The transfer of planning powers: how was it for you?

Grant McBurney

Grant McBurney, an associate in Carson McDowell LLP’s Planning Team, explores developing trends following the transfer of planning powers on 1st April 2015.

The transfer of planning powers: how was it for you?
On April Fool’s Day 2015 the formal transfer of the vast majority of planning powers formally took place and Northern Ireland is still adjusting to the new reality that the eleven new ‘super’ councils are now responsible for deciding over 99 per cent of all planning applications. Whilst it is still far too early to establish if the transfer will result in an increase in the number of applications being appealed or judicially reviewed, a number of early trends are emerging.

Willingness to take big decisions
One needs to look no further than the proposed Green Pastures retail and mixed use development in Ballymena for early evidence that the new ‘super’ councillors are happy to determine high profile major applications. The retail element of this proposal has been strongly opposed by many retailers and the Northern Ireland Independent Retail Trade Association but was one of the first applications approved by Mid and East Antrim Borough Council. The willingness of councils to grapple with applications of this type in the first few months after the transfer of planning powers is to be welcomed and will go some way to allaying the concerns of those who feared that councils would avoid making such decisions until they were more familiar with the planning process.

‘Faceless bureaucrats’
In the run up to the transfer of planning powers, many councillors looked forward to the day when unelected planning officers from the civil service would no longer have their hands on the planning levers of power. An irony of the transfer of planning powers is that these ‘faceless bureaucrats’ as they were rather harshly labelled, remain responsible for the determination of typically 95 per cent of the applications under council control via the schemes of delegation. Whilst it is correct to state that councillors and the planning committee have powers to ‘call-in’ an application for the committee to determine rather than a planning officer, there can be no escaping the fact that the circumstances in which this can actually be done are actually very limited and that for most applications the planning officer will be the one who actually determines if an application is approved or refused.

Is cash king?
There are troubling early signs that some councils may be attempting to change the way in which applications are processed and the criteria for validation. A number of wind farm operators have been advised in recent weeks that their planning applications to increase the size of consented turbines are now invalid despite the fact that the applications have already been validated and in some cases have been in the planning system for years. These operators have been told to submit fresh planning applications and pay substantially higher planning fees. In circumstances in which there is no apparent legal basis for this change in approach, many question whether this is little more than a poorly disguised and inequitable cash generating exercise which is destined for a showdown at the Planning Appeals Commission?

The perils of rural planning
A predictable and understandable early trend appears to be for councillors to look sympathetically on applications for development in the countryside. With many councillors from farming backgrounds, they are arguably well placed to judge how rural planning policies should be applied on the ground. However, councillors are also keen to see the backlog of planning applications which they have inherited from the DoE slashed. There is an inevitable and inherent tension between permitting more rural applications and cutting the backlog of applications. Councils can rest assured that there will no quicker way of substantially increasing the number of applications that have to be determined than to water down the requirements of rural planning policy. It will be intriguing in the coming months to see how this tension is resolved…

You can contact Grant further on any of the above matters via email grant.mcburney@carson-mcdowell or by telephone on: 00 44 (0)28 9024 4951

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