The Bar of Northern Ireland Planning Bar Association Response to

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					              The Bar of Northern Ireland

              Planning Bar Association

                     Response to
The Review of Public Administration in Northern Ireland
           Further Consultation Document

                 29th September 2005

   1. The Planning Bar Association was formed in 2004. Its objects include the
      role to organise and represent the views of Barristers in Northern Ireland
      who are members of the Planning Bar Association and more generally in
      any matter of interest to them in respect of planning issues and to promote
      and advance the interests of the Bar of Northern Ireland as whole. The
      Association comprises all of the main planning practitioners at the
      Northern Ireland Bar. The Association wishes to comment on a number of
      aspects of Response to The Review of Public Administration in Northern
      Ireland Further Consultation Document

The Consultation Document:

   2. The Consultation Document published in March 2005 invites responses on
      or before 30th September 2005. The response of the Planning Bar
      Association is confined to those issues that have the potential to impact
      directly upon planning administration.

   3. As a general comment, the Consultation Document does not make for
      easy reading for anyone seeking to understand the nature of the
      proposals that might affect planning administration in Northern Ireland.
      The references to the system are not found in any single section, but
      instead are scattered throughout the Consultation Document. This makes
      the document difficult enough to interpret for those with experience of
      parsing such information. For the public it represents a formidable

References to planning in the Consultation document:

   4. It is noted that references to the planning system and the role of the
      Planning Appeals Commission are found at paragraph 4.5 (page 30);
   paragraph 7.5 (page 96); Appendix 4 (page 151-153); Appendix 7 (page
   196) and Appendix 8 (page 201).

5. Paragraph 4.5 (page 30) states that:-

   For almost all services, some aspects of the service would remain as
   central functions. In particular, Regional Planning would remain with
   central government, while Area Planning and Development Control could
   transfer to local government. For economic development, the attraction
   for Foreign Direct Investment and support of companies operating in
   international markets would remain a regional responsibility while
   councils would take on a greater responsibility for local economic

6. Appendix 4 expands upon the matter thus:-
   • Area Plans (Subject to - cross departmental/agency and public
   consultation; departmental scrutiny and approval; independent planning
   appeals body)
   • Local plans including Town Centre Plans and Subject Plans
   • Development control excluding major applications and applications
   relating to landfill, minerals, larger Waste Water Treatment Works and
   major infrastructure
   • Enforcement
   • Consultation on all strategic policies including Planning Policy

7. Paragraph 7.5 states:-
   In the consultation responses, there were no comments either in support
   of or against the existence of the present Tribunals. However, as a
   separate exercise they are being considered in the light of the programme
   of reform in England and Wales that was announced in the July 2004
   White Paper ‘Transforming Public Services: Complaints, Redress and
   Tribunals’1. While these reforms, which include the creation of a unified
   Tribunal Service, do not extend to Northern Ireland, their implications are
   being considered in the local context, and any proposals for changes to
   their operation will be subject to a further separate consultation.
   Therefore, with one exception, this document makes no proposals in
   relation to their status, organisation or operation. The exception is the
      Planning Appeals Commission, which, as a consequence of the proposals
      on local government, could become an agency within DOE. This body is
      for convenience also included in Appendix 7.

   8. Appendix 7 provides:-
      The PAC fulfils a variety of functions under planning and other legislation
      and has two main roles:-
      (1) decision- making on planning appeals relating to planning applications,
      enforcement notices, advertisement and listed buildings consents; plus
      (2) holding Public Inquiries/Hearings and reporting to DOE on major
      Article 31
      planning applications and objections to development plans.
      It would also deal occasionally with inquiries on Redevelopment Schemes
      and major Roads matters for DSD and DRD respectively.

      Options for the Future
      The PAC is an independent appellate body established under statute and
      it could continue to have this status. Alternatively, with the proposed
      transfer of responsibility for Area Plans and Development Control to local
      government, the appeal function could be to the DOE Minister with the
      existing body becoming an agency within the Department.

      A policy in which the appeal would be to the DOE Minister would be in line
      with practice in Great Britain.

Experience of separating planning functions generally:

   9. The Bar has recent experience of planning administration being separated
      between Government Departments recently in the Ards & Down Area Plan
      and the subsequent Public Inquiry. It has been an unhappy experience for
      all involved.

   10. For example the issue of housing is separated between the DRD and the
      DoE. The DRD is responsible for the publication of Housing Growth
      Indicators that are expressed as guidelines in the Regional Development
      Strategy (the RDS) published in 2001. It is left to the DoE to implement
      those Housing Growth Indicators at the Area Plan Inquiries. If the DoE
      does not implement the guidelines to the satisfaction of the DRD then
      there is the prospect that the DRD will not issue a Certificate of Conformity
      for the Area Plan, as it is required to do under the Strategic Planning

   11. The process that has been introduced leads to the difficult task of the DoE
      seeking to defend the draft Area Plan whilst required to bring the DRD to
      advise on the issue at the Inquiry. It is a recipe for confusion and dissent
      in one of the single most important aspects of planning administration in
      Northern Ireland.

   12. The prospect of planning being further sub-divided within a relatively small
      jurisdiction is viewed with considerable alarm.

The future of independent appeals:

   13. Within paragraph 4.5 and Appendix 4 however, the Bar welcomes and
      strongly supports the unequivocal words that Area Plans will be subject to
      an “independent planning appeals body”. The right of an independent
      appeal has been long established in Northern Ireland. The Bar can find no
      record of public criticism of the system.

   14. It is not at all clear however, why those other important functions of
      planning enumerated in the remaining bullet points, namely local plans,
      development control, enforcement and consultation on all strategic
      policies including Planning Policy Statements are also not the subject of
      an independent planning appeals body.

   15. The Bar would wish to see consistency of approach in this aspect of
      Appendix 4.
The inconsistency of approach:

  16. The PAC is stated to be a Tribunal in Appendix 8 (page 201). It is also
     listed as an advisory public body under Appendix 7. In the absence of any
     explanation within the document, it is assumed that the reason for this is
     the role that the PAC plays differs depending upon which part of the
     statutory framework is being relied upon. For example if a planning
     application is designated by the Department of the Environment as a
     major application under Article 31, and a Public Inquiry is held, then the
     role of the PAC is to hear evidence and make recommendations in a
     report to the Department. The decision of the Department is however final.
     On the other hand, if the application is an appeal against a refusal
     pursuant to Article 32, or a non-determination appeal pursuant to Article
     33, then the decision of the PAC is final.

  17. Paragraph 7.5 discusses Tribunals and suggests that:-

  18. “The exception is the Planning Appeals Commission, which, as a
     consequence of the proposals on local government, could become an
     agency within DOE. This body is for convenience also included in
     Appendix 7.”

The argument for change:

  19. The bald suggestion that the PAC could become an agency within the
     Department of the Environment is unsupported by any argument or
     reasoning within the Consultation Document. The sole “issue” in Appendix
     7 is that this would be in line with practice in Great Britain.
   20. The suggestion is of course inconsistent with the approach suggested at
      paragraph 4.5 and Appendix 4.

Is a change justified?

   21. There is nothing in the consultation document to suggest dissatisfaction
      with or criticism of the Planning Appeal Commission’s independent
      appellate function or how the system would be improved with this

   22. The PAC has long stated as its aim to provide fair, open and impartial
      hearings for those participating. Its decisions are the subject of judicial
      review and it is of significance that successful reviews are few and far
      between. It provides a fair, impartial and efficient appeals forum that
      commands respect and confidence.

   23. Against this background, the suggestion that the PAC be in some
      unspecified way incorporated into the Department of the Environment is
      inexplicable. There can be no serious dissent from the principles that the
      PAC espouses.

   24. More prosaically perhaps, even were the PAC to be in some way
      incorporated, the budgetary and fiscal commitments would have to remain
      if the appellate procedure and confidence in that system were not to be
      seriously undermined.

   25. It is difficult to see how any result other than damage to the principle of an
      independent appeal system could be secured with the present suggested
      incorporation. The only effect of this proposal would be to undermine
      confidence in the appellate procedure. The PAC, or its unspecified
      successor would be perceived as an arm of the Department of the
     Environment, and inescapably so as the transfer of its jurisdiction would
     be deliberate.


  26. There is considerable concern that the proposals for further separation of
     function in Northern Ireland will result in greater confusion of roles and
     unnecessary and expense bureaucracy. The suggestions in the
     Consultation Document do not command confidence in the absence of a
     more carefully reasoned basis for the approach and the benefits that are
     going to flow from the changes.

  27. The Bar of Northern Ireland has consistently strongly supported of the
     retention of the independent Planning Appeals Commission. In its
     Response to ‘Reforming Planning’, Proposals to Amend Primary Planning
     Legislation in Northern Ireland, dated 11th November 2004, the Bar

     The Department must avoid the temptation to introduce measures
     under the guise of “reform” that are in fact measures designed to
     reduce public participation and hearings, independent review, and
     confidence in the system and to undermine the role of the Planning
     Appeals Commission as the independently appointed reviewing

  28. The sole issue that this is the practice in Great Britain fundamentally fails
     to recognise the difference in the planning regime in Great Britain
     compared to Northern Ireland. The right to an independent appeal tribunal
     is long established and the Bar cannot accept that the loss of a highly
     reputable and professional independent appellate body can be welcome
   or justified simply because of what happens in a different planning
   framework applicable in Great Britain.

29. Government is working vigorously in Northern Ireland to encourage
   greater participation in civic affairs and to promote support for a
   demonstrably fair an impartial society. The removal of a body that
   espouses those principles is uncomfortably at odds with those important

30. The Department of the Environment can have no fear of an independent
   tribunal committed to fairness, openness and impartiality where it applies
   its own policies in an orderly and consistent manner, as it is statutorily
   required to do.

                                                          STEWART BEATTIE
                                                     Planning Bar Association

                                                          29th September 2005

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