Rick: 0:32

I'm very happy that you're here, Brendan. I'm going to just let you tell us who you are. I know you're a lawyer, but I don't really know anything else about you.

Brendan: 0:42

Okay, well, start from the beginning. I grew up in that part of Wicklow, near Wexford and Carlo Dad's an electrician, mom and dad running a small farm, and that's where we start with the hard work. Hens and goats, oh God, the hardest of work. I schooled in the tech the vocational school in Hackettstown and carried construction studies and mechanical drawing through my leaving cert and was faced with a debate in my mind Would it be architecture or would it be something else? When I went to university I had spare points so I chose law and it's been an accident all the way through Accidental lawyer, accidental planning and environmental lawyer. There was a professor responsible for environment and planning in Trinity College and she exerted a lot of influence and supported me through the end of college and encouraged me into law and into planning environment, and I've been there for the last 25 years.

Rick: 1:40

That's amazing. So you weren't one of these kids that grew up dreaming to be a lawyer? I don't know that there's many of them, but you weren't one of them.

Brendan: 1:48

Well, in our family we joke that the only role our family has had in the law is as the accused, and in that context turning up as a solicitor counts as the exception.

Rick: 1:59

Okay, and no other, your siblings or anything. No one else followed you into the law.

Brendan: 2:04

No, and it's a debate at home now whether we'd actively discourage our own three children from becoming lawyers. It's a busy world we operate in and, depending on the choices you make, it can be very demanding.

Rick: 2:20

Long hours.

Brendan: 2:21

Those are choices. You have to make your decisions about how hard and how much effort you're going to put into your practice. But it's a game that will take as much from you as you're willing to put into it. And that goes for many walks of life. But in professional service you're in demand and if you're good at what you do, you'll be in high demand.

Rick: 2:41

You can work as much as you want. You'll be in high demand. You can work as much as you want, but obviously there's a certain level of work that you have to do as a base case, and that's probably a lot more than other professions.

Brendan: 2:55

Well look, the solicitor's profession is one, and I've been privileged. I'm working in McCann Fitzgerald for the last seven years in one of the busiest practices in Dublin in Ireland, busy across a full range of infrastructure, including housing infrastructure. Before I joined McCann Fitzgerald, I had a period of about five years in a two partner practice. It's pretty different than working in a firm like McCann's where we have over 600 people in the business. When you're one of two people whose job it is to make sure that the internet is working on a Monday morning and you get down on your hands and knees as you restart the air-com modem, it reveals something a little different about the way in which the world works too, and you have to be ready to get down on your hands and knees and get into the trenches.

Rick: 3:46

Yeah, it's a good way of putting it. Actually, we've had a lawyer on the podcast before Fidelma and she was great. We were talking about something very different than what we're going to talk to you about today. And it does highlight again for me that you hear somebody say they're a solicitor, or they're a lawyer and we solicitor, or their lawyer and we all, or for me, because I'm old, it's Ali McBeal. For younger people it suits. We just assume that lawyers are the people that we see on tv, but actually it's such a diverse thing that even within property like because Fidelma is a property lawyer you guys do completely different things, which is really amazing, and I think it's something that people don't quite realize. That law is so sub-specialized nowadays probably didn't used to be like that. As the world has got more complex, the lawyers have got more complex. So would you mind just like when you say you do planning an environmental law, right? So what does that mean?

Brendan: 4:42

yeah, well, I suppose when I hop into a taxi and I'm asked by the driver what it is I do and they hear I'm a lawyer, they start asking me questions, none of which I can answer, because what I do is help people with the zoning of their land, help them decide whether they need to apply for planning permission or what consents are required, help them get those, help them get those permissions, help them defend those permissions from challenge and ultimately comply with them and support the delivery of the relevant infrastructure, whatever it might be. If you take the floor I work on in McCann Fitzgerald, we have what we call our real estate lawyers, the guys that help buy and sell property, buy and sell land, buy and sell undeveloped land, develop land, assist with landlord and tenant issues, loan sales, the full range of ownership burdens, rights and opportunities. We have our construction lawyers, the guys who, once you've got the permits you need to get through to literally building contracts and getting out of the ground. Our procurement lawyers for those who are working on public projects or utilities projects and having to go through the burdens of advertising in a particular way to secure the relevant contractors and the planning environment team.

Brendan: 6:00

And when I joined McCann Fitzgerald about seven years ago we had three lawyers in our planning environment team and now, when I think about arrangements for the Christmas lunch or dinner coming up in due course, we'll have 12 at the table. So it's a busy practice. And that doesn't include the lawyers in McCann Fitzgerald who do work on transport infrastructure projects the lawyers in McCann Fitzgerald who do work on transport infrastructure projects. We have another team of about five lawyers full-time working on projects for the National Transport Authority and Transport Infrastructure Ireland. So, all told, we have about 13 planning environmental lawyers in the office.

Rick: 6:38

And there's other firms that do the same kind of work.

Brendan: 6:42

Yeah. So when we think about the market for legal services the large full-service law firms with 250, 300 lawyers they're going to have someone who's able to do planning and environmental law, who's going to assist with those kind of issues around consenting For public authorities. So if you're doing the work for Ombord, planol or planning authorities, you can't really do the work for developers authorities. So if you're doing the work for onboard Planola or planning authorities, you can't really do the work for developers too, or for objectors for that matter, and there's different law firms who've pitched their services towards those kind of clients and so you'll have planning environment specialists working there looking after board Planola. Before I joined McCann Fitzgerald, that's the work I was doing. Looking after Bort Planola. Before I joined McCann Fitzgerald, that's the work I was doing looking after Bort Planola and the Environmental Protection Agency, and so typically you see firms line up on one side or another.

Rick: 7:31

But it's the case now that you're in a growth industry right the way the world has developed and by the world I mean Ireland more and more of you and what you do is going to be necessary as the country grapples with its infrastructure deficits, because there's no level of simplicity coming into any of this right. It's getting every year, it's getting more complicated and so we need more Brendans.

Brendan: 8:00

Well, the remark I'd make is it's a good indicator that planning law isn't working well. Yeah, that there is such demand for this many Brendons, if you will. There's no doubt that over the last, particularly the last five years, the level of complexity, the legal risk associated with applications, even for small apartment schemes 25, 30 apartments they're being exposed to legal challenge right through to the thousand unit schemes where maybe challenges have been more common across other sectors too. It's not just housing renewable energy, large wind farm projects, large solar projects, biomethane, legal risk attaching to all of those classes of infrastructure. And then I mentioned transport. Bus Connect's approvals have been coming through and you see challenges being brought to those approvals for Bus Connect and it doesn't matter what the sector. I mean. One of the busiest sectors in the planning and environment court right now is challenges to telecoms masts. There is no sector that's free from the risk of legal charge.

Rick: 9:05

I mean, that's what I was going to ask you Like is there anything that can be built in Ireland at all where people are like that's fine, Because even Forestry I heard somebody was like complaining about them planting trees, which?

Brendan: 9:18

Well, if you look at the work of Ombord Planola, they make in a calendar year about 3,000, 3,500 decisions. Right now you can expect about 150 of those to be challenged in the High Court. So there's a bulk of work. The large part of the iceberg is below the water and is not challenged, but even for that bulk there's a chunk of them have had to manage legal risk in getting to the finish line without legal challenge Across the planning authority. Sector challenges are less common, mainly because there's another remedy you can appeal to important all and the issue will be resolved there.

Brendan: 9:57

The forestry is interesting, very targeted group of individuals who have real concerns around the homogenous nature of planting and the particular impacts from felling 20, 25 years later and looking for those to be regulated in a manner that they would say is consistent with European law. And European law is probably the key driver, as a remark the Secretary General of the Department of the Environment was making. It doesn't really matter who's in government, because we're a member of the European Union and the rules and regulations that set the tone from the top are rules and regulations that we'll have to comply with, no matter who's in parliament who's in Dáil Éireann, and that's a fair point and something that often gets lost that everybody, including me, blames the government for planning, and I do think that the government here does have a large role to play.

Rick: 10:54

We'll get onto that later on.

Rick: 10:57

But I often get pushback from people, particularly in government sense, about Europe, and they say, oh, europe, it's Europe, it's not us's, not us, it's europe.

Rick: 11:06

I say yeah, but like I've been to europe, I have been on a plane, I've been even on a boat and I've been all around europe and I've talked to developers, I've talked to architects, I've talked to people in all sorts of countries. Yes, there's loads of problems like that we have existing in other countries, but then some of them don't have them, and so this is where it gets a little bit fuzzy for me, because surely, if we're all in the European Union and the European Union law applies, why is it that some places are able to direct their legislature in different ways, have laws that facilitate infrastructure, and then other places, like here, we can't plant a tree or put a solar panel down on the ground where no one can see it, without someone tottling off to the high court and saying no, no, no, no, no, but you see, under there's a fox that once came here, and I mean, I think there's two things that drive the difference.

Brendan: 12:03

The first is our common law heritage. There's two things that drive the difference. The first is our common law heritage. With England, the United Kingdom. That means we have a system that is structured in a way that shapes access to the high court or to the courts as an important part of the process. The second is trust and confidence.

Brendan: 12:28

In other European countries the levels of trust and confidence in public authority decision makers is much higher than here. The social license or willingness to tolerate an outcome from a decision maker is just greater in those countries. And if you take the Nordic Scandinavia, where you see and often were held up, in contrast to places like that, you'll see much fewer court challenges. They also have a different structure in how they set their rules and across France and Germany the rule set is more strict, more codified, and compliance with that rule set means there's nothing left to fight about. In ireland, like in in in england, wales, we've preserved flexibility at decision making stage and every time you preserve flexibility you have discretion and every time you're exercising discretion you have the prospect for a review?

Rick: 13:25

yeah, because everybody has an opinion um planning is perfect for that.

Brendan: 13:30

There isn't a topic in planning on which you you can't find two people to disagree on.

Rick: 13:35

Yeah but I, I yeah, I mean because people, people have their opinion and they say I'm entitled to my opinion. I say, yeah, you're entitled to your opinion, but you're not necessarily I. You're entitled to your opinion, but you're not necessarily. I mean you can have your say, you can't have your way right all the time.

Rick: 13:49

But it appears that what actually goes on here is that I don't like it, I can stop it, the state pays for me to stop it, like the consequences are completely lopsided. Right, the objector has zero consequences, apart from maybe a little bit of time. But from what I can see, a lot of these judicial challenges they go to a solicitor. We don't name him, but they go to him. He comes up with the list of challenges and they're they're way beyond in complexity than what an ordinary person who doesn't have any background in this could understand. So you look at it and you say, okay, they don't want it to happen, that's fine, but the legal case has been taken on the basis of a whole lot of things that they don't even know exist. So really, what's happening here is not like somebody's opinion or somebody's view, it's a I don't want it to happen and I know I can stop it, because there's no consequences for me for stopping it right.

Brendan: 14:45

Yeah, I mean certainly in planning law. There are few parts of the legislation that dictate an outcome, Maybe only in relation to protected sites and species under the Habitats Directive. There comes a fork in the road where a refusal is mandated or required, and you see that issue ventilated in maybe renewable projects more often than you do other sectors. The access to judicial review is emphatic. In Ireland it's a core part of how the state explains it complies with European law. It is one where we've seen much success for those who've brought legal challenges, and that includes developers unhappy with bad outcomes in the planning process.

Brendan: 15:30

As often as it is Neighbors or residence associations are sometimes those a little more distant, raising complaints around the legality of a process and where planning is under-resourced and there's pressure on decision makers and any lack of clarity around the hierarchy of principles and policies that apply. It's fertile ground. It's fertile ground for complaint. And if you look over the last 10 years the number of challenges to decisions on board planolas jumped an order of magnitude, Like when I first was doing the work for board planola there might be 15 cases in a year. Now this year it'll be 150.

Brendan: 16:13

Yeah, and when you look across the main themes in those, if we take housing, for example, you're right, some of them are very focused on specific species and protection for those. But I bucket them in two main buckets. The first is where Ombord Planala has been relying on discretion to materially contravene a development plan. That's been a real topic of fertile ground for challenge over the last five years, particularly in housing schemes around density, around height, around important things to deliver the targets we've set for ourselves. And the other is around what I call just biodiversity in the broadest theme. That includes strict rules from Europe but includes a lot of our own rules around the kinds of species that need to be protected or we've decided as a state should be protected and there's been a certain lack of clarity in how those have been addressed and, as a consequence, again, yeah, fertile, fertile ground for challenge so the the idea that uh borponola gets to have discretion over development plans is kind of under attack, right like the material.

Rick: 17:28

Contraventions are something that people have relied upon for a very long time, certainly as long as I've been doing this, but it would appear now that that day is kind of gone absolutely, and the the new planning act, um, shortens that discretion even further.

Brendan: 17:45

What's interesting is when you look at the six-year cycle, as it was, of development plans, that's changing too Often. If we take a step back, when Minister John Gormley was in government, he looked to reshape the Planning Act so that there would be a hierarchy, plan-led decision-making, and what that meant was occasionally, government or the minister would say something useful and relevant to the delivery of something, very occasionally Building height. Take building height as an example Ministerial guidelines. Those guidelines would come out during the development plan cycle. The development plan would have a blanket cap on height, different at maybe different locations, proximity to transport, whatever that might be. The minister sets regulations, guidelines rather, that encourage taller buildings with a view to having a more. The planning law was amended to make sure that Borplenola could give effect to the higher order guidelines, to ensure that the minister's words and the guidelines could be given effect to, and the feedback during pre-application consultation with planning authorities and on Borplenola was well, there is a more recent set of guidelines and you better make sure your development meets those guidelines.

Brendan: 19:13

What became a real point of controversy through the core challenge process was the extent to which those guidelines include preconditions, strict language, that needed to be satisfied before you could access the dispensations from the development plan.

Brendan: 19:28

And that's where we see the big fight around public transport and whether it is high quality public transport and whether the transport needs to have been built and operating before you can actually set about the field of dreams that might come after. And the answer from the High Court very clearly was the ministerial guidelines require that transport to be in place, that there be capacity. And once the High Court says that out loud, you have to think the minister had a chance to change the guidelines to clarify that, and didn't do it and didn't. And we then have repeat references to the same guidelines with the same missing information, leading to planning permissions being challenged on the same fertile ground. And it's interesting to kind of step back and think is it for the minister to respond and react when the High Court speaks? I think it probably is. In fact, I think that's the role of government. If they wanted the outcome that we were all told they desired, all they had to do was change the guidelines and it wouldn't have been that hard.

Rick: 20:32

It wouldn't have been that hard and to change them too. I mean, specifically on the public transport thing we've talked about before is that issue around capacity, and this is just an aside. So if you were relying on buses in your planning and you say, well, the bus network is at capacity, so when there were more people, the bus company will add another bus and now there'll be capacity, but the interpretation seems to be no. The bus needs to be there beforehand, so the bus company needs to run an empty bus, lest somebody lodge a planning application at some point in the future, which is obviously absolutely insane. But yet there we are. Guidelines could be changed to clarify that not changed yet.

Rick: 21:11

Said minister, we're doing absolutely everything we can. One of the things you mentioned is the new Planning Act. I was at an event recently and an unnamed government minister was boasting about the Planning Act being the third longest piece of legislation that had ever been written in the state and it was a room full of property people and we were all looking around at each other thinking like what a thing to to boast about that. The problem that we have with complexity and there is their solution proposed is the third longest piece of legislation ever written. But leaving aside my gripe about that, what are their headline changes to the? The planning act? Um, I, we don't have. I mean, I think it would take months right to go through it. But what are the kind of major things that, okay, I ask in chat gpt summarizer, what would chat gpt say actually, maybe we should do that. We should do that. In fact we'll do that and we'll put the text in the show notes.

Brendan: 22:13

It is odd to boast about this being a long piece of legislation when the whole purpose was to introduce simplicity, clarifications and certainty, and I think one thing that all stakeholders agree is that it doesn't do that Big themes. If we take the front end of planning around policymaking and development plans what we used to know as Section 28 ministerial guidelines they'll get a respray. They'll be called the national planning statements. We'll have development plans that'll have a 10-year life instead of a six-year life. That's potentially helpful if we think about settlement strategy and we think about housing targets. If it's a 10-year target and we're in the first six years of the plan, we may be able to achieve and deliver more than might otherwise be the case. But there'll be a need for review. It maybe depoliticizes the development plan process a little so that it's not just a bargaining chip come local election time. We'll relabel local area plans. We'll have new urban area plans and priority area plans and coordinated area plans. It's just a respray. The national planning framework will have its statutory basis. Um, I know you've discussed that here before. Yeah, um, the there are interesting things. Those are broad themes around that front end. But there are interesting things around how the state has responded to criticism around what it did with census 22 data in the context of development plan making. So a lot of development plans been made in reliance on guidance from the government, based on 2016 figures, yeah, and which are hopelessly wrong. There's a lot has happened in the meantime, yeah, and esri has acknowledged that we have more people and we have a greater need, both existing and future, in the population, and then there's pent up demand and there's a wonderful debate to be had about exactly how to calculate that. But one thing's for sure we're shy on the numbers. But when it comes to reviewing the national planning framework ongoing, we shall wait two years after a second census worth of data. So we're pushing out the key triggers for making sure we get our numbers right, and I think that's really disappointing. And it feels like a response to criticisms that the likes of Cairn and Glenveig have brought in their legal challenges to the Wicklow and Kildare county plans, where they complain that the housing strategies in those counties have just woefully undershot what's required in the context of the needs of the population.

Brendan: 25:02

The Planning Act then tries to tidy up, consenting so instead of the proliferation of different types of planning applications you see across electricity infrastructure, gas infrastructure, ordinary planning applications, lrd, direct applications to the board, local authority, state authority. We'll have four main kinds of planning application the standard application to the planning authority with prospect of appeal. Direct applications to the board, which captures a multitude but it has the same statutory code for all of them. Now, without those little devious tweaks between them, we'll have a material alterations process which is like a consent process now, and we'll have a consent process for state authority, local authority projects. We'll have timelines with some consequences if the decision makers fail to meet those timelines. The main consequences they'll have to be honest about it and tell the world when they're missing their target With some prospect and we've yet to see it in the regulations what the figure will be of partial refund on your planning application fee.

Brendan: 26:12

Much is made of these deadlines being realistic and in that context, when you look at direct applications to onboard plan, like big wind farms for example, they've set a 48 week timeline and that's set long deliberately because the board thinks it can comply with that. Now, at the minute, you're waiting at least 70 to 80 weeks. So that would be a halving of time for those kinds of projects.

Rick: 26:40

I don't mean to interrupt you, but why could it possibly take?

Brendan: 26:44

that long. It's a good question. If you look at defending legal risk. One of the features is the hunt for the phrase in the inspector's report and objectors, developers, borplenola, like all, looking for the magic phrase that's helpful in the inspector's report and that inspector's report is now the key building block. On Friday a retired Supreme Court judge made the remark that Borptonala well, they're not really the expert. The real expert is actually the inspector and so explaining your departure from the inspector, showing how you agree with them or disagree with them, is the most important thing.

Brendan: 27:26

When you look at inspectors reports now it's over 100 pages for a project with any complexity. If it has environmental impact assessment or natura assessment for habitats, it's going to be longer. The more controversial the project, the more people that make submissions and observations during it, the longer that report will be. You know, for waste to energy infrastructure, you wouldn't be surprised to see 200, 300 page inspector's report, and just generating that assessment analysis is probably the key time requirement. The key time requirement Once the inspector's report is complete. We're seeing the current board turn around decisions within about four or six weeks. So the hard yards are done by the inspector cohort and that's a small enough cohort of persons having to drill through three and a half years or to have that level of expertise as well.

Rick: 28:25

It's very unusual.

Brendan: 28:27

It's difficult to be that jack of all trades. Even still, Now the board has retained additional expertise around ecology, for example, in-house special knowledge. It also purchases external support, Like when it was consenting landfills 20 years ago. It would get in people who understood groundwater. It would on projects with a stack with air pollution risk factors, it would get in specialist support and knowledge. If there was a real concern around blast radius and control of major accident hazards, it would get in specific knowledge and that's to be encouraged.

Brendan: 29:07

But it adds complexity and it does mean that the decision making process needs some time. Whether 48 weeks is right or not, that's room for debate there. For most other applications we'll see local authorities do their work in eight to 12 weeks. They have no easier a job. They have to complete the same written assessment but they only get eight to 12 weeks to do it. If you think about public common closing, after five, they only have all cards face weeks to do it. If you think about public common closing after 5, they only have all cards face up on the table for about 3, 4, 5 weeks in these kinds of projects. Once it gets to a more planal on appeal, you're looking at something like 18 to 26 weeks, depending on whether it's environmental impact assessment, it's the direct applications that have the longer period of time.

Rick: 29:53

And direct applications are only for large. Strategic infrastructure, and what is strategic infrastructure?

Brendan: 30:02

In 2006, we made a list and it's still basically the same list. It was shaped in response to themes that had emerged, which was that every landfill in the state was being appealed, All the lounge wind farms were being appealed, All the power plants, the gas fired power plants that we needed and were building at the time all were being appealed, and the logic was why waste local authority time and effort on?

Rick: 30:28

it when it's going to end up here anyway.

Brendan: 30:29

This is cut to the chase and the list was formed then. It includes environmental infrastructure, so wastewater treatment, water supply treatment. It includes energy infrastructure I'd say big wind farms, power stations and includes waste infrastructure. And those classes haven't shifted too much. Haven't shifted too much and are largely repeated in the new legislation. But the bigger power supply lines gas pipelines, they're also included have been since 2006, as strategic gas infrastructure, strategic electricity infrastructure, and they're captured now under the new legislation also.

Rick: 31:09

So it's a designator, for you're going direct to a board plan because you're going to end up there anyway, but it doesn't change the priority. There's no element of the Planning Act that says this is a priority. So this has to go faster than other things.

Brendan: 31:29

Not exactly a new act telling on board Planola as it'll be retitled on Commission Planola to give priority to specific classes of application. We do know from stakeholder feedback from the board that it's giving priority to certain things like renewable projects, transport projects and larger housing schemes. But when you say that that sounds like a lot of things and when you're giving priority to such a wide cohort maybe it doesn't feel like much by way of priority at all.

Rick: 31:59

Yeah, well, you can't give priority to everything. Obviously, yeah, we're jumping around here a little bit, but the reason I ask I have in my notes here about this Mark Ruffalo character and the bizarre kind of video that he I think he was having an interview with a Irish actor and that maybe he's doing a movie with and he went nuts about the Green Party and LNG gas terminals. So there's no, that's nonsense, is it?

Brendan: 32:24

Yeah, so there was a very late stage amendment that expanded the definition of strategic gas infrastructure. Now LNG terminals were already strategic infrastructure and captured through a schedule in the current act and a schedule in what's now our new 2024 act. So in a sense it's much ado about nothing. But there was an expansion to the definition of strategic gas infrastructure that was perceived by some to make it easier for the state to deliver its own LNG import facility terminal gas storage, if it needed to the private infrastructure like the project that's proposed by Shannon LNG, the new Fortress Energy Project. That's already strategic infrastructure and already was captured under the relevant schedule. So it made no difference to it.

Rick: 33:19

So headline celebrity doesn't know what he's talking about in shocking development.

Brendan: 33:23

But to pick up on your theme around the changes in the consent process, around limiting the discretion of on board planola. The new Act does that in terms. We'll see material contravention strangled. Actually Now I appreciate it's less common now. Maybe development plans are a little more flexible and developers are a bit more strict about trying to achieve consistency. But the four old rules for navigating through a material contravention have been changed to just three and each of those three is tighter than before. You can still look for strategic or national status as such, but it has to be through an express reference in government policy. You can't just pluck it from the air. You can still hunt for conflicts within the development plan and you can still look to guidelines, but in a much more strict manner.

Brendan: 34:16

One of the things we don't talk about much is a change that will affect developers making appeals, perhaps against a refusal. They might have sought permission for something let's say, eight stories suffer a refusal and then proposing their appeal a reduction to six or seven stories in order to make it easier for Planola to grant permission. Maybe there's a specific constraint against the board granting permission unless it's for development. That's substantially the same as was the subject of the original planning application. So some flexibility has been stripped out of the process in that respect. So they've taken that away. They've taken that away and no one's really talking about it. No one's really talking.

Rick: 34:56

Because we actually had a case of that where we got a refusal from Delirium when in our appeal we suggested that one of the things they didn't like to the board they could remove a certain number of apartments. And they did that and they granted it.

Brendan: 35:09

And it's very practical, yeah, and so long as the public has fair opportunity to see what's proposed and to comment on it, it's a sound process. But there is a sensitivity, and it's been the subject of legal challenge, and partly in response to that war raging in court, that they've made the tweak. There is some good. The tweak there is some good. Certainly the risk of being refused permission just because the settlement housing target has already been achieved, that someone else already got planning permission to deliver X units and the settlement only has a target of X or less than X. You can't be refused permission solely for that reason. A lot of people were encouraged by that, given the anxiety about housing targets and how they're, frankly too low in many of the plans. The practical difficulty, though, is that you may be de-zoned or re-zoned or paused into strategic reserve by the time your planning application is determined, at which point this clause actually doesn't help you, because it's the zoning that'll get you, not the housing target.

Rick: 36:19

This is something which was previously basically sacrosanct right that the idea of land being de-zoned just didn't happen.

Brendan: 36:26

Well, we have clear ministerial guidelines that say if land is zoned and serviced, that it shouldn't be de-zoned. Yeah, it's as. It's as simple as that and yet here we are we have examples very clearly of zoned and serviced lands being changed at least from tier one zones to something in the nature of strategic reserve, and there are live issues in a number of local area plans and development plan challenges where that issue is very much live very much so getting like.

Rick: 37:00

There's so many different questions I have, but it seems like all of this comes back down to this idea that we're trying to cater for every possible outcome instead of just saying we need the housing. This dude or lady over here who's the board inspector knows what they're talking about. They're an expert. They said it's a good idea, that's the end of it. Should be the end of it Instead of you know the land zoned and it's serviced, but now somebody else thinks that. Actually, you know, I don't like that anymore and I'm a local councillor and I get together some more local councillors now I just get the land de-zoned and then my constituents who vote for me are delighted with this.

Brendan: 37:39

So and pull the ladder up. Yeah, and it's not supposed to work like that.

Rick: 37:45

Because we're always told there's always democracy in action about people. But that's not democracy, right, that's just cronyism. It's corruption, right, but people corruption in the Irish mindset has been a developer giving a bag of money to a politician, right, that's how people, that's what people think corruption is. Corruption can go the other way, right Like the public process can be corrupted by people making decisions that suit their own and are not for their wider majority.

Brendan: 38:11

Yeah, I mean it's interesting when you look at the bundle of development plans that have recently been made and the number of legal challenges to them and it's higher than is typical and that's partly a response from developers who are constrained in material contravention in the planning process, therefore more focused on the development plan and getting that right, but seeing very local client list politics getting in the way of what might be a broader democratic theme on zoning of lands.

Brendan: 38:47

There are some high profile examples where I'm left scratching my head for how the planning decision making in the elected chamber has delivered the answer it did, where the transcript of the debate in the council chamber just doesn't read well and the recently Dublin Airport Authority had a successful challenge to part of the Fingal plan which involved a lot of emphasis on that transcript and the features where councillors were relying on on non-planning matters to stifle particular classes of development. There are other challenges of the same kind coming up soon and and I'd like to think we'll see the high court place the right emphasis there in terms of what is relevant and what was material in the decision making process on those plans.

Rick: 39:37

But it's kind of we end up here again, back at the High Court. Right now all roads seem to lead back to the High Court.

Brendan: 39:45

I'm the hammer and we're going to talk about nails.

Rick: 39:47

Well, I, yeah, I mean, and I know, and you're doing your. I mean, this is what you do, this is great, but like from it's a wider philosophical question. It's like what the fuck are we at, like, if this is the way we have to go to build a poxy wind farm? I was reading a thing about China now for a second, suggesting that we carry on like they carry on, but I don't know if you know that they've just opened the world's second largest solar array. The world's largest solar array is also in China. Right, it's in this desert in the middle of China. But I was reading this article and it wasn't really about the solar array. It was actually about the transmission lines, that they've built 48,000 kilometers of high voltage lines in the last three years in China to connect these solar arrays back to the cities.

Rick: 40:37

Now I know that all the liberals who listen to this all six of them will send in messages saying yeah, but what about the people in the desert who are in the way of the power lines? And the Chinese just say get the fuck, and they just build the lines anyway. I'm sure that does go on. They have perhaps too much ambition, don't have enough and we spend our time. Instead of thinking about high voltage electricity lines, we start spend our time thinking about how many people can we put into port panola who can answer ecology questions from a few cranky environmentalists who don't want anything to happen? How long can we make our planning act? How many different classes of development plan can we have? And we dress it up like we wrap ourselves in the flag of democracy. It's kind of nonsense, isn't it? Like it's kind of it's just a road to nowhere, ultimately, yeah.

Brendan: 41:30

Well, I mean, if you think about North-South Interconnector a really important piece of infrastructure through six counties in in the republic of ireland and northern ireland, and you look at how long in storage the consent process has been and the legal challenge process to it in both jurisdictions and the outcome is a consented project, but years later than makes sense, do you know how long that's been going on? I think I first worked on North-South Interconnector back in around 2010. And when did it get consented? Its consents were obtained within about five years and then legal challenge down south and then a longer process up north. Um, but it's now consented now consented, now consented.

Rick: 42:20

So that took more than a decade. Yeah, at least, and it's at least a power line it'll be a fantastic high voltage power line.

Brendan: 42:27

Yeah, but we're not there yet.

Rick: 42:29

We're still not there yet you see, stuff I mean just stuff like that we, we don't have these options, right, we're a little rock. Yet you see, I mean stuff like that we, we don't have these options. We're a little rock in the North Atlantic. We can't behave like this that. You know that we're Athens in the year 50, when we're inventing democracy, like we, we need these frigging power lines, we need these wind turbines, we need all this stuff, right, we?

Brendan: 42:51

emerging consensus around these features. And then there's local concerns, um. And if we set the tone from the top right, if we have strategic plans that identify the need for infrastructure along given corridors the same way we delivered road infrastructure in the past or waste infrastructure without legal challenge, um, you can make it easier to secure a consent that isn't challenged or that can't be challenged successfully. But you can't do it at pace and you can't do it in response to urgent need. And if you take whatever feature of development, whether it's a response to the need for flood relief, a response to the demands of international protection seeking applicants or displaced Ukrainians, or a response to COVID or a response to Brexit, planning hasn't worked well when it's trying to move at any pace. And if it's a response to we haven't got enough power on the grid or we haven't got our power lines in the right place, planning law gets in the way rather than makes it easier and yeah, I mean we keep keep repeating the same thing about planning act being really long.

Rick: 44:12

So are we? You know, planning law gets in the way. What are we doing on the planning law front? We went through a reform for the first time in 20 years.

Brendan: 44:22

Kind of feels like a bit of a missed opportunity well, I suppose the one of the the much talked about changes that are around access to the courts, yeah well, I wanted to ask you about that.

Rick: 44:33

Right is that? Has there been any change to that? Because, depending on the builder, I wanted to ask you about that. Right is that? Has there been any change to that? Because, depending on the builder I talked to, some says that has them say nothing. So a lot of words have changed.

Brendan: 44:41

Okay, excellent, we're good at that. At least, I'm not convinced it will make that much difference. If I look at a bundle of 100 court cases on my desk, I would say the new act wouldn't have stopped any of them from being brought. Wow, that's very depressing. Um, the rules can be striped as a little bit easier now, and we used to have this two-stage process, um, the first stage of which was not that difficult to overcome, and now that first stage is gone. So that was like seeking leave leave stage. The leave stage is now removed, okay, and instead what there is is a chance for porp tonal the developer, for example, to come in and say I want to strike out the proceedings without getting to the finish line. There's some issue around a late start, insufficient interest or some other doomed to fail type issue, and you can slide tackle early effectively Both boots, both boots.

Brendan: 45:35

Both boots studs up, and the truth is there's much talk about this sufficiency of interest. And what are the rules on what we call standing? Can residence association bring challenges? The answer is yes, they can. Are there more rules now for them to satisfy? Yes, do they need to? Probably not. They can set up a company company most of them already have at this stage, um. Or they can just name the secretary and chairperson as natural persons and they don't need to worry because, back to your point around costs protection. There is still costs protection and what the new act does is retain that shield.

Brendan: 46:14

So normally when you're in litigation, you have to be careful before you throw a rock at someone, because you might end up having to pay for the damage you do If you lose the case. You're on risk Costs, follow the event. We say In planning and environmental law we flip that it's heads I win, tails you lose. And what that means is that if you're bringing a court challenge, you just have to worry about your own lawyer's bill and they may be prepared to work on a no-full, no-fee basis and in the hope that they'll get to the finish line and win the case and have Bort Planon or someone paying their costs, but what? The person bringing the challenge doesn't ever need to worry about having to pay board plan. All are the developers legal bill, and, and that provision, that shield, if you will that's retained.

Brendan: 47:03

What we have, though, is a prospect that the amount will be capped.

Brendan: 47:07

So currently, if you bring a successful challenge and it's gone to the finish line it's run for three or four days in the High Court you could expect a costs bill demand to be sent to Ombord Planola for a six-figure sum, and the board will be paying a big chunk of that. The proposal here is that the minister will have the power to set a cap, so that the board is only exposed to a smaller fraction maybe, and that certainly will have an impact and make the market for object or challenges a more constrained market. But one thing that is interesting is we're now introducing a legal aid scheme, so a new financial assistance mechanism to fund losing cases, so, in fact, we should expect there to be more, not less, legal challenges Now. The full details of that scheme have yet to be published. We could be some time before we see it, and who knows whether it ever comes into force, but the commitment is there that the state will set aside some money in order to fund just remind ourselves losing cases To fund losing cases.

Rick: 48:14

I'm real glad we're recording this on a Monday and not on a Friday, Brendan, because for the love of all that is, I mean, that is just incredible. So you are, Mr Resident, and a few months ago you were under the Old Planning Act and now you're under the New Planning Act and essentially nothing has really changed. Because I know you said about that cap, but I assume that hasn't been commenced, it's not in place yet.

Brendan: 48:39

And I should say the vast bulk of the 2024 act is not yet in legal force. It's passed through the Dáil, the Sianad, it's been signed by the president. The little tweaks regarding rent pressure zones came into force immediately. Loans came into force immediately and just in the last number of days some provisions regarding owners' management companies tucked into the back of the legislation, were commenced by ministerial order. Everything else awaits a ministerial order, we're told by the department. It could be 18 months before the lot is turned on. So if you can imagine that the planning act is filled with at least 26 or more light switches for each part, they'll be switched on in sequence. We're told that a draft commencement order has been prepared to turn on the provisions around on commission planola, the respray for unborn planola, restructuring for unborn planola and for the part about fun fairs and events, so circuses and concerts, that they'll be first up.

Rick: 49:34

They're obviously dealing with the most urgent matters first.

Brendan: 49:38

Soon after the new government is formed. That's the expected first light switch is on. After that we're expecting consultation around a couple of features like exempted development and thresholds for environmental assessment, with, soon after planning, regulations on the ministerial guidelines that the planning statements and development plan making would. Then, probably towards the end of the year or maybe slipping into 2026, they'll turn on the provisions around consenting and then after that the provisions we've been talking around on judicial review. So I'm not expecting to see that turned on until quarter one 2026 earliest.

Brendan: 50:16

And if you think about the 2000 act as it was turned on slowly, it wasn't until March 2002 that we saw the bulk of it turned on. We'll have plenty of advance notice. The department has an implementation team working on its strategy for what sequence to turn on the parts of the act. It's going to meet resistance. You can expect, for example, local area plans.

Brendan: 50:36

At the minute it's a point of real friction. Are local area plans extant? Are they not? Where they're not, can we get new ones made under the current law? Because if they're not made by the time the provisions of the new Act are turned on, all the work in trying to make them will be set at naught and you'll have to start again with an urban area plan and if you can imagine local authorities expressing themselves, the department, they will say, well, we're in blood, stepped in so far. Whichever, let us finish and and we should expect that those provisions aren't turned on. It's really important, like if you look at um at the Greater Dublin area, there's probably about 20 local area plans that are expired that are really important for development, particularly for new housing, and if those plans aren't made in time before the Act is turned on in relation to urban area plans, we'll have a real problem.

Rick: 51:32

So the planning, because there was a lot made of it the Planning Act has been signed and there was sort of a victory lap been taken, but it hasn't really been commenced.

Brendan: 51:41

No real consequence. We're already advising on it. We're already advising on, for example, that feature about local area plans, extensions of duration. We're advising on that. If you have a planning permission that's fast getting to the finish line and running out of time to build out, right now under the planning act you're looking to achieve substantial works in order to get an extension of duration, to get more time on the clock.

Brendan: 52:07

The new act has a different solution. It doesn't care about substantial works anymore. It just is a kind of mini planning application with the prospect that you can get an extension of duration on even projects that need environmental assessment, which you can't currently. And that was something that people were welcoming and giddy to get turned on quickly. But there was a late amendment to say actually, for the first three years the old rules will continue to apply, so permissions expiring under the current act will stay expiring under the current act and can only be extended under the rules of the current act, which is commenced with substantial works. So if you're looking at, you know, financing or discussion around financing on anything that's a little bit complicated with, like you know, that takes longer than a year to complete, um, and your permission's already three years old. You're done, you're, you're, you're stuck with. Can I get enough to achieve substantial works and can I trust the local authority to give me the extension?

Rick: 53:10

and what is substantial work, because there was a case last week in the high court Court of this where they applied for an extension based on substantial works and the council said it's not substantial, not to put a mathematical or numerical threshold on it.

Brendan: 53:23

It's sort of an elephant You'll know it when you see it. And so there's huge discretion for the local authority. I think some of the best examples we've seen is to describe it as not insubstantial. That's what substantial means. The idea is the bigger the project, the less proportionately you need to complete. So you're doing a power station and it's a 100 million euro project. The idea is the bigger the project, the less proportionately you need to complete. So you're doing a power station and it's a hundred million euro project. You might only spend 10 million of your budget and be substantial. Yeah, if you were doing a one-off house, they're expecting you to get to wall plate. Yeah, you're nearly done in blood stepped in so far, so to speak. But the logic is still let's not have unfinished Taj Mahal projects. The idea is we should be able to complete things that are started. You know, lift core up. By the time you have even, you know, somewhere between five and 10 million euros of the budget spent. That's a lot of commitment to a project, in my view.

Rick: 54:51

Yeah, I often. We've never been in this scenario, but I've heard about a lot of cases of it and I often think why not just be very simple about it and say plan of permission is five years. If somebody has commenced on site, they get an automatic one year extension and then that's it. There's no, because you know you can build anything in two years, right, right, like the world trade center that was built in 18 months, like the two years bills, anything the um we've been.

Brendan: 55:17

We've been requesting automatic extensions, that there must be um. Say, for example, if you you have a legal challenge and you burn, uh, two years of your permission or longer successfully defending that challenge, like sure as night follows day, you should be given those two years back at the end, like there's a lot of logic to that. But but under the current code you don't. You have to hit substantial works and then you'll get those years back late on. The new act's a little different. It's, it's, it's uh, just focusing on it as a an alteration, effectively treating it as an alteration. The expectation is that we'll see more extensions, but what we're doing is ahead, just looking for longer durations in the original permission. We're expecting that there might be challenge, we're anticipating that there might be delay, that there might be issues around contracting and funding, and looking for longer to spare us the bother of having to go back into a planning process sooner. If you look at Dublin Central the site between O'Connell Street and Moore Street, henry Street to Parnell Street you've seen durations there of 12 years. And that's precisely in response to these kinds of risk factors. And obviously Metrolink is a feature there.

Brendan: 56:29

The other thing that's going to change in the new legislation is if you do get a legal challenge, you can give notice to the planning authority to say I've been challenged, please suspend my permission, and what that does is literally pause the clock. It means you can't build either, but you get to stop the clock. So you get to give notice to the parties and say I'm not going to take any risk on this. Now many people see a challenge as a real chilling effect and if you're spending someone else's money, it very much is. You won't get someone else's money to build when you're under legal challenge. But if you're the state or public authority, you may take that risk. I mean, we've seen Lansdowne Road Stadium redevelopment that was carried out while there were legal challenges pending. Intel's thing as well, right, absolutely. The new terminal at Dublin Airport Again, these are rare enough examples.

Rick: 57:30

They're major projects though, like if they say, for example, the airport terminal that was built, then the challenge came through and they lost. What happens then?

Brendan: 57:38

Take it back down, or Well, we have a couple of examples. There's a famous or infamous wind farm that successfully defended its permission in the high court and commenced development. During the construction of the wind farm, an application was made to appeal to the Supreme Court. The Supreme Court said yeah, come on in, We'll let you progress an appeal. And they object or won. The developer lost in the Supreme Court. By the time the Supreme Court delivered judgment, 12 of the 13 turbines had been erected. What happened next? An opportunity to regularize, a chance to go in and get a fresh permission, a chance to go in and get a retention or a backward looking permission for the work that's been done without a legal authority. But generally, what you see in those facts is you may be suspended from getting the benefits of your permission, so you won't get the fruits of your labor until you're at the far side of the planning process. Now facts will differ. In that case they were entitled and they've since submitted to the regularization process.

Rick: 58:51

But it's not straightforward and you're carrying risk and meanwhile, in that case, the turbines are sitting there and they can't use them because they don't have the right to use them yeah.

Brendan: 59:00

So when we've seen that with grid connections, we've seen that with turbines that were built slightly longer than originally permitted and the developers forced to suspend and not profit from the, the suggested illegal development, it's. It's not straightforward and it you know when you're carrying that kind of risk. It's it's one where obviously you think in advance is it worth my while?

Rick: 59:26

and you want to be very confident yeah, you want to be very confident and there's not a lot of things, certainly from today, uh, that would inspire confidence. Um, from today that would inspire confidence, I would say. I mean one of the things. I mean, is there any?

Brendan: 59:39

positive. Well, I would say this there was a period of time when almost every large housing scheme was being challenged, and that has changed. Under large-scale residential development, we're just seeing much fewer challenges.

Rick: 59:52

Why, specifically, is that? Is that just something to do with the SHD? Like denying public participation?

Brendan: 59:57

Yeah, I think that is maybe the thread. It's not necessarily just that. I think there's lots of things happening. One is obviously large-scale resident development sees two bites of the process and I suppose the public has better trust and confidence in a process that sees the planning authority speak first, the board speak second and if there's high levels agreement between the local authorities, officials, the board inspector and the board, those are just not as easy to challenge as the truth. It's where you see discord between the planning authority and the board or discord between the board and its inspector. That's where that's the kind of gap you're looking for. The other thing is obviously strategic housing development. You know there were direct applications to the board and it's inspected. That's where that's the kind of gap you're looking for. The other thing is obviously strategic housing development. You know there were direct applications to the board. There was a certain perspective on how fair that was.

Brendan: 1:00:45

But more important at the time was these were challenges to schemes that were complying with national guidelines and departing from the development plan. So material contravention was common In fact, because the legislation required you to disclose your material contravention in advance and if you didn't you would lose your permission. Marginal, mere contraventions or arguable contraventions were being flushed into the material contravention statement, and that introduced its own different risk, whereas large-scale residential development, that's not as important a feature. You don't have your material contravention statement, you don't have the requirement to publish. You have different risk factors, but we're seeing any. There are some schemes that were challenged when they were an SHD consent and now being challenged when they're an LRD consent, and you can see fewer grounds of challenge as well. There's being challenged when they're an LRD consent and you can see fewer grounds of challenge as well. They're a small enough data set to be able to draw any inference, but fewer challenges, fewer grounds of challenge and, maybe more importantly, we're seeing Borplenola win more cases.

Brendan: 1:01:45

Okay, so there was a period of time when they won nothing right. Well, there was a while when the win-loss ratio was very ugly. Now it's much better. There's a little devil in the detail If we say Borpnana, the last annual report gives data for 2023. Let's say, about a hundred cases were resolved during that year. More than a third were conceded by the board, so they stripped that out from the data.

Brendan: 1:02:13

And then, when you look at the win-loss, it's about even between winning and losing cases, once you take the conceded cases and the resolved by agreement cases out of the data set, the single biggest lump is cases resolved, cases withdrawn effectively, and the inference is there pragmatism brought to bear. By pragmatism brought to bear by pragmatism you mean money. Well, it's not always money actually. Sometimes it involves abandoning part of the scheme, which is a cost, for sure, but it's not an economic transfer. But there are projects that are only now progressing because the legal risk was purchased. I think that's well acknowledged and there's high profile examples discussed in the media about it. It'd be better if we had a scheme of planning law and practice that didn't encourage that, that didn't need that.

Rick: 1:03:11

That specifically prevented it, I think.

Brendan: 1:03:14

Well, that's worth thinking about. I suppose, standing back as a lawyer and you think about personal injuries claims and you think about I think my claim is worth X and I settle for X divided by two, x divided by three, I settle for something less. It's possible that I might access a court process and decide to give up on that court process for some other pragmatic reason. Now you can't apply that directly to public administration decisions, but if you have a concern that the development is hurting you to a degree and that degree can be compensated for and the developer's happy to do it and makes that choice to eliminate risk, that might be to ensure they obtain the benefit of the contribution waiver scheme or they get the benefit of being the right side of cost price inflation or yeah, no, for sure.

Rick: 1:04:10

I mean I, I don't, I don't have any particular issue with it. We've, we've done it, everyone's done it. Um, but it's a case of moral hazard when you start putting a financial incentive to people to start holding things up.

Brendan: 1:04:22

Absolutely and I think. Well, one of the things the new act does is try and set a policy against that. So to make a planning submission now, you'll have to include a declaration that says you're not doing it just for ransom Right. You have a specific criminal offense for asking for money in order to not make a submission, withdraw a submission, withdraw an appeal or withdraw a legal challenge. And that is signaling, I think, in response to disquiet arising from investigations done by the national broadcaster around that feature of planning process, which is a rare enough feature. But it's setting direction and trend and saying you know what we're not happy.

Rick: 1:05:05

This and and it's a crime well, it used to actually be more common, I think. And then people well, because people saw the planning process as sort of inevitable, and so they were trying to extract what they could extract while the train was still in the station, and then that flipped, and now people see the prevention of the planning process as being inevitable, and I actually think that it led to people not asking for money, because now that, well, I know I don't need money, I can just prevent the thing from happening at all, which is actually more attractive than even getting getting the cash delay is the enemy, um, I think, I think, um a lot of communities will get advice that says the developer will eventually get permission to build something and they'll get a permission that you won't be able to challenge.

Brendan: 1:05:51

They might get it this year or next year.

Rick: 1:05:54

Yeah, it's a matter of when, not if.

Brendan: 1:05:57

I think the advice I'd expect they're getting is that eventually the house wins, eventually lands that are zoned for development will be developed and eventually the public authorities will not make a legal error. That will open access to the courts. And the other thing, just in terms of encouraging themes, is around. We're seeing swift court processes with swift court judgments, upholding the approach of the board and excusing harmless errors. So that is a change identifying something in relation to biodiversity assessment and saying you know what doesn't make a difference, and that kind of pragmatism. Or, as well, identifying some feature of the process that wasn't perfect, but again, which doesn't affect outcome, and making a declaration to say that was bold, don't do it again, but not taking away the developer's planning permission. And I think even over the last six months we've seen important high court judgments emphasizing that in a range of sectors, particularly in the renewables sector, saying that you know what? There is a balance to be struck and we can't insist on perfection and there are more worthy features at play.

Brendan: 1:07:14

Housing hasn't achieved the same bounce. It's almost like the numbers are so great that no one scheme is perceived as being the kingmaker in that context and, as a consequence, it's a little disrespected from a priorities perspective, from treating it as strategic or national importance, those claims have generally been discredited or diluted in court. Even the function of getting a hearing date is much easier for a renewable energy project than it is for a housing scheme. If there's to be a, the little one said roll over, they all rolled over and one falls out. It's the housing scheme that'll fall out and it's the renewables or other infrastructure that'll get there.

Rick: 1:08:01

Because of fragmentation right, 50 houses here, 50 houses there. It's a difficult. I mean, if you had the entire court list would be taken up.

Brendan: 1:08:09

Absolutely. And look, the courts aren't suffocating under the weight of housing challenges. Now we've been talking in numbers at different times maybe 30, 40, 50,000 units under challenge. I think when you strip the data back now it's probably as low as around 7,000 units under challenge. There are probably many more permissions that stand free from challenge, that are not developed, and being able to grapple with why that is true and whether anything in planning law and practice is getting in the way of implementation is worth thinking about.

Brendan: 1:08:51

We have procedures around minor enough tweaks to existing permitted schemes that are getting sent through the LRD process. You want to change the plant at the top of the taller building. You're not changing any of the units. You're going into a full LRD process. That doesn't make sense to me. Extensions and duration we talked about it earlier. There should be some more automatic extensions. We did have that before when the National Asset Management Agency was introduced and took over loan books. That included a lot of sites that had permissions on them. The state response was to say hang on a minute. We cannot let those permissions lapse overnight and we need to be fair so that private persons have as much access to these methods as NAMA, and that should be commercial, economic, technical reasons, and whatever those reasons are, it's viability, it's access to funds and that's still a key constraint. But we removed that in 2021 and you'd have to wonder where we took it in early in removing it.

Rick: 1:09:45

Well, I've yet to hear anyone come up with a justification as to why it was removed, because it's not as though at the time, there was a whole load of half-commenced units. Remember the Ghost Estates? Remember how that used to be the number one issue of the day, and now there's none of them. That seemed to just come out, and it was like we're not doing it because.

Brendan: 1:10:05

Yeah, I think, if I was to guess. I think two things are driving it. One is and not to go back to Europe again but a sensitivity around Europe's view of extensions of duration. If the project was one that needed a full environmental assessment, did it assess the building of the project during the five-year life or did it assess the building of the project over an extended time? And that that debate will much have changed.

Brendan: 1:10:28

Well, who's checking so that thing? Second, it's use it or lose it by the back door. I mean, remember this was a vaulted policy with a view to encouraging the delivery of projects that get permission, and there was to be a use it or lose it provision and the government abandoned that. But this is it by the back door, insisting effectively that once you have the privilege of permission that you do need to activate, and we're seeing that across. What are you going to take us into? Vacant site levies and residential zoned land tax you can have another podcast on that, but activation as an encouraging feature, and then development levy waivers as another encouraging feature to try and trigger earlier commencements. Um, there are many levers the state is looking to pull all at the same time. Yeah, and unfortunately some of those are intention when you then take land value sharing as a concept in parallel to that. But look, let's wait for that legislation to come to life before we come and talk about it If it comes on.

Rick: 1:11:26

But I mean, for now, what I'm taking away from this is the good news is the circuses are protected. They're first up, best dressed, they're first up. I mean, that has been the priority of government and I think it's just you couldn't make that up that the circuses are the thing that got commenced out of the new planning act.

Brendan: 1:11:49

The expectation is they'll be in the first commencement order. The next commencement order, rather. I suppose one thing I'm betting the act will be amended before the lights are turned on, yeah, by the new government. I'm expecting some changes and I think that wouldn't be a bad thing. And, um, I think that wouldn't be a bad thing, um, I. I think also there's no point turning it on in a rush if the apparatus of public authorities isn't ready to actually give effect to it. And and that needs, that needs symmetry. Otherwise we we walk ourselves into a whole different bundle of fertile grounds.

Rick: 1:12:22

Yeah, that's actually a very good point to say that you, you turn all this stuff on. There'll just be a lot of people with their eyes open and their mouth open saying what? And we'll get nowhere with this right.

Brendan: 1:12:33

I mean, if you go back to the 2000 Act, that March 2002 date was signaled in a commencement order in January of that year. So even when we turn on the light, it'll be. We're turning it on in two months time and in advance of that we should expect consultation, draft regulations, training of local authority staff and those who engage in the planning process. It's not happening overnight. As I say, it's press release worthy at this stage. In practice it's much less significant, but it is important when we talk to the international community who've expressed frustration or have a high level sense that planning in Ireland is a pain point, and to be able to have the conversation where we say oh no, we've changed that law. Now if they ask another question, it may be more difficult to explain how those changes do help, but as a starting point in your elevator pitch with international money, it's a good start to be able to say we're on it and I think that's part of the story here that is difficult to value or weight but is not insignificant.

Rick: 1:13:46

There's an argument to say that we've been saying we're on it for a while and we keep you know. At that same event, when the guy was bragging about the length of the law, he also told us how important this election was. You know, how vital it was to continue the work of government. And somebody came up to me and said you know how fucking long do they need to be in power to to actually do all these things? Right? Like we've been listening to this for a long time, but like we hear your concerns, we're acting on them. Yeah, and it just reminded me of that phrase. You know, the beatings will continue until morale improves.

Brendan: 1:14:22

Um, the, the. It's tricky when you look across, say, just the accommodation sector and and you think about um policies set in in, you know, sustainable development and apartment guidelines and height guidelines, and we think about the backsliding in the apartment guidelines subsequently under pressure from opposition around co-living bill to rent pressure and purpose-built student accommodation on tenancy duration and what feels sometimes a reflexive and flexible nimble government.

Rick: 1:15:00

but to remove from even just the nomenclature, to remove from the discussion entire typologies, while at the same time With the stroke of a pen right, Like without any of the consultation and training and things that you're talking about.

Brendan: 1:15:17

Very quickly. You know we had Christmas 21, christmas 22. We've seen these schemes that have been in process and gestation for an extended time effectively disappeared from the planning lexicon at that stroke of a pen, while at the same time we have government acknowledging in the data that we need more of every topology, we need more of every kind of accommodation. We need more student accommodation. We need more homes. We need more homes of every different size. We need more rental accommodation too. There isn't. And then you move to the emergency demand, whether it's on short-term, emergency homeless accommodation or displaced persons from Ukraine or those seeking international protection. That's a class of accommodation that's, frankly, still in need of the right kinds of solutions, and we have strategies and decisions coming out that are suggesting that use of hotels and tourist accommodation is not part of the solution.

Rick: 1:16:28

and my, my head is left itchy and I scratch it, yeah well, brendan that I have to say I think that's been one of the most enjoyable chats that I've had. I mean, it's it's it's absolutely so depressing, but you've managed to put a lot of color on a lot of things and a lot of questions that I had. I know a lot of people who work in industry who listen to this would have loved hearing about it, because there would have been questions that they feel like they can't ask or that, if they do ask, nobody has the answer to. But you do seem to have the answers to them. So anyone who is looking for planning advice, I can only suggest that you tottle on down there to the docks, that very lovely building with the. Do you still have the big bamboo plant in the middle of it? Is that still there? Uh and uh, that's your air. Is that your air conditioning is? Somebody told me that and I said that can't be true.

Brendan: 1:17:22

I think it's more of an architectural flourish, with a call back to its original gasometer days. Okay, um, but it's. It's still pretty beautiful actually in that atrium.

Rick: 1:17:32

I actually really like it. Anyway, that's kind of an aside um magic wand. What are you? What are you going to?

Brendan: 1:17:40

do? Um, I think we need to double down on harmless errors and in the UK they have a very specific statute of provision that says the courts shouldn't be deleting permissions unless there would have been a different outcome as a result of the error found. And if we just put that tweak in, it completely demotivates you only bring the challenge that matters.

Rick: 1:18:06

And frankly, yeah, that comma was in the wrong place.

Brendan: 1:18:08

So what? Let the focus be on real issues, for sure, and let the courts grapple with those real issues, but let's not waste our time on stuff that didn't matter.

Rick: 1:18:17

That's very succinct. Normally when we ask that question we get like seven minutes and they put 10 things. That wasn't the best answer. That was the best answer. This is excellent. We'll just extend this for hours. I've got so many questions here we're not going to get to. Um, do you have a book recommendation?

Brendan: 1:18:33

Oh, um, I just finished Owen Murphy's book and I think it's worth the read on two levels. One, that little bit of seeing how the sausages are made Um, I think there's no harm in reminding ourselves about that. And second, the pressure in public office. Wow, I think the brutal honesty is necessary and healthy because, as we reframe the discussion around respect and democracy, I think it's important to remind ourselves about exactly how that pressure works and operates on the human.

Rick: 1:19:05

Yeah, absolutely, I second that. I actually I wouldn't have thought very much of Owen Murphy, to be honest, but I read the book and I really had to change my mind quite a bit about him. It sounded horrendous what he went through actually and, yeah, no matter what your beliefs are, it's shocking what I mean it is. And you see, there was an article there about the election campaign. There was 60 different abusive incidents reported during the election and that's just reported and that's what's been reported. That's not good.

Brendan: 1:19:39

I mean it's thankless, and if you think about how important the caliber of public representative is to getting all of what we just discussed right, it's awful if we're discouraging.

Rick: 1:19:50

Yeah, you're not going to invite people like you to go and get involved.

Brendan: 1:19:57

Well, if you're talking to your children, could you recommend public office? Absolutely not.

Rick: 1:20:01

No, you couldn't. No, because it's completely thankless and you're going to get blamed for everything.

Brendan: 1:20:07

And that I mean. I just think the book is a really practical insight, as I say, both to how that government in particular worked, but as well just the apparatus of the inside of government. It's an easy read. You can be done through it in a couple of days. Excellent.

Rick: 1:20:21

Well, there we have it. I really I learned an awful lot here and I feel fundamentally terrified, but also a little bit more at peace as to what's coming down the track. So, thanks a lot, and we will feed the law, we'll put it into the API of ChatGPT and we'll see what it says. Maybe it'll come back and say no, brendan, that doesn't know what he's talking about. I look for a right to reply. Thanks a lot, brendan. I really appreciate it. Thank you very much.