Assembly divides over planning changes
Last minute amendments to Alex Attwood’s Planning Bill, from the DUP and Sinn Féin, led to intense opposition from the other Assembly parties just before the summer recess. Peter Cheney explains the proposals and the criticism, in the words of the members of the House.
The future of the Planning Bill will be in the balance as the Assembly returns in September after a last minute intervention by the DUP and Sinn Féin significantly changed its content. New Environment Minister Mark H Durkan must now consider whether the Bill should continue or be shelved, as the Alliance and Green parties suggest.
Despite restricting the right of members of the public to challenge planning applications (by judicial review), the amendments did not undergo any public consultation or scrutiny in an Assembly committee.
The DUP and Sinn Féin amendments do fulfil a commitment in the Downing Street Economic Pact to “establish a new process for economically significant planning applications, and make new arrangements in relation to applications for Judicial Review of planning decisions.”
However, the level of detail in the amendments strongly suggests that they were drawn up well before the pact. The Planning Bill had been introduced on
14 January and the Economic Pact was signed on 14 June. The amendments were only published on 20 June, four days before the Assembly debate.
Up to that point, the main debate around the Bill had been dominated by a campaign by NGOs to amend it and strengthen protection for the environment. All amendments designed to increase environmental protection fell and the Bill, as it stands, will make it easier for development to take place.
Planning zones
The main DUP-Sinn Féin amendment (number 20) would allow the First and deputy First Ministers to create ‘economically significant planning zones’ (ESPZs).
Inside a zone, planning permission would be granted for any specified type of development. The nature of the development would be decided at the time and would presumably be influenced by investors’ intentions. ESPZs would be zoned for 10-year periods.
If the Environment Minister objected to a zone, OFMDFM could refer the decision to the Assembly, where it is likely to be voted through by the two parties. The DoE would be obliged to assist OFMDFM in the running of the zone, regardless of the views of its planners.
Proposing the amendment, Sinn Féin MLA Cathal Boylan said: “We need to look at creating opportunities and jobs in our constituencies throughout the North to try to keep our young people here.”
Alliance’s Anna Lo pointed out that the Environment Committee, which she chairs, was not consulted about the amendment. In her view, Sinn Féin and the DUP were “riding roughshod over the Assembly and, indeed, the environment sector, which has not been consulted on this at all and is deeply unhappy with it.” Lo labelled the amendment as a “power grab” which set an “incredibly dangerous precedent” in government.
Defending the amendment for the DUP, Simon Hamilton predicted that it would have a “significant beneficial impact” on the economy and said that opponents were “scaremongering”. The power, he claimed, should go to OFMDFM because economic policy was a “cross-cutting issue”.
His party colleague Jim Wells, a qualified planner, asked Hamilton for more detail on the size of the proposed zones and an assurance that they would not be used to impose hydraulic fracturing (fracking) in County Fermanagh.
Hamilton was unsure about the sizes but said that he would be “extremely surprised” if a whole council area was zoned. Fracking, he said, would have to go through a range of other “fairly significant and high hurdles”.
SDLP MLA Dolores Kelly warned that the Assembly should not pass a “DUP-inspired measure such as this” until confidentiality on political donations was lifted i.e. to ensure full transparency on links between the party and developers.
“If the two main parties can create these zones, they can do anything they like with them,” UUP spokesman Danny Kinahan said. “They can put them nicely in place before the next election to make sure that they get more votes.”
‘One-sided’ debate
Speaking personally, Sinn Féin MLA Phil Flanagan said that he shared “many people’s concerns about some of the potential outworkings of this amendment” and added that it “could have been handled better.”
Jim Allister questioned why OFMDFM should take on this role when it had no planning staff of its own. He also commented that the Environment Minister would be left with little influence if most of his powers were transferred to OFMDFM or the new councils.
In a sharp response to the amendment, Alex Attwood noted out that very few DUP and Sinn Féin members had spoken in its favour.
“This has been the most one-sided debate about significant law that I can remember in my lifetime in this Assembly, and, arguably, in my lifetime in politics,” Attwood stated. He added that some DUP members had privately expressed “anxiety” about the economic zones and the associated limits on judicial reviews.
Attwood was particularly concerned that the amendment did not include protections for “the most precious heritage land that we have in the North of Ireland” e.g. areas of outstanding natural beauty or areas of special scientific interest.
The main lesson of the amendment, according to Attwood was: “You do not give responsibility to those who do not have the operational capacity to take it, and you do not give responsibility to those who have not been too good with their own responsibilities.”
Winding up the debate, Peter Weir said that the amendment would provide “an additional economic tool for Northern Ireland” and cited the emigration of young people as one reason to vote in favour.
Amendment 20 was passed by 60 votes to 32, with the DUP and Sinn Féin in favour and all other parties opposed.
Judicial reviews
The next day, the debate moved on to amendment 26 also put forward by the two main parties. The amendment would set a time limit of six weeks for challenging a planning decision by judicial review. Applicants would only be able to take a judicial review forward if there was a conflict with human rights or European law.
Anna Lo again protested that amendment 26 had not come before her committee and criticised it as an “attack on democracy” that would not stand up to legal challenge.
Peter Weir said that the proposal sought to prevent delay in the planning system which was, in his view, leading to lost investment and fewer job opportunities.
Jim Allister said that the DUP and Sinn Féin benches were empty because there was “no appreciation of or enthusiasm” for the parties’ proposals among their MLAs.
In his response, Attwood said that judicial reviews had “served us well” by allowing citizens to stand up against the state. The amendment was a “huge hammer to crack a nut” – just 19 out of 33,500 planning decisions in the last three years had gone to judicial review.
Out of these 19 reviews, 12 were taken by members of the public, four by developers and three by other interests.
“The DUP does not care what the arguments are around this amendment, because it has the will and the power and it will force it over the line,” Attwood warned as he concluded. He added that the few DUP members in the chamber were sitting “in embarrassed silence … that is a really strange way to conduct debate and democracy.”
Amendment 26 was passed by 54 votes to 33.
Third party appeals
Separately, amendment 24 (from Green MLA Steven Agnew) would have allowed the DoE to introduce third party appeals i.e. to give residents as well as developers a right to contest planning decisions.
That morning, Anno Lo had met residents in Newtownards who felt “powerless” to object to a warehouse being built beside
their local park and duck pond.
She stated: “There remains a great sense of anger and frustration that the planning system is always in favour of the developer.”
For the DUP, Peter Weir said that third party appeals could potentially delay applications at the end of the planning process and preferred pre-application discussions.
All other parties supported third party appeals. Lo’s party colleague, Stewart Dickson, pointed out that the DoE would be able to set time limits, to prevent delays in third party appeals.
Agnew strongly criticised the DUP’s decision to block the amendment by using a petition of concern. The Assembly voted for Agnew’s amendment by 57 votes to 30 but the vote was overruled by the petition.
SDLP members claimed several times that the changes were implementing UK Government policy and hence had been agreed in the Economic Pact.
Lighter planning permission is one of the common grounds, in policy terms, between the DUP and the Conservative Party.
The Assembly’s first plenary of the autumn is on 9 September. The Bill’s next stages are further consideration, where more amendments can be made, and a final stage where they cannot. A Bill can be referred to the Supreme Court to test its legislative competence.
Call to report corruption allegations
One of the more serious allegations made during the Planning Bill debates was that there is “already suspicion of corruption” among planning officers. Steven Agnew made the claim on the evening of 24 June. No planning officer has been convicted in court of corrupt practices since the department was formed in 1972.
However, new Environment Minister Mark H Durkan has appealed for anyone who has concerns about corruption in the planning system to bring them forward.
“I am committed to the highest possible standards of openness, honesty and accountability in the delivery of the planning system to the public,” Durkan stated, adding that he was “conscious that the planning system is open to potential conflicts of interest, collusion and impropriety”.
No action will be taken against an official who makes an allegation in good faith, even if it is not subsequently confirmed by an investigation. Staff should bring allegations to line managers in the first instance but, if they are uncomfortable doing so, can also raise cases with senior managers up to the Permanent Secretary.
Members of the public are encouraged to use the complaints procedure or alternatively contact senior managers. Complaints can also be raised with the Civil Service Commissioners, the Ombudsman or the Northern Ireland Audit Office.
The whistle-blowing policy is available at www.doeni.gov.uk/customer_service
