On foot of their survey of members regarding failings of the planning system, the RIAI sought submissions from members on suggestions on how the system can be improved. I made the following submission. I look forward to hearing your comments on it.

1.0       Development Plan

1.1

The basis of the planning system will be the Development Plan which will express a long term vision for the area within its jurisdiction describing, in as much detail as practicable (using 3D computer models and so on) the nature, scale, use, massing, appearance, etc. of permissible development. The document will also include all rules and regulations in relation to the development of new roads, paths, points of access in respect to new developments as well as all regulations in relation to connection to existing services, including detail on what measures will be required to be taken by the applicant in order to ensure that necessary service upgrades, etc., are fully understood in advance. The exact nature of the generality of the Development Plan will require detailed discussion but will be similar to aspects of the German ‘twin plan’ for urban areas as well as the prescriptive Zoning Ordnances used in some major cities of the United States.

1.2

Development which in all respects complies with the regulations of the Development Plan will be permitted ‘as of right’.

‘As of right’ developments may sometimes occur without any approval process whatsoever

For example, a single family, detached house located in an area where single family houses are permitted and complying with rules regarding dimensions, set backs, heights, access, etc. will, upon submission of a set of drawings certified by a registered architect (a ‘Notification’), be issued with a permit.

Or, take the example of a housing estate of two hundred houses, all to the same semi detached design and with little variation, located on the outskirts of Dublin. The houses have back and front gardens, side entrances and garages. A provision in the Development Plan allows the residents of the estate to be responsible for drawing up a Planning Scheme which will describe the types of alterations permitted to be made to houses located within the Scheme area. The Planning Scheme would comprise details of the size and nature of extensions to accommodation, attic and garage conversions, construction of boundary walls, use of materials, planting of trees in common areas, etc. Wherever a resident proposes to make changes to a dwelling (a kitchen extension, for example), drawings will be presented to the Resident’s Association to indicate how these changes comply with the Planning Scheme. Once accepted by the Residents’ Association, the resident will be required to have a registered architect lodge a ‘Notification’ with the planning authority.  

However,

Where the development plan indicates that a building of ten stories; of ten thousand square meters; located directly on the street line; having one hundred percent site coverage at ground level; a parapet at twenty meters above street level with two meter set back above; having commercial use at ground floor level in a ‘double height’ arrangement; having commercial use above the residential with a maximum of four tenants per floor, a proposal for such a development will be permitted as of right, but subject to Approval of Architectural Quality.   

1.3

Where ‘as of right’ development can occur only after Approval of Architectural Quality (for example, on public streets, or other visible areas, etc.), the adjudication will be carried out by the Design Review Board for the relevant area which will meet regularly and, having first been apprised of the details of the planning application, hold public hearings on the architectural quality of the proposals before them. A majority vote from Board members secures an Approval of Architectural Quality.

1.4

The regulations set out in the development plan will continue for the long term. Any changes to the regulations in the Development Plan will only be allowed after a Land Use Reform Procedure has been followed (to be developed in detail, but similar to the ULURP system operated in New York City). Rezonings by simple vote of Councillors will not be permitted.

2.00     Planning Applications

2.1

There will be two types of planning application:

Notification – where ‘as of right’ development is proposed and is subject to no other form of adjudication. Notifications are lodged with a planning authority by a registered architect who certifies that the work to be carried out is in compliance with the Development Plan and qualifies as ‘as of right’ development. The registered architect also certifies that the works to be carried out comply with the relevant building regulations. The role of the planning authority is simply to maintain a record of the proposed works.

Application for Approval – where in all other respects a development proposal qualifies ‘as of right’ but where there is a compelling public interest to ensure that, for example, it attains a high level of architectural quality, the proposal will be submitted before the Design Review Board for Approval of Architectural Quality in the manner described above.

Similarly, where an application for development involves works to an Historic Structure, approval will be sought from the Historic Buildings Board which meets regularly and publicly to decide on applications for Approval of Conservation and Restoration works. 

Similarly, where works to be carried out, for example, to an existing structure, and where strict adherence to the Building Regulations is not possible, an application for Approval of Building Regulation Compliance will be made to the planning authority.

3.0       Application Process

3.1

Planning consultations with the local authority will be allowed only where clarification on matters contained within the Development Plan is necessary. Any advice given will be considered material to future courses of action.

3.2

All planning applications to be validated (or otherwise) on the day they are lodged, documents to be sealed/perforated or otherwise marked ‘official’ and scanned on the premises of the local authority on the day of acceptance. The duty of the validation clerk to be limited to ensuring that information is correctly formatted and dated, etc. The validation clerk will not be responsible for making value judgements on the nature of the material submitted before accepting an application.

3.3

Notifications – material submitted as part of a Notification process will simply be maintained on file at the local authority office as a record of works carried out and for general availability to the public. No process of approval, public notification or commentary will be involved.

3.4

Applications for Approval – where Approval is necessary for ‘Architectural Quality’, ‘Work to an Historic Building’, members of the public will be permitted to air views during the public hearing or by written submissions to the board prior to the public hearing. An Application for Approval must be made one month before the next possible hearing by the relevant Board and the applicant is obliged to notify the public by placing an ad in a local newspaper. Applicants will be responsible for ensuring that adequate information is submitted to the relevant Board to ensure it can arrive at an informed decision.

3.5

Where an application has been made to the planning authority in regard to the compliance of a proposal with the building regulations, the planning authority will make a decision within two months citing reasons and relevant case history for their decision and suggesting ways in which the submission can be made more compliant with the regulations. Applicants may submit applications of this type as often as necessary.

3.6

Any comments by the planning authority in relation to connections to services will be appended to the Approval and will be taken on board by the applicant. The applicant may appeal these conditions to the Planning Board.

3.7

Where an application is for works which cannot be considered ‘as of right’ under the terms of the Development Plan or is proposed for an area for which there is no detailed Development Plan, an independent ULURP procedure (mentioned previously) will be conducted.

3.8

Where an application is for works which vary only slightly from the terms of the Development Plan, the variation to the Development Plan will be permitted, or otherwise, by an application to the Planning Board.
 
4.0       General Provisions

4.1

All planners employed by the Local Authority will have an undergraduate degree in architecture (B.Arch. or equivalent).

4.2

Any interactions, including meetings and telephone calls, between applicants and local authority officials during the planning application period to be minuted and included on the planning file.

Remember how Kilrush Town Council decided to pay 1-point-odd million euros for a burnt out hotel, not to mention a further god knows how many million euros refurbishing the derelict pile, in the hope of turning it into their new offices?  Without any idea where the money was going to come from? Without any value-for-money assessment? Without considering the far cheaper option available to them of taking a lease on an already completed turn-key development down the street? Well the good news is that the plan has been abandoned. Not officially abandoned – abandoned in the sense that people are now talking about it in the 'ah sure' way that makes it sound as if it was never really on the table when, in fact, it most certainly was.

Meanwhile, down in Carrick-on-Suir in that situation involving:

A) a completed retail park which is standing idle because the town planner has decided Heatons don’t qualify to become anchor tenants because their goods aren’t bulky enough  (thereby ensuring that tenants can't be found for the other units and depriving an economically challeged town of much needed jobs), and

B) a planning application for a competing retail park at the opposite end of town on a site which is not only a flood plain but which also spends much of its time under the actual water but which the town planner for some reason seems to favour?

Well, on item A) the good news is that a local councillor has sought a material contravention of the development plan to allow Heatons to move in (if they're still interested). However, the bad news is that, simultaneously, the town planner has sought clarification from An Bord Pleanala that the position he's taking on the Heaton's question is correct (I’m sure the Bord will find that, technically, he is correct. I don’t know if they’re allowed to comment on whether or not he is wise. Or whether or not he’s wasting tax payer’s money. (And, incidentally, what effect will the Bord's ruling have on other Heatons outlets in other parts of the country?))

Re Item B) the goods news is that its very unlikely, given these flood-plain-sensitive times, that the application will be approved.

And the other good news is that a couple of thousand local people are expected to demonstrate outside the Town Hall on Saturday October 11 regarding Item A. Ask not what your country can do for you; ask what can you do for your country. Answer: riot.
 

From Aiden O'Donovan

'... as most invalidations in planning applications arise from the display of site notices and interpretations of wordings on press notices why don’t the DOE solve this problem by having the council itself decide on the appropriate wording and press notice display and add the advertising cost at a fixed fee to the applicant? And also, as planning officers and area engineers are already inspecting the development sites, why don't theythemselves erect the notice? This would completely avoid the often vexatious removal of such notices by third parties .I was stunned to see on the  BBC’s 'Meet The Planners' program that in England the planning officer himself erected the public notice directly on a lamp post in front of the site !!'

Aiden, your suggestion might go some way to preventing a typical situation which occured lately and which led to an applicant writing a letter of frustration to a their local planning authority and which went as follows:

Good Morning ____ (senior local authority planning official)

I have been trying to reach you for the past few days in relation to an invalidation of application number ____.  I had reason to question the invalidation of this application with Ms ____ from your offices as there seemed to be a conflict between her reason for invalidation and our evidence of compliance.

We lodged the application on July 17th and one month later on August 13th Ms ____ visited the site and  "it was noted that the site notice was not signed or dated and not easily visible or legible by those using the public road", therefore the application was invalidated.  When I discussed this with my colleague who installed the notices I was assured that this was not the case and so I contacted your offices and subsequently emailed Ms ____ .

After spending several days trying to reach her, Ms_____ spoke to me on Tuesday but refused to discuss the issue and was very high handed in her approach. I asked about the situation when she visited the site as we are 100% positive that the site notice was signed and dated when they were installed and were located on the roadside as required as we have photographs to support that contention.  However Ms ____ said that she couldn't open the photographs and refused to discuss the problem, she would only say that she had to get out of her car in the rain to see the notice... [emphasis added]

... we need to know the reason (for the invalidation) in order to ensure that the notices are correct on re-submission, unfortunately it would appear that Ms ____ does not like to have her decisions questioned so I would appreciate it if you could assist me in establishing why the site notices which we thought to be compliant were invalidated.

I would also like to bring to your attention the problem that I encountered in trying to find your name and contact details.  I was told that the Council were not at liberty to divulge this information which strikes me as being highly unlikely.  I have been dealing with almost every Council in Ireland over the past decade and have never encountered this before.  When I questioned it I was told that it was because you received nasty emails from the general public in the past. However when I called your offices again this morning I got your email address without a problem. Unfortunately this suggests to me that your staff member was not keen for me to contact you.  I trust that this is not the case and I hope that you will be able to assist me in this matter.

Yours sincerely

Last week I wondered what Council planners were doing these days to keep busy now that now one is making planning applications any more. But no sooner had I hit the ‘post’ button than John Gormley serendipitously answered my question. Planners are about to get busy interpreting a new set of guidelines regarding flooding and, in particular, giving folks living in terraced houses in the suburbs of Dublin and Cork a hard time paving their gardens to provide extra parking. From the draft ‘The Planning System and Flood Risk Management’ published by the Minister last week, we have this...

… written by someone who’s never had to deal with the planning system in their life. For example, can you imagine how many Requests for Information will accrue from the undefined term ‘significant hard surfacing’? (Significant in global terms? Or a significant part of what is in reality a tiny little garden?) Or the suggestion that conditions be added to approvals which ‘… minimise and limit the extent of hard surfacing…’? On this last one, I can guarantee you that every time an application is lodged which includes any amount of paving – any amount at all – a request will go out telling the applicant to reduce it. This will be a standard FI this time next year.

Wouldn’t it be so much easier to say: anyone in a two up two down in the suburbs thinking of putting in paving around their house, use one of these three pre-approved details and you’ll be fine.  Write a note to us and confirm that you're complying with the rules. If we catch you out, you're in trouble.

‘The Planning System and Flood Risk Management’ is a 98 page document which could easily be edited down to four without loosing any of its meaning. The Glossary of Terms which includes...   

… should be tossed (as should the definition of 'Urban Creep' which suggests ‘the spread of surface paving into the countryside’ and not what you and I think it should mean).

I’ll leave you with this nugget of pseudo scientific jargon the drafters of the document delight in bringing to our attention:

Can anyone shed any light on the suggestion that, according to Section 158 of the Planning Act and section 234 of the Local Government Act, it appears that planning officials are personally liable if found to consent to, connive in or approve planning wrong doing? 

Is it true, as some allege, that the Conservation Officer's opinion over rides the City/County Manager's?

I’m given to understand that not so long ago the planning-powers-that-be in County Clare decided that, where planning applications were to be refused, at least four reasons had to be cited. This, apparently, in an effort to ensure that any appeal to An Bord subsequent to the refusal would have less chance of succeeding.

Anyway. In one of the first ‘four reason’ refusals to have emerged, one of the reasons cited for turning down an application to build a family house was that the proposal didn’t comply with County Council’s policy of ‘encouraging’ people to move from rural to urban areas. Some legal folks have advised that ‘encouragement’ can’t be cited as a reason for refusal. In other words you can’t say just because you’re encouraging something to happen, you can refuse an application which doesn’t fit with your long term goal. It'll be interesting to see where this argument goes.

In a simultaneous development on the same matter, FF Councillor PJ Kelly is questioning the reasoning behind other aspects of the refusal. Apparently, in arriving at their decision, Council planners took account, as the development guidelines suggest, of the ‘applicant’s personal circumstances’ (Are you gay or straight? Do you take two sugars in your tea? Give me a break – one massive discrimination law suit in the making, I’m hoping). Councillor Kelly specifically wants to know how this ‘having to take personal circumstances into account’ squares up with a court decision - Flanagan v Galway County Council - where the court decided that ‘personal circumstances’ could not be taken into account when reaching a planning decision.

What happened was this: an application was made to Galway County Council to build a single family house which the Council officials were of a mind to refuse. The Councillors were aware that the applicant’s personal circumstances weren’t good so they decided to ignore the planner’s advice and invoke their powers under Section 4 of the planning act (the precursor to Section 140 of the 2000 Act) to allow the applicant to build his house. Discovering (in a funny incident in a bar) the reasons for the Councillor’s actions, Council officials were upset that ‘personal circumstances’ should be taken into account on planning decisions. They took their case to court and won. Now, ironically, planners, like  the lads in Clare, are trying to do exactly of what they once believed they weren’t supposed to be doing.

I understand PJ will be raising the issue at the Council meeting this evening. If I hear more, I’ll let you know.

Following yesterday's rant about the state of architectural conservation in this country I came upon this by Olvia Kelly in today's Irish Times:

THE LEGAL representative for 21 appellants opposing Sean Dunne’s plans for Ballsbridge has accused a conservation expert engaged by Mr Dunne of lacking impartiality and “holding a brief for the developer”.

Architect David Slattery wrote the architectural conservation report submitted as part of the environmental impact statement (EIS) for Mr Dunne’s planning application.

Counsel for 21 local residents opposing the development, Colm Mac Eochaidh told the An Bord Pleanála hearing on the scheme that under the rules of the EIS process the conservation report must consider negative impacts of a development as well as positive and neutral impacts. However Mr Slattery had ignored any potential negative impacts of the scheme, he said.

Mr Slattery in his report had emphasised the negative impact on the area’s architectural heritage of the 1960s and 1970s buildings on and near the site, and had used this to justify Mr Dunne’s development, Mr Mac Eochaidh said. He had not considered the negative impact of Mr Dunne’s development, but had written a “partial, limited, client-serving” report, he said.

“You were holding a brief for the developer,” Mr Mac Eochaidh said. “That is almost offensive,” Mr Slattery replied.

Mr Mac Eochaidh asked if Mr Slattery felt he had been completely independent in writing his report. “In any sense were you seeking to promote the merit of Mr Dunne’s proposal?” he asked.

Mr Slattery said he had been completely impartial in writing his report.

Mr Mac Eochaidh suggested that Mr Slattery’s services had been engaged too late in the process to have any influence over the development.

“When an expert is brought in at the end of the process impartiality is a problem. If you said ‘this is a terrible proposition for the Pepper Canister Church [on Mount Street]’ they couldn’t lop off a couple of storeys two weeks before the planning application was made. You were consulted too late.” Mr Slattery said it might have been more valuable if he had been consulted at an earlier stage. However, he said that did not affect the integrity of his report.

“What is most important is that my impartiality has not in any way been compromised.”

You have to feel bad for David - having found myself on more than one ocassion in the situation where the developer starts discussing my views of his proposal while simultaneously waving the cheque for the money he owes me in front of my nose I know how awkward these things can be.

Assessments of the impact of development on buildings of architectural or historic importance should be carried out independently. Having the developer pay for the assessment is ludicrous. The Minister, his officials, the local authorities, the architectural profession, the building industry and Colm Mac Eochaidh know this already. So change the system and stop wasting our time and money on these ridiculous hearings where a charade of due process is put on display but not due process itself.

Perusing (via the internet) planning applications received by a random selection of local authorities in the first half of the year, I was struck by how few applications involved ‘Protected Structures’ (listed buildings) and how, of this number, fewer still were brought to any kind of completion. So what are the country’s Local Authority Conservation Officers doing with their new found time?

Well, I know that, of those Conservation Officers not on extended leave, part of their time is spent dealing with planning applications for structures which aren’t ‘listed’ at all but which they decide to take an interest in, anyway.

Some, however, (given their presumably reduced work load these days) surprisingly can’t take time out of their schedules to make pre-planning consultations, return telephone calls or answer emails. County Kildare has been mentioned in this regard on more than one occasion.

What’s going on? Well, for one thing, I understand that some Conservation Officers have been feeling the pressure to ‘to appear busy’ in order to have their contracts renewed (as far as I know, all Local Authority Conservation Officers are on temporary contracts) – which may in some way explain why they’re sometimes tricky to track down. But, does anyone know how the contract renewal process works? Is the decision taken at local authority level, or does the Department of the Environment have a role in it? (emails welcome)

Meanwhile…

… life is such a different game if you’re a player.

I hear that Bernard McNamara’s development company, Radora, is taking Dublin City Council to court because the Council has decided to ‘list’ Llandaff Terrace, a row of houses right next door to the massive new development Bernard has just completed in Elm Park. The terrace, which looks sort of okay-ish (it wouldn’t be listed in any other country), is on a site owned by one of McNamara’s companies and listing the structures would have a huge impact on future development potential.

Well, apparently, a couple of years ago (when Dublin City Council and Bernard McNamara were still good friends, i.e. before the O’Devaney Gardens situation) the Council gave a commitment to McNamara that only two of the houses would be listed. Now it appears the Council has changed its mind – it wants all five – and McNamara says they’re breaking an agreement.  

But, hang on a sec: nothing – nothing – in the planning legislation says you can go around doing deals on Protected Structures. Either a building deserves to be put on the Record of Protected Structures because of its architectural or historic importance or it doesn’t. The Listing of buildings is a matter of public interest, not a negotiating tool for big builders.

The problem is that we don’t have a proper system in place for assessing whether or not buildings should be listed – no public hearings, no reports, no points-scoring systems, no independent adjudications. Unless you’ve seen it happen, you wouldn’t believe how haphazardly a building can find itself on the RPS. Its little wonder, then, that a situation like the one Llandaff Terrace can come to pass.

Anyway, thanks to the McNamara/Dublin City Council falling out we now know that deal making on the listing of buildings is going on.

The whole issue of building conservation in this country is a scandalous, scandalous, scandalous, scandalous mess. Nothing, absolutely nothing about it is clean.     

With the, you know, utmost respect and sensitivity to anyone who might be directly affected, please don’t be offended when I report to you that a conference a couple of weeks back on new treatments for various types of mental illness was addressed by a Prof. Nutt. (If he were from Eritrea, that would be nutt.er, right?.)

All this by way of introducing you to someone who could possibly benefit from a visit to Prof Nutt’s couch, and man after my own heart, Gareth Kennedy. And his inflatable bandstand.

"The Inflatable Bandstand is a 4.88 metre tall structure inspired by the development of the Irish economy over the last 10 years. From mid August it will tour towns and villages of Leitrim and Roscommon. A marker in time, an epic musical score composed by Ian Wilson will be performed live from the bandstand by Saxophonist Cathal Roche.

A white van with the crew inside (musician, artist & assistant) will arrive at selected sites across Leitrim and Roscommon. The bandstand will be laid out and will inflate in minutes. Hence the musician will take his place within the bandstand and perform a 15 minute musical score inspired by the Irish economy. Afterwards the Inflatable Bandstand will fall and slowly but epically deflate."

Each live performance lasts 20 minutes and audience members are strongly advised to arrive on time so as not to miss any action. I meant to give Gareth a plug for his most recent performance. Luckily for him I forgot all about it or else I would have given the people of Killargue a bum steer because, as it turns out, the previously advertised 2 o’clock performance had to be changed to 4 o'clock because of a wedding in the local church. Here’s a sampler of the gang in action.