Planning & Development

Land(scape)

In Ireland we are pre-occupied with land; few are immune to its pull. Our agricultural background explains this but it is not the full explanation. Wrapped up with the experience of land is the view of land. As a society revealed to have great failings, one is the astonishing lack of regard to the history of Ireland’s changing appearance since the end of the last ice age.

Our trees have gone. The first people to arrive here would have found an impenetrable forest of trees and bush. Now, thanks to the good fortune of a style of marking of field boundaries by trees and bushes, we retain a tenuous link with that primeval forest in those fields. Nonetheless, nobody would now consciously feel a hankering for the landscape of post-glacial Ireland. I say this against the possibility that the forest was not to be found everywhere and that some early uplands remain, the spell of which draws some hardy souls to look at them; a residual terrain analogous to Arctic Char.

To know what we did, in fact, do, I suggest you imagine a scene; a field of sugar beet. The field is three acres in extent and must be cared for. It must be cared for because its crop is not a choice on a whim and the sugar potential determines its value and the value is conditional on the care lavished on it. In short, its plant rivals must be suppressed and thrown away by careful and methodical weeding.

We are lucky in having people talented in gardening; people who actually like weeding their gardens. But even those admirable people would quail as they start on the first row of sugar beet in a field of three acres. The first row is in fact the first two rows; one starts, on one’s knees, in what is revealed to be a tunnel of greenery, between rows, weeding first to the left, then to the right. You have wrapped your knees in sacking to protect you, and soon, clods of soil weigh you down as you move forward. Your hands quickly have green stains from the juices of uprooted weeds, spreading into every crack and crevice from your broken fingernails to your wrists.

This is a scene of practical farming. The practicalities of life have an unseen and powerful, often determining, effect on history. Deep in the tunnels of beet we may not be able to see our own field in its landscape any more.

Possibly we never saw it because some of us cannot see such things. Landscape exists in the human mind. It exists separate to the management of land; we speak of “a lunar landscape”, never having even conceived of such a thing until Galileo looked at the mountains of the Moon in 1609. With photographs we can see what Neil Armstrong saw, but in truth, we knew it, from telescopes and imagination before he, or we, saw it.

The management of land is important; Egyptian geometry developed to re-define land boundaries after the annual flooding of the Nile. But it may not be the most important part of our knowledge of land. Before we act, we must imagine. Before lawyers draw up contracts and title deeds, before builders build hotels we must see what is in our mind and what should be in our mind is a view of society.

To have such a view is a thing of great value, but a thing difficult to grasp or hold. Generations of philosophers have tried to tell us about society, each, as it were, describing an elephant from a particular point of view but the best place for that elephant is in our mind.

Consider New York. It’s very big and very old. We can go there and learn nothing. (This writer went North to Doncaster and spent fifteen minutes looking at the late evening skyline of that place from its brick-built railway station, before leaving on the next train South; was I in Doncaster?). Or, we can learn something ineffable about New York from a book. We know that tourists miss a lot about the places they visit. Try as they might, they are often condemned to an experience equivalent to living in an airport hotel. If they could live with the inhabitants for a while, we know the understanding gained would be incomparable to that.

We cannot, all of us, live with a New Yorker for a while; and, likewise, every New Yorker cannot live with us, but we can tell the truth of our lives, if we but see that truth, and convey it to the people of New York. Because they have done it for us, or rather, one of them has.

In 1955 J. D. Salinger’s book, “Raise High the Roof Beam, Carpenters” was published. Its protagonist, Buddy Glass, has gone to his brother’s 1942 wedding. His brother, Seymour Glass, has jilted his bride, failing to turn up at the wedding. We know something of the Glass family; they are, each of them, geniuses; but emotionally fragile. Seymour, because he loves his bride-to-be so much, flinches from marriage and the inescapable pain of life he feels lies there – for his bride.

The bride and the wedding guests leave the house and Buddy finds himself sharing a car on a journey going up town in Manhattan. Buddy is, it appears, the only guest from the groom’s side and the occupants, knowing none of those absent persons carry on conversation about Seymour in properly critical, but mistaken, terms.

Suffice to say that the journey is delineated to perfection. That imaginary Manhattan of 1942 will live forever and will defeat all other versions of Manhattan from any time. We are taken to know of the streetscape; we meet a traffic jam for instance. Nonetheless, we are in a landscape.

A landscape can show hills or flat country. It can show huge skies or lowering clouds. It can show a forest or a plain with clumps of trees and perhaps a few scattered white clouds.

We have attached meanings to these images. Who could not have been struck by the recent vision of Ireland covered in snow and who could fail to see how it mirrored our political condition?

We need to treasure a hunger for landscape, not a hunger for land.

The Waste Bin

Our offices are, almost, in Lower Bridge Street and I travel down Clanbrassil Street daily to get to them. It is an ironic occasion every morning for me to join the single lane of traffic traveling north on Patrick Street in front of St. Patrick’s cathedral. Until recently there were two lanes for the north-bound traffic; now, one is a dedicated bus lane.

In 1953, Dublin Corporation determined to ensure that traffic would not be hindered by narrow streets like Clanbrassil Street and Patrick Street. They should be widened, it felt. The Corporation persisted in this feeling from 1953 to 1989 when it finally built a “dual-carriageway” along [some of] Clanbrassil St. and on into Patrick Street.

The fact that the planned Compulsory Purchase Order, to implement this, undermined the values of the properties along the west side of Clanbrassil Street and Patrick Street, from 1953 onwards, is neither here nor there.

What is of moment is this: we no longer care about traffic, that is, the private motor car. We have changed our viewpoint. We cheerfully squeeze it daily into a narrow traffic lane in Patrick Street. That’s not the only change. Dublin Corporation is now Dublin City Council: it hasn’t gone away and it is still an institution of vision.

Currently, it has a vision for a waste incinerator in Ringsend. Perhaps we need such a thing. But will we always? Will we always think it a good thing to burn rubbish? To burn it within the city?

The answer is yes, because the operator of the proposed incinerator will compel us to do it, under the terms of a contract signed by it and Dublin City Council.

Peculiarly, the property rights in rubbish may be more easily defended than the property rights in buildings.

Planning Objections

Where objections are lodged to a planning application, it is useful to bear in mind that the character (from a planning point of view) of the applicant is relevant.

Under Section 35 of the Planning and Development Act 2000 (as amended), the planning authority may form the opinion that the proposed development may not be completed in accordance with the requested permission or its conditions, and base a refusal of permission on that.

It will need evidence to form this opinion. The obvious evidence would be the previous conduct of the applicant in relation to developments.

Objectors, therefore should research the past history of an applicant and the history of his/her developments and provide that evidence to the planning authority.

Planning Enforcement

Under Section 154 of the Planning and Development Act 2000 a planning authority may issue an enforcement notice on an owner or occupier of land in relation to any development.

The matters to be specified in the notice are set out in Section 154. Suffice to say that, pursuant to Section 154 (8), failure to comply with the notice is a criminal offence.

This is very strange.

Firstly, the Planning and Development Act 2000 places no express obligation on the prosecution to prove that the “development” is unauthorised. Development, whether of use or of works, is not unauthorised unless it post-dates 1st October 1964.

Secondly, the Planning and Development Act 2000 makes no express provision for some obvious defences to any requirement that might be made in a notice, such as;

that the “development” is authorised;

that the “development” is not unauthorised;

that the “development” is exempted development:

In short, the offence seems not to be related to planning (sustainable or otherwise), just a failure to follow what may be a caprice of a planning authority official.

If that is true, it raises constitutional issues in any prosecution under Section 154 (8).

“Seems”, in this context is important. It is not inevitable that the offence actually constitute a failure to comply with a notice simpliciter.

The District Court (the offence is triable summarily) is at liberty to interpret the the Section and the evidential burden on the prosecution to avoid working a breach of the constitution. Under the European Convention on Human Rights Act 2003, there is an obligation on Irish courts to interpret legislation to avoid breaches of the European Convention on Human Rights (in this particular instance Article 6 thereof). It is regularly asserted that the Irish constitution already embodies standards equal to if not greater than the European Convention on Human Rights. A prosecution under Section 154 (8) is the ideal occasion to show that this is true.

Quarries

In Ireland, a special regime has been provided for quarries under section 261 of the Planning and Development Act 2000.

The section requires that information on a quarry be registered with the relevant local authority. The deadline for registering the information was 28th April 2005.

Section 261 10 (a) provides;

A quarry to which this section applies in respect of which the owner or operator fails to provide information in relation to the operations of the quarry in accordance with subsection (1) or in accordance with a requirement under subsection (3) shall be unauthorised development.”

The operation of a quarry clearly falls within the definition of “development”.

In this Act, “development” means, except where the context otherwise requires, the carrying out of any works on, in, over or under land or the making of any material change in the use of any structures or other land.”

Under Section 32 of the Planning and Development Act 2000 there is an obligation to obtain a planning permission for development.

32.—(1) Subject to the other provisions of this Act, permission shall be required under this Part—

(a) in respect of any development of land, not being exempted development, and

(b) in the case of development which is unauthorised, for the retention of that unauthorised development.

(2) A person shall not carry out any development in respect of which permission is required by subsection (1), except under and in accordance with a permission granted under this Part.”

Taken with the definition of “unauthorised use”:-

“unauthorised use” means, in relation to land, use commenced on or after 1 October 1964, being a use which is a material change in use of any structure or other land and being development other than—

(a) exempted development (within the meaning of section 4 of the Act of 1963 or section 4 of this Act), or

(b) development which is the subject of a permission granted under Part IV of the Act of 1963 or under section 34 of this Act, being a permission which has not been revoked, and which is carried out in compliance with that permission or any condition to which that permission is subject;”

a quarry requires to have a planning permission or established pre-1964 use AND be “registered” under Section 261 before 28th April 2005.

(Quarries are not “registered” under Section 261; the required information furnished to the local authority is entered on the relevant register.)

There is a canard abroad that “registration” of a quarry has the effect of making it lawful in the way the grant of a planning permission would. This, by definition, is wrong.

Quarries, no less than any other development, are subject to control by application to the High Court under Section 160 of the Planning and Development Act 2000.

Any person may make the application for an injunction under that section.

Walk this way

Certainty is good for business. Ireland has now produced a series of standard contracts for use in public construction and engineering projects. They are available online from the Department of Finance HERE. The contracts are designed to transfer certain additional risks to the contractors. Provision has been made for the Employer to stipulate the hiring of certain specialists and to assign design responsibility to the contractor.

There will be, presumably no need to trawl the world for good precedents for such projects, as suggested HERE.

Corrib Gas case update

THE HIGH COURT
Record No: 840P/2005

BETWEEN:


SHELL E & P IRELAND LIMITED

Plaintiff

And

PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN

Defendants


And

THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

Defendants to the counterclaim of second and fifth defendants

Update (6th June 2008)

1. The High Court, on the application of the Defendants to the Counterclaim, has ordered the trial of a preliminary issue.
2. The issue will be tried on 29th July 2008.
3. The issue is: “Are the 2nd and 5th Defendants out of time to raise public law issues?”

Quarries

Section 261 of the Planning and Development Act 2000 made special provision for the control of quarries. A quarry is as defined in the Mines and Quarries Act 1965.

On the coming into force of Section 261 (on 28th April 2004) a quarry to which Section 261 applied (most quarries), had to be registered with the local planning authority within one year of 28th April 2004. Failure to register rendered the quarry an unauthorised development. “Registration? refers to the supply of the required information, not the entry on the register. (S. 261 (10) (a)).

The section set out the information which had to be supplied on registration, with provision for the planning authority to make further enquiries. Failure to provide the further requested information also will render the quarry an unauthorised development.

Under S. 261 (12) provision was made as follows:

(12) The Minister may issue guidelines to planning authorities regarding the performance of their functions under this section and a planning authority shall have regard to any such guidelines.?

The Minister has issued guidelines to the planning authorities on quarries. The guidelines emphasise that “registration? does not authorise an unauthorised development.

Under S. 261 (7) provision was made, in respect of quarries the “extracted area? of which was greater than 5 hectares; or was on a European site or other protected site; and that commenced operation before 1st October 1964; and would be likely to have significant effects on the environment, for the planning authority to require, within one year of registration, that the owner apply for a planning permission and to submit an environmental impact statement.

The effect of Section 261 of the Planning and Development Act 2000 is to establish a baseline for the operations of registered quarries. (Assuming the information furnished with the “registration? is accurate). The public may compare the current operation of any quarry with the details in the register (which details relate to a period in 2004) and they or the planning authority may take action if the comparison shows intensification of use.

A good cog?

Apropos cost overruns, it is interesting to note HERE that when Siemens hits a delay on a project in China and, elsewhere, defects on a project in Budapest it suffers a loss of €200 million, but when roads cost more in the UK the taxpayer takes the loss. Who, in the name of goodness, does the UK Roads Authority use to write its contracts?

Should we not ask our Irish ambassador in China to procure a copy of the Siemens contract and urgently check with the National Roads Authority for an assurance that their contract writer is not the same one as used by the UK Highways Agency?

Don’t come back

I have written (HERE) of the need for speed in challenging the award of a public contract where the provisions of the Regulations governing such contracts have not been followed. (European Communities (Award of Public Authorities’ Contracts) Regulations 2006 (Statutory Instrument No. 329 of 2006) ).

The Regulations expressly embody a good idea; that the nation get the best value for money. It is not easy to ensure this.

For instance, one assumes the contract for the “regeneration? of Ballymun was awarded on the criteria adopted in the 2006 Regulations (not pursuant to them; they post-date the Ballymun contract).

We now see (HERE) that the Ballymun contract is €500 million over budget.
Who can now say that the seemingly more expensive underbidder was not in fact the cheaper of the bids? (Assuming there was an underbidder).

The problem is endemic in such contracts (especially in IT contracts).

In truth, neither the contractors nor the public authorities seeking tenders genuinely know what the costs of such projects are; the tenders are guesses.

The man who built the Empire State building in New York was asked what the most important element was in the construction; he replied, “getting the contract?.

Following that line of thought, the best guess is the one that seeks, not to estimate the actual cost of the project, but to guess the cost projection of the public authority for the project. That will secure the contract.

It is possible to try and ensure that the cost overruns do not fall to the account of the public, but that, too, seems to be hard to avoid as we see in the Metronet debacle HERE and HERE.

What Transport for London seemed to have overlooked was the freedom of the individual members of the Metronet consortium to become sub-contractors (they gave the contracts to themselves) When Metronet went into administration, Transport for London continued answerable for the claims of those sub-contractors.

It is an important element in the negotiation of such contracts to ensure, to the greatest extent possible, that there will be no re-negotiation of the contract later. The World Bank has this to say on the matter:

8.3.1Avoiding renegotiations
According to one study,55 percent ofwater concessions awarded in Latin America were renegotiated in the 1990s,many within two years ofthe award (Guasch 2004). In some cases, the operator or contracting authority may reasonably refuse to renegotiate.Moreover,developing a reputation for being hard-nosed could reduce the likelihood that the contracting authority will be exposed to opportunistic behavior in the future. In other cases,circumstances may have changed in ways that mean the current arrangements are no longer appropriate,and renegotiation can help both parties.
Often,both the contracting authority and the operator have strong incentives to renegotiate rather than terminate the arrangement:contracting authorities are often concerned that terminating the arrangement may result in an interruption to key services,while operators do not want to lose any past investment or future profit. Yet renegotiation changes a previously agreed arrangement.The contracting authority or the operator may try to renegotiate in order to reduce its risk exposure or to gain advantages it was unable to obtain in the initial agreement (Box 8.1).When the operator is selected based on the lowest tariff bid or highest concession payment,operators may engage in aggressive bidding strategies (lowballing) to win the contract and then seek to renegotiate for more favorable terms once competitive pressure is no longer an effective constraint.