could clarify this.

Sometime ago I would have been astounded by the attitude of the planning authority (PA) but this type of behaviour is becoming more and more common. Many planning authorities either deliberately ignore or are completely ignorant of the provisions of the Planning Acts as regards further information. Article 33(3) of the Planning and Development Regulations 2001 is very clear. A planning authority shall not require an applicant who has complied with a requirement under sub-article (1) to submit any further information or evidence save (a) as may be reasonabley necessary to clarify the matters dealt with in the applicant's response to a requirement to submit further information or evidence or to enable them to be considered or assessed.

In your case the PA has ignored this provision not once but twice. The history of your application records that the first request for further information (FI) was made on 21st March 2005 and was replied to on 7th July 2005. The second request is dated 5th August 2005 and was replied to on 18th November 2005. The third request is dated 15th December 2005 and was replied to on 9th February 2006. The first request contained 11 headings and it might be best to deal with them one by one using the numbering in the first request.

1.    Revised site layout including floor levels of proposed and existing structures. This was responded to in your letter of 7th July 2005. The exact same request appears in the purported FI request of 5th August 2005 (item 1). The information was reconfirmed in your reply of 18th November 2005 but, unbelievably, is re-repeated in the third purported FI request of 15ht December 2005 (item 1). You provided the information for the third time on 9th February 2006.

2.    Car parking details: This was replied to in your first letter. The request is repeated word for word in the second request (item 2). It was responded to in your letter of 18th November 2005 and for the third time in your letter of 9th February 2006.

3.    Scale of drawings: The scale of drawings is provided for in article 23 (1) of the regulations and if your original submission conformed to those requirements then this particular item is invalid.

4.    Traffic Impact Assessment and Road Safety Audit: This was responded to by McKenna Pearce, Consulting Engineers. This item is repeated in the second request (item 3) and again in a very prolix in the third request (item 2) despite your response in your letter of 18th November 2005.

5.    Hydrological Assessment: This was responded to by McKenna Pearce. The item is repeated in the second request (item 4)

6.    Revised Site Layout: This item covers details of the car parking arrangements and internal traffic movements. Dealt with by McKenna Pearce. Surpirsingly enough, it is not referred to again.

7.    Sight distances: These sight lines are dealt with in the McKP response. They are referred to again in the second request (item 5) and again in the third request (item 2 (b). The third request contains a short lecture on road design and demonstrates the knowledge and perception of the planning authority.

8.    Design brief: This is an extraordinary item. It is no business of the PA to enquire into the instructions given to the architect. And what on earth is the 'wider area'? It is the function of the PA to decide on matters submitted to them. In any event the matter was responded to. The same item requested a 3D photomontage. (Was this provided?) The item is repeated in the second request at item 6 and again in the third request at item 4.

9.    Drainage, water supply etc. This was responded to by McKenna Pearce. It is raised again in the second request (items 7 and 8) and again in the third request at item 3. The demand for full design details of the drainage and water supply systems is invalid. This is a matter for the Building Regulations.

10.    Landscaping: This was responded to in your letter of 7th July 2005.

11.    Public Lighting: This was responded to in your letter of 7th July 2005.

12.    Site boundaries, dividing walls etc: This does not seem to have been addressed in your reply of 7th July 2005. The item is repeated in the second request (item 10) and again in the third request (item 5). It is responded to in your letter of 9th February 2006.

In addition to the nonsense set out above there are a number of other strange demands. There is not much point in detailing them but a good example would be the request for "full details and drawings" of small retaining wall in the car park. The PA seems to have no idea of what a planning application is.

Overall I am of the view that you have obtained permission by default. This would have come into effect four weeks after the date of the first request for FI. There are no conditions attached to a default permission. The application as submitted is the approved scheme. The time for lodging a third party appeal is long past.

It is necessary to add a word of caution. The courts have never liked default permissions and the circumstances must be very clear. In my view this is the case here. The original intentions of the planning acts was that an applicant was entitled to a decision within two months. In this case eighteen months have passed and the finishing line is not even in sight.

Yours sincerely

David Keane

 

Thursday, 26 June 2008 18:24:19 (GMT Standard Time, UTC+00:00)
Thanks Garry I enjoyed that! I had the privilege of working with David Keane for some time prior to relocating to East Clare and would have loved to talk to him about Clare County Council's Planning Department. Also, having spent almost an hour on the phone with cllr. PJ Kelly discussing Planning issues in Clare I agree with your comments on his knowledge of all things planning. I have seen many illiterate, inaccurate letters (from An Taisce)on Planning Files and intend to copy these to An Taisce's head office with my own comments! Any ideas what's happening on the 'Senior Planner' appointment?

Emer.
Emer Butler
Thursday, 26 June 2008 19:02:30 (GMT Standard Time, UTC+00:00)
Emer, lucky for you to have had the chance to work with David Keane. I met him only briefly on a couple of occassions and he certainly impressed me.

And welcome to the world of PJ Kelly! Man, he's a piece of work.

I have a few ideas, heard a few rumours etc. about the senior planner position. I suspect you probably have yourself. What I've heard, I can't post. (If you're very clever and go back through a couple of posts, you might find an oblique reference. That's all I'm saying!) But as soon as I've anything concrete I'll spread the word.

Cheers Emer. And stay in touch
Garry
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