Ciarán Cuffe, Consultant to United Nations Development Programme, July 2004

The author visited Montenegro between the dates of 14^th –16^th June 2004. Meetings were held in Budva, Podgorica and Bijelo Polje on consecutive evenings. Presentations were made by this author on the Irish Planning System and by Kaliopa Dimitrovska-Andrews on the Slovenian Planning System. The presentations were followed by question and answer sessions with the audience. Thos in attendance were mostly architects and other building practitioners.

Arising from the author’s attendance at the public meetings and from a reading of the draft Law on Planning and Development the following issues arise. It is proposed to deal separately with the following items.

• Sustainable Development
• Clarity
• Time limits
• Transparency and Consultation
• Linkages between location for construction and building approval
• Enforcement
• Appeal Procedure
• Environmental Impact Assessment

1. Sustainable Development

In line with current international thinking it may be appropriate to place the principle of sustainable development at the heart of the Bill.[1] Although there is a reference to sustainable development in of the headings in Article 8 it may be considered more appropriate to include it in the first article.

2. Clarity

There appear to be as many as 7 different levels of plan-making referred to in the Bill. This appears excessive. In Ireland we have three levels of plan as detailed below.

In Ireland there is a very general ‘National Spatial Strategy’[2] document at National level.

The main planning guidance however is provided through County or City Development Plans for each of the 90 Local Authorities within the State.  These consist of[3] a written statement and a series of maps, usually at a scale of 1.5000

Finally at a local detailed level the Irish legislation allows for the preparation of Local Area Plans[4] that provide detailed objectives for at the level of neighbourhood.

3. Time Limits

The legislation should be clearer on time limits. It would be advisable to include minimum and maximum time limits for the major actions required in the making of planning decisions and the making of the Plans themselves.

In Ireland the decision on a Planning Application generally must be made in a minimum period of 5 weeks and a maximum of 8 weeks[5] after the date of lodging the application.

4. Transparency and Consultation

The Planning System may be seen as a contract or series of contracts between the State and its citizens. It is therefore crucial that the general public are involved and consulted in the making of Plans. It is also important that people are aware when Plans are being prepared, and when Planning Applications are being submitted. The public should be allowed and encouraged to make their views known to the relevant Authority.

The Irish Planning System requires that those who apply for planning permission place a public notice on the land that they intend to develop. It also requires that the applicant place an advertisement within a local newspaper so that the general public are aware that an application has been made.[6]

The Irish Planning Authorities must take into account any submissions made by the public in arriving at their decision[7]. All documents that form part of the application must be made available to the public within 3 days in the offices of the Planning Authority.[8] This helps ensure that the general public are aware of aware of planning proposals, and allows them to participate in the planning process.

5. Linkages between location for construction and building approval

The law concentrates in detail on the making of plans. It also contains a procedure for determining on the ‘location for the construction of objects’ (Article 59). This procedure appears to be separate from the issuing of a building permit. It may be possible to amalgamate these two procedures. This might simplify the legal process for obtaining permission to build.

Under the Irish system once planning permission has been obtained, building construction can commence. The building professional that designed the development must certify that the proposed development is in compliance with the Building Regulations. Their professional reputation depends on their compliance with the Regulations. This helps to simplify the building process.

6. Enforcement

The system of enforcement must be stronger. If developers are to comply with the law both the Planning Authorities and the public must have the power to take enforcement action against those who fail to comply with the Development Plans. Looking to the future, developers must realise that flouting the law will attract strong financial penalties. Although Article 53 refers to special charges, these charges could perhaps be specified in the legislation[9]. It may also be advisable to specify a charge that may be payable for every day that the offence continues[10]. In Irish Law the Planning Authority has strong powers to take action against unauthorised development and those responsible for its construction.[11]

7. Appeal Procedure

Article 73 makes a reference to an Appeal procedure.  It is recommended that this be clearly specified in detail within the Law. The time limits, fees and procedures should be clearly specified. The Appeal system should operate as an independent procedure and should operate as an independent institution, with no connection to government. All appeals should examine the planning application ‘de novo’ or afresh. It may be appropriate to allow anyone who has made written observations on the proposed development to make an Appeal, as is the case in Irish Law[12].

8. Environmental Impact Assessment

Under European Union Directives, all major development proposals are required to undergo Environmental Impact Assessment. This procedure requires the applicant for such developments to prepare an Environmental Impact Statement that details the affect of the proposed development on the environment. It also requires the applicant to examine alternatives to the proposed development, and to consider how any negative impacts of the development may be mitigated. The Planning Authority must consider the implications of the proposed development for the proper planning and sustainable development in the area concerned.

It is recommended that this procedure be included as an integral part of the proposed law. The types and thresholds of development that are required to be subjected to Environmental Impact Assessment within the European Union are listed in the relevant E.U. Directive.

Conclusion

The Draft Law on Planning and Development represents a basis for modernising the legislation for the preparation of Plans and applying for rulings on the location for construction. This author has concerns regarding the effectiveness and efficiency of the proposed legislation in the areas outlined above. It is recommended that the law be modified to include the changes recommended.

Ciarán Cuffe, Architect, Planner and elected member of the Parliament of Ireland, July 2004, Ciaran@CiaranCuffe.com

 Some comments on specific articles of the Draft Planning Law

Article 4

Definition of development is vague and could benefit from clearer definition (c.f. Irish Planning Law – either physical construction / development or a change of use)

Article 8

Perhaps include the reference to the principle of sustainable development in article 1.

Perhaps there should be a reference to protecting the built heritage

Article 26

This level of detail appears excessive

Article 33

This appears to be a very rigid requirement that precludes individuals with significant experience from joining as a consortium in order to bid for the preparation of a particular plan.

Article 45

It seems ambitious if not excessive to consider drawing up plans at a scale larger than 1.5000 for areas other than historical centres. It is difficult to understand seven different types of plan are required. In Ireland the vast majority of plans are drawn at a scale of 1.5000

Article 49

Why not just verify the document in its entirety, by signing at the end of the document?

Article 52

Is there a danger that this might skew the development pattern in favour of those who have the resources to draw up plans?

Article 53

This article fails to make it clear that certain structures erected in contravention of the development plan may not acquire permission and therefore would need to be demolished.

Article 54

This article presumes that the State or Local Authority will prescribe the size of plots. Perhaps this could be left to the Market to decide?

Article 56

There is no mention of a fee being paid in order to obtain a ruling.

Article 58

The time limit for lodging an appeal seems very short. Perhaps 5 weeks might be more appropriate. The details of the Appeal process should be written into the legislation

Article 65

Perhaps this should be available for inspection and copying at the relevant authority.

Article 66

The Ministry should grant or refuse approval within a specific time period. As in Article 58 the time limit for lodging an appeal seems very short. Perhaps 5 weeks might be more appropriate

Article 72

Why not allow local authorities more control over the enforcement process? This would be less bureaucratic.

Article 73

The time limit for lodging an appeal seems very short. Perhaps 5 weeks might be more appropriate.

Article 78

There should also be a daily fine levied to ensure that enforcement takes place in a timely manner

Article 80

This fine does not seem adequate in comparison with the profit that might be made from an illegal development.