Advice about planning is a growing cause of complaints against engineers, due to the complexity of our planning system. Ciara Kellett says a ‘baseline’ level of competence must be established in the provision of advice on planning matters
Civil

 

Author: Ciara Kellett, BSc (Eng) MSc (SP) MIEI MIPI, planning consultant, AOS Planning

Advice about planning is an increasing cause of complaints against engineers. This is due, in large part, to the increasing complexity of the Irish planning system. A typical story that ends badly usually involves a well-intentioned person providing advice about planning, as part of other services. This is often based on years of experience. The engineer can be gradually drawn into an increasing web of complexity and legal liability, at risk because of dramatically changed practices or policies that arose from recent changes in legislation.

The standard planning application form now asks questions to tempt the unwary to make judgement about issues. These include archaeology, architectural heritage, ecology [appropriate assessment], waste licences or flood-risk assessment – to name but half the issues on a typical form. The typical ‘can do’ approach, combined with the helpfulness which is so often the hallmark of the Irish engineers, can quickly lead someone into areas far beyond their area of competence.

Much of this complexity has arisen from a combination of changes driven by EU environmental legislation, which often is made more difficult as a result of responses to judgments of Irish and European court cases.

A further difficulty arises from the fact that the act of preparing and interpreting development plans is becoming increasingly complex and sophisticated – especially in urban areas. Here, planners must balance traditional concerns about services and density with a plethora of other plans and policy documents relating to transportation, urban design, green infrastructure and social inclusion.

PLANNING TODAY

The Irish planning system is now about much more than just obtaining ‘planning permission’. Through various stages and agencies, it controls the regulation of land through the development management system, planning for appropriate future development needs using the forward-planning process as well as through the planning enforcement system.

Planning also delivers compliance with a host of EU Directives in a ‘one-stop-shop’, which can include the protection of the environment, the promotion of proper planning and sustainable development and planning for inclusive societies, all of which provide the context and purpose of strategic planning of the strategic-tiers planning hierarchy, which incorporates larger issues such as policy on transportation, housing, energy and water services.

These many considerations now influence even the most basic of planning applications such as minor housing extensions. In such instances, many ‘traditional’ exemptions may no longer be available if a fairly long list of restrictions apply, leading to planning authorities making determinations of ‘unauthorised development’ and commencing enforcement proceedings.

This complexity and these many considerations are one of the reasons why planning decisions by planning authorities or An Bord Pleanála can often appear to be unpredictable or incomprehensible to the uninitiated.

To avoid these pitfalls, all practising professionals wishing to offer planning advice need to have a good working knowledge of the Planning and Development Act 2000, as amended, and the Planning and Development Regulations 2001, as amended. This knowledge will need to extend to related key environmental legislation including the Environment (Miscellaneous Provisions) Act 2011, the Habitats Directive, the Birds Directive, the Floods Directive, the Environmental Impact Assessment (EIA) Directive and the Strategic Environmental Assessment (SEA) Directive.

Professional competence will also need to include a working knowledge of the roles and procedures of key stakeholders including, for instance, An Bord Pleanála, Planning Authorities, the Environmental Protection Agency, and the National Parks and Wildlife Service.

A working knowledge of the key functions and structure of a typical planning authority will also be required because many now have professional advice from in-house heritage officers. Applicants and their agents also now need to be aware of revised statutory requirements in relation to pre-planning consultations with developers/applicants under S.247 of the Planning and Development Act.

For most mid-sized and larger projects, this will need to extend to include knowledge of the key functions of An Bord Pleanála including the adjudication of planning appeals, strategic infrastructure development, referrals and compulsory acquisition of land.

RELATED ENVIRONMENTAL ISSUES

Many projects, especially larger ones or those on sensitive lands, will need to take into account environmental information at all stages of decision making and integrate environmental considerations into plans and projects (SEA, appropriate assessment [AA], strategic flood risk assessment [SFRA] and EIA) to include:

  • The consideration of alternatives for plans and projects (SEA, AA, EIA);
  • The protection of Natura 2000 Sites and the Natura 2000 Network (SEA, AA);
  • Management of flood risk to appropriate levels (SFRA);
  • Ensuring that robust documentation management and consultation procedures are employed by the Planning Department in order to demonstrate compliance with all of the above (Aarhus Convention, SEA, AA, SFRA, EIA, Water Framework Directive [WFD], etc).

All of these issues will need to demonstrate how environmental legislation and other plans, programmes and Guidelines interact with land use plans and planning applications. Interactions may include some or all of the following:

  • SEA Directive;
  • Habitats and Birds Directives;
  • EIA Directive, as amended;
  • Water Framework Directive;
  • Flood Guidelines;
  • Aarhus Convention;
  • Irish Water’s Water Services Strategic Plan (WSSP);
  • Irish Water’s Implementations Plans, as published to date;
  • Harvest 2020;
  • National Climate Change Strategy & Adaption Framework;
  • National Landscape Strategy;
  • National Peatlands Strategy;
  • National Renewable Energy Action Plan.

NEW APPROACH REQUIRED

In light of this growing complexity and risk, the profession need to agree and adopt an approach to protect practitioners by establishing a ‘baseline’ level of competence that can reasonably be expected by clients. However, there is a ‘chicken and egg’ challenge involved in this. It starts at the early stage of responding to the questions in the planning application form about issues, such as the need for appropriate assessment and flood-risk assessment, which may involve some level of prior assessment to be made in the absence of expert assessment data or site investigation.

These problems are unlikely to be resolved solely by non-specialist agents such as engineers. The planning system must do more to reach out and explain the underlying reasons and logic of their plans and policies, so that decisions can be more readily and accurately predicted, ideally before land is bought or before designs are commissioned.

The reality is that the system deals with an increasingly large range of very complex factors, so it is unrealistic to think that there could ever be a perfect and automated ‘tick box’ solution. There will always be a need for case-by-case decision-making that will always involve some amount of professional judgment, but this is no reason not to continually press for clarity.

This will only occur if institutions, such as Engineers Ireland, persistently draw attention to this need for increased transparency, predictability and objectivity in the operation of the development management systems by planning authorities.

To summarise; there appear to be two tasks ahead:

  • Establishing a ‘baseline’ level of competence in the provision of advice on planning matters that can reasonably be expected by clients; and
  • Campaigning for increased transparency, predictability and objectivity in the operation of the development management systems by planning authorities.

Caas headshots. 19/09/2013 Photograph:©Fran VealeCiara Kellett is a Planning Consultant with AOS Planning. She holds a primary degree in holds a primary degree in engineering and a master’s degree in spatial planning. She is an engineer and planner with over 24 years’ private-sector experience in the fields of engineering and planning. Kellett has particular experience in the preparation of planning and EIA documents on behalf of multi-nationals and infrastructural providers. She is a member of Engineers Ireland and also the Irish Planning Institute, and is a member of the Ethics and Disciplinary Board of Engineers Ireland.

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  Author: Ciara Kellett, BSc (Eng) MSc (SP) MIEI MIPI, planning consultant, AOS Planning Advice about planning is an increasing cause of complaints against engineers. This is due, in large part, to the increasing complexity of the Irish planning system. A typical story that ends badly usually involves a well-intentioned person...