Corporate law firm A&L Goodbody tells agendaNi how new planning powers have driven demand for planning and environmental expertise within its public and regulatory team.
“Public and regulatory law is of ever increasing importance,” explained partner Micaela Diver. “The reach of public and regulatory law and compliance requirements are vast, and businesses today face increasing levels of regulation and serious ramifications for failure to comply. There is no better demonstration of the seriousness of these consequences than through a breach of planning, environmental or waste law. The advice we provide to our clients blurs between both potential civil and criminal law ramifications.”
The planning powers bestowed upon the super councils have given rise to a much higher level of scrutiny of council decisions and the processes followed to reach those decisions, therefore leading to a significant increase in queries that have a number of different complexities.
Diver continued: “There can be a diverse range of issues relating to planning. We often find that when we are assisting our planning colleagues on what might appear to be a relatively simple query, it may throw up other complex legal considerations and even practical implications such as the relationship with the Department for Communities regarding DOE as its predecessors or other statutory agencies. Of course, in the context of providing any advice we are conscious of the potential that it may lead to a Judicial Review for our client, which can be both time consuming and costly.”
“From a planning point of view, the period immediately following the official RPA date on 1 April 2015 was, in many respects, challenging for the 11 new super councils,” said solicitor Catherine Fearon.
“Alongside getting to grips with being thrown into new roles, they had to contend with new procedures, protocols and legislation changes. Councillors, meanwhile, found themselves grappling with new planning powers and responsibilities that they never had before, as well as having to adhere to a new planning element within the Code of Conduct for Councillors.”
Fearon explained that, while the Northern Ireland Local Government Code of Conduct for Councillors (the Code) was approved by the Assembly in May 2014, Part 9 of the Code (Planning) came into force on 1 April 2015, in line with the transfer of planning powers. The rationale behind the Code is to ensure that all constituents are provided with the confidence that decisions are being taken in the best interest of the community as a whole.
“It is hardly surprising that things took some time to settle, but, in our experience as legal advisors to a number of the new super councils, we have found that councillors are now on top of things, bar perhaps a few initial small teething problems,” she added.
For example, she says that there have been some inconsistencies between the Code and protocol, with some councillors arguing that Part 9 has been too restrictive in relation to the declaration of interests, lobbying and the decision making process.
“The Code prohibits councillors being seen to prejudge or demonstrate bias in respect of any decision regarding a particular planning application before hearing all evidence and arguments at the Planning Committee meeting,” Fearon said. “Some councillors have argued that this impedes the normal processes of discussion and decision making, as they cannot be seen to support individual constituents or particular interests, nor can they act as an agent for applicants with their council area.
“Things aren’t yet perfect by any means from a legislative perspective, but it has been encouraging to note that politics has been very much placed at the door when it comes to planning meetings and, overall, the new system is beginning to work.
“It hasn’t necessarily speeded the planning process up and there is some frustration in the market about this, but without having tried and tested the new system the councils couldn’t possibly have known exactly what resource was needed to deliver a streamlined and efficient service.
“Now that we are through the initial ‘taste and see’ period, the councils have a much better sense of this and I think we will begin to see some tweaks that will improve things further over the next 12 to 18 months. We still have a long way to go before things are fully bedded in and the new system works the way the English council system works, but we are definitely going in the right direction.”
A&L Goodbody has been retained in an ongoing advisory capacity by a number of the super councils across the province. “Our role in working with these councils is to advise on procedure within Planning Committee meetings, as well as advising on protocol and legislation, and ensuring that the respective councils’ planning policies are adhering to legislation,” Fearon continued.
“We also attend pre-meetings and provide expert advice on the drafting of planning reports, as well as responding to queries regarding the interpretation of legislation. For example, we have been advising councillors who have, understandably, had some concerns around challenging the recommendations of Planning Officers and balancing their role as Planning Committee member (which requires compliance with the Councillors Code of Conduct) with their role as councillors.”
Andrew Spratt, associate, explained that the firm’s public and regulatory team is also advising a large portfolio of clients on the preparation and application for new licences or renewals of existing licences. “This has seen us work on a wide range of interesting instructions in recent months, including securing a liquor licence for the new conference centre at Belfast’s Waterfront Hall on behalf of the resident catering company and acting on behalf of Mitchells & Butlers to regain The Crown Bar’s licence.
“This year we also acquired a licence for the National Football Stadium at Windsor Park on behalf of our client, the Irish Football Association, and are providing ongoing advises around gambling and promotions for the likes of Heineken and private lotteries for charities and organisations such as the RAF.”
Micaela Diver concluded: “In recent years we have seen a growing demand for our public and regulatory and planning and environmental legal expertise from across both the public and private sectors. We have responded to this by investing in building a strong, specialist team which offers great depth and breadth of knowledge and experience across these areas of the law.
“This multidisciplinary approach means that we can work seamlessly with both public and private sector clients to advise them on all legal aspects of public and regulatory law, as well as planning, enforcement and licencing and the procedures and protocols that must be followed to arrive at a decision.”
To contact Micaela Diver, please call 028 9031 4466 or email firstname.lastname@example.org