Third Party Rights of Appeal: Enhancing Democracy or Hindering Progress?

A principal objective of planning that is regularly presented is the reconciliation of the individual interest with the common good, albeit that the common good is difficult to define and measure. Where it is recognised that negative externalities from development exist and the free market will not produce an optimal outcome on its own, some intervention is justified. Usually the planner becomes the arbiter in such situations. The question then arises as to who should be legally entitled to have their opinion heard in relation to a proposed development and who should be legally entitled to appeal a planning decision. Such questions are fundamental to planning and debates on participation consume pages of our academic journals. It is surprising, therefore, that the academic literature specifically on planning appeals is rather limited. It is particularly surprising given that, in recent years, Third Party Rights of Appeal (TPRA) have been the subject of considerable debate at policy level in Britain and Ireland albeit for very different reasons. In Britain, where only the first party (the developer) has a right to appeal a decision, the debate has centred on whether TPRA should be introduced (on both their merits but also whether they are required to comply with the European Convention on Human Rights) whereas in Ireland the debate has centred on whether the country's existing TPRA should be limited (to enable more rapid decision making).

The purpose of this Interface is to explore these debates by drawing together a collection of pieces which include academic research and opinion but, importantly, present the opinion and experience of those involved in the making of planning policy and the views of some of those who are major parties making use of the planning system. Geraint Ellis of Queen's University Belfast kicks off the debate with the core article which presents the intellectual framework for TPRA, mobilises evidence from Ireland as to how TPRA works in practice, and considers the principles behind the operation of such rights. There follow commentaries by Martin Whelan of the Construction Industry Federation of Ireland, who presents a negative view of TPRA in a dynamic economy, and Dick Roche TD, Irish Minister for the Environment, Heritage and Local Government, who elaborates on his approach to adjusting the planning system to ensure an appropriate balance between the national and local/individual interests. Having focused primarily on the Irish experience of TPRA, two further commentaries present some international insights. Duncan McLaren of Friends of the Earth Scotland examines the Scottish debate on the potential introduction of TPRA and presents a case for its introduction. The Interface closes with an interesting piece by Lilith Finkler of Dalhousie University on the operation and effectiveness of the Ontario Appeals Board in Canada.

Geraint Ellis's article presents appeals as ‘true objectives’ of a discretionary planning system. While it could be debated whether they are the objectives, certainly the nature of an appeals process is fundamental to how effectively a planning system operates and how it deals with competing rights and interests in development decisions. Ellis is clearly concerned that, in Britain and other countries who limit planning appeals to the first party, a value judgement is being made that the developer's rights are most important. Ellis asserts that the issue of TPRA divides the planning community with developers and government opposed, while NGOs and public opinion are in favour (although he does not present evidence with regard to the public). In his commentary Minister Roche presents his dilemma: a ‘tightrope’ of balancing the rights of the individual (or a local community) with the national interest.

Ellis shows that, while the Irish planning system, introduced in 1963, was originally based on the British system, it introduced an unrestricted right of appeal whereby, as the current Minister states in his commentary, “any person regardless of their proximity to a development … may get involved in any planning case… and may appeal that decision to [the planning appeals board]”. Ellis states that the Minister who introduced TPRA was intentionally “leaning over backwards for the benefit of the public”. Ellis's article includes interesting data from Ireland showing that the numbers exercising their TPRA has increased significantly since their introduction and that they now amount to more than half of all appeals. He presents TPRA as a way of improving the effectiveness of the planning system through a sort of ‘quality assurance’. His data show that 99 per cent of cases subject to Third Party appeal had significant changes made to the initial decision although Minister Roche shows that less than 10 per cent of planning cases are appealed. Martin Whelan, while welcoming Ellis's “timely and … instructive” article, disagrees with Ellis's interpretation of the figures. Whelan expresses the importance of considering the context within which TPRA operate and opines that infrastructural development in Ireland has been hindered by planning and statutory processes which seem “ill-suited to meet the needs” of a rapidly growing economy. However, Ellis, in discussing what he terms a “classic dilemma” for planning — speed or quality, asserts that, given the high proportion of appeals that are upheld, Ireland is deriving great value from TPRA.

Ellis argues that TPRA enhances the ability of the planning system to deal with externalities as those third parties who feel they will be affected negatively may appeal a planning authority's decision that such effects are worth bearing. However, Whelan expresses concern that TPRA places local concerns over the national interest. Observers are always surprised that controversial developments such as incinerators which cause public protests in Ireland seem to raise barely a whimper in Britain by comparison. Duncan McLaren, in his passionate argument for TPRA for Scotland, suggests this difference is because people believe such action would make no difference because of the absence of TPRA. He counters the view that TPRA undermine local democracy.

Ellis contends that TPRA provide for a better distribution of power and influence although he does recognise that this leads to a centralisation of decision making. Notably he reflects on the issue of the scale at which decisions are best made and the difficulties where possible conflicts exist between national and local interests. He also notes that TPRA may lead to some inefficiencies from their perverse incentives should local planning authorities adopt a less assiduous approach given the safety net of an appeals system. On the other hand, local authorities may be particularly assiduous given that the spotlight of the appeals board is likely to be shone on their decision—local planners tend not to like their decisions being overturned on appeal! Finkler's observation that, in the Ontario system, councillors sometimes vote against controversial developments knowing they will be overturned on appeal, so they can be seen to side with local pressure groups is also what is observed in the Irish case. Whelan argues that TPRA duplicates rather than complements processes elsewhere in the planning system and causes unnecessary and costly delays which are not in the interests of the public (Ellis's own data say the delay averages 14 weeks although he does not present the extent to which cases vary. Anecdotal evidence would suggest the standard deviation is high).

Ellis criticises what he sees as the motivation behind the Irish Strategic Infrastructure Bill, namely, that “some major development projects should be isolated from Third Party challenge”. Minister Roche disputes this claim in his explanation of how strategic infrastructure, which is deemed to be of national or regional importance (major transport, energy and environmental infrastructure projects), will be dealt with under his Bill. Such projects will be considered directly by the appeals board and objections and comments may be made directly to the board by any party. However, he does acknowledge that there will be ‘fewer opportunities’ to oppose an infrastructure project. Finkler raises concerns for Ontario regarding Bill 51's potential restriction of parties' ability to appeal municipal planning decisions as the OMB would hear only on matters of law and notes the potential problem for NGOs in financing the retaining of professional planners and lawyers in order to participate in an appeals process.

Ellis finishes his article by presenting “a principled consideration of TPRA”. His opinion is clearly that a just system would be equal appeal rights for the first party and the third party, i.e. either they both have the right to appeal or neither do. Whelan argues that local authority planners, overseen by elected representatives, and with adequate public consultation, represent the public good and so this is a sufficient representation of third parties. Interestingly Ellis contends that pre-decision participation is less adequately provided for in Ireland than in Britain therefore necessitating TPRA. However, perhaps the causality works in the opposite direction. Whichever, it certainly has implications for the introduction of TPRA in any jurisdiction as he suggests. McLaren asserts that, in Scotland, public participation in planning is ‘abysmal’ and that powerful lobbyists have ensured that Members of the Scottish Parliament are of the view that TPRA would reduce participation. Finkler criticises the manner in which parties in Ontario are invited to participate and contends that this ‘reinforces class distinctions’.

Ellis contends that TPRA in Ireland promotes fairness as the planning appeals board in Ireland is “able to place political decisions to one side” (although he does not discuss how appointments to the board are made). However, others argue that this diminishes democracy. Whelan's view is that, even with appeal opportunities being reduced in the case of strategic infrastructure, its continued existence for other development will continue to encourage NIMBYism and that the public as a whole will not look favourably on a planning system which does not deliver in a timely manner. However, Ellis strongly counters the criticism that TPRA encourages ‘frivolous’ claims. Moreover, he reserves his harshest criticism for those who ‘denigrate’ those appellants who feel they are acting will sound purpose. However, while arguing that TPRA can promote fairness, Finkler uses the Ontario example to show that there are ‘no guarantees’. She discusses how community groups with discriminatory intentions may use the system to keep out unwanted neighbours. Minister Roche makes the case that some appellants challenge and delay decisions as long as possible so as to change the overall policy to fit with their own views regardless of the interests of the general public. Certainly, a difficulty with the planning system stems from the nature of the result of a ‘good’ planning decision. When such a decision is made, there tend to be many winners yet there may only be a small number of losers (perhaps only one). However, the winners (wider society) all gain just a small amount each from the decision and may not even be aware of the decision, whereas the loser(s) may suffer large losses. Thus the potential loser has a much bigger incentive to appeal and/or protest — wider society does not normally get out and protest or appeal on behalf of a good planning decision! The Interface in vol. 6(4) of this journal on the ‘darker side’ of local communities is also of relevance to this debate.

Overall, Geraint Ellis's article presents a strong argument for retaining TPRA in Ireland and provides a case for its introduction into other planning systems. He is supported strongly in this view by Duncan McLaren who contends that TPRA provides a “’credible threat’ for poor or disadvantaged communities otherwise hopelessly ‘outgunned’ by development interests”. However, Martin Whelan is clearly not convinced. He sees TPRA distorting the planning system in Ireland and does not see Ellis's findings as a sufficient case for their introduction in other jurisdictions. Lilith Finkler, while supporting the principles put forward by Ellis, provides an important warning from Ontario that appeal systems may result in perverse outcomes.

Reading the collection of articles in this Interface, it seems that the issue of whether or not TPRA should be part of the planning system comes down to a value judgement as to who has what rights and whether the benefits of such a system in terms of improved decision-making outweigh the costs of delay and the potential perverse incentives that encourage NIMBYism. It is interesting to return to the words of the Irish Minister who introduced TPRA. His wish was to ensure the system is “leaning over backwards for the public”. In his Commentary, it is clear the present Minister is of the belief that, in the case of strategic infrastructure, the system is about to topple over!

Third Party Appeals: Pragmatism and Principle

GERAINT ELLIS

Introduction

Although not a popular focus of academic or practitioner debate, it is widely appreciated that planning appeals provide a critical arena for defining the appropriate scope and objectives of discretionary planning systems such as in Britain, Ireland and those in Australasia. Indeed, Davies et al. (1986) suggest that by offering an in-depth consideration of policy objectives based on inputs from a range of interests and set in a context of achieving national consistency, appeals arguably represent the ‘true objectives’ of a discretionary planning system. If this premise is accepted, it can then be argued that the institutional arrangements and outcomes of the appeals process have the potential to reveal some of the deeper values that inform land-use regulation.

Yet the appeals process highlights a curious contradiction. On the one hand there are dominant normative principles that suggest that ‘good’ planning arises from enhanced public participation, community engagement and collaborative discourse, yet in many planning systems, including Britain, the critical mechanism of having a right to appeal is denied to everybody except the developer (the first party). In effect, this prioritises the interests of one group of stakeholders in the planning process over all others. Furthermore, in those planning systems that do have a Third Party Right of Appeal (TPRA), such as in the Republic of Ireland, the provision has been placed under substantial pressure for reform or abolition, resulting in a long-term trend to cumulatively introduce sanctions that limit the scope and availability of such appeals. This suggests that even where they are an established mechanism, Third Party appeals tend to be tolerated rather than celebrated.

This apparent contradiction seems to divide the planning community, with government (particularly in Britain), administrators and the development industry being strongly opposed to the introduction of TPRA primarily on pragmatic grounds of trying to safeguard the efficiency of the planning process. On the other side of the argument there is popular opinion, community interests and environmental NGOs who support the idea of TPRA, primarily based on the principles of equity and natural justice. Within Britain, support for TPRA has been backed by a series of expert reports and investigations1 over many years, which have always been rebutted by governments of differing political persuasions. In the middle of this debate stand planning practitioners, who appear to be divided on this issue.

Some aspects of this topic have been recently highlighted in Britain where the last five years has seen all its constituent planning systems consider and then reject TPRA, arguably on the basis of little evidence and without a great deal of professional and academic debate. A significant impetus for this discussion has been an implicit threat that the absence of TPRA may be contrary to the European Convention of Human Rights and the Aarhus Convention. Although these issues have not been finally resolved, it now appears that such challenges will not force the introduction of TPRA in Britain on legal grounds, but it does remain a policy option for any government so inclined. The various legal arguments behind these challenges will not be explored here, with the aim of this article to present alternative perspectives on the worth of Third Party appeals and is followed by a number of other contributions that provide other views on this issue. To do this, the article will briefly describe some key elements of the TPRA system as it exists in the Republic of Ireland, with an attempt made to highlight the effect of this has on the functioning of the Irish planning system. It will then go on to draw out some of the key principles that underpin the debate.

TPRA in Practice: Evidence from Ireland

When the Republic of Ireland introduced its comprehensive planning system in 1963, it was largely based on the model established by the British 1947 Town and Country Planning Act. However, at a time when British planning was beginning to be perceived as being overly managerial, there was a commitment to improve on British practice and TPRA was identified as one way of delivering this (Crow, 1995). As a result, the 1963 Act introduced an unrestricted right of appeal, with the Minister of the time stressing that “every interested person” would have a right of appeal “if anything … leaning over backwards for the benefit of the public” (quoted in Crow, 1995, p. 382). During the intervening years the TPRA mechanism has been modified as the numbers and proportions of appeals have increased and development interests have lobbied for an abandonment of the provision. The changes introduced over the years have been aimed at avoiding abuse of TPRA and in making the appeal process more efficient. Most controversially, the 2000 Planning and Development Act introduced the qualifying criteria of having to have made an observation on the original planning application, which was accompanied by levying a fee when commenting on planning proposals. More recently, February 2006 saw the introduction of the Strategic Infrastructure Bill 2006 that proposes that some major development projects should be isolated from third party challenge. Despite this, the existing TPRA retains the essence of the original provision, so that as long as a number of basic criteria are met, anyone who made an observation to the original planning application has the right to call for an appeal within four weeks of the local planning authority's decision. The appeal is then heard de novo by an independent planning board, An Bord Pleanála, which during 20042 decided 5111 total cases, taking an average of 14 weeks to decide each planning appeal. A full consideration of the Irish TPRA system is beyond the scope of this article and a more detailed discussion of the appeal process, the roles of the different parties involved and a more considered historical perspective have been discussed elsewhere (Ellis, 2002, 2004), but it is worth providing here a brief vignette of the trends and outcomes of third party appeals, as shown in Figures 1-5.

Figure 1 Number of third party appeals and applications awarded permission 1977–2004. Source: An Bord Pleanála Annual Reports and Department of the Environment, Heritage and Local Government Planning Statistics.

Figure 2 Third party appeals and all planning decisions, 2004. Source: An Bord Pleanála Annual Report 2004 and Department of the Environment, Heritage and Local Government Planning Statistics, 2004.

Figure 3 Outcome of third party planning appeals, 2004. Source: An Bord Pleanála website: http://www.pleanala.ie/

Figure 4 Appeals made by different types of third party appellant, 2002. Source: Analysis by G. Ellis from primary data on An Bord Pleanála website: http://www.pleanala.ie/

Figure 5 Third party appeals by development type, 2002. Source: Analysis by G. Ellis from primary data on An Bord Pleanála website: http://www.pleanala.ie/

These graphs indicate a number of important points. First is that use of the TPRA mechanism has increased substantially since it was first introduced. This is true both in absolute terms, as shown in Figure 1, and in relative terms compared to the number of first-party appeals, so that third party appeals now make up 54 per cent of all appeals. However, while TPRA may play an important and symbolic part in the governance of the Irish planning system, when viewed against all planning decisions (Figure 2), the overall outcome is relatively minor. Second, third party appeals appear to have a quite remarkable success rate, with only 1 per cent of cases not resulting in a significant change to the initial planning decision and 60 per cent resulting in a refusal of permission. This is even more noteworthy when compared to appeals made by first parties, where 59 per cent of appeals confirm the decision of the local planning authority. Third, a wide range of stakeholders, but predominantly individual citizens, make use of TPRA, presumably for a variety of purposes reflected in the range of development types appealed against.

Although it is difficult to ascertain whether Ireland is a suitable case for making general observations on TPRA, the above example suggests that in functional terms, third party appeals provide the following contributions to the wider planning system.

Quality Assurance

As it can only be assumed that the Irish planning appeals board applies a professional and well-considered reasoning to all appealed cases, the high percentage of third party appeals that result in a refusal of planning permission suggests that most appeals are made on very strong grounds or put it another way, they are made against suspiciously weak initial planning decisions. Indeed, under a system where there are both first and third party appeals there is a process for challenging any weak decision. In contrast, in the absence of third party appeals it will only be weak refusals that are challenged, with any weak permissions awarded by the local planning authority being condoned by the institutional design. From this perspective, third party appeals may offer a critical quality assurance role, perhaps ensuring that development outcomes better reflect the ‘true objectives’ of the planning system.

Ameliorating Externality Effects

Figure 3 notes that not only do a high proportion of third party appeals in Ireland result in a refusal of planning permission, but that virtually the remaining balance of cases result in an amendment of the conditions provided by the local planning authority. It is assumed that the conditions are revised in an attempt to ameliorate the impacts of the development in response to appellants' concerns, be they neighbours, regional bodies or national voluntary organisations. If this assumption holds, TPRA therefore offer a further function of ensuring that the ultimate planning decision reflects a more negotiated and considered outcome that may limit the detrimental impacts of development.

Distribution of Power and Influence

The opportunities for third parties to challenge the decision of local planning authorities and thus transfer the final say on a planning application to the independent planning board alters the distribution of power in the planning system. For third parties, the consequences are relatively clear in that the appeal mechanism provides them with a ‘trump’ that they can play if they are dissatisfied with the local authority planning decision. While this is exactly the same provision as held by first parties, the consequences are different for third parties as any costs arising from the delay or any revised conditions are borne, not by the appellant, but by the would-be developer. This mechanism also clearly restricts the competency of the local planning authority to act decisively on certain planning matters and transfers key planning responsibilities to the appeals board. Indeed as a result of third party appeals it is likely that virtually all major or controversial development proposals will end up being decided by the board. While this represents a centralisation of decision-making power away from the local authorities, it is also likely to have more subtle power effects. One way to consider this is in term of the various policy processes identified by Healey (1990). She identifies five different ways in which planning decisions are arrived at in practice, including semi-judicial (i.e. through formal hearings etc), techno-rational (i.e. deploying the judgement of experts) and politico-rational (i.e. decisions made in the formal arena of politics). Each of these policy processes will favour stakeholders with different attributes and types of power, for example, a politico-rational process will favour elected political representatives, while those holding unique or informed areas of knowledge (e.g. related to planning law or housing forecasts) may be favoured in a techno-rational process. TPRA function to transfer a planning decision to a different policy process, thus taking a decision out of the politico-rational context of local authorities and, in the case of public hearings for appeals, placing them into a semi-judicial context, with subsequent impacts for those holding, or capable of hiring, the type of skills this policy process most favours.

Differing Interpretations of Policy and Material Considerations

The outcomes of third party appeals suggest that there are major differences between local planning authorities and the Irish appeals board in how they interpret policy and prioritise different material considerations. This may reflect some form of clientism at local or central levels, a differing emphasis placed on the balance between local and national policy or strike a different balance between environmental protection and the economic benefits of development. While this remains largely unevaluated, the consequences are that, in the Irish context, differences in interpretation tend to work in favour of the appellant and against the interests of developers. However, this does not imply that this will always be the case, as it would seem that other jurisdictions with similar appeal mechanisms have less favourable consequences for third parties, for example, anecdotal evidence would suggest that this was the case in Ontario, Canada. Therefore, in functional terms, the role of a third party appellant is to ensure that such differences of interpretation are applied.

Ex-ante and Post-facto Impacts

The existence of a Third Party Right of Appeal is likely to have both post-facto and ex-ante impacts. The post-facto outcomes have been discussed above, but it is also possible to speculate on the nature of the ex-ante effects. The mere existence of TPRA is likely to influence how all three parties (i.e. developer, local planning authority and everyone else) approach the decision-making process at the local level. Thus developers may alter the nature of how they represent their application and engage with other stakeholders (i.e. would-be third party appellants). The local planning authority may approach their decision-making duties in a different way, which could be expressed either to ensure that any decision holds up to future scrutiny or conversely, could adopt a less assiduous approach, in the knowledge that any controversial award of permission would be appealed against if it significantly impacted on anyone else. For third party appellants, it may mean that they place less emphasis on pre-decision discussions, in the knowledge that they hold the ‘trump’ of TPRA should the initial decision go against their interest. While the impact of any ex-ante effect remains speculative and poorly understood, it will certainly exist and as such forms a significant dimension to how TPRA may affect a planning system.

Third party appeals thus exert a number of influences on a planning system. Some of these are rather blatant, others more subtle and even perhaps inconsequential, but all are generally overlooked in broader debates on the worth of TPRA. For many people these may merely represent academic semantics and that key questions will be whether the Irish planning system makes better or fairer decisions as a result of having the TPRA mechanism and whether it is desirable or feasible to transfer this experience to elsewhere. It will be left to other contributors to provide comment on this, but attention is drawn to the fact that most debate on TPRA has been dominated by issues of pragmatism. Pragmatism does play a critical part in delivering an effective and viable planning system and one certainly could not progress any reasoned debate without recourse to its grounding properties. However, in terms of the TPRA debate in Britain, pragmatic arguments have also tended naturally to support the interests of those with the most power in the planning system and those with the greatest interest in maintaining the status quo, namely developers whose ‘weak’ permissions go unchallenged and government, whose key objective of a speedy and efficient administrative system is left unquestioned. Yet in addition to issues of pragmatism, the debate on TPRA is, or should be, based on consideration of some of the principles, or values, that the presence or absence of TPRA supports.

A Principled Consideration of TPRA

It is suggested here that consideration of some of the principles behind the operation or introduction of TPRA are just as crucial as pragmatic argument and have received much less exposure, both in debates in the Britain and in Ireland. Some of the issues that arise from such a perspective include the following.

Equity and Rights in Land

The most commonly quoted, and perhaps most persuasive, argument for the introduction of TPRA is one of natural justice and equity between those proposing development and those that may be effected by it. To many it appears inherently unjust if applicants are given a right to challenge a decision that appears to unreasonably constrain their rights in land, but deny this to those who believe that their interests may be compromised by a proposed development. While this may appear unfair under a political and legal system that cherishes the principle of equality before the law and which has increasingly recognised the importance of robust environmental governance, it can be understood (if not justified) by recognising the primacy of property as a defining value of planning. This has been noted a range of authors (e.g. Booth, 2003; McAuslan, 1980) but articulated well in Krueckeberg's (1995), suggestion that the central concept of planning should be property, rather than land use. This is clearly seen in a historical context in Britain when development rights were nationalised as part of the 1947 Town and Country Planning Act, a move that was strongly perceived as taking away rights from landowners rather than giving them to the local council on behalf of the wider community.3 This alleged injustice was deemed only justifiable if accompanied by a first-party right of appeal. Crow (1995) has therefore suggested that the first-party right of appeal is essentially a property right, rather than being an issue of wider governance. This implies a very unified and monolithic view of property, rather than recognising that land embodies many different forms of rights, many of which are owned communally. The apparent naturalness of a potential developer having a right of appeal and an institutional reluctance (in Britain) to extend such rights to third parties could be seen as one symptom of the dominance of the ideology of private property, as noted by McAuslan (1980). Indeed, one way to resolve this inequality short of establishing TPRA would be to abolish the right of applicants to appeal, yet this is regarded as unthinkable, unjust and sacrilegious. This perspective therefore suggests that TPRA do not just highlight a crude issue of inequity that is condoned by government, but that it upholds a certain type of inequality, that which prioritises property over other expressions of citizenship. This is not to deny that planning systems with TPRA do not have similar bias, but that the absence of them can be seen as one expression of it.

Participation or Arbitration?

Appeals are often considered to be an action of last resort, which, in the case of first parties, they represent a failure of negotiated settlement and an acceptance of additional cost. Indeed a normative aspiration, the collaborative ideal, is to provide full and effective pre-decision opportunities for participation and encourage discussion between all parties involved, with the aim of securing the best possible consensual solution in the form of a planning decision by the local authority. This participative model is in contrast to an alternative way of allowing interests to assert their view, through post-decision arbitration, which is effectively what TPRA provide for. Indeed, when the British and Irish planning systems are compared, it becomes clear that while Ireland may have TPRA, its opportunities for pre-decision participation are more restricted than those in Britain. This suggests that both systems have sought to accommodate public input into the planning process in different ways. While normatively there is no reason why both participation and arbitration could not be accommodated in a single planning system, pragmatic considerations have demanded an emphasis on one or another. Although no comment will be made here on the relative advantages and disadvantages of these approaches, the point here it to highlight that consideration of TPRA should include a confrontation of the values that each embodies.

Speed or Quality?

A classic dilemma in planning, most explicitly confronted during the Thatcher administration's reforms of British planning (e.g. Thompson, 1987) but has also been raised in the context of New Labour's approach to planning (e.g. Cowell & Owens, forthcoming) is the balance between the efficiency of the planning process and the quality of the planning decision. TPRA clearly have implications for delaying planning decisions and, however well the process is managed, will inevitably result in additional costs for would-be developers. However, as suggested above, in the Irish case, the high proportion of initial planning decisions amended or reversed as a result of third party appeals is quite startling and suggests that the country derives a great deal of value from TPRA, in the form of planning decisions that better match established policy or reduce external costs on other interests. While TPRA are clearly not the only way of improving the quality of planning decisions, it should be recognised that this is one of their potential attributes and as such, should be counter-posed to the pragmatic debates that focus entirely on the costs of third party appeals.

Forms of Accountability

The key mechanism for ensuring accountability in most discretionary planning systems is to involve locally elected representatives in shaping planning policy and deciding planning applications. While Britain and Ireland have adopted slightly different models of how this accountability is expressed and ignoring the occasional lapse of probity (i.e. Doncaster and North Cornwall in England and the major issues raised by the Flood Tribunal in the Ireland), it is generally a well-accepted and effective way of ensuring planning decisions are fair, open and transparent. As was noted above, the effect of a planning appeal is to give appellants power to transfer the decision-making responsibility away from this local politico-rational process to an appeals body. In Britain such bodies are still indirectly subject to political accountability via the Minister, while in Ireland, the planning appeals board is purposefully politically independent. This allows the board to place political considerations to one side when evaluating development proposals, thus resulting in what could be viewed as essentially technocratic decisions. While the appeals board has functioned well in probity terms, it should not be overlooked that a planning appeal acts as a mechanism that both centralises and de-politicises the decisions-making process. This also invokes a form of participatory accountability (i.e. in terms of third parties to instigate and appeal and others to submit observations) over representative accountability (i.e. the input of local councillors). Again, while no attempt will be made here to apply a value judgement to this outcome, it is noted that it is nevertheless a consequence of TPRA and such issues of planning governance should be placed alongside the pragmatic issues when considering the relative merits of third party planning appeals.

Responsible and Irresponsible Participation?

The final principle that will be highlighted here stems from a common accusation that TPRA will be deployed mostly by NIMBY interests and thus be counter-productive to the public interest. Indeed, in the English Green Paper, Planning: Delivering a Fundamental Change (2002) the key argument against the introduction of TPRA was essentially that they would be used ‘frivolously’ and that there was no reasonable mechanism to limit the abuse of such rights. While this provides a classic expression of the New Labour principle of ‘no rights without responsibility’, it also draws on rather simplistic and morally-suspect views of participation. It has been shown in the case of Ireland that third party appellants invoke a right of appeal for a wide range of reasons, few of which conform to any notion of frivolity and many seem to view appealing as an obligation or duty to protect an area or community, rather than as an expression of possessive individualism often attached to NIMBYism (Ellis, 2004). Indeed, in rejecting the calls to introduce TPRA on the basis of the threat of frivolous claims, the British government have echoed the view of the Dobry report of 1975 that distinguished between ‘responsible’ participation, which deserved support and ‘irresponsible’ participation which needed to be discouraged. This is coded language for signifying participation that is useful to public authorities and its antithesis, anything that frustrates or embarrasses the planning authority. Hopefully in the intervening 30 years we have moved on, so that now participation is generally recognised as public good for its own sake and not for any instrumental outcome. In a time of declining engagement in any form of citizenship behaviour, it is particularly inappropriate to denigrate as frivolous or NIMBY the actions of individuals who do feel they are acting with sound purpose. Indeed, neither should we condemn those that express private preferences in relation to any proposed development — this is the precisely the objective point of participation. Therefore, the key issue here is the need to look past any individual cases of TPRA or avoid focusing on the characteristics of those making third party appeals, but focus on any benefits, or dis-benefits that they may deliver.

Conclusion

Third party appeals in planning are therefore subject to a number of competing perspectives including those that highlight a principled position, particularly focusing on equity and governance and those that stress pragmatic issues such as speed and administrative efficiency. The extent to which principle and pragmatism should be balanced is of much wider significance to understanding the nature and direction of our planning systems and tends to dictate the degree to which planning reform is introduced as an ad hoc response to current circumstances or whether based on a deeper vision of how best to regulate land use in the context of our contemporary societies. Third party appeals are just one facet of this, but one that tends to touch raw nerves in confronting the difficult balance planning must achieve between public and private interests, between rights to property and procedural rights and between efficiency and effectiveness. The unfortunate aspect of this is that when debating TPRA, these issues are usually left unstated, either because the current arrangements, forged in the establishment of comprehensive planning, are seen as appropriate or that such issues are seen as unimportant. TPRA is, above everything else, a challenge to our capacity to deal with these complex issues and a test of how far ideas of collaborative, environmental governance have been absorbed into our thinking on land-use regulation.

Third Party Appeal Rights and the Efficiency of the Planning System

MARTIN WHELAN

There has been very little academic interest in third party appeals despite extensive popular discourse on the topic. In this context, Geraint Ellis's article is timely and, indeed, instructive. However, in terms of critique, discussion of the wider context both in the Irish and British examples appears to be, perhaps intentionally, absent, which makes the discussion somewhat one-dimensional and may mislead international readers as to the challenges TPRA pose for a rapidly growing economy such as Ireland's.

Ellis relies heavily on the Irish case to assess the benefits of TPRA. The past decade or so has witnessed a dramatic transformation of society and economy in Ireland. However, it has also highlighted the very many challenges that must be overcome if the country is to achieve longer-term sustainable development, in social and environmental as well as economic terms. Ireland's low infrastructural stock relative to competing economies elsewhere in Europe and beyond and the very clear regional dimension in Irish economic development represent, perhaps, the two greatest of these challenges. Invariably, the planning system has a central role to play in addressing both. However, in many respects, the planning system as currently constituted in Ireland represents in itself a challenge rather than a solution. The failure to rollout a first-class waste management infrastructure to underpin the country's growing economy illustrates the point. Waste management is just one example. Infrastructural development in Ireland more generally has been hindered by a combination of planning and statutory processes that, at times, seem ill-suited to meet the needs of a modern and growing economy and society.

The issue of third party appeal rights is extremely relevant in this context. Changes to the system of planning in the Planning and Development Act, 2000, the adoption of a national spatial development blueprint and, at the time of writing, the just published Strategic Infrastructure Bill signal official recognition of the need for a more joined-up and dynamic planning system. At one and the same time, however, international readers should note that the Irish system remains firmly rooted in the land use management tradition — with its characteristic disjuncture between policy formulation and policy implementation processes — and conveys extensive Third Party Rights of Appeal. Given the move, at least ostensibly, towards a more comprehensive and integrated system of planning, Third Party Rights of Appeal as currently constituted in Ireland may be considered to duplicate rather than complement processes elsewhere in the system. Without adequate reference to the processes of change in Irish planning it may well be the case that Ireland is not a “suitable case for making general observations on TPRA” as asserted by Ellis.

The 2000 Planning and Development Act strengthened significant public participation in the development plan process, including the opportunity to participate much earlier in the process (at pre-draft stage); the Act further provides for the preparation of regional planning guidelines and for extensive public consultation throughout this process. The Irish National Spatial Strategy, meanwhile, was informed by a very detailed public consultation phase. In consequence, the planning framework for development, as set out in the various tiers of plans and strategies, represents strongly the inputs of the public. The public can also indirectly influence the outcome of development plan processes through locally elected representatives who, because the making of development plans is a reserved function of local councillors, have the final say on the make up of plans.

However, in spite of this, applications for planning permission which are designed to reflect the relevant plans and strategies are subject to third party appeals which, as well as adding to the cost and length of time of projects, can prevent necessary developments taking place.

In addition to the development plan process, development control processes include safeguards to ensure that development proposals comply with the principles of the proper planning and sustainable development of an area. Planning authorities interface with prospective developers from pre-application stage right through to the completion of projects and have a number of checks and balances to ensure desirable outcomes. Planning authorities utilise mechanisms such as requests for further information, options to refuse and condition planning permissions and, ultimately, enforcement procedures to ensure that development is appropriate. To add an additional layer to this process, that is, third party appeals to an independent planning appeals body, the Irish appeals board (An Bord Pleanála) undermines the role of local planning authorities and seems unnecessary given the widespread involvement of the public in the preparation of development plans.

Those who question Third Party Rights of Appeal in the planning system are often charged with seeking to undermine the democratic process. However, in reality the real argument should be about finding a balance between public participation and the importance and need for appropriate developments in appropriate locations. A system of framework control, with plans at the higher tier binding on those below and informed by detailed development and design controls at the neighbourhood/project level, represents a more suitable solution for a country like Ireland, which is grappling with very significant infrastructure bottlenecks and a very skewed spatial structure. The lesson from countries that share similarities with Ireland, in terms of size and spatial structure, such as The Netherlands and Denmark, is that —providing the layers of plans reflect public inputs and vertical integration is achieved with other plans and strategies — framework control is a means of ensuring a strategic rather than a reactive planning system. The need for the type of wide-reaching Third Party Rights of Appeal evident in the existing Irish planning system is lessened by such an approach.

The debate about third party appeals should perhaps be placed in the broader political context that has so pervasively impacted the evolution of planning in Britain. The social democratic consensus that emerged in the immediate post-war period strongly influenced the development of the British planning system. For example, many social democratic principles, were enshrined in the seminal 1947 Town and Country Planning Act. However, it is also the case that the development of the planning system during this period was impacted significantly by the accommodation between labour and capital that had become essential following the experience of the inter-war and war years. This accommodation resulted in a compromise on some of the promises of social democracy and one of these compromises may include third party appeals. The emergence of the New Right, with the election of a Thatcher-led Conservative government in 1979, saw an attempt to turn back the tide of ever increasing state involvement in economic matters and the affairs of individuals. The planning system became a key battleground for this. For many, planning became the symbol for the bureaucracy upon which the social democratic state was foundering. Invariably this must have coloured the debate on all aspects of planning, including third party appeals. The point here is that the ‘pragmatic’ perspective, which no doubt was promoted by a concern for business, was in many ways a response to the more general concerns about the ability of the planning system to meet pressures for development. The obvious question here relates to the interplay between speed and quality, which is referred to in Ellis's article. However, the issue may well merit greater analysis, particularly the suggestion that third party appeals promote better quality planning decisions. Despite the interesting discussion that precedes Ellis making this point, there is little concrete evidence to support the assertion. It is further the case that British planning itself is in a state of flux, with a renewal of interest around concepts such as spatial planning and the need for a national plan. Does this have relevance for the discussion?

Returning to the Irish case, if enacted, the proposed strategic infrastructure legislation will go someway to ensuring that planning processes for nationally important development are streamlined. However, this of itself will not solve the ongoing problem in Irish development processes, the impact of the ‘not in my back yard’ philosophy which seems to pervade much public discourse on planning and development. Public support for planning is crucial if it is to achieve optimum outcomes. This can be achieved through the bolstered development plan process and the introduction of long-term, strategic and binding plans at regional and national level. Ultimately, the public will judge the planning system on what it delivers, which must be a greater standard of life for all through a world-class infrastructure and a coherent spatial structure that supports all areas, urban and rural. This must be the goal of planning. Where Third Party Rights of Appeal conflict with this, policy makers must seek a better balance. The need for such a rebalancing may already have arrived in Ireland.

Strategic Infrastructure and Participatory Rights

MINISTER DICK ROCHE, TD

What function is a planning system primarily designed to perform? The objectives of many public sector policy areas are required to straddle complex and conflicting objectives, and planning is no different.

The system has traditionally been asked to provide a balance between land-use regulation and the upholding of property rights. Over the last 20 years, a greater emphasis has been placed on the protection of the environment and on sustainable development, as public awareness and concern about these issues grew. At the same time, the planning process must deliver development so that our growing population will have houses to live in, roads to drive on, places to treat waste and wastewater and so on.

A major driver in Ireland over recent years has been the country's extraordinary economic growth. It is generally acknowledged that, to maintain and improve competitiveness, significant investment in infrastructure levels will be required. The Irish government proposes to invest billions in infrastructure over the next few years, and attract billions more of private investment. Because of the scale of investment involved, that often requires taking a regional or a national viewpoint to the planning process.

The balancing of the rights of the individual or a local community with the national interest is difficult and is, again, evidence of the tightrope act we require our planning systems to perform. Since the introduction of the planning code in Ireland this balance has in part been reflected by providing for planning decisions to be taken at local level and for comprehensive rights of appeal of local authority decisions.

The right that any third party has to appeal any planning decision is perhaps one of the best-known, perhaps on occasion notorious, elements of the Irish planning system. Any person, regardless of their proximity to a development or their legal interest in the land involved, may get involved in any planning case, may make a submission to a local authority on a planning application and may appeal that decision to An Bord Pleanála (the ‘board’).

The Irish appeal system has been reviewed a number of times, first in 1976 when the board was established, replacing the appellate functions previously held by the Minister, and latterly in the comprehensive review of the planning code undertaken in the late 1990s. When that review culminated in the Planning and Development Act, 2000, it did not lead to a substantial curtailing of general public participation in the planning system or of the right of appeal. As Geraint Ellis notes, the system was revised to require people to have made submissions at local authority level, if they wished to appeal the local authority decision subsequently. However, since over 90 per cent of planning decisions are never appealed, the effect of that was to emphasise the importance of the primary decision makers, the local authorities. That change was balanced by enhanced rights for third parties in the general system, including rights to be notified of planning applications and the first legislative statement that the views of third parties must be taken into account before a decision is made on a planning application.

The statistics offered by Geraint Ellis in relation to third party appeals make a compelling case for maintaining this right in the Irish planning system for ordinary planning applications. The Irish government has always shown its willingness to support the involvement of the general public in the planning system and to underpin that involvement through the law. However, that does not mean that the general planning system is the best consent process for all types of development with particularly acute problems in relation to large-scale infrastructure provision.

Ireland has always had specialist consent processes for certain types of infrastructure development. For example, all major road and rail projects undergo a single consent process, as do all major local authority developments. Since 2001 the board has been the consent authority for those projects, deciding on environmental impact, compulsory purchase issues and so on.

In part those specialist consent processes reflect an essential difficulty that attaches to nationally important infrastructure. In essence, local consent processes, which reflect local concerns, may not be adequate to considering the national priorities that attach to major infrastructure. I am also of the view that the planning system, which in Ireland is primarily technical in structure, has also been used by individuals who are unhappy with the general policy behind proposals but who have been unable to influence that policy through more appropriate democratic means. By challenging decisions and delaying them as long as possible, they seek to change the overall policy to fit with their own views, regardless of the views and interests of the general public.

The result in Ireland as Geraint Ellis notes is that, as a result of the existence of Third Party Rights of Appeal in the Irish system, and the consequential effect of that on the distribution of power and influence “it is likely that virtually all major or controversial development proposals will end up being decided by the board”. We know from experience that, in Ireland, many of those decisions go further and end up in the Courts. Extraordinary delays have resulted, with some projects taking over a decade to get through the various levels of consent. In most cases, the decision itself remains the same, but costs have escalated enormously.

Ireland is not alone. All countries face the challenge of balancing public participation rights with the need to progress projects that benefit the wider interest. Few countries can match the comprehensive and generous rights that every member of the public enjoys in the planning process in Ireland.

The challenge then lies in the creation of a planning framework which ensures the public can get involved in the decision-making process, which delivers decisions within a fairly secure timeframe, which ensures that projects are robustly examined for their impacts on the country and the environment, and that the national interest is taken into account. The Planning and Development (Strategic Infrastructure) Bill 2006 that I published in February 2006 aims to deliver that.

The Bill proposes changes to the planning system for strategic infrastructure projects which are not currently handled within a one-step procedure. It will provide that applications will not have to be made to the local authority but will be made directly to the board, in the same way as for major local authority and road developments at present. The board will be internally restructured to establish a strategic infrastructure division to handle all such applications. Any person who wishes to get involved in the planning process will have to deal directly with the board.

The purpose is not, as Geraint Ellis suggests, that “some major development projects should be isolated from third party challenge”. Inevitably the proposed changes mean that an individual who wishes to oppose an infrastructure project will have fewer opportunities to do so, since one step of the consent process will be removed. However, other changes to the system are being proposed to mitigate any potential or perceived loss of participatory rights.

The consent authority will be the appeals board, which has a proven record of taking independent and thorough decisions. All applications will have to be accompanied by an environmental impact statement. Observations and objections by any member of the public can be made directly to the board. The board will be granted additional powers to enable it to seek actively the views of any party they feel may have views and where they see a potential conflict they will be empowered to call meetings with all parties in an effort to find a compromise. The new process requires a planning authority to provide a report on any proposed development for their area and, for the first time in Irish planning law, local public representatives will have a role in the process: they will be able to vote to have their views appended to those reports. Furthermore, in acknowledgement of their role in civil society, the right of appeal to the Courts has been extended to include environmental NGOs that fulfil certain, very basic, criteria.

This new system applies only to certain types of major transport, energy and environmental infrastructure projects that all will acknowledge are of national or regional importance. There is no option for the process to be extended more generally to, say, major retail or industrial developments, as is currently the case in parts of the UK. While the Bill is radical in that private sector infrastructure providers will be covered for the first time, it builds on the successful changes that were made in the 2000 Act for local authority and major road consents. Those changes have lead to a significant reduction in the lead-in time for decisions on road projects.

This Bill takes what is best in the Irish planning system as it stands and blends it with the needs of a fast-growing economy and a more demanding society. It is intended to result in the right decisions within a clear time frame via an open and transparent process that respects the right of public participation. I believe that the changes I propose in the Bill are in the national interest and are necessary if Ireland is to have the infrastructure that it needs.

Third Party Rights of Appeal in Scotland: Something Rotten?

DUNCAN MCLAREN

If the state of debate over Third Party Rights of Appeal (TPRA) is a good indicator of wider values in the planning system, as Ellis argues, what does the debate in Scotland reveal?

To summarise a complex and long running debate, the Scottish Executive decided not to include TPRA in its Planning Bill, published in December 2005, even though they consulted on the possibility to fulfil a Partnership Agreement pledge,1 and that consultation revealed overwhelming public support for TPRA, with 86 per cent of respondents supporting it, in a consultation which received almost 10 times the normal level of response. The pragmatic arguments made by the development industry appear to have outweighed the political case made by communities and environmental groups like Friends of the Earth.

Arguments For and Against

Friends of the Earth has worked with communities in Scotland on planning issues for almost a decade, and in recent years our Citizens Environmental Defence Advocacy (CEDA) has responded to hundreds of requests for help each year, providing information to most and hands on support for a handful. For example, in the last two years the CEDA team has supported the involvement of local communities in public inquiries on the M74 extension, opencasting in the Douglas Valley and a supermarket development in Portobello. Our locus for advocacy on planning reform is rooted in our experience with communities.

Friends of the Earth argued in favour of TPRA as a means by which the Executive could help implement its pledges to promote ‘environmental justice’: which can be described as encompassing fair environmental outcomes and procedural justice on environmental concerns for all citizens, regardless of income. We argued that TPRA would establish a ‘credible threat’ for poor or disadvantaged communities otherwise hopelessly ‘outgunned’ by development interests (in terms of financial power, access to legal advice and lobbying influence). In this respect it could offer real accountability of planning authorities to citizens, and underpin genuine and meaningful participation.

Whilst the distinction between arbitration and participation suggested by Ellis is valid, the main deterrent to participation identified in our Scottish experience is the belief that it would not make any difference, whereas with TPRA in the system, developers and local authorities would face a dynamic incentive to engage in meaningful participation with communities.

However the myths of TPRA exposed by Ellis proved more influential in Scotland, voiced, as they were, by those who already enjoyed power and influence. So it has become received wisdom amongst Members of the Scottish Parliament that TPRA would reduce participation, despite Scotland's abysmal current performance in this respect and that it would trigger vexatious objections based in NIMBYism, despite the evidence presented by Ellis on the Irish example. It is believed that TPRA would undermine the quality of planning decisions: even though authorities currently do not even have to publish reasons for a planning approval.

Planning authorities have happily argued that TPRA would undermine local democracy, even though in many authorities planning decisions are actually made in party caucuses rather than in planning committees. The potential value to society of TPRA leading to decisions that more accurately reflect national and local planning policy, as illustrated by Ellis in the Irish case, has been ignored or dismissed.

Indeed, it has become received wisdom that TPRA would harm society by reducing economic growth. This is despite the contra-position implied by the Irish case, which reveals at the very least that there is no incompatibility between TPRA and high growth rates. It also illustrates the typically static analysis which passes for rigor in economic debate: fears of delay are translated into claims of lower economic activity, without any analysis of the proportion of development activity which is even potentially mobile, and no one considers the dynamic economic effects of improved quality arising from enhanced scrutiny of planning applications.

Property and Politics

Perhaps unsurprisingly in a debate which has been conducted at such an unsophisticated level, the issue of property rights has come up only rarely, and then almost exclusively as a defence against the proposal that if TPRA is not to be granted, then perhaps developers' rights of appeal should be withdrawn. Even though this position has been advocated by many planners, some local authorities and trade unions it has failed to obtain any political purchase.

Yet Scotland has previously taken a very progressive stance with respect to property rights. The flagship issue of the Scottish Parliament's first term was land reform, which is now playing out, not only in crofting communities which have been empowered, and financially supported, to purchase their land from the lairds, but also in other rural communities, for instance to obtain access to land for community facilities. More recently, the Parliament has passed access legislation formalising a right of public access to open land. Both examples show a mature and politically challenging approach to archaic property rights. However, one could speculate that politicians see it as a very different matter to challenge property rights that are enjoyed by developers (i.e. appeal rights) as opposed to those enjoyed by landowners, typically stereotyped as absentee, wealthy and right-wing, and widely perceived as vestiges of an English colonial class.

Politics is clearly an important underlying concern structuring the debate, and not just party politics, but also the question of political control as distinct from publicly accountable democracy. This is a delicate issue, but it is clear that only a tiny fraction of even the largest and most controversial planning applications ever become electorally significant at the local authority scale, whilst large numbers of applications are approved against the majority views expressed by communities and their representative Community Councils. The implication is that the ‘rational-political’ decision-making process is largely unaccountable to the local electorate.

Ellis highlights the importance and implications of the Irish appeal board's (An Bord Pleanála) political independence. The Scottish Executive Inquiry Reporter's Unit (SEIRU), which handles first-party appeals remains subject to Ministerial authority. So Reporters' recommendations can be, and indeed, are overturned in line with political objectives, as occurred recently with the case of the proposed M74 extension in Glasgow. Although local authorities complain about a lack of democratic oversight of appeals, their fundamental concern is perhaps more the transfer of political control to ministerial discretion. More generally, the political opposition to TPRA is an unwillingness to share the power that has been devolved to Scotland.

One potentially significant political concern for planning authorities might be the loss of income from planning gain. It does not require any hint of corruption for a planning authority to fear that significant financial support for facilities and services could be lost if applications are rejected or significantly revised as a result of third party appeals. Where developers are used to providing such incentives they will be equally opposed to the potential disruption to established practices that TPRA would create, replacing the negotiated demands of the planning authority with the broader social and local benefits sought by appellants.

Prognosis

At the time of writing, the Planning Bill is before Parliament, and amendment to insert TPRA remains possible. The Scottish Executive still has the opportunity to take the ‘grown-up’ decision, as it has previously on issues like land reform, and choose to share power, trust citizens, and thereby reinforce progressive politics in Scotland. However this would involve politicians challenging the influence and authority of the business lobby, and also questioning the iconic policy priority of economic growth, perhaps even replacing it with a goal of sustainable high-quality economic development.

The fact that politicians have chosen to reject TPRA is not entirely surprising. But that in doing so they have reversed the spirit of previous reforms on property rights, and rejected an overwhelming public majority in support, leaves them with a very difficult challenge: how to ensure that their chosen reforms deliver genuine participation, rather than leaving communities with a feeling that ‘something is rotten’ in the state of Scotland.

Third Party Planning Appeals: The Situation in Ontario

LILITH FINKLER

Geraint Ellis argues in his article that Third Party Right of Appeal (TPRA) provides procedural fairness to those engaged in land-use disputes and establishes balance between developers and those who might experience impacts of development. While TPRA can offer greater access to justice, in practice there are no guarantees.

In Canada, eight of 10 provinces maintain administrative tribunals that hear planning appeals. In Ontario, the country's most populous province, the Ontario Municipal Board (OMB) currently hears such matters de novo, reviewing both matters of fact and law.

The Ontario Planning Act explicitly mandates participatory planning and public consultation. All persons living within a specific radius of a proposed project are welcome to attend a public meeting. However, formal notification of the meeting is typically limited to landowners, reinforcing class distinctions between tenants and landlords.

In theory, any person or public body who submits comments at a public meeting can appeal a subsequent municipal decision. In practice, access to legal venues is more restrictive. Costly expert witnesses and lawyers' fees may hinder efforts by community organisations to oppose unwanted development. Typically, legal aid is not available for representation at the OMB. Some hearings extend over prolonged periods, draining financial and human resources of non-profit or volunteer organisations.

Individuals and/or groups with discriminatory intentions have also used TPRA. Potential neighbours, have often opposed, for example, affordable housing for psychiatric patients. Because community opposition results in financial strain and funds originally intended for development are diverted to lawyers, housing advocates are examining human rights legislation that would prohibit appeals based on discriminatory grounds.

In the US, discrimination in housing on the basis of race, colour, national origin, religion, sex, familial status or handicap (disability) is prohibited by the Fair Housing Act and subsequent amendments to the Act. Some housing advocates believe similar legislation would discourage discriminatory appeals in Ontario. However, the use of appeal rights by regressive forces does not discredit the appeals process itself. As Ellis points out, TPRA serves a necessary function in planning law.

In Ontario, municipalities are creatures of provincial statute. In practice, this means cities have had little power other than what is specifically accorded to them in law. In the last five years, courts have altered that power balance by rendering decisions affirming cities' ability to enact certain by-laws. Croplife v Toronto,1 for example, confirmed that municipalities can restrict pesticide use under general statutory provisions governing health and welfare. This shift in the locus of control (i.e. from the province to the municipality) is also reflected in proposed legislative changes to the OMB which allocates power to cities in a more generous fashion.

If enacted, Bill 51 (an act to amend the Ontario Planning Act), introduced in December 2005, would restrict any party's ability to appeal municipal planning decisions. The OMB would function as a traditional appellate body, hearing appeals only on matters of law. At the time of writing, regulations, written by civil servants, have not yet been released so implementation details are uncertain.

The proposed legislation also permits some municipalities to establish local appeal bodies to hear cases involving some issues that were previously heard by the OMB. There is concern that appointments to local appeal bodies would be closely tied to municipal leadership. Such connections might hinder adjudicators' ability to render dispassionate decisions, particularly in high profile disputes.

Within planning circles, it is acknowledged that city councillors sometimes decline controversial projects, assuming their decisions will be reversed on appeal. The appeal process allows elected officials to appear responsive to constituents' concerns while not ultimately denying a project. If municipalities are permitted to control (even indirectly) both the initial process and the subsequent appeal process, it is conceivable that local prejudice may stymie otherwise sensible developments.

The proposed legislation requires that deference be accorded to municipal decisions. Deference, a key principle in administrative law, is typically accorded to administrative tribunals with specialised knowledge as well as to elected bodies. For example, the OMB receives deference from the courts when adjudicating matters within its area of technical expertise.

The statutory requirement to accord deference to municipal decisions may result in fewer cases heard before the OMB. Environmental organisations, many of which have used TPRA to advocate for increased protection of natural settings, support this proposed provision in the new legislation. However, affordable housing advocates are more leery. It is conceivable that local politicians will bow to community pressure to reject non-profit housing and that developer appeals to the OMB will then be compromised. Clearly, limiting appeals can both enhance and hinder movement towards social justice.

Finally, the proposed legislation requires, barring some exceptions, that only information available to the municipality can be entered as evidence at an OMB appeal. Developers must conduct all studies and submit consultants' reports etc before an application is considered complete. Municipalities, pleased with such provisions, argue that in the past, they were unable to render knowledgeable decisions.

However, community groups are concerned that TPRA would be compromised by such legal requirements. Organisations with limited resources do not typically retain lawyers or planners until the initiation of an appeal. Being required to retain experts at the preliminary stage may prove prohibitively expensive. Unfortunately, non-profit organisations may not be able to predict which undesirable developments will receive municipal approval. With limited funds, retaining experts for all applications would prove impossible. While Ontario has an ostensibly accessible appeal process within the land use-planning purview, there are clearly barriers to the effective use of TPRA and the involvement of community based organisations.

Acknowledgement

The author wishes to thank Professor Jill Grant for her thoughtful comments on a draft version of this article.

Notes

1. Croplife Canada v. Toronto (City) 75 O.R. (3d) 357.

1. The Scottish Executive is currently ruled by a Labour-Liberal Democrat coalition: the partnership agreement is the coalition's published programme for government.

1. The Scottish Executive is currently ruled by a Labour-Liberal Democrat coalition: the partnership agreement is the coalition's pub;ished programme for government.

1. For example, TPRA have been called for by the Select Committee on Environment, Transport and Regional Affairs (2000) 13th Report: The Planning Inspectorate and Public Enquiries, Royal Commission on Environmental Pollution (2002) 23rd Report: Environmental Planning.

2. At the time of writing (March 2006) this is the last year for which comprehensive data are publicly available.

3. Indeed, Heap (1997) notes that the need for planning permission was seen at the time as being “the biggest interference with the liberty of the individual short of jail” (p. 697).

Correspondence Address: Geraint Ellis, School of Planning, Architecture and Civil Engineering (SPACE), Queen's University, Belfast, David Keir Building, Stranmillis Rd, Belfast BT9 5AG. [email protected]