Cirque du Planning Act

We speak to Brendan Slattery of McCann FitzGerald LLP about the new Planning & Development Act.

Brendan is a partner at McCann in the Environmental and Planning law division.  He does an incredible job of breaking down the new law and what its likely effects are. There are a lot of surprises, and not the good kind. I throughly enjoyed the chat with him and would urge anyone who needs advice on the subject to give him a call, as his knowledge on the subject is as in-depth as I've ever come across, and his experience is very broad.

Some more details:

• Kari asked ChatGPT “Can you summarise the major changes that have been made to the Planning and Development Act 2024 in Ireland”, here’s what it came up with https://chatgpt.com/share/674ec2db-fea8-8004-aa23-3eee757036e8
• Mark Ruffalo knows about planning law https://www.irishtimes.com/politics/2024/10/09/mark-ruffalo-lng-green-party-planning-bill-ireland/
• China and its ultra high voltage power lines https://www.bbc.com/future/article/20241113-will-chinas-ultra-high-voltage-grid-pay-off-for-renewable-power
• Book recommendation: Running from Office: Confessions of Ambition and Failure in Politicshttps://www.easons.com/running-from-office-eoghan-murphy-9781804189023?srsltid=AfmBOorQV5NHI3fBcJc4wnS6Qp6NpEQIJ_7hNnUaD-Lmcpke8JQMtUFo

Disclosure:
While Brendan has not carried out work for me or my companies directly, we have on occasion in the past worked with his firm McCann Fitzgerald, though never the Environmental and Planning law division.

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Episode Transcript

Rick (00:32):
I'm very happy that you're here, Brendan.
I'm going to just let you tellus who you are.
I know you're a lawyer, but Idon't really know anything else
about you.

Brendan (00:42):
Okay, well, start from the beginning.
I grew up in that part ofWicklow, near Wexford and Carlo
Dad's an electrician, mom anddad running a small farm, and
that's where we start with thehard work.
Hens and goats, oh God, thehardest of work.
I schooled in the tech thevocational school in

(01:03):
Hackettstown and carriedconstruction studies and
mechanical drawing through myleaving cert and was faced with
a debate in my mind Would it bearchitecture or would it be
something else?
When I went to university I hadspare points so I chose law and
it's been an accident all theway through Accidental lawyer,
accidental planning andenvironmental lawyer.

(01:25):
There was a professorresponsible for environment and
planning in Trinity College andshe exerted a lot of influence
and supported me through the endof college and encouraged me
into law and into planningenvironment, and I've been there
for the last 25 years.

Rick (01:40):
That's amazing.
So you weren't one of thesekids that grew up dreaming to be
a lawyer?
I don't know that there's manyof them, but you weren't one of
them.

Brendan (01:48):
Well, in our family we joke that the only role our
family has had in the law is asthe accused, and in that context
turning up as a solicitorcounts as the exception.

Rick (01:59):
Okay, and no other, your siblings or anything.
No one else followed you intothe law.

Brendan (02:04):
No, and it's a debate at home now whether we'd
actively discourage our ownthree children from becoming
lawyers.
It's a busy world we operate inand, depending on the choices
you make, it can be verydemanding.

Rick (02:20):
Long hours.

Brendan (02:21):
Those are choices.
You have to make your decisionsabout how hard and how much
effort you're going to put intoyour practice.
But it's a game that will takeas much from you as you're
willing to put into it.
And that goes for many walks oflife.
But in professional serviceyou're in demand and if you're
good at what you do, you'll bein high demand.

Rick (02:41):
You can work as much as you want.
You'll be in high demand.
You can work as much as youwant, but obviously there's a
certain level of work that youhave to do as a base case, and
that's probably a lot more thanother professions.

Brendan (02:55):
Well look, the solicitor's profession is one,
and I've been privileged.
I'm working in McCannFitzgerald for the last seven
years in one of the busiestpractices in Dublin in Ireland,
busy across a full range ofinfrastructure, including
housing infrastructure.
Before I joined McCannFitzgerald, I had a period of

(03:19):
about five years in a twopartner practice.
It's pretty different thanworking in a firm like McCann's
where we have over 600 people inthe business.
When you're one of two peoplewhose job it is to make sure
that the internet is working ona Monday morning and you get
down on your hands and knees asyou restart the air-com modem,
it reveals something a littledifferent about the way in which

(03:41):
the world works too, and youhave to be ready to get down on
your hands and knees and getinto the trenches.

Rick (03:46):
Yeah, it's a good way of putting it.
Actually, we've had a lawyer onthe podcast before Fidelma and
she was great.
We were talking about somethingvery different than what we're
going to talk to you about today.
And it does highlight again forme that you hear somebody say
they're a solicitor, or they'rea lawyer and we solicitor, or

(04:06):
their lawyer and we all, or forme, because I'm old, it's Ali
McBeal.
For younger people it suits.
We just assume that lawyers arethe people that we see on tv,
but actually it's such a diversething that even within property
like because Fidelma is aproperty lawyer you guys do
completely different things,which is really amazing, and I
think it's something that peopledon't quite realize.
That law is so sub-specializednowadays probably didn't used to

(04:29):
be like that.
As the world has got morecomplex, the lawyers have got
more complex.
So would you mind just likewhen you say you do planning an
environmental law, right?
So what does that mean?

Brendan (04:42):
yeah, well, I suppose when I hop into a taxi and I'm
asked by the driver what it is Ido and they hear I'm a lawyer,
they start asking me questions,none of which I can answer,
because what I do is help peoplewith the zoning of their land,
help them decide whether theyneed to apply for planning
permission or what consents arerequired, help them get those,

(05:03):
help them get those permissions,help them defend those
permissions from challenge andultimately comply with them and
support the delivery of therelevant infrastructure,
whatever it might be.
If you take the floor I work onin McCann Fitzgerald, we have
what we call our real estatelawyers, the guys that help buy
and sell property, buy and sellland, buy and sell undeveloped

(05:26):
land, develop land, assist withlandlord and tenant issues, loan
sales, the full range ofownership burdens, rights and
opportunities.
We have our constructionlawyers, the guys who, once
you've got the permits you needto get through to literally
building contracts and gettingout of the ground.
Our procurement lawyers forthose who are working on public

(05:48):
projects or utilities projectsand having to go through the
burdens of advertising in aparticular way to secure the
relevant contractors and theplanning environment team.
And when I joined McCannFitzgerald about seven years ago
we had three lawyers in ourplanning environment team and
now, when I think aboutarrangements for the Christmas

(06:11):
lunch or dinner coming up in duecourse, we'll have 12 at the
table.
So it's a busy practice.
And that doesn't include thelawyers in McCann Fitzgerald who
do work on transportinfrastructure projects the
lawyers in McCann Fitzgerald whodo work on transport
infrastructure projects.
We have another team of aboutfive lawyers full-time working
on projects for the NationalTransport Authority and

(06:31):
Transport Infrastructure Ireland.
So, all told, we have about 13planning environmental lawyers
in the office.

Rick (06:38):
And there's other firms that do the same kind of work.

Brendan (06:42):
Yeah.
So when we think about themarket for legal services the
large full-service law firmswith 250, 300 lawyers they're
going to have someone who's ableto do planning and
environmental law, who's goingto assist with those kind of
issues around consenting Forpublic authorities.
So if you're doing the work forOmbord, planol or planning

(07:02):
authorities, you can't really dothe work for developers
authorities.
So if you're doing the work foronboard Planola or planning
authorities, you can't really dothe work for developers too, or
for objectors for that matter,and there's different law firms
who've pitched their servicestowards those kind of clients
and so you'll have planningenvironment specialists working
there looking after boardPlanola.
Before I joined McCannFitzgerald, that's the work I

(07:24):
was doing.
Looking after Bort Planola.
Before I joined McCannFitzgerald, that's the work I
was doing looking after BortPlanola and the Environmental
Protection Agency, and sotypically you see firms line up
on one side or another.

Rick (07:31):
But it's the case now that you're in a growth industry
right the way the world hasdeveloped and by the world I
mean Ireland more and more ofyou and what you do is going to
be necessary as the countrygrapples with its infrastructure
deficits, because there's nolevel of simplicity coming into

(07:52):
any of this right.
It's getting every year, it'sgetting more complicated and so
we need more Brendans.

Brendan (08:00):
Well, the remark I'd make is it's a good indicator
that planning law isn't workingwell.
Yeah, that there is such demandfor this many Brendons, if you
will.
There's no doubt that over thelast, particularly the last five
years, the level of complexity,the legal risk associated with
applications, even for smallapartment schemes 25, 30

(08:24):
apartments they're being exposedto legal challenge right
through to the thousand unitschemes where maybe challenges
have been more common acrossother sectors too.
It's not just housing renewableenergy, large wind farm
projects, large solar projects,biomethane, legal risk attaching
to all of those classes ofinfrastructure.

(08:45):
And then I mentioned transport.
Bus Connect's approvals havebeen coming through and you see
challenges being brought tothose approvals for Bus Connect
and it doesn't matter what thesector.
I mean.
One of the busiest sectors inthe planning and environment
court right now is challenges totelecoms masts.
There is no sector that's freefrom the risk of legal charge.

Rick (09:05):
I mean, that's what I was going to ask you Like is there
anything that can be built inIreland at all where people are
like that's fine, Because evenForestry I heard somebody was
like complaining about themplanting trees, which?

Brendan (09:18):
Well, if you look at the work of Ombord Planola, they
make in a calendar year about3,000, 3,500 decisions.
Right now you can expect about150 of those to be challenged in
the High Court.
So there's a bulk of work.
The large part of the icebergis below the water and is not
challenged, but even for thatbulk there's a chunk of them

(09:41):
have had to manage legal risk ingetting to the finish line
without legal challenge Acrossthe planning authority.
Sector challenges are lesscommon, mainly because there's
another remedy you can appeal toimportant all and the issue
will be resolved there.
The forestry is interesting,very targeted group of

(10:08):
individuals who have realconcerns around the homogenous
nature of planting and theparticular impacts from felling
20, 25 years later and lookingfor those to be regulated in a
manner that they would say isconsistent with European law.
And European law is probablythe key driver, as a remark the
Secretary General of theDepartment of the Environment
was making.
It doesn't really matter who'sin government, because we're a

(10:31):
member of the European Union andthe rules and regulations that
set the tone from the top arerules and regulations that we'll
have to comply with, no matterwho's in parliament who's in
Dáil Éireann, and that's a fairpoint and something that often
gets lost that everybody,including me, blames the
government for planning, and Ido think that the government

(10:52):
here does have a large role toplay.

Rick (10:54):
We'll get onto that later on.
But I often get pushback frompeople, particularly in
government sense, about Europe,and they say, oh, europe, it's
Europe, it's not us's, not us,it's europe.
I say yeah, but like I've beento europe, I have been on a
plane, I've been even on a boatand I've been all around europe
and I've talked to developers,I've talked to architects, I've

(11:16):
talked to people in all sorts ofcountries.
Yes, there's loads of problemslike that we have existing in
other countries, but then someof them don't have them, and so
this is where it gets a littlebit fuzzy for me, because surely
, if we're all in the EuropeanUnion and the European Union law
applies, why is it that someplaces are able to direct their

(11:38):
legislature in different ways,have laws that facilitate
infrastructure, and then otherplaces, like here, we can't
plant a tree or put a solarpanel down on the ground where
no one can see it, withoutsomeone tottling off to the high
court and saying no, no, no, no, no, but you see, under there's
a fox that once came here, andI mean, I think there's two

(12:00):
things that drive the difference.

Brendan (12:03):
The first is our common law heritage.
There's two things that drivethe difference.
The first is our common lawheritage.
With England, the UnitedKingdom.
That means we have a systemthat is structured in a way that
shapes access to the high courtor to the courts as an
important part of the process.
The second is trust andconfidence.

(12:28):
In other European countries thelevels of trust and confidence
in public authority decisionmakers is much higher than here.
The social license orwillingness to tolerate an
outcome from a decision maker isjust greater in those countries
.
And if you take the NordicScandinavia, where you see and

(12:50):
often were held up, in contrastto places like that, you'll see
much fewer court challenges.
They also have a differentstructure in how they set their
rules and across France andGermany the rule set is more
strict, more codified, andcompliance with that rule set
means there's nothing left tofight about.
In ireland, like in in inengland, wales, we've preserved

(13:15):
flexibility at decision makingstage and every time you
preserve flexibility you havediscretion and every time you're
exercising discretion you havethe prospect for a review?

Rick (13:25):
yeah, because everybody has an opinion um planning is
perfect for that.

Brendan (13:30):
There isn't a topic in planning on which you you can't
find two people to disagree on.

Rick (13:35):
Yeah but I, I yeah, I mean because people, people have
their opinion and they say I'mentitled to my opinion.
I say, yeah, you're entitled toyour opinion, but you're not
necessarily I.
You're entitled to your opinion, but you're not necessarily.
I mean you can have your say,you can't have your way right
all the time.
But it appears that whatactually goes on here is that I
don't like it, I can stop it,the state pays for me to stop it

(13:56):
, like the consequences arecompletely lopsided.
Right, the objector has zeroconsequences, apart from maybe a
little bit of time.
But from what I can see, a lotof these judicial challenges
they go to a solicitor.
We don't name him, but they goto him.
He comes up with the list ofchallenges and they're they're

(14:19):
way beyond in complexity thanwhat an ordinary person who
doesn't have any background inthis could understand.
So you look at it and you say,okay, they don't want it to
happen, that's fine, but thelegal case has been taken on the
basis of a whole lot of thingsthat they don't even know exist.
So really, what's happeninghere is not like somebody's
opinion or somebody's view, it'sa I don't want it to happen and

(14:41):
I know I can stop it, becausethere's no consequences for me
for stopping it right.

Brendan (14:45):
Yeah, I mean certainly in planning law.
There are few parts of thelegislation that dictate an
outcome, Maybe only in relationto protected sites and species
under the Habitats Directive.
There comes a fork in the roadwhere a refusal is mandated or
required, and you see that issueventilated in maybe renewable

(15:06):
projects more often than you doother sectors.
The access to judicial reviewis emphatic.
In Ireland it's a core part ofhow the state explains it
complies with European law.
It is one where we've seen muchsuccess for those who've
brought legal challenges, andthat includes developers unhappy

(15:28):
with bad outcomes in theplanning process.
As often as it is Neighbors orresidence associations are
sometimes those a little moredistant, raising complaints
around the legality of a processand where planning is
under-resourced and there'spressure on decision makers and

(15:50):
any lack of clarity around thehierarchy of principles and
policies that apply.
It's fertile ground.
It's fertile ground forcomplaint.
And if you look over the last10 years the number of
challenges to decisions on boardplanolas jumped an order of
magnitude, Like when I first wasdoing the work for board
planola there might be 15 casesin a year.
Now this year it'll be 150.

(16:13):
Yeah, and when you look acrossthe main themes in those, if we
take housing, for example,you're right, some of them are
very focused on specific speciesand protection for those.
But I bucket them in two mainbuckets.
The first is where OmbordPlanala has been relying on
discretion to materiallycontravene a development plan.

(16:35):
That's been a real topic offertile ground for challenge
over the last five years,particularly in housing schemes
around density, around height,around important things to
deliver the targets we've setfor ourselves.
And the other is around what Icall just biodiversity in the
broadest theme.
That includes strict rules fromEurope but includes a lot of

(16:57):
our own rules around the kindsof species that need to be
protected or we've decided as astate should be protected and
there's been a certain lack ofclarity in how those have been
addressed and, as a consequence,again, yeah, fertile, fertile
ground for challenge so the theidea that uh borponola gets to

(17:21):
have discretion over developmentplans is kind of under attack,
right like the material.

Rick (17:28):
Contraventions are something that people have
relied upon for a very long time, certainly as long as I've been
doing this, but it would appearnow that that day is kind of
gone absolutely, and the the newplanning act, um, shortens that
discretion even further.

Brendan (17:45):
What's interesting is when you look at the six-year
cycle, as it was, of developmentplans, that's changing too
Often.
If we take a step back, whenMinister John Gormley was in
government, he looked to reshapethe Planning Act so that there
would be a hierarchy, plan-leddecision-making, and what that

(18:10):
meant was occasionally,government or the minister would
say something useful andrelevant to the delivery of
something, very occasionallyBuilding height.
Take building height as anexample Ministerial guidelines.
Those guidelines would come outduring the development plan
cycle.
The development plan would havea blanket cap on height,

(18:31):
different at maybe differentlocations, proximity to
transport, whatever that mightbe.
The minister sets regulations,guidelines rather, that
encourage taller buildings witha view to having a more.
The planning law was amended tomake sure that Borplenola could

(18:53):
give effect to the higher orderguidelines, to ensure that the
minister's words and theguidelines could be given effect
to, and the feedback duringpre-application consultation
with planning authorities and onBorplenola was well, there is a
more recent set of guidelinesand you better make sure your
development meets thoseguidelines.

(19:13):
What became a real point ofcontroversy through the core
challenge process was the extentto which those guidelines
include preconditions, strictlanguage, that needed to be
satisfied before you couldaccess the dispensations from
the development plan.
And that's where we see the bigfight around public transport
and whether it is high qualitypublic transport and whether the

(19:34):
transport needs to have beenbuilt and operating before you
can actually set about the fieldof dreams that might come after
.
And the answer from the HighCourt very clearly was the
ministerial guidelines requirethat transport to be in place,
that there be capacity.
And once the High Court saysthat out loud, you have to think

(19:56):
the minister had a chance tochange the guidelines to clarify
that, and didn't do it anddidn't.
And we then have repeatreferences to the same
guidelines with the same missinginformation, leading to
planning permissions beingchallenged on the same fertile
ground.
And it's interesting to kind ofstep back and think is it for

(20:17):
the minister to respond andreact when the High Court speaks
?
I think it probably is.
In fact, I think that's therole of government.
If they wanted the outcome thatwe were all told they desired,
all they had to do was changethe guidelines and it wouldn't
have been that hard.

Rick (20:32):
It wouldn't have been that hard and to change them too.
I mean, specifically on thepublic transport thing we've
talked about before is thatissue around capacity, and this
is just an aside.
So if you were relying on busesin your planning and you say,
well, the bus network is atcapacity, so when there were
more people, the bus companywill add another bus and now
there'll be capacity, but theinterpretation seems to be no.

(20:53):
The bus needs to be therebeforehand, so the bus company
needs to run an empty bus, lestsomebody lodge a planning
application at some point in thefuture, which is obviously
absolutely insane.
But yet there we are.
Guidelines could be changed toclarify that not changed yet.
Said minister, we're doingabsolutely everything we can.

(21:14):
One of the things you mentionedis the new Planning Act.
I was at an event recently andan unnamed government minister
was boasting about the PlanningAct being the third longest
piece of legislation that hadever been written in the state
and it was a room full ofproperty people and we were all
looking around at each otherthinking like what a thing to to

(21:36):
boast about that.
The problem that we have withcomplexity and there is their
solution proposed is the thirdlongest piece of legislation
ever written.
But leaving aside my gripeabout that, what are their
headline changes to the?
The planning act?
Um, I, we don't have.

(21:56):
I mean, I think it would takemonths right to go through it.
But what are the kind of majorthings that, okay, I ask in chat
gpt summarizer, what would chatgpt say actually, maybe we
should do that.
We should do that.
In fact we'll do that and we'llput the text in the show notes.

Brendan (22:13):
It is odd to boast about this being a long piece of
legislation when the wholepurpose was to introduce
simplicity, clarifications andcertainty, and I think one thing
that all stakeholders agree isthat it doesn't do that Big
themes.
If we take the front end ofplanning around policymaking and

(22:35):
development plans what we usedto know as Section 28
ministerial guidelines they'llget a respray.
They'll be called the nationalplanning statements.
We'll have development plansthat'll have a 10-year life
instead of a six-year life.
That's potentially helpful ifwe think about settlement

(22:57):
strategy and we think abouthousing targets.
If it's a 10-year target andwe're in the first six years of
the plan, we may be able toachieve and deliver more than
might otherwise be the case.
But there'll be a need forreview.
It maybe depoliticizes thedevelopment plan process a
little so that it's not just abargaining chip come local

(23:19):
election time.
We'll relabel local area plans.
We'll have new urban area plansand priority area plans and
coordinated area plans.
It's just a respray.
The national planning frameworkwill have its statutory basis.
Um, I know you've discussedthat here before.
Yeah, um, the there areinteresting things.

(23:41):
Those are broad themes aroundthat front end.
But there are interestingthings around how the state has
responded to criticism aroundwhat it did with census 22 data
in the context of developmentplan making.
So a lot of development plansbeen made in reliance on
guidance from the government,based on 2016 figures, yeah, and

(24:02):
which are hopelessly wrong.
There's a lot has happened inthe meantime, yeah, and esri has
acknowledged that we have morepeople and we have a greater
need, both existing and future,in the population, and then
there's pent up demand andthere's a wonderful debate to be
had about exactly how tocalculate that.
But one thing's for sure we'reshy on the numbers.

(24:23):
But when it comes to reviewingthe national planning framework
ongoing, we shall wait two yearsafter a second census worth of
data.
So we're pushing out the keytriggers for making sure we get
our numbers right, and I thinkthat's really disappointing.
And it feels like a response tocriticisms that the likes of

(24:44):
Cairn and Glenveig have broughtin their legal challenges to the
Wicklow and Kildare countyplans, where they complain that
the housing strategies in thosecounties have just woefully
undershot what's required in thecontext of the needs of the
population.
The Planning Act then tries totidy up, consenting so instead

(25:06):
of the proliferation ofdifferent types of planning
applications you see acrosselectricity infrastructure, gas
infrastructure, ordinaryplanning applications, lrd,
direct applications to the board, local authority, state
authority.
We'll have four main kinds ofplanning application the
standard application to theplanning authority with prospect
of appeal.

(25:27):
Direct applications to theboard, which captures a
multitude but it has the samestatutory code for all of them.
Now, without those littledevious tweaks between them,
we'll have a materialalterations process which is
like a consent process now, andwe'll have a consent process for
state authority, localauthority projects.

(25:48):
We'll have timelines with someconsequences if the decision
makers fail to meet thosetimelines.
The main consequences they'llhave to be honest about it and
tell the world when they'remissing their target With some
prospect and we've yet to see itin the regulations what the
figure will be of partial refundon your planning application

(26:09):
fee.
Much is made of these deadlinesbeing realistic and in that
context, when you look at directapplications to onboard plan,
like big wind farms for example,they've set a 48 week timeline
and that's set long deliberatelybecause the board thinks it can
comply with that.
Now, at the minute, you'rewaiting at least 70 to 80 weeks.

(26:35):
So that would be a halving oftime for those kinds of projects
.

Rick (26:40):
I don't mean to interrupt you, but why could it possibly
take?

Brendan (26:44):
that long.
It's a good question.
If you look at defending legalrisk.
One of the features is the huntfor the phrase in the
inspector's report and objectors, developers, borplenola, like
all, looking for the magicphrase that's helpful in the

(27:04):
inspector's report and thatinspector's report is now the
key building block.
On Friday a retired SupremeCourt judge made the remark that
Borptonala well, they're notreally the expert.
The real expert is actually theinspector and so explaining
your departure from theinspector, showing how you agree
with them or disagree with them, is the most important thing.

(27:26):
When you look at inspectorsreports now it's over 100 pages
for a project with anycomplexity.
If it has environmental impactassessment or natura assessment
for habitats, it's going to belonger.
The more controversial theproject, the more people that
make submissions andobservations during it, the
longer that report will be.

(27:47):
You know, for waste to energyinfrastructure, you wouldn't be
surprised to see 200, 300 pageinspector's report, and just
generating that assessmentanalysis is probably the key
time requirement.
The key time requirement Oncethe inspector's report is
complete.
We're seeing the current boardturn around decisions within

(28:11):
about four or six weeks.
So the hard yards are done bythe inspector cohort and that's
a small enough cohort of personshaving to drill through three
and a half years or to have thatlevel of expertise as well.

Rick (28:25):
It's very unusual.

Brendan (28:27):
It's difficult to be that jack of all trades.
Even still, Now the board hasretained additional expertise
around ecology, for example,in-house special knowledge.
It also purchases externalsupport, Like when it was
consenting landfills 20 yearsago.
It would get in people whounderstood groundwater.

(28:48):
It would on projects with astack with air pollution risk
factors, it would get inspecialist support and knowledge
.
If there was a real concernaround blast radius and control
of major accident hazards, itwould get in specific knowledge
and that's to be encouraged.
But it adds complexity and itdoes mean that the decision

(29:11):
making process needs some time.
Whether 48 weeks is right ornot, that's room for debate
there.
For most other applicationswe'll see local authorities do
their work in eight to 12 weeks.
They have no easier a job.
They have to complete the samewritten assessment but they only
get eight to 12 weeks to do it.

(29:32):
If you think about publiccommon closing, after five, they
only have all cards face weeksto do it.
If you think about publiccommon closing after 5, they
only have all cards face up onthe table for about 3, 4, 5
weeks in these kinds of projects.
Once it gets to a more planalon appeal, you're looking at
something like 18 to 26 weeks,depending on whether it's
environmental impact assessment,it's the direct applications
that have the longer period oftime.

Rick (29:53):
And direct applications are only for large.
Strategic infrastructure, andwhat is strategic infrastructure
?

Brendan (30:02):
In 2006, we made a list and it's still basically the
same list.
It was shaped in response tothemes that had emerged, which
was that every landfill in thestate was being appealed, All
the lounge wind farms were beingappealed, All the power plants,
the gas fired power plants thatwe needed and were building at

(30:22):
the time all were being appealed, and the logic was why waste
local authority time and efforton?

Rick (30:28):
it when it's going to end up here anyway.

Brendan (30:29):
This is cut to the chase and the list was formed
then.
It includes environmentalinfrastructure, so wastewater
treatment, water supplytreatment.
It includes energyinfrastructure I'd say big wind
farms, power stations andincludes waste infrastructure.
And those classes haven'tshifted too much.
Haven't shifted too much andare largely repeated in the new

(30:52):
legislation.
But the bigger power supplylines gas pipelines, they're
also included have been since2006, as strategic gas
infrastructure, strategicelectricity infrastructure, and
they're captured now under thenew legislation also.

Rick (31:09):
So it's a designator, for you're going direct to a board
plan because you're going to endup there anyway, but it doesn't
change the priority.
There's no element of thePlanning Act that says this is a
priority.
So this has to go faster thanother things.

Brendan (31:29):
Not exactly a new act telling on board Planola as
it'll be retitled on CommissionPlanola to give priority to
specific classes of application.
We do know from stakeholderfeedback from the board that
it's giving priority to certainthings like renewable projects,
transport projects and largerhousing schemes.

(31:50):
But when you say that thatsounds like a lot of things and
when you're giving priority tosuch a wide cohort maybe it
doesn't feel like much by way ofpriority at all.

Rick (31:59):
Yeah, well, you can't give priority to everything.
Obviously, yeah, we're jumpingaround here a little bit, but
the reason I ask I have in mynotes here about this Mark
Ruffalo character and thebizarre kind of video that he I
think he was having an interviewwith a Irish actor and that
maybe he's doing a movie withand he went nuts about the Green
Party and LNG gas terminals.

(32:21):
So there's no, that's nonsense,is it?

Brendan (32:24):
Yeah, so there was a very late stage amendment that
expanded the definition ofstrategic gas infrastructure.
Now LNG terminals were alreadystrategic infrastructure and
captured through a schedule inthe current act and a schedule
in what's now our new 2024 act.

(32:44):
So in a sense it's much adoabout nothing.
But there was an expansion tothe definition of strategic gas
infrastructure that wasperceived by some to make it
easier for the state to deliverits own LNG import facility
terminal gas storage, if itneeded to the private

(33:06):
infrastructure like the projectthat's proposed by Shannon LNG,
the new Fortress Energy Project.
That's already strategicinfrastructure and already was
captured under the relevantschedule.
So it made no difference to it.

Rick (33:19):
So headline celebrity doesn't know what he's talking
about in shocking development.

Brendan (33:23):
But to pick up on your theme around the changes in the
consent process, around limitingthe discretion of on board
planola.
The new Act does that in terms.
We'll see materialcontravention strangled.
Actually Now I appreciate it'sless common now.
Maybe development plans are alittle more flexible and

(33:45):
developers are a bit more strictabout trying to achieve
consistency.
But the four old rules fornavigating through a material
contravention have been changedto just three and each of those
three is tighter than before.
You can still look forstrategic or national status as
such, but it has to be throughan express reference in

(34:06):
government policy.
You can't just pluck it fromthe air.
You can still hunt forconflicts within the development
plan and you can still look toguidelines, but in a much more
strict manner.
One of the things we don't talkabout much is a change that will
affect developers makingappeals, perhaps against a
refusal.
They might have soughtpermission for something let's

(34:28):
say, eight stories suffer arefusal and then proposing their
appeal a reduction to six orseven stories in order to make
it easier for Planola to grantpermission.
Maybe there's a specificconstraint against the board
granting permission unless it'sfor development.
That's substantially the sameas was the subject of the
original planning application.
So some flexibility has beenstripped out of the process in

(34:51):
that respect.
So they've taken that away.
They've taken that away and noone's really talking about it.
No one's really talking.

Rick (34:56):
Because we actually had a case of that where we got a
refusal from Delirium when inour appeal we suggested that one
of the things they didn't liketo the board they could remove a
certain number of apartments.
And they did that and theygranted it.

Brendan (35:09):
And it's very practical , yeah, and so long as the
public has fair opportunity tosee what's proposed and to
comment on it, it's a soundprocess.
But there is a sensitivity, andit's been the subject of legal
challenge, and partly inresponse to that war raging in
court, that they've made thetweak.

(35:29):
There is some good.
The tweak there is some good.
Certainly the risk of beingrefused permission just because
the settlement housing targethas already been achieved, that
someone else already gotplanning permission to deliver X
units and the settlement onlyhas a target of X or less than X

(35:51):
.
You can't be refused permissionsolely for that reason.
A lot of people were encouragedby that, given the anxiety
about housing targets and howthey're, frankly too low in many
of the plans.
The practical difficulty,though, is that you may be
de-zoned or re-zoned or pausedinto strategic reserve by the
time your planning applicationis determined, at which point

(36:13):
this clause actually doesn'thelp you, because it's the
zoning that'll get you, not thehousing target.

Rick (36:19):
This is something which was previously basically
sacrosanct right that the ideaof land being de-zoned just
didn't happen.

Brendan (36:26):
Well, we have clear ministerial guidelines that say
if land is zoned and serviced,that it shouldn't be de-zoned.
Yeah, it's as.
It's as simple as that and yethere we are we have examples
very clearly of zoned andserviced lands being changed at
least from tier one zones tosomething in the nature of

(36:49):
strategic reserve, and there arelive issues in a number of
local area plans and developmentplan challenges where that
issue is very much live verymuch so getting like.

Rick (37:00):
There's so many different questions I have, but it seems
like all of this comes back downto this idea that we're trying
to cater for every possibleoutcome instead of just saying
we need the housing.
This dude or lady over herewho's the board inspector knows
what they're talking about.
They're an expert.
They said it's a good idea,that's the end of it.
Should be the end of it Insteadof you know the land zoned and

(37:24):
it's serviced, but now somebodyelse thinks that.
Actually, you know, I don'tlike that anymore and I'm a
local councillor and I gettogether some more local
councillors now I just get theland de-zoned and then my
constituents who vote for me aredelighted with this.

Brendan (37:39):
So and pull the ladder up.
Yeah, and it's not supposed towork like that.

Rick (37:45):
Because we're always told there's always democracy in
action about people.
But that's not democracy, right, that's just cronyism.
It's corruption, right, butpeople corruption in the Irish
mindset has been a developergiving a bag of money to a
politician, right, that's howpeople, that's what people think
corruption is.
Corruption can go the other way, right Like the public process
can be corrupted by peoplemaking decisions that suit their

(38:07):
own and are not for their widermajority.

Brendan (38:11):
Yeah, I mean it's interesting when you look at the
bundle of development plansthat have recently been made and
the number of legal challengesto them and it's higher than is
typical and that's partly aresponse from developers who are
constrained in materialcontravention in the planning
process, therefore more focusedon the development plan and

(38:34):
getting that right, but seeingvery local client list politics
getting in the way of what mightbe a broader democratic theme
on zoning of lands.
There are some high profileexamples where I'm left
scratching my head for how theplanning decision making in the

(38:54):
elected chamber has deliveredthe answer it did, where the
transcript of the debate in thecouncil chamber just doesn't
read well and the recentlyDublin Airport Authority had a
successful challenge to part ofthe Fingal plan which involved a
lot of emphasis on thattranscript and the features

(39:14):
where councillors were relyingon on non-planning matters to
stifle particular classes ofdevelopment.
There are other challenges ofthe same kind coming up soon and
and I'd like to think we'll seethe high court place the right
emphasis there in terms of whatis relevant and what was

(39:35):
material in the decision makingprocess on those plans.

Rick (39:37):
But it's kind of we end up here again, back at the High
Court.
Right now all roads seem tolead back to the High Court.

Brendan (39:45):
I'm the hammer and we're going to talk about nails.

Rick (39:47):
Well, I, yeah, I mean, and I know, and you're doing your.
I mean, this is what you do,this is great, but like from
it's a wider philosophicalquestion.
It's like what the fuck are weat, like, if this is the way we
have to go to build a poxy windfarm?
I was reading a thing aboutChina now for a second,
suggesting that we carry on likethey carry on, but I don't know

(40:10):
if you know that they've justopened the world's second
largest solar array.
The world's largest solar arrayis also in China.
Right, it's in this desert inthe middle of China.
But I was reading this articleand it wasn't really about the
solar array.
It was actually about thetransmission lines, that they've
built 48,000 kilometers of highvoltage lines in the last three

(40:32):
years in China to connect thesesolar arrays back to the cities
.
Now I know that all the liberalswho listen to this all six of
them will send in messagessaying yeah, but what about the
people in the desert who are inthe way of the power lines?
And the Chinese just say getthe fuck, and they just build
the lines anyway.
I'm sure that does go on.

(40:53):
They have perhaps too muchambition, don't have enough and
we spend our time.
Instead of thinking about highvoltage electricity lines, we
start spend our time thinkingabout how many people can we put
into port panola who can answerecology questions from a few
cranky environmentalists whodon't want anything to happen?
How long can we make ourplanning act?

(41:15):
How many different classes ofdevelopment plan can we have?
And we dress it up like we wrapourselves in the flag of
democracy.
It's kind of nonsense, isn't it?
Like it's kind of it's just aroad to nowhere, ultimately,
yeah.

Brendan (41:30):
Well, I mean, if you think about North-South
Interconnector a reallyimportant piece of
infrastructure through sixcounties in in the republic of
ireland and northern ireland,and you look at how long in
storage the consent process hasbeen and the legal challenge
process to it in bothjurisdictions and the outcome is
a consented project, but yearslater than makes sense, do you

(41:56):
know how long that's been goingon?
I think I first worked onNorth-South Interconnector back
in around 2010.
And when did it get consented?
Its consents were obtainedwithin about five years and then
legal challenge down south andthen a longer process up north.
Um, but it's now consented nowconsented, now consented.

Rick (42:20):
So that took more than a decade.
Yeah, at least, and it's atleast a power line it'll be a
fantastic high voltage powerline.

Brendan (42:27):
Yeah, but we're not there yet.

Rick (42:29):
We're still not there yet you see, stuff I mean just stuff
like that we, we don't havethese options, right, we're a
little rock.
Yet you see, I mean stuff likethat we, we don't have these
options.
We're a little rock in theNorth Atlantic.
We can't behave like this that.
You know that we're Athens inthe year 50, when we're
inventing democracy, like we, weneed these frigging power lines
, we need these wind turbines,we need all this stuff, right,
we?

Brendan (42:51):
emerging consensus around these features.
And then there's local concerns, um.
And if we set the tone from thetop right, if we have strategic
plans that identify the needfor infrastructure along given
corridors the same way wedelivered road infrastructure in
the past or wasteinfrastructure without legal

(43:11):
challenge, um, you can make iteasier to secure a consent that
isn't challenged or that can'tbe challenged successfully.
But you can't do it at pace andyou can't do it in response to
urgent need.
And if you take whateverfeature of development, whether

(43:35):
it's a response to the need forflood relief, a response to the
demands of internationalprotection seeking applicants or
displaced Ukrainians, or aresponse to COVID or a response
to Brexit, planning hasn'tworked well when it's trying to
move at any pace.
And if it's a response to wehaven't got enough power on the

(43:58):
grid or we haven't got our powerlines in the right place,
planning law gets in the wayrather than makes it easier and
yeah, I mean we keep keeprepeating the same thing about
planning act being really long.

Rick (44:12):
So are we?
You know, planning law gets inthe way.
What are we doing on theplanning law front?
We went through a reform forthe first time in 20 years.

Brendan (44:22):
Kind of feels like a bit of a missed opportunity well
, I suppose the one of the themuch talked about changes that
are around access to the courts,yeah well, I wanted to ask you
about that.

Rick (44:33):
Right is that?
Has there been any change tothat?
Because, depending on thebuilder, I wanted to ask you
about that.
Right is that?
Has there been any change tothat?
Because, depending on thebuilder I talked to, some says
that has them say nothing.
So a lot of words have changed.

Brendan (44:41):
Okay, excellent, we're good at that.
At least, I'm not convinced itwill make that much difference.
If I look at a bundle of 100court cases on my desk, I would
say the new act wouldn't havestopped any of them from being
brought.
Wow, that's very depressing.
Um, the rules can be striped asa little bit easier now, and we

(45:03):
used to have this two-stageprocess, um, the first stage of
which was not that difficult toovercome, and now that first
stage is gone.
So that was like seeking leaveleave stage.
The leave stage is now removed,okay, and instead what there is
is a chance for porp tonal thedeveloper, for example, to come
in and say I want to strike outthe proceedings without getting
to the finish line.

(45:23):
There's some issue around alate start, insufficient
interest or some other doomed tofail type issue, and you can
slide tackle early effectivelyBoth boots, both boots.
Both boots studs up, and thetruth is there's much talk about
this sufficiency of interest.

(45:43):
And what are the rules on whatwe call standing?
Can residence association bringchallenges?
The answer is yes, they can.
Are there more rules now forthem to satisfy?
Yes, do they need to?
Probably not.
They can set up a companycompany most of them already
have at this stage, um.
Or they can just name thesecretary and chairperson as

(46:03):
natural persons and they don'tneed to worry because, back to
your point around costsprotection.
There is still costs protectionand what the new act does is
retain that shield.
So normally when you're inlitigation, you have to be
careful before you throw a rockat someone, because you might
end up having to pay for thedamage you do If you lose the
case.
You're on risk Costs, followthe event.

(46:25):
We say In planning andenvironmental law we flip that
it's heads I win, tails you lose.
And what that means is that ifyou're bringing a court
challenge, you just have toworry about your own lawyer's
bill and they may be prepared towork on a no-full, no-fee basis
and in the hope that they'llget to the finish line and win

(46:49):
the case and have Bort Planon orsomeone paying their costs, but
what?
The person bringing thechallenge doesn't ever need to
worry about having to pay boardplan.
All are the developers legalbill, and, and that provision,
that shield, if you will that'sretained.
What we have, though, is aprospect that the amount will be
capped.
So currently, if you bring asuccessful challenge and it's

(47:11):
gone to the finish line it's runfor three or four days in the
High Court you could expect acosts bill demand to be sent to
Ombord Planola for a six-figuresum, and the board will be
paying a big chunk of that.
The proposal here is that theminister will have the power to
set a cap, so that the board isonly exposed to a smaller

(47:31):
fraction maybe, and thatcertainly will have an impact
and make the market for objector challenges a more constrained
market.
But one thing that isinteresting is we're now
introducing a legal aid scheme,so a new financial assistance
mechanism to fund losing cases,so, in fact, we should expect
there to be more, not less,legal challenges Now.

(47:55):
The full details of that schemehave yet to be published.
We could be some time before wesee it, and who knows whether
it ever comes into force, butthe commitment is there that the
state will set aside some moneyin order to fund just remind
ourselves losing cases To fundlosing cases.

Rick (48:14):
I'm real glad we're recording this on a Monday and
not on a Friday, Brendan,because for the love of all that
is, I mean, that is justincredible.
So you are, Mr Resident, and afew months ago you were under
the Old Planning Act and nowyou're under the New Planning
Act and essentially nothing hasreally changed.

(48:34):
Because I know you said aboutthat cap, but I assume that
hasn't been commenced, it's notin place yet.

Brendan (48:39):
And I should say the vast bulk of the 2024 act is not
yet in legal force.
It's passed through the Dáil,the Sianad, it's been signed by
the president.
The little tweaks regardingrent pressure zones came into
force immediately.
Loans came into forceimmediately and just in the last

(48:59):
number of days some provisionsregarding owners' management
companies tucked into the backof the legislation, were
commenced by ministerial order.
Everything else awaits aministerial order, we're told by
the department.
It could be 18 months beforethe lot is turned on.
So if you can imagine that theplanning act is filled with at
least 26 or more light switchesfor each part, they'll be
switched on in sequence.
We're told that a draftcommencement order has been

(49:21):
prepared to turn on theprovisions around on commission
planola, the respray for unbornplanola, restructuring for
unborn planola and for the partabout fun fairs and events, so
circuses and concerts, thatthey'll be first up.

Rick (49:34):
They're obviously dealing with the most urgent matters
first.

Brendan (49:38):
Soon after the new government is formed.
That's the expected first lightswitch is on.
After that we're expectingconsultation around a couple of
features like exempteddevelopment and thresholds for
environmental assessment, with,soon after planning, regulations
on the ministerial guidelinesthat the planning statements and

(49:59):
development plan making would.
Then, probably towards the endof the year or maybe slipping
into 2026, they'll turn on theprovisions around consenting and
then after that the provisionswe've been talking around on
judicial review.
So I'm not expecting to seethat turned on until quarter one
2026 earliest.
And if you think about the 2000act as it was turned on slowly,

(50:20):
it wasn't until March 2002 thatwe saw the bulk of it turned on.
We'll have plenty of advancenotice.
The department has animplementation team working on
its strategy for what sequenceto turn on the parts of the act.
It's going to meet resistance.
You can expect, for example,local area plans.
At the minute it's a point ofreal friction.
Are local area plans extant?

(50:42):
Are they not?
Where they're not, can we getnew ones made under the current
law?
Because if they're not made bythe time the provisions of the
new Act are turned on, all thework in trying to make them will
be set at naught and you'llhave to start again with an
urban area plan and if you canimagine local authorities
expressing themselves, thedepartment, they will say, well,

(51:04):
we're in blood, stepped in sofar.
Whichever, let us finish andand we should expect that those
provisions aren't turned on.
It's really important, like ifyou look at um at the Greater
Dublin area, there's probablyabout 20 local area plans that
are expired that are reallyimportant for development,
particularly for new housing,and if those plans aren't made

(51:26):
in time before the Act is turnedon in relation to urban area
plans, we'll have a real problem.

Rick (51:32):
So the planning, because there was a lot made of it the
Planning Act has been signed andthere was sort of a victory lap
been taken, but it hasn'treally been commenced.

Brendan (51:41):
No real consequence.
We're already advising on it.
We're already advising on, forexample, that feature about
local area plans, extensions ofduration.
We're advising on that.
If you have a planningpermission that's fast getting
to the finish line and runningout of time to build out, right
now under the planning actyou're looking to achieve
substantial works in order toget an extension of duration, to

(52:04):
get more time on the clock.
The new act has a differentsolution.
It doesn't care aboutsubstantial works anymore.
It just is a kind of miniplanning application with the
prospect that you can get anextension of duration on even
projects that need environmentalassessment, which you can't
currently.
And that was something thatpeople were welcoming and giddy

(52:27):
to get turned on quickly.
But there was a late amendmentto say actually, for the first
three years the old rules willcontinue to apply, so
permissions expiring under thecurrent act will stay expiring
under the current act and canonly be extended under the rules
of the current act, which iscommenced with substantial works
.
So if you're looking at, youknow, financing or discussion

(52:51):
around financing on anythingthat's a little bit complicated
with, like you know, that takeslonger than a year to complete,
um, and your permission'salready three years old.
You're done, you're, you're,you're stuck with.
Can I get enough to achievesubstantial works and can I
trust the local authority togive me the extension?

Rick (53:10):
and what is substantial work, because there was a case
last week in the high courtCourt of this where they applied
for an extension based onsubstantial works and the
council said it's notsubstantial, not to put a
mathematical or numericalthreshold on it.

Brendan (53:23):
It's sort of an elephant You'll know it when you
see it.
And so there's huge discretionfor the local authority.
I think some of the bestexamples we've seen is to

(53:45):
describe it as not insubstantial.
That's what substantial means.
The idea is the bigger theproject, the less
proportionately you need tocomplete.
So you're doing a power stationand it's a 100 million euro
project.
The idea is the bigger theproject, the less
proportionately you need tocomplete.

(54:06):
So you're doing a power stationand it's a hundred million euro
project.
You might only spend 10 millionof your budget and be
substantial.
Yeah, if you were doing aone-off house, they're expecting
you to get to wall plate.

(54:28):
Yeah, you're nearly done inblood stepped in so far, so to
speak.
But the logic is still let'snot have unfinished Taj Mahal
projects.
The idea is we should be ableto complete things that are
started.
You know, lift core up.
By the time you have even, youknow, somewhere between five and
10 million euros of the budgetspent.

(54:49):
That's a lot of commitment to aproject, in my view.

Rick (54:51):
Yeah, I often.
We've never been in thisscenario, but I've heard about a
lot of cases of it and I oftenthink why not just be very
simple about it and say plan ofpermission is five years.
If somebody has commenced onsite, they get an automatic one
year extension and then that'sit.
There's no, because you knowyou can build anything in two
years, right, right, like theworld trade center that was

(55:12):
built in 18 months, like the twoyears bills, anything the um
we've been.

Brendan (55:17):
We've been requesting automatic extensions, that there
must be um.
Say, for example, if you youhave a legal challenge and you
burn, uh, two years of yourpermission or longer
successfully defending thatchallenge, like sure as night
follows day, you should be giventhose two years back at the end
, like there's a lot of logic tothat.
But but under the current codeyou don't.

(55:40):
You have to hit substantialworks and then you'll get those
years back late on.
The new act's a littledifferent.
It's, it's, it's uh, justfocusing on it as a an
alteration, effectively treatingit as an alteration.
The expectation is that we'llsee more extensions, but what
we're doing is ahead, justlooking for longer durations in
the original permission.

(56:00):
We're expecting that theremight be challenge, we're
anticipating that there might bedelay, that there might be
issues around contracting andfunding, and looking for longer
to spare us the bother of havingto go back into a planning
process sooner.
If you look at Dublin Centralthe site between O'Connell
Street and Moore Street, henryStreet to Parnell Street you've

(56:21):
seen durations there of 12 years.
And that's precisely inresponse to these kinds of risk
factors.
And obviously Metrolink is afeature there.
The other thing that's going tochange in the new legislation is
if you do get a legal challenge, you can give notice to the
planning authority to say I'vebeen challenged, please suspend

(56:42):
my permission, and what thatdoes is literally pause the
clock.
It means you can't build either, but you get to stop the clock.
So you get to give notice tothe parties and say I'm not
going to take any risk on this.
Now many people see a challengeas a real chilling effect and
if you're spending someoneelse's money, it very much is.

(57:05):
You won't get someone else'smoney to build when you're under
legal challenge.
But if you're the state orpublic authority, you may take
that risk.
I mean, we've seen LansdowneRoad Stadium redevelopment that
was carried out while there werelegal challenges pending.
Intel's thing as well, right,absolutely.
The new terminal at DublinAirport Again, these are rare

(57:28):
enough examples.

Rick (57:30):
They're major projects though, like if they say, for
example, the airport terminalthat was built, then the
challenge came through and theylost.
What happens then?

Brendan (57:38):
Take it back down, or Well, we have a couple of
examples.
There's a famous or infamouswind farm that successfully
defended its permission in thehigh court and commenced
development.
During the construction of thewind farm, an application was

(57:59):
made to appeal to the SupremeCourt.
The Supreme Court said yeah,come on in, We'll let you
progress an appeal.
And they object or won.
The developer lost in theSupreme Court.
By the time the Supreme Courtdelivered judgment, 12 of the 13
turbines had been erected.
What happened next?
An opportunity to regularize, achance to go in and get a fresh

(58:22):
permission, a chance to go inand get a retention or a
backward looking permission forthe work that's been done
without a legal authority.
But generally, what you see inthose facts is you may be
suspended from getting thebenefits of your permission, so
you won't get the fruits of yourlabor until you're at the far
side of the planning process.
Now facts will differ.

(58:44):
In that case they were entitledand they've since submitted to
the regularization process.

Rick (58:51):
But it's not straightforward and you're
carrying risk and meanwhile, inthat case, the turbines are
sitting there and they can't usethem because they don't have
the right to use them yeah.

Brendan (59:00):
So when we've seen that with grid connections, we've
seen that with turbines thatwere built slightly longer than
originally permitted and thedevelopers forced to suspend and
not profit from the, thesuggested illegal development,
it's.
It's not straightforward and ityou know when you're carrying
that kind of risk.

(59:20):
It's it's one where obviouslyyou think in advance is it worth
my while?

Rick (59:26):
and you want to be very confident yeah, you want to be
very confident and there's not alot of things, certainly from
today, uh, that would inspireconfidence.
Um, from today that wouldinspire confidence, I would say.
I mean one of the things.
I mean, is there any?

Brendan (59:39):
positive.
Well, I would say this therewas a period of time when almost
every large housing scheme wasbeing challenged, and that has
changed.
Under large-scale residentialdevelopment, we're just seeing
much fewer challenges.

Rick (59:52):
Why, specifically, is that ?
Is that just something to dowith the SHD?
Like denying publicparticipation?

Brendan (59:57):
Yeah, I think that is maybe the thread.
It's not necessarily just that.
I think there's lots of thingshappening.
One is obviously large-scaleresident development sees two
bites of the process and Isuppose the public has better
trust and confidence in aprocess that sees the planning
authority speak first, the boardspeak second and if there's
high levels agreement betweenthe local authorities, officials

(01:00:18):
, the board inspector and theboard, those are just not as
easy to challenge as the truth.
It's where you see discordbetween the planning authority
and the board or discord betweenthe board and its inspector.
That's where that's the kind ofgap you're looking for.
The other thing is obviouslystrategic housing development.
You know there were directapplications to the board and
it's inspected.
That's where that's the kind ofgap you're looking for.
The other thing is obviouslystrategic housing development.
You know there were directapplications to the board.

(01:00:39):
There was a certain perspectiveon how fair that was.
But more important at the timewas these were challenges to
schemes that were complying withnational guidelines and
departing from the developmentplan.
So material contravention wascommon In fact, because the

(01:01:00):
legislation required you todisclose your material
contravention in advance and ifyou didn't you would lose your
permission.
Marginal, mere contraventionsor arguable contraventions were
being flushed into the materialcontravention statement, and
that introduced its owndifferent risk, whereas
large-scale residentialdevelopment, that's not as
important a feature.
You don't have your materialcontravention statement, you

(01:01:21):
don't have the requirement topublish.
You have different risk factors, but we're seeing any.
There are some schemes thatwere challenged when they were
an SHD consent and now beingchallenged when they're an LRD
consent, and you can see fewergrounds of challenge as well.
There's being challenged whenthey're an LRD consent and you
can see fewer grounds ofchallenge as well.
They're a small enough data setto be able to draw any
inference, but fewer challenges,fewer grounds of challenge and,
maybe more importantly, we'reseeing Borplenola win more cases

(01:01:44):
.
Okay, so there was a period oftime when they won nothing right
.
Well, there was a while whenthe win-loss ratio was very ugly
.
Now it's much better.
There's a little devil in thedetail If we say Borpnana, the
last annual report gives datafor 2023.
Let's say, about a hundredcases were resolved during that

(01:02:07):
year.
More than a third were concededby the board, so they stripped
that out from the data.
And then, when you look at thewin-loss, it's about even
between winning and losing cases, once you take the conceded
cases and the resolved byagreement cases out of the data
set, the single biggest lump iscases resolved, cases withdrawn

(01:02:29):
effectively, and the inferenceis there pragmatism brought to
bear.
By pragmatism brought to bearby pragmatism you mean money.
Well, it's not always moneyactually.
Sometimes it involvesabandoning part of the scheme,
which is a cost, for sure, butit's not an economic transfer.
But there are projects that areonly now progressing because

(01:02:53):
the legal risk was purchased.
I think that's wellacknowledged and there's high
profile examples discussed inthe media about it.
It'd be better if we had ascheme of planning law and
practice that didn't encouragethat, that didn't need that.

Rick (01:03:11):
That specifically prevented it, I think.

Brendan (01:03:14):
Well, that's worth thinking about.
I suppose, standing back as alawyer and you think about
personal injuries claims and youthink about I think my claim is
worth X and I settle for Xdivided by two, x divided by
three, I settle for somethingless.
It's possible that I mightaccess a court process and
decide to give up on that courtprocess for some other pragmatic

(01:03:37):
reason.
Now you can't apply thatdirectly to public
administration decisions, but ifyou have a concern that the
development is hurting you to adegree and that degree can be
compensated for and thedeveloper's happy to do it and
makes that choice to eliminaterisk, that might be to ensure

(01:04:00):
they obtain the benefit of thecontribution waiver scheme or
they get the benefit of beingthe right side of cost price
inflation or yeah, no, for sure.

Rick (01:04:10):
I mean I, I don't, I don't have any particular issue with
it.
We've, we've done it,everyone's done it.
Um, but it's a case of moralhazard when you start putting a
financial incentive to people tostart holding things up.

Brendan (01:04:22):
Absolutely and I think.
Well, one of the things the newact does is try and set a
policy against that.
So to make a planningsubmission now, you'll have to
include a declaration that saysyou're not doing it just for
ransom Right.
You have a specific criminaloffense for asking for money in
order to not make a submission,withdraw a submission, withdraw

(01:04:44):
an appeal or withdraw a legalchallenge.
And that is signaling, I think,in response to disquiet arising
from investigations done by thenational broadcaster around
that feature of planning process, which is a rare enough feature
.
But it's setting direction andtrend and saying you know what

(01:05:05):
we're not happy.

Rick (01:05:05):
This and and it's a crime well, it used to actually be
more common, I think.
And then people well, becausepeople saw the planning process
as sort of inevitable, and sothey were trying to extract what
they could extract while thetrain was still in the station,
and then that flipped, and nowpeople see the prevention of the

(01:05:26):
planning process as beinginevitable, and I actually think
that it led to people notasking for money, because now
that, well, I know I don't needmoney, I can just prevent the
thing from happening at all,which is actually more
attractive than even gettinggetting the cash delay is the
enemy, um, I think, I think, uma lot of communities will get
advice that says the developerwill eventually get permission

(01:05:46):
to build something and they'llget a permission that you won't
be able to challenge.

Brendan (01:05:51):
They might get it this year or next year.

Rick (01:05:54):
Yeah, it's a matter of when, not if.

Brendan (01:05:57):
I think the advice I'd expect they're getting is that
eventually the house wins,eventually lands that are zoned
for development will bedeveloped and eventually the
public authorities will not makea legal error.
That will open access to thecourts.
And the other thing, just interms of encouraging themes, is

(01:06:18):
around.
We're seeing swift courtprocesses with swift court
judgments, upholding theapproach of the board and
excusing harmless errors.
So that is a change identifyingsomething in relation to
biodiversity assessment andsaying you know what doesn't
make a difference, and that kindof pragmatism.

(01:06:39):
Or, as well, identifying somefeature of the process that
wasn't perfect, but again, whichdoesn't affect outcome, and
making a declaration to say thatwas bold, don't do it again,
but not taking away thedeveloper's planning permission.
And I think even over the lastsix months we've seen important
high court judgments emphasizingthat in a range of sectors,

(01:07:02):
particularly in the renewablessector, saying that you know
what?
There is a balance to be struckand we can't insist on
perfection and there are moreworthy features at play.
Housing hasn't achieved the samebounce.
It's almost like the numbersare so great that no one scheme
is perceived as being thekingmaker in that context and,

(01:07:27):
as a consequence, it's a littledisrespected from a priorities
perspective, from treating it asstrategic or national
importance, those claims havegenerally been discredited or
diluted in court.
Even the function of getting ahearing date is much easier for

(01:07:47):
a renewable energy project thanit is for a housing scheme.
If there's to be a, the littleone said roll over, they all
rolled over and one falls out.
It's the housing scheme that'llfall out and it's the
renewables or otherinfrastructure that'll get there
.

Rick (01:08:01):
Because of fragmentation right, 50 houses here, 50 houses
there.
It's a difficult.
I mean, if you had the entirecourt list would be taken up.

Brendan (01:08:09):
Absolutely.
And look, the courts aren'tsuffocating under the weight of
housing challenges.
Now we've been talking innumbers at different times maybe
30, 40, 50,000 units underchallenge.
I think when you strip the databack now it's probably as low
as around 7,000 units underchallenge.
There are probably many morepermissions that stand free from

(01:08:32):
challenge, that are notdeveloped, and being able to
grapple with why that is trueand whether anything in planning
law and practice is getting inthe way of implementation is
worth thinking about.
We have procedures around minorenough tweaks to existing

(01:08:52):
permitted schemes that aregetting sent through the LRD
process.
You want to change the plant atthe top of the taller building.
You're not changing any of theunits.
You're going into a full LRDprocess.
That doesn't make sense to me.
Extensions and duration wetalked about it earlier.
There should be some moreautomatic extensions.
We did have that before whenthe National Asset Management
Agency was introduced and tookover loan books.

(01:09:14):
That included a lot of sitesthat had permissions on them.
The state response was to sayhang on a minute.
We cannot let those permissionslapse overnight and we need to
be fair so that private personshave as much access to these
methods as NAMA, and that shouldbe commercial, economic,
technical reasons, and whateverthose reasons are, it's
viability, it's access to fundsand that's still a key

(01:09:36):
constraint.
But we removed that in 2021 andyou'd have to wonder where we
took it in early in removing it.

Rick (01:09:45):
Well, I've yet to hear anyone come up with a
justification as to why it wasremoved, because it's not as
though at the time, there was awhole load of half-commenced
units.
Remember the Ghost Estates?
Remember how that used to bethe number one issue of the day,
and now there's none of them.
That seemed to just come out,and it was like we're not doing
it because.

Brendan (01:10:05):
Yeah, I think, if I was to guess.
I think two things are drivingit.
One is and not to go back toEurope again but a sensitivity
around Europe's view ofextensions of duration.
If the project was one thatneeded a full environmental
assessment, did it assess thebuilding of the project during
the five-year life or did itassess the building of the
project over an extended time?

(01:10:26):
And that that debate will muchhave changed.
Well, who's checking so thatthing?
Second, it's use it or lose itby the back door.
I mean, remember this was avaulted policy with a view to
encouraging the delivery ofprojects that get permission,
and there was to be a use it orlose it provision and the
government abandoned that.
But this is it by the back door, insisting effectively that

(01:10:50):
once you have the privilege ofpermission that you do need to
activate, and we're seeing thatacross.
What are you going to take usinto?
Vacant site levies andresidential zoned land tax you
can have another podcast on that, but activation as an
encouraging feature, and thendevelopment levy waivers as
another encouraging feature totry and trigger earlier
commencements.
Um, there are many levers thestate is looking to pull all at

(01:11:14):
the same time.
Yeah, and unfortunately some ofthose are intention when you
then take land value sharing asa concept in parallel to that.
But look, let's wait for thatlegislation to come to life
before we come and talk about itIf it comes on.

Rick (01:11:26):
But I mean, for now, what I'm taking away from this is the
good news is the circuses areprotected.
They're first up, best dressed,they're first up.
I mean, that has been thepriority of government and I
think it's just you couldn'tmake that up that the circuses
are the thing that got commencedout of the new planning act.

Brendan (01:11:49):
The expectation is they'll be in the first
commencement order.
The next commencement order,rather.
I suppose one thing I'm bettingthe act will be amended before
the lights are turned on, yeah,by the new government.
I'm expecting some changes andI think that wouldn't be a bad
thing.
And, um, I think that wouldn'tbe a bad thing, um, I.
I think also there's no pointturning it on in a rush if the

(01:12:11):
apparatus of public authoritiesisn't ready to actually give
effect to it.
And and that needs, that needssymmetry.
Otherwise we we walk ourselvesinto a whole different bundle of
fertile grounds.

Rick (01:12:22):
Yeah, that's actually a very good point to say that you,
you turn all this stuff on.
There'll just be a lot ofpeople with their eyes open and
their mouth open saying what?
And we'll get nowhere with thisright.

Brendan (01:12:33):
I mean, if you go back to the 2000 Act, that March 2002
date was signaled in acommencement order in January of
that year.
So even when we turn on thelight, it'll be.
We're turning it on in twomonths time and in advance of
that we should expectconsultation, draft regulations,
training of local authoritystaff and those who engage in

(01:12:55):
the planning process.
It's not happening overnight.
As I say, it's press releaseworthy at this stage.
In practice it's much lesssignificant, but it is important
when we talk to theinternational community who've
expressed frustration or have ahigh level sense that planning

(01:13:16):
in Ireland is a pain point, andto be able to have the
conversation where we say oh no,we've changed that law.
Now if they ask anotherquestion, it may be more
difficult to explain how thosechanges do help, but as a
starting point in your elevatorpitch with international money,
it's a good start to be able tosay we're on it and I think
that's part of the story herethat is difficult to value or

(01:13:43):
weight but is not insignificant.

Rick (01:13:46):
There's an argument to say that we've been saying we're on
it for a while and we keep youknow.
At that same event, when theguy was bragging about the
length of the law, he also toldus how important this election
was.
You know, how vital it was tocontinue the work of government.
And somebody came up to me andsaid you know how fucking long

(01:14:08):
do they need to be in power toto actually do all these things?
Right?
Like we've been listening tothis for a long time, but like
we hear your concerns, we'reacting on them.
Yeah, and it just reminded meof that phrase.
You know, the beatings willcontinue until morale improves.

Brendan (01:14:22):
Um, the, the.
It's tricky when you lookacross, say, just the
accommodation sector and and youthink about um policies set in
in, you know, sustainabledevelopment and apartment
guidelines and height guidelines, and we think about the
backsliding in the apartmentguidelines subsequently under

(01:14:44):
pressure from opposition aroundco-living bill to rent pressure
and purpose-built studentaccommodation on tenancy
duration and what feelssometimes a reflexive and
flexible nimble government.

Rick (01:15:00):
but to remove from even just the nomenclature, to remove
from the discussion entiretypologies, while at the same
time With the stroke of a penright, Like without any of the
consultation and training andthings that you're talking about
.

Brendan (01:15:17):
Very quickly.
You know we had Christmas 21,christmas 22.
We've seen these schemes thathave been in process and
gestation for an extended timeeffectively disappeared from the
planning lexicon at that strokeof a pen, while at the same

(01:15:37):
time we have governmentacknowledging in the data that
we need more of every topology,we need more of every kind of
accommodation.
We need more studentaccommodation.
We need more homes.
We need more homes of everydifferent size.
We need more rentalaccommodation too.
There isn't.
And then you move to theemergency demand, whether it's

(01:15:59):
on short-term, emergencyhomeless accommodation or
displaced persons from Ukraineor those seeking international
protection.
That's a class of accommodationthat's, frankly, still in need
of the right kinds of solutions,and we have strategies and

(01:16:21):
decisions coming out that aresuggesting that use of hotels
and tourist accommodation is notpart of the solution.

Rick (01:16:28):
and my, my head is left itchy and I scratch it, yeah
well, brendan that I have to sayI think that's been one of the
most enjoyable chats that I'vehad.
I mean, it's it's it'sabsolutely so depressing, but
you've managed to put a lot ofcolor on a lot of things and a
lot of questions that I had.

(01:16:50):
I know a lot of people who workin industry who listen to this
would have loved hearing aboutit, because there would have
been questions that they feellike they can't ask or that, if
they do ask, nobody has theanswer to.
But you do seem to have theanswers to them.
So anyone who is looking forplanning advice, I can only
suggest that you tottle on downthere to the docks, that very

(01:17:11):
lovely building with the.
Do you still have the bigbamboo plant in the middle of it
?
Is that still there?
Uh and uh, that's your air.
Is that your air conditioningis?
Somebody told me that and Isaid that can't be true.

Brendan (01:17:22):
I think it's more of an architectural flourish, with a
call back to its originalgasometer days.
Okay, um, but it's.
It's still pretty beautifulactually in that atrium.

Rick (01:17:32):
I actually really like it.
Anyway, that's kind of an asideum magic wand.
What are you?
What are you going to?

Brendan (01:17:40):
do?
Um, I think we need to doubledown on harmless errors and in
the UK they have a very specificstatute of provision that says
the courts shouldn't be deletingpermissions unless there would
have been a different outcome asa result of the error found.
And if we just put that tweakin, it completely demotivates

(01:18:02):
you only bring the challengethat matters.

Rick (01:18:06):
And frankly, yeah, that comma was in the wrong place.

Brendan (01:18:08):
So what?
Let the focus be on real issues, for sure, and let the courts
grapple with those real issues,but let's not waste our time on
stuff that didn't matter.

Rick (01:18:17):
That's very succinct.
Normally when we ask thatquestion we get like seven
minutes and they put 10 things.
That wasn't the best answer.
That was the best answer.
This is excellent.
We'll just extend this forhours.
I've got so many questions herewe're not going to get to.
Um, do you have a bookrecommendation?

Brendan (01:18:33):
Oh, um, I just finished Owen Murphy's book and I think
it's worth the read on twolevels.
One, that little bit of seeinghow the sausages are made Um, I
think there's no harm inreminding ourselves about that.
And second, the pressure inpublic office.
Wow, I think the brutal honestyis necessary and healthy

(01:18:56):
because, as we reframe thediscussion around respect and
democracy, I think it'simportant to remind ourselves
about exactly how that pressureworks and operates on the human.

Rick (01:19:05):
Yeah, absolutely, I second that.
I actually I wouldn't havethought very much of Owen Murphy
, to be honest, but I read thebook and I really had to change
my mind quite a bit about him.
It sounded horrendous what hewent through actually and, yeah,
no matter what your beliefs are, it's shocking what I mean it

(01:19:25):
is.
And you see, there was anarticle there about the election
campaign.
There was 60 different abusiveincidents reported during the
election and that's justreported and that's what's been
reported.
That's not good.

Brendan (01:19:39):
I mean it's thankless, and if you think about how
important the caliber of publicrepresentative is to getting all
of what we just discussed right, it's awful if we're
discouraging.

Rick (01:19:50):
Yeah, you're not going to invite people like you to go and
get involved.

Brendan (01:19:57):
Well, if you're talking to your children, could you
recommend public office?
Absolutely not.

Rick (01:20:01):
No, you couldn't.
No, because it's completelythankless and you're going to
get blamed for everything.

Brendan (01:20:07):
And that I mean.
I just think the book is areally practical insight, as I
say, both to how that governmentin particular worked, but as
well just the apparatus of theinside of government.
It's an easy read.
You can be done through it in acouple of days.
Excellent.

Rick (01:20:21):
Well, there we have it.
I really I learned an awful lothere and I feel fundamentally
terrified, but also a little bitmore at peace as to what's
coming down the track.
So, thanks a lot, and we willfeed the law, we'll put it into
the API of ChatGPT and we'll seewhat it says.
Maybe it'll come back and sayno, brendan, that doesn't know

(01:20:43):
what he's talking about.
I look for a right to reply.
Thanks a lot, brendan.
I really appreciate it.
Thank you very much.