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Annual Report of the Ombudsman 2003

Chapter 4 - Local Authority Performance on Planning

Local Authority Performance on Planning

Correspondence from Public Representatives
My Office has an important role in maintaining public confidence in the planning process and in ensuring that its administration at local level meets standards of good practice. Therefore, when a complaint is made which suggests that a planning matter may not have been dealt with properly by a local authority, it will be examined thoroughly by my Office. This is what happened when a complaint was made concerning the discovery of correspondence from a public representative on a planning file when an applicant for planning permission examined it in the planning office of Westmeath County Council.

The complainant, who had been refused planning permission, discovered a letter on the file from a public representative who wrote to the Council as follows: "Please keep me advised of any relevant developments re. p.p. ref. no.....". The complainant had not been in touch with the public representative concerned and alleged that the role his correspondence had played in the planning application was unclear, did not have an audit trail and was not properly handled by the local authority. The local authority had given assurances to the complainant, and to my Office, that staff of the local authority had not discussed the application with the public representative. However, the complainant believed he had discussed the case with officials of the local authority, including the relevant planner, and was convinced this had influenced the outcome.

Following a thorough examination, including interviews with the complainant, relevant local authority officials and with the public representative, my Office was satisfied that the public representative had played no role in the decision to refuse planning permission. However, this might not have been clear to a member of the public reading the planning file. Public representatives are, of course, entitled to make representations on behalf of members of the public but local authorities must ensure that, particularly in matters of planning, its procedures for dealing with public representatives provide for maximum transparency so that the public is in no doubt about their role.

My staff subsequently discussed procedures with the County Manager concerned who readily acknowledged the transparency argument and has introduced improved procedures for dealing with public representatives, and for record keeping, in relation to planning matters. To some extent the requirements of the Planning and Development Act, 2000 which came into force in March 2002 have brought greater clarity to the matter in that a fee would have to be paid if the representations were to be treated as a submission in relation to a particular application. While I have received no specific complaint about this matter against any other local authority, I noted a recent comment of concern in a media debate on planning in relation to letters from public representatives on planning cases. I intend to make further enquiries of local authorities about how they are dealing with letters from public representatives about planning matters.

Compensation for Loss of Opportunity to Lodge an Objection/Appeal
I have been disappointed to note that, where local authorities have, through error on their part, denied a person the right to appeal a planning decision to An Bord Pleanála, they do not seem to pay sufficient attention to providing redress for their errors. Apart from expressing regret, they do not seem to think anything more is required and, in general, do not offer any substantive redress of their own accord. For many years the Office has reported on cases where monetary compensation was recommended by the Ombudsman and paid. I also take the view that, where a statutory right is denied through error on the part of the local authority, such error is maladministration for which it should be the exception rather than the rule, not to pay compensation. The amounts involved are relatively small, usually not more than €1,000, and I would like to see local authorities take the initiative by offering redress rather than wait for my Office to prompt them.

Access to Planning Files
My Office continues to receive complaints that planning files are not always available when a member of the public wants to view them or, that the papers are not always on the file or, if a person wants a copy of a document from a planning file, they are charged an excessive amount, as compared with charges for documents under the Freedom of Information Act. In fact, my Office has been looking at excessive charges for some time and has written about the matter to the Department of the Environment, Heritage and Local Government.

Enforcement Issues
I also have jurisdiction in the area of planning enforcement. This means that, where a local authority fails to take appropriate action in relation to a complaint to it that a specific development has not been carried out in accordance with the permission granted, I can examine it. Complaints about planning matters accounted for 27% of all complaints to my Office last year and the majority of these cases were about planning enforcement.

The Planning and Development Act, 2000 has laid down specific actions that are to be taken by local authorities in response to planning infringements and my Office intends to continue to monitor whether the Act is being properly and fully utilised in order to ensure compliance. Complaints to my Office last year suggest that there has been some improvement in local authority performance in relation to enforcement generally, but it is too early to make an accurate assessment based on performance over a period of less than two years since the introduction of the Act.

There is a public perception that planning enforcement is, as quoted recently in the media, "very much the Cinderella area of planning with very few local authorities prepared to allocate the resources needed to curb unauthorised development....". I have evidence to suggest that while local authorities may be endeavouring to comply with the spirit of the new Planning and Development Act, some are not paying sufficient attention to the letter of its provisions.

The current legislation enables local authorities to take a more proactive role, if they are disposed to doing so, to ensure, insofar as possible, and without necessarily going to the courts, that every person whether a large or small scale developer, abides by the planning code. The Act gives a local authority a range of powers it can use to bring about compliance without resorting to the courts and, in examining complaints, my policy will be to consider whether the local authority has fully used the powers. Furthermore, it will not be sufficient to tell my Office that action is not being taken because the local authority is of the view that it would not win in court. The local authority will have to satisfy me that it had good cause for not taking action in any particular case. There are a number of steps that can be taken before court action comes into the picture and, in all cases of complaint to me, I will seek to establish that the provisions of the legislation are being used properly and effectively.

Planning is a matter of significant public interest as evidenced by complaints processed by my Office over the years which have increased from 64 in 1993 to 185 in 2003. Within the limits of my jurisdiction, I intend to ensure that, in the context of complaints to me, my Office will be proactive in protecting public confidence in the planning system.

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