Official Report: Minutes of Evidence
Public Accounts Committee, meeting on Thursday, 10 March 2022
Members present for all or part of the proceedings:Mr William Humphrey (Chairperson)
Mr Roy Beggs (Deputy Chairperson)
Miss Órlaithí Flynn
Mr David Hilditch
Mr William Irwin
Mr Maolíosa McHugh
Mr Andrew Muir
Witnesses:Mr Kieran Donnelly, Northern Ireland Audit Office
Mr Dean Blackwood, The Gathering
Ms Nuala Crilly, The Gathering
Ms Anne Harper, The Gathering
Mr George Mc Laughlin, The Gathering
Inquiry into Planning in Northern Ireland: The Gathering; Northern Ireland Audit Office
The Chairperson (Mr Humphrey): We are pleased to be joined by members of The Gathering: Mr Dean Blackwood, Ms Anne Harper, Mr George Mc Laughlin and Ms Nuala Crilly, who joins us remotely. Also in attendance are Mr Kieran Donnelly CB, the Comptroller and Auditor General (C&AG) and his team, and Stuart Stevenson, the Treasury Officer of Accounts (TOA) from the Department of Finance. Without further ado, I welcome Ms Crilly and the representatives of The Gathering to the Public Accounts Committee (PAC). Ms Crilly, would you and your representatives like to make an opening statement and then take some questions from members? Good afternoon to you all.
Ms Nuala Crilly (The Gathering): Thank you. Can you hear me?
Ms Crilly: Great, thanks. Yes, I will speak, and then Dean will speak on the key themes. First of all, thanks for giving us the opportunity to speak today as part of the evidence-giving session. It is really important that the voices of local people are heard. I work in a place called St Columb's Park House, which is a peace centre. There, I coordinate a programme called Compassionate Campaigning, and through that, I get to support The Gathering.
I will give a wee bit of background about The Gathering. It was formed in 2017 by three local community-based organisations that were concerned about the ongoing environmental threats posed by the Mobuoy illegal dump on the outskirts of Derry. In the years since, The Gathering has grown hugely. We describe ourselves as an open collective of individuals, communities, grassroots-based campaign groups and activists. The Gathering embodies a dynamic repository of skills, knowledge, expertise and creativity, gathered from our experiences in pursuit of environmental and ecological justice. We have 60 affiliated community/campaign groups spanning 10 counties across Ireland and all the counties of the North. Representatives of those groups gather together every three months, when we host speakers on a range of environmental issues and allow time for all the campaigns to give voice to their issues.
A number of subgroups also operate within The Gathering, examining broad issues that concern campaigners. Of relevance to today's meeting is The Gathering's council/planning subgroup. That group came about because, over the past four years, as we listened to citizens talk about their planning concerns, it became clear that distinct patterns were emerging in the lived experiences of local people, even across different council areas. We were uniquely placed through our Gatherings and mini-Gatherings to record the patterns that were emerging across all the council areas, as opposed to the failings of one rogue council. The Gathering council subgroup met in June 2021 to discuss the emerging patterns and behaviours with a view to making representations to the Northern Ireland Audit Office (NIAO) review of the planning system. Additionally, as we discussed the growing number of cases that were coming before the courts, we wondered about the cost to the public purse. We submitted freedom of information (FOI) requests to councils for legal costs pertaining to planning matters, including the costs of judicial reviews, legal advice for complaints and any other planning-related expense. Responses so far show that substantial costs are indeed being incurred.
The other thing I want to note, right at the beginning, is that the majority of people who get involved in The Gathering do so on a voluntary and unpaid basis because of their shared passion and desire to protect the natural environment and all its ecosystems. There are local communities all over the North and beyond whose daily lives are impacted by bad planning and failing environmental regulation. Some of those lives have been made a living hell. It is also important to note that nobody undertakes any of these activities for the craic, to be vexatious or simply to cause trouble. The cost in terms of the mental and physical well-being of many members of The Gathering has been immense. It is part of our role in The Gathering to provide solidarity, support, solace and strength to individuals and communities undertaking actions to protect our shared environment.
Thank you for allowing me time. I pass over now to Dean, who will talk in more detail about these recurring themes.
Mr Dean Blackwood (The Gathering): Thank you, Chair, for the opportunity to present an important and emotive issue for the many citizen and campaign groups that form part of The Gathering's growing collective voice. Many of these community organisations only exist because of bad planning and a deep sense of injustice inflicted at the hands of what our collective experiences suggest is an increasingly dishonest planning system. We have two prominent campaigners here today who can testify as well as anyone to the impacts that bad planning can inflict on the public purse, our environment and, importantly, the personal health and well-being of our citizens. It is in everyone's interest that Northern Ireland has a fit-for-purpose regime because, frankly, we could fill this Chamber with people traumatised by engaging with a dysfunctional planning system.
It is also important to emphasise that there are many committed and honest public servants and planners, many of whom privately express to us their deep fears about the decline in the planning system. Worryingly, they also express their reluctance to raise concerns. That makes it all the more important that citizens are taken seriously when speaking up about wrongdoing in planning. In the context of the Audit Office report, I will set out our collective view on what needs to change in planning if it is to become a fairer, more balanced and transparent system for those whom it currently alienates. At the heart of our concern is the squandering of the integrity and credibility of planning as a public institution. The question is whether the report goes far enough in seeking to establish the root causes of why the planning system commands so little public trust and respect among those whom it is meant to serve.
What follows cannot be categorised or dismissed as matters of speculation, disagreements or mere differences of professional opinion; rather, the comments that I make about the planning system are firmly grounded in objectively verifiable evidence to support those concerns. The Gathering contends that senior public officials are not ignorant of the evidence of neglect and wrongdoing that they are often presented with and that they continue to preside over. Our collective experience indicates that officials who should be engaging openly and ensuring that high ethical standards are maintained in public bodies tend to engage with citizens from a position of power and not of intellectual honesty or credibility. Often, that is done to evade the real issues of irregular and improper practices and conduct in planning, which, I suggest, remains a significant barrier to achieving the cultural change that the Audit Office report recognises as fundamental.
Emerging from The Gathering's planning subgroup were three broad recurring themes, drawing on lived experiences and testimonies from across our members. We categorised the themes as administration and failures of the system; professional competence and skills deficits affecting the system; and the professional corruption that increasingly characterises the system in the eyes of the public. While I could say a lot on the first two themes, for the purpose of this presentation, I will focus on the last. Professional corruption is less to do with allegations of bribery or brown envelopes and more about unethical practices and conduct in public service. Indicators of professional corruption are wide-ranging and include the deliberate withholding of information; unwillingness to clarify or explain an action or a statement; persistent aversion to record-keeping; unauthorised removal of documents from planning files or portals; willingness to rationalise an obvious mistake rather than acknowledge it and put things right; and the use of false and misleading evidence or information. I could go on.
As a planner who spent my entire career in public service in Northern Ireland, I say with deep concern that those are all examples of professional corruption that I directly and regularly experience when raising concerns about planning at both central and local government level. The same worrying patterns of professional corruption are experienced and documented by numerous other campaign groups associated with The Gathering. Such actions must be seen as abuses of public trust and power that are unbefitting of public servants.
Usually, professional corruption is corporately driven. There is a wide body of academic research that indicates that professional corruption, if not addressed, becomes learned, contagious, socialised and, ultimately, normalised in the culture of public institutions. The Gathering is concerned that that is being allowed to happen in the Northern Ireland planning system. That should be of concern to everyone, as unethical practices and conduct not only corrupt the planning institutions that engage in wrongdoing but can corrupt other public institutions such as our judicial system, when the courts are taken in by false and misleading evidence.
In adopting its high-level approach to review of the planning system, the Audit Office report misses a major opportunity to meaningfully address such evidence-based public concerns about professional corruption. Given that the report confirms that the Audit Office regularly receives concerns about planning decisions, it would seem appropriate to complement the high-level approach to review with a controlled case-study methodology designed to swiftly and purposively select and examine the veracity of some of the more serious concerns that it has received from the public about planning. In the interests of restoring public trust in the planning system, the Committee is respectfully requested to exercise its authority to ensure that a purposive case-study inquiry is directed into the serious public concerns about professional corruption in planning. Allowing professional corruption to become culturally embedded will only ensure that the planning system can never regain its integrity or public legitimacy but will remain in a state of degeneration. As set out in more detail in my submissions, for us to have an equitable planning system, the public need effective and independent oversight and scrutiny of the planning system, including robust mechanisms whereby the public can raise concerns about professional corruption with the assurance that they will be taken seriously.
The public need equal rights of planning appeal that can ensure meaningful public participation, counter the considerable risks to the planning system identified in the audit report and address the United Nations findings of non-compliance set out in section 3 of decision VII/8s. The public need planning portals that are fit for purpose and compliant with section 5 of that same United Nations decision, which was issued in October 2021. Helpfully, it sets out the obligations of UK councils under international law in respect of how they make planning applications available online. Measures such as those set out, which can bring accountability into the planning system, will go some way to restoring the public's trust, which has previously been squandered.
Thank you, Chair. Would it be appropriate for my colleagues to make some remarks?
The Chairperson (Mr Humphrey): We normally allow 10 minutes. Your colleagues will have an opportunity to respond to questions, but you will appreciate that we have a very busy schedule —
Mr Blackwood: I see that.
The Chairperson (Mr Humphrey): — and we want to hear as much from you as possible. That interaction is vital.
Before we start the questioning, what parts of Northern Ireland do you come from? I will start with you, Ms Crilly. Where do you reside?
Ms Crilly: I am in Derry city, so the Derry City and Strabane District Council area.
Mr Blackwood: I live in east Belfast.
Ms Anne Harper (The Gathering): I live in south Down, so Armagh City, Banbridge and Craigavon (ABC) Borough Council area.
Mr George Mc Laughlin (The Gathering): I am in the Derry City and Strabane District Council area as well.
The Chairperson (Mr Humphrey): OK. Thank you very much for your time this afternoon. We are keen to hear from you. Thank you for making that initial contact. You will know that the Committee has heard from the Audit Office. We have heard from the Department — the permanent secretary and the chief planner — and from the Northern Ireland Local Government Association (NILGA), but we want to hear from you. Many of us have been involved in local government, although most of us, given our age, were involved prior to RPA and were not directly involved in some of the issues that local government now faces with planning. I ask this to whomever wants to answer: what are your views on the standards and ethics in the planning system?
Sorry, there is some interference. I ask members to mute their devices if they are not speaking. Thank you.
Mr Blackwood: I will start, and anybody who wants to come in can do so. In theory, there are good standards. For instance, in the Department, there is the Civil Service code of ethics. I cannot remember the name of it, but there is similar provision within local councils that sets out the code of conduct for both councillors and public servants. Also, planners — not all, but, I imagine, quite a significant number — are professional planners, so they will also be bound by professional codes of conduct and guidance on ethical standards, depending on whether they belong to the Irish Planning Institute or the Royal Town Planning Institute. In theory, there are significant standards to comply with, but, in practice, we find that very often those standards are blatantly ignored. In fact, I think I mentioned in my detailed submission that, with planning, we are in danger of straying into a post-Nolan principles era.
Ms Harper: I am happy to add to it. My experience with planners in ABC council and in the Department for Infrastructure — we have been dealing with both bodies — is that, often, reasonable questions go unanswered and correspondence disappears into a black hole. You sometimes have to chase things, and you sometimes get an answer but not to the question that you asked. They are very careful, and they do not always want to answer reasonable questions.
Mr Mc Laughlin: I will just continue on the theme of that question, particularly with regard to codes of conduct. We have found that to be a particularly difficult area in that councillors sometimes make incorrect statements at planning meetings, and that is not really followed up. There is a legal person sitting at the council, but that is allowed to happen; it is allowed to continue. On one occasion, the fact that that was allowed to happen resulted in a QC having to be called in. The code of conduct is one thing. I have a short statement that would fill you in on that, if I could have an opportunity to read quickly through that some time.
One of the biggest problems that our people have with the council and all of that is people making promises and not keeping those promises. For example, in our council area there is a refusal to give information. Sometimes, when you enquire about the information, you have to go through a whole complex procedure with the Information Commissioner's Office (ICO) and things like that, or you have to look for information in different ways, going round a whole lot of corners. They make it very complex for us, altogether. They make it difficult. Our whole aspect is that the top-level people in the council, and even politicians, have made us promises. They tell us, "Keep your head down, and we'll keep you right and look after you" — all of that sort of thing — but then that does not happen.
Ms Harper: That tactic of delay — keeping people happy by responding with whatever — has been going on for almost five years. That has certainly happened in our case, to the point that the turbine at Knock Iveagh may become immune to enforcement action, simply because nobody is doing anything. That looks deliberate. When you are informed by a government body — as happened when they were informed by the Historic Monuments Council that permission for the turbine should be revoked — that planning was approved in error, and when everybody is in agreement that it was in error and that it is a special place, it is hard to accept that it is reasonable conduct for them to just go ahead, turning a blind eye to something as serious as that for almost five years.
The Chairperson (Mr Humphrey): One of the recurring issues in our evidence sessions so far is that there is a skills shortage resulting from the restructuring of local government and the downsizing of the number of councils from 26 to 11 and the fact that a lot of qualified and experienced staff decided to leave. Based on your experiences, do you agree with that?
Ms Harper: There were certainly occasions when it appeared that we had a better understanding of the environmental impact assessment (EIA) regulations than the people we were dealing with in the planning department. I think that it is fair to say that.
Ms Harper: No. It is now with the court. They have not made it to court yet, but the matters that were outstanding in relation to the hill are still outstanding and are in danger of timing out.
That is just one example. There are 60 groups in The Gathering, and I am sure that they all will have an example in which exactly the same thing has happened. I do not think that that is reasonable conduct; it raises questions about competency. Did you want to come in, Nuala?
The Chairperson (Mr Humphrey): Hang on a second. I will bring you in. I appreciate that you want to come in. I want to hear from the people in the room first, and then I will bring you in.
Mr Blackwood: I was just going to add to that. There is absolutely a skills shortage. I was probably one of the people who retired at that time. To put it in context, it was not that significant in that something like 40 out of 900 people left. However, when that was added up in years of experience, 1,500 years of experience of planning that left on the same day.
There is very clearly a skills shortage, specifically in EIA — environmental impact assessment — which Anne touched on. I have been raising that for quite some time. Indeed, you will have noted from some of the submissions that I made that the courts seem content with the way in which the EIA process operates in that it seldom finds against the public authorities. However, the fact is that the European Commission and the United Nations have both found serious systemic failures around how the environmental impact assessment process has been operated.
That has largely been down to me, not solely, but I made the complaint to the European Commission because I was so fed up with not seeing the improvements being made but seeing the harm that was being caused because of it.
I also made a complaint to the United Nations about the management of the environmental impact assessment. The findings that came out this year from the Aarhus convention's compliance committee in July 2021, which have now found their way into the formal decision that I referred to, are a damning indictment on not just our planning system and its skills deficit in respect of EIA but also on how our courts operate with regard to judicial reviews on environmental issues.
Mr Mc Laughlin: We talk about skills shortages. I learned about the fact that there was a skills shortage as a result of the Audit Office report. That seems to be the case, but there are skilled people in the Planning Service, and those skilled professionals are sometimes very frustrated because the —
Mr Mc Laughlin: They are frustrated because they are making professional planning decisions, and those decisions go to our councils and come before our local, elected council members. It is clear from the report, and from lot of other reports that we have had, that the number of overturns, as we call them, by local councillors against the professional decisions of our professional planners is very questionable altogether.
People are asking, "Why is it happening? What is the reason for it? Should they not be asked to account for and provide information about what informed those decisions and why they are disagreeing with the professional planners?". That is one big concern at present. So, yes, there is a skills shortage, but, sometimes, the skilled people are being frustrated.
Ms Crilly: The comment that I will make ties in with what George has said and with previous comments. We were talking about codes of conduct and that kind of thing, and it is about being open and honest and ethical and having transparency.
One case that came to Derry planning committee in 2019 was withdrawn quite suddenly at the behest of the Department. It came back a year later, and the recommendation of the planners was that it should be rejected because to continue with it would be unlawful. One of our local councillors still saw fit to try to approve that planning application. I cannot get my head around that. When you are told that it is unlawful, why would you try to approve it?
Even planners have brought up the poor quality of applications being submitted and then accepted. The process of putting in repeat revised submissions sometimes means that, at the start of a planning meeting, everybody has to stop for 20 minutes to try to read something, which is not enough time for people who have to make those decisions to digest the information. That is something that the planners brought up, and it is something that we will bring up too. Things are not appearing on the planning portal, so, when you look for information, it is not there.
The Chairperson (Mr Humphrey): I absolutely share and empathise with your frustration. There was an appalling planning decision taken in my constituency a number of months ago, and not just one set of legal advice was ignored but a number, and politicians across a range of parties decided to ignore that. That will undoubtedly end up with a judicial review.
Mr Muir: Thank you, everyone, for taking the time to join us. It is really important, in this inquiry, that we hear things from your perspective, so I am particularly grateful that you are here. My question was touched on in relation to overturns of planning applications, where the planning officer presents a recommendation but members of the planning committee and the district council overturn that. Will you say a bit more about your views on that and the concerns that you have, if any, in relation to that issue?
Mr Mc Laughlin: We have been raising that issue for quite a long time now. There seems to be a very strange situation. Our professional planners will come along to a meeting with very detailed reasons and having carried out surveys of certain areas. We have had that experience in the Prehen area, for example, but it is happening throughout the North, where the professional planners come along, and you can see that they have thought it out and prepared very detailed submissions. That all goes in front of the council, and certain councillors make a decision for some reason or another, and we have no evidence that they referred to particular planning policies, the conditions of the area plan or whatever. Questions are being asked. People are entitled to ask questions about that sort of thing.
The Chairperson (Mr Humphrey): Let me ask you a question. I do not want you to name names, but, in your experience, would it be the same councillors raising the same issues on an ongoing basis?
Mr Mc Laughlin: It is mostly the same councillors, but, at times, it can be groups of councillors.
Mr Mc Laughlin: It seems, sometimes, that councillors come to the council meeting with a predetermined notion of what they are going to do, allow or decide.
Mr Blackwood: I will add to that. Certainly, I have concerns, given the numbers and the patterns, but we also have to reflect on the fact that overturns are part of the democratic process. However, they need to be properly documented, and the public need to clearly understand them. I support the Audit Office's position that one of the potential checks that could be placed on overturns is ensuring that the public have the right to challenge them too through the equal rights of appeal process. I suspect that that would certainly lead to better decision-making, because, if it were thought that overturns were likely to be challenged, we would have a lot more good planning decisions made than we currently have.
Mr Muir: I want to touch on that issue, which I would describe as a third-party right of appeal. Will you speak to us about why you think that is crucial and how you feel it should work?
Ms Harper: In our case, obviously, we are dealing with an important site. It was advertised, but a lot of people further away might not have seen those advertisements, and, had the alarm been raised earlier and had people been able to get in and be heard in a third-party right of appeal, there is absolutely no doubt that all of that money would not have been wasted.
I listened in to the session with the representatives from DFI and NILGA and they were discussing things like the costs of enforcement. Bad, unlawful decisions and problems cause enforcement costs. We are talking about an awful lot of money. Nearly £1 million has been spent by ABC council, and the case has not even gone to judicial review yet. That is the cost of poor planning. That is far more than it would have cost to have done the right thing in the first place. It is mind-boggling. That is all I have to add.
Mr Blackwood: I will add to that on a more overarching basis. First, the introduction of equal rights of appeal would help the UK and Northern Ireland, because the Aarhus convention compliance committee looks at each jurisdiction in the UK separately. It would help us to comply with our international obligations. That is very clearly set out, and I have it here. The United Nations found that, by failing to promptly make accessible —. Sorry, that is the wrong one. Bear with me a second.
Ms Harper: In the absence of third-party right of appeal, there was a comment about judicial review. Judicial review is expensive, but there is no alternative for the public to challenge decisions that they feel are deeply unjust, and some of them are deeply unjust, so what is the alternative? It might assist a great deal with that.
Mr Muir: The cost of a judicial review is inherently prohibitive for the vast majority of people in Northern Ireland. I am very conscious of that. I am also very conscious of the benefits of third-party right of appeal and how that works in the Republic of Ireland. That is something that I and my party support.
I am worried that enforcement is a discretionary issue, and that needs to change. The use of that power has not been what it should have been. The planning process works if the community and society and also the applicants are able to get satisfaction from the process. Currently, neither is, so that is the situation.
I have seen time and again that when planning applications go in and are going through determination, whilst the applicant has a right of appeal, once that decision is made, the only way back for objectors is a judicial review, and frankly, that is not an option for the majority of people. I have seen that occur in communities. The example that you gave of Knock Iveagh is a perfect example of where the planning system failed at a cost to the environment and the public purse. It is important to highlight that and the issues around it because it is an example of where planning failed.
Mr Mc Laughlin: Talking about costs and judicial reviews, one headline in the Audit Office report was the issue of financial sustainability in the planning service. One of the big areas of cost in the planning service is that of judicial review. For example, a big concern with regard to financial sustainability is the massive waste of money being paid out in fees to external legal advisers. These payments can run to many thousands of pounds and, sometimes, up to nearly £1 million. That is all happening because of bad planning decisions being tested in court, whereas if the correct procedures were followed and the correct decisions made in the first place, those exorbitant expenses could be avoided.
The Chairperson (Mr Humphrey): Let me let me put it to you this way, being devil's advocate, before I bring in Mr McHugh, is there a sufficient joined-up-ness across local government in Northern Ireland or is practice different, and is NILGA really a toothless tiger when it comes to this stuff?
Mr Blackwood: I do not think that there is a joined-up-ness across local government. In fact, what we are starting to see are fractious conducts or fractious relationships. The Knock Iveagh case is a classic one, where the council has taken the DFI to court on it.
Another example is that the Department has failed to commence the review of old minerals permissions, and we are now getting feedback from councils. In fact, in Mr Muir's area, Ards and North Down Borough Council agreed a motion that the Department for Infrastructure takes back responsibility for the review of old minerals permissions because it has delayed the commencement of the regulations for so long — decades, in fact — that there may now be a serious liability from the environmental harm that has been caused from not implementing that legislation, and there are clear examples of that. The Craigall quarry is the classic one, where a local ecologist has documented meticulously the priority Northern Ireland habitats that have been destroyed in the past 10 years because of the failure to implement the review of old minerals permissions.
Mr Blackwood: We have no real relationship with NILGA.
Ms Harper: We did an FOI of all councils in Northern Ireland to see whether they all dealt with turbine applications in the same way, and we found variations in how different planning departments were treating these applications, whether they were doing them all in one, as per the environmental impact assessment regulations, or whether they were breaking them up into smaller parts. So, there is variance, in our experience.
Mr Mc Laughlin: Mr Chairman, your question is about joined-up-ness between councils.
Mr Mc Laughlin: A very big problem is the lack of joined-up-ness, and a real disconnect between the Department and councils.
Mr Mc Laughlin: I have written to the permanent secretary and the chief planner about the matter. They say that they have no responsibility for council spending or council activities relating to planning because councils have such autonomy. That does not seem right. The Department is at the top of the pile, but we have no evidence of its carrying out any sort of scrutiny. That is difficult.
The Chairperson (Mr Humphrey): We have picked that up. On behalf of Committee colleagues, I can say, with a degree of confidence, that that is why we will, perhaps, make a recommendation that is supportive of the suggestion of a commission to look at those things. Clearly, what is there at the moment, whether it is the Communities Minister meeting the Infrastructure Minister, or their council, or whatever it is called at the moment, is not working. Apart from anything else, before you throw NILGA into the mix, there seem to be huge issues in the Infrastructure Department itself, whether they are to do with roads, water or whatever, around those things.
Mr McHugh: Tá fáilte romhaibh uilig. You are all very welcome, particularly George, whom I know and worked with a number of years back.
George, you mentioned Prehen, and I am aware of some of the background there. The decisions on that application were taken under the old system, which is to say that they rested entirely with the planners. With the system that we have now, however, the buck stops with the councillors. However, when the councillors overturn particular planning recommendations from the professionals, whom you referred to earlier, they are criticised for doing so, which nearly implies that they lack the skill or the ability, or, even worse, that there may be an abuse of process there. What do you think it is? Is it any or all of those things?
Mr Mc Laughlin: I do not want this to sound vexatious or vindictive in any way, but the main thing is that lots of questions are being asked. Some of the decisions that are made by local councillors are completely incomprehensible, and people feel justified in asking questions. I try to do things in a business-like and dignified way, so I do not want to point the finger too much, but, for some reason — the Audit Office proved this as well — our councils were not ready for the whole changeover from the previous planning regime to the present one. Councillors were given little weekends or days of training and things like that. They are not really properly trained. Apart from training, there is a whole term of honesty and clarity that has to come into the thing, and we are not getting that from the councils.
Mr McHugh: Actually, I have the question "Is it a lack of training?" written down. George, you said that you do not want to point the finger too much, but, at the end of the day, you are pointing the finger. It sounds very much as though you do not have confidence in councillors' input into the process or in how they arrive at decisions at present.
Mr Mc Laughlin: I will give you an example of what creates some of the questions. There was one application in Prehen on which 14 reasons for refusal were given by the professional planners. For some reason, not all but some of our councillors argued for putting it through and ignoring the 14 reasons for refusal. That raises questions, you know.
Mr McHugh: May I make another point? Very often, councillors — I know this from having been a councillor myself — at present depend on suggestions or recommendations from those previously employed in planning, who give them a sound planning reason why they can object to a recommendation from planners. It is all part of the same system in the sense that there should be an opportunity for people to contest, overturn, pass or whatever a recommendation from planners. What are your and your group's specific suggestions for improving the whole service?
Mr Mc Laughlin: I will be very quick. At the moment, elected members are making, sometimes controversial, decisions. Where you have elected members making decisions as well as professional planners making recommendations and decisions, and there is a disagreement or a decision does not make sense, there needs to be a referee or an independent person who can step in and say, "Look, we will settle this".
Mr Blackwood: I was going to suggest something along similar lines: we need a robust oversight body that monitors and looks at the [Inaudible.]
Mr Blackwood: There is an example in Ireland: the Office of the Planning Regulator (OPR). I do not think that it operates precisely like that. It was set up two or three years ago to monitor the performance of councils down there. It also has the authority to go and look at whether there are systemic issues and failures in planning.
Mr Blackwood: I think that it is an independent body. Certainly —
Mr Blackwood: I imagine that it was.
Mr Blackwood: It was set up after the Mahon tribunal, which exposed serious failures and corruption in planning down there.
Ms Crilly: I want to make a couple of comments. I reiterate what Dean, George and Andrew said about the fact that an equal right of appeal is a really important change that needs to be made in order to allow the voice of the people to be heard in the system. That may reduce the need for many judicial reviews. People who have taken judicial reviews in the past have had some very bad press and have been called names like "mischief-makers", which is not true, and that kind of thing. Judicial reviews are the only recourse given to people, so an equal right of appeal might reduce the need for them.
Equally, some kind of independent office would be great. There was talk of an environmental protection agency back in 2008, but it never happened. What we in The Gathering have found more and more is that people are, not because they want to, having to become experts and are keeping a watch on what is happening at their local council level. People in The Gathering are a form of independent environmental protection agency in a sense, because we monitor and look at what is happening and provide challenge. It is not what people want to do, but it is what they have to do. An independent office would therefore be good as well.
The quality of applications going into the planning system would need to change and be upped a wee bit, which is also what planners have said.
On an equal right of appeal, Andrew talked about giving the objectors a chance. We do not consider ourselves to be objectors. Most of us consider ourselves to be protectors. We are trying to look after the environment and biodiversity, and the only recourse is through the system, where we seem to be constantly challenging.
Ms Harper: Chair, can I come in on that same point?
Ms Harper: Central to what would make things better, from my experience and that of lots of people, would be a transparent and respectful process. Quite often, it feels like gaslighting. It feels as though you are being kept at arm's length. It is a really hard fight to get anybody to listen to concerns that you might have. Respect is really important.
I agree with everybody else: we need some form of mediation, because absolutely nobody is piecing things together and creating communication. The whole thing has broken down.
I have written this down:
"Our planning system continually pits communities against companies and neighbours against neighbours, creating division and misery. It is totally broken".
Mr Mc Laughlin: I did that.
Mr Mc Laughlin: I had written to the chief planner, he referred my letter to the permanent secretary, and the permanent secretary referred it back to him, so it was a bit of a circle.
Mr Mc Laughlin: I made enquiries about the fact that there was certain unhappiness about lack of information, queries about the council and all that sort of thing. We were supposed to have a two-tier planning system. From a business point of view, I cannot understand it. She said, "We have a two-tier system but we, the Department, are here and the councils are there, in their own right. We do not really connect with them. We do not scrutinise what they are doing". That was the answer, and it was very annoying. It left us asking, "Where do we go for some satisfaction?"
The Chairperson (Mr Humphrey): This would be an issue for the commission that we talked about. Hopefully, if something with a bit of teeth is established, we can get regularity and a level playing field.
Mr Blackwood: Chair, I also have written to the permanent secretary.
Ms Harper: We have written to the permanent secretary and the Minister numerous times.
Mr Blackwood: The response is worth putting on record. I highlighted some serious concerns about professional corruption and irregularity in the planning service. The response was to totally refute it, even though there is hard evidence to suggest that what I said is true.
Mr Blackwood: Totally refuting it, but also threatening further action if I did not retract it. Now, I did not retract it and I have not seen any further action; nonetheless. Very often in planning — a guy called Eric Reade writes about it in 'British Town and Country Planning' — it is a case of attacking the critic rather than addressing the criticism. Unfortunately, we face that quite a lot.
Ms Harper: It is worth stating the effect that that has on people. It is not financial, perhaps, but it is certainly emotional. You have to be pretty determined and thick-skinned to get anywhere.
Mr Beggs: You have collectively spoken about the lack of transparency. There is particular concern when councillors go against professional planners and there is no explanation why those decisions have been made. I have seen that in some controversial decisions as well, so I concur with your view. However, you have raised it to a level whereby you say that you are concerned about "professional corruption" and "unethical practices". You gave a list: "withholding of information", "removal of documents" that had been filed and, even, "misleading evidence". There was a fourth issue, but I did not get it noted.
Do you have a list of documented cases that illustrates that range of things? We do not have all day to hear it, but maybe you can give us one or two examples that demonstrate why you use such strong language.
Mr Blackwood: It is language that I have used outside this Chamber as well. In one particular case, I have been using it for seven years. There is very strong documentary evidence. The weird thing is that nobody wants to go and look for it, despite the fact that it is sitting there in front of them. I can stand over everything.
There are two examples that specifically concern me. Those practices corrupt not just the organisation that is engaging in them but the court system because of the use of false and misleading evidence in the courts. That is a very dangerous thing. If the courts tend not to pick that up — which has happened in the two cases that I am aware of; in fact, I am all over them and have done a very detailed analysis of both — that becomes the truth, essentially. It also becomes a very worrying pattern that could be repeated. I will argue in my research that there is evidence that suggests that the transfer of planning functions may have been accompanied by the transfer of those unethical conducts.
On those two particular cases, I could set something in front of you now — having said that, I do not actually have it with me — and, within 30 seconds, you would know that what I am saying is true, but it is being denied.
Mr Beggs: I would welcome such evidence; that is all that I will say.
There is a Local Government Commissioner for Standards who can review councillors and elected representatives' behaviour. I daresay that the Northern Ireland Public Services Ombudsman can review concerns about administrative processes. Have you engaged those two means of examination where you have come across issues of concern?
Mr Blackwood: I am sure that the ombudsman is sick looking at me [Laughter.]
I have had a number of cases with the ombudsman. There are some that I cannot talk about simply because they were before the 2016 Act came in, so they were carried out in private. Others are unpublished, so I am not sure that I can talk about those, other than to say that I have received apologies for them.
There were two cases, in particular, in the last two years. One was against a local authority, which warned the authority that lack of transparency can impact on the integrity of planning and environmental regulation. One was against not a planning authority but the Department. It was a joint, where the Northern Ireland Environment Agency (NIEA) and the planners were together. The planning case went to the Aarhus convention compliance committee. I had never seen it before in an ombudsman's report, but, in that case, the ombudsman found the practice of oral governance, which is what was happening in RHI. It also found a breach of a Civil Service code of ethics and specifically highlighted "honesty". We have been exhausting those processes. In fact, I expect that I will put in another complaint to the ombudsman on another case that I have been dealing with in the last couple of months. I have forgotten the other scrutiny body that you mentioned.
Mr Beggs: The Local Government Commissioner for Standards for councillors' behaviour.
Mr Blackwood: No. I have never reported a councillor, but I have come close.
Mr Beggs: One of your suggestions is a third-party right of appeal. There is a need for balance in everything. There is widespread criticism of delays in the planning system, particularly with major planning applications. Are you suggesting that there should be a third-party right of appeal on every planning application, or just on those where councillors have overwritten professional planning opinions? There is a danger of the whole system being bogged down even more and no decisions being made.
Mr Blackwood: I am glad that you came back to that as I messed up my answer the first time. Of course, balances need to be struck, but there are already indicators where those balances could be. For instance, even the deterrent of a likely third-party appeal may encourage better decision-making; that might rule it out. There was also always talk that there could be vexatious appeals. I suppose that you can never rule that out, but the Planning Appeals Commission can award costs against vexatious appeals. That might deter anybody from taking a vexatious planning appeal.
On my environmental concerns, I would probably always err on the importance of complying with the Aarhus convention. I only complain about cases where significant environmental effects would occur. The Aarhus convention compliance committee found that the UK is in breach of the convention by not allowing third parties or citizens the same rights as developers.
Ms Harper: May I just nip in?
Mr Blackwood: My personal view is that everyone should have scope for a right of appeal, but there are ways in which that could be curtailed. When I say "everyone", I mean everybody who has legitimately objected; that might be a mechanism that curtails it. Maybe you should not come in and appeal something that you were not involved in or did not make representations on.
Ms Harper: I will provide this comfort to developers who want to see the system sped up. It seems obvious to me that, currently, people who are seeking planning permission cannot have any faith that their application is being handled properly or will not be open to challenge. There is an argument that having a third-party right of appeal would actually help to give developers some confidence.
Mr Mc Laughlin: That is all right. I am prepared to wait until Anne finishes.
Ms Harper: I am all done.
Mr Beggs: I have a brief follow-up. One mechanism that is meant to be in place is that the Department can draw into the centre decisions that give it concern. What is your experience of that? I have seen some cases in which I thought that Department would have done that, but it has not. What is your experience?
Ms Harper: It has been almost five years, and we are still waiting.
The Chairperson (Mr Humphrey): OK. I will bring the other two in. I am trying to be fair to everybody so that we get a spread. Nuala, you indicated that you wanted to come in.
Ms Crilly: Thank you. I have a comment to make on the question about whether we have gone to the Local Government Commissioner for Standards. That puts the onus back on the citizen to keep the process going: to scrutinise, to oversee and then to lodge complaints. I supported a person in one case where — I will not say what council area it was — it was a long, drawn-out thing with the Planning Appeals Commission. One of the councillors in the meeting was quite evasive in the answers that they gave. They were evasive to the point that the answers were wrong. A solicitor for the council was sitting there and said nothing. The rest of the planning committee did not say anything either, so, in my reckoning, they actually condoned the misleading statements of the councillor. However, the person in question, the local citizen, did not have the energy left to lodge a complaint with the Local Government Commissioner for Standards. People are exhausted and tired. You get one thing after another, and another process to go through to lodge a complaint.
Quite a few people are going through the different procedures of each council for lodging a complaint. Some of those procedures have one, two or three stages. I think that the complaints process varies from council to council, but I am not fully sure about that. Again, those are quite exhausting procedures for individuals to constantly have to take on. Some have resulted in councils incurring external legal costs — of up to £30,000 in one case. The onus cannot always be put back on the individual, with them being asked, "Have you done this?" or, "Have you done that?". There should be standards to which people adhere, rather than everything being left to us.
Mr Mc Laughlin: I was trying to get in at the stage that you were talking about the Public Services Ombudsman. I have been in touch with the ombudsman. The ombudsman found Derry City and Strabane District Council guilty of malpractice — not on our behalf, but on behalf of another applicant — and suggested that the council should have a look at its procedures and furnish the ombudsman with a plan of action on where it would correct things. We never saw any evidence of that happening. Even though the council was fined, it continued to behave in exactly the same way.
We have had inquiries and reviews conducted by experts. The experts have found the councils guilty of bad practice, unfair practice and incorrect decision-making. Those findings were all put to the councils. We got satisfaction in the sense that the councils and the planners were found guilty, but nothing happened; nothing changed. That is why people are frustrated. In some of the documentation that I sent to you, I used the words "frustration" and "hurt". There is frustration and hurt, and that should not be the case.
Mr Hilditch: You are very welcome this afternoon, folks. It has been very interesting so far.
You have probably bypassed my intended line of questioning, which was really about consistency across the councils. I am a former councillor. As a councillor, I had to take some action to try to highlight the inconsistencies. With 60 organisations, you folks must see a huge amount of inconsistency across the councils. Is that the case?
Further to that, in some councils, planning is now led by people who came out of enforcement, for instance. Are those councils better led than those that are led by somebody who just came in from a planning consultancy firm or took up employment with the council anew? Do you find that enforcement people who head up councils have that wee bit more clout, as it were, with the councillors?
Mr Blackwood: I do not know about the second part of the question, because I am not sure which councils are headed up by people from enforcement. I tend to focus on the areas that cause me problems, but somebody else might have a view on that.
Inconsistency is a massive problem. We always expected that when we went to 11 councils. However, you should not expect inconsistency of approach in administrative processes. There are massive inconsistencies. Someone mentioned earlier putting key documents on the planning portal. Since 2014, I have been asking people — including the Northern Ireland Assembly when it was with the Minister — to, please, put on the portal documents that they are legally required to hold, such as the environmental impact assessment determinations or habitats regulations assessments, which are absolutely key to public understanding of how decisions are made.
Mr Hilditch: May I interrupt you there? Some of the people whom you mentioned should be consulting with the planners still have a silo attitude. There can be long delays in getting some of those legal documents back.
Mr Blackwood: Those are legal documents. The planners prepare the environmental impact assessment screenings, and the Shared Environmental Service prepares the habitats regulations assessments. There can be delays in getting the habitats regulations assessments back. There are massive delays in carrying out the EIA screening process. That should be done within four weeks of a planning application or a longer time, agreed with the applicant in writing, of no more than 90 days. We are finding that those screenings are being done a week before the application is approved. It might be four or five years into the decision and, then, they do them.
I came across one very recently that was done on the day that the decision was sent out. One reason why they are not being put on the planning portal, I suppose, is because they are doing them so late. Where they have done them, they are not making their way on to the planning portals in a timely manner. That is very disadvantageous to the public.
Ms Harper: I just want to reiterate that there does seem to be variation in how the EIA regulations are interpreted and enforced. Enforcement varies a great deal from place to place and from council to council. From our point of view, that is not acceptable. Why should something be OK in one part of Northern Ireland and not OK somewhere else?
Mr Irwin: Thank you for your presentation. You mentioned a number of times in your presentation that there is "professional corruption". What exactly do you mean by that?
Mr Blackwood: It can vary, but I would suggest that it is sustained patterns of unethical conduct that are very clear to everybody but are denied simply through the abuse of power. We, as the public, have no authority. We can carry out our investigations as far as we can, we can come up with conclusions and we can even find hard evidence, but we cannot go in and interview staff or find out what has gone on.
What then happens are those unethical practices, whereby we are at a dead end. The authorities say, "We have acted appropriately", but they cannot and will not explain how. The reason why they cannot explain how is because they know that they have not acted appropriately. The fact is that that is the wall that we come up against. That is the unethical conduct: they are not being open and transparent and, indeed, they are sometimes misleading in their engagements with members of the public.
Ms Harper: In our experience, failure to answer key questions at key moments has made a massive difference to how things have unfolded, and I would say that that is intentional. If you deliberately ignore the first point in someone's letter and answer the second point and, then, you wait until the thing has happened before you admit that you had the power in the first place, that is not OK. What is that all about? It definitely raises the public's suspicion that something is going on. If it is OK for some people not to follow the rules, why should anyone follow the rules? We have to be consistent.
The Chairperson (Mr Humphrey): I am sorry, William: I just want Mr Mc Laughlin to come in and then I will bring you back. Do not worry; I am not going to exclude you.
Mr Mc Laughlin: Dean and Anne have answered that quite well. The big issue is that the public, in general, are so dissatisfied with the planning system. In the planning system, they talk about introducing various little things that might make a difference. We cannot talk about things that are —. I have been doing this for a long number of years and, somehow, things just do not change. It goes on and on and on.
The Chairperson (Mr Humphrey): OK. Is it worse now than it was? You talked about moving from 26 councils to 11. I would have thought that things would have improved with that change. Why else would you do that? Do you think that it is better?
Mr Mc Laughlin: I was one of those people who lobbied for democratic change, but I must say that it is worse now than it was before [Laughter.]
Mr Mc Laughlin: I know that time is running short, but I will finish off by saying that there is so much dissatisfaction, frustration and all the rest that little sticking-plaster ideas just will not work.
Mr Mc Laughlin: From my business point of view, the model that our planning system is based on is wrong. The whole thing is obsolete. It needs complete change. We need to bring a completely independent group or team of people who are what I would call "change masters", and who will come in and do whatever has to be done to make the system better and more credible, honest and fair.
Mr Irwin: Yes, on a couple of issues. The accusation of "professional corruption" is unfair. It paints everyone in the Planning Service with the same brush, and I do not think it is very fair to do that. I deal with planners in my capacity as an MLA, and I have never met any who are corrupt. In my experience, many planners work very hard and do a very difficult job. On many issues, planning decisions are open to interpretation. You find that out when you go to the Planning Appeals Commission.
You also accused planners of not dealing properly with the environment. Surely, they consult with and take guidance from the Northern Ireland Environment Agency on all those major issues. Is that not right?
Mr Blackwood: I will take the first point. Maybe Anne will want to address the second.
On professional corruption, I made it very clear at the outset that there are many good planners who are equally frustrated with the system but afraid to raise points for various reasons. That was not directed at all planners, nor was I trying to paint every planner with the same brush; not at all. I am a planner — I do not work as a planner anymore — and I know the pressures that planners face and the difficulties with that.
"Professional corruption" is a specific term. It was defined by an author called Samuel, and it is about unethical conduct in public service. Any public servant who engages in unethical conduct could be deemed to be engaging in professional corruption under that academic definition.
Ms Harper: If I could chip in. On corruption, the cultural change that George referred to earlier is what is required. It is about how you treat people, how the process works and how efficient that process is.
To answer your second point, you mentioned that it is the NIEA's role to oversee EIAs. The NIEA does not have anything to do with historic environments. We are dealing with a historic environment that requires an environmental impact assessment. Therefore, it is much broader. The planners should have understood and interpreted it properly in the early days, rather than what we are now seeing, which is an attempt to kick the ball as far down the line as possible until someone else sorts it out. They should simply say, "OK, let us draw a line and fix the thing". It is about that cultural change and integrity, which is often lacking. I would really welcome a cultural change in the planning system.
Ms Crilly: I have the definition of the term "professional corruption" from the works of Samuel. When I first heard the term, I wondered what it meant. It has been said that, simply put, professional corruption refers to observable symptoms that manifest and distinct patterns of abnormal behaviour. Unethical conducts have the ability to harm the organisation's reputation, tend to persist, and generate tensions among its members and antagonism between the organisation and the public. If not addressed, these corruptions and pathologies become contagious within organisations, deeply penetrate their culture and require concealment from the public gaze. Perhaps the most concerning pathology for any public authority is the unavoidable abandonment of public service values that comes with the decision to conceal neglectful practice. Some of that is from the book that Dean referred to.
I reiterate what he said: it is not all planners. Some people in there want to make great change, but it is about the overall patterns and behaviours and how those impact on members of the public, information that is not available, and that kind of thing.
The Chairperson (Mr Humphrey): I think that all of the members who wanted to ask questions have now had that opportunity. I thank all of you for coming along and giving of your time, experience and expertise. It is much appreciated. It will help us to produce a more holistic and rounded inquiry report, which we hope to publish on 22 March.
Although the inquiry has been short, it is clear to us that the system is disjointed and is not working; that there is a standardisation problem; and that, if there is not an issue around capacity, which, I believe, there is, there is clearly a huge issue around confidence in planning in Northern Ireland. The Audit Office has been present during your presentation, which is now, of course, on the record. Thank you very much indeed. We really appreciate your taking the time to be with us.
Mr Blackwood: Thanks so much.