Michael Clifford: Developers are not and never were the custodians of common good
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Sometimes, in the wee, small hours, I awake with a jolt and sit up ramrod straight in the bed. The recurring nightmare has just recurred. I’m hiding under a desk. The scene is a cavernous, low-ceilinged building in the bowels of a castle. A corpulent figure rises to his feet through the dim light. He looks down at his ammunition, raises his eyes, and focuses on the target.
“Mr Redmond, is it not the case…” he booms. A reedy individual enclosed in a box that rises to waist height looks out with the air of a disinterested goose. Cowering under the desk nearby, my hands press hard against my ears. No more, please, no more. I’ll do anything to make it stop.
So it went at the Planning Tribunal. Ten years I’ll never get back. Sitting there listening and recording on forests of notepaper as politicians and developers and assorted flyboys explained why they were flummoxed, amazed, shocked, disappointed that their recollection of the planning matter in question was in complete conflict with the evidence before the judges.
There were many politicians who came to the conclusion that the public interest was in complete confluence with the interests of various developers or landowners. They just knew that sorting out their pal/constituent/donor was the right thing to do.
The planning tribunal sat for 14 years and finally reported in 2012. It cost about €150m but recouped at least €35m in taxes through investigations into various shenanigans.
What it uncovered was an a la carte system of planning in which evidence-based decisions were routinely rejected in favour of political expediency of one kind or another.
There was corruption, in that money was paid for favours. But there was the far bigger corruption of a democratic principle, enshrined in the foundation planning act of 1963, in which all planning is to be done “in the interests of the common good.”
For far too many politicians, particularly those from the Civil War parties, the “common good” was a moveable feast that was often left to developers to interpret.
The developer, or landowner, would explain to the politician why rezoning his land — and consequently multiplying its value exponentially — was for the common good.
The politician would agree and go on to dispute or ignore professional advice that this may well be a very good deal for the developer, but not for the common good.
These days the brown envelope days would appear to be disappearing in the rear view mirror. The tribunal and all its works did some service in that respect.
Equally, major reform in political funding has ensured that the days when a confluence of interests between politician and developer could be greased with a political donation are relatively restricted.
That was the case with the now departing Strategic Housing Development (SHD) legislation, which was introduced in 2018 and is now to be terminated. The SHD law has been a disaster. Ostensibly, it was designed to allow pre-planning consultation and for the planning process to go directly to An Bord Pleanála.
This cut out one layer of the process and severely restricted the capacity for objections. Some saw this as an attack on democracy.
An academic paper published in 2019 by Dr Mick Lennon of UCD and Dr Richard Waldron of Queens in Belfast included claims that lobbyists for the development industry were key to the establishment of the SHD legislation.
Interviews conducted with members of Property Industry Ireland and with politicians pointed to a meeting between then housing minister Simon Coveney and members of PII.
Some developers went through the SHD process and simply sat on the land, presumably waiting for it to increase in value before either selling it on or actually building.
Many more were the subject of judicial reviews, mainly taken by residents who had been locked out of the process.
A report published earlier this year by construction consultant Mitchell McDermott pointed out that there has been a 1,000% jump in the number of judicial reviews taken to stop SHDs.
In 2019, 508 homes were affected by judicial reviews taken against an SHD. Last year this figure jumped to 5,802.
Developers’ hands are also all over another wheeze, Darragh O’Brien’s shared equity scheme.
This involves the state taking a stake of up to 30% in new homes in order to make it easier for people to find a way to get on the property ladder.
The scheme was lobbied for by the property industry and has attracted criticism from the Department of Public Expenditure, the Central Bank, the ESRI, and opposition politicians.
The main outcome from a similar scheme in the UK was simply an increase in house prices.
One other area where developers apparently continue to lead is in rezoning land for residential use.
While the days of brown envelopes and major political donations are in the past, there still seems to be a propensity in local authorities to rezone and be damned.
Earlier this month, Cork County Council became the latest local authority to be criticised by the planning regulator for excessive rezoning. (The regulator was established through a recommendation from the Planning Tribunal).
Those who benefit from such rezoning quite obviously have persuasive powers to show why their enrichment will benefit the common good.
Many developers do really good work, show pride in it, and provide a service to the public accordingly.
They have a vital role to play in the housing crisis. And, like any group, they are perfectly entitled to lobby for what serves their interests best.
But they are not custodians of the common good. That duty falls on those elected to serve and despite many changes, some politicians would appear to persist in the belief that if it’s good for developers then it must be good for everybody else.
Long painful experience has shown that that is simply not the case.