Text of an Address
by
Senator Michael McDowell SC
to
Royal Institute of Architects of Ireland
Academy of Urbanism Conference
Dublin Castle 25th March 2025
Urban Planning: A Coming Revolution?
Michael McDowell asserts that there is no such thing as positive urban planning in Ireland. Our cities are becoming unplanned, ugly sprawls. There is no agency with positive urban planning powers. There is no process to develop and implement a vision or plan for our cities. There are no legal agencies to plan our urban future. We have collectively confused a crude system of negative development controls with urban planning. We have wrongly believed that our Constitution somehow prevents positive urban planning. We need a revolution in legislative, political and administrative thinking to bring about liveable, sustainable, beautiful cities.
Can I begin by thanking the RIAI and the AoU for the honour of their invitation to participate and speak in this hugely important and timely conference?
I want to congratulate the organisers of this conference for convening it at a crucial time when. unfortunately, Ireland risks losing forever the opportunity to confront its housing and infrastructural crisis and at the same to change fundamentally our built future as a nation.
Development Licensing Is Not Urban Planning
My first point is that the Irish state has utterly failed at a legislative, administrative, and institutional level to grasp the reality that there is a radical distinction between a system of “development licensing” (which we have) and a system of “positively planned urban development” (which we do not have).
The first major legal framework in this area, the Local Government (Planning and Development) Act, 1963, approached the issue of urban and rural development on the mistaken premise that requiring planning permission for development of any kind was a serious interference with constitutionally protected property rights of all landowners which had to be justified in legislative and administrative terms. Refusal of planning permission (except on specified grounds), it provided, gave rise to a prima facie entitlement to compensation.
“Development plans”, as they were misleadingly called in that Act, were, in fact, systems of zoning and general objectives under which landowners were effectively licensed or granted permits in the form of planning permissions by local authorities to carry out development of their property if and when, and only if and only when, they chose to do so.
The role of the local authorities as planning authorities was and still is a fundamentally passive role of negative control. The possibility that a development plan could in fact be the public agenda for urban development was simply not envisaged, still less provided for.
But now the Irish Supreme Court has ruled that planning permission is to be regarded as an “enhancement” of constitutional property rights rather than a curtailment or diminution of them requiring justification. The idea that land ownership carried with it as a constitutional property right an entitlement to do anything, or indeed nothing, with, or on, land that is not actually prohibited seems to the modern mind an extreme proposition.
Laissez-Faire Doesn’t Do Beautiful Cities
The laissez-faire notion that cities, particularly beautiful cities, consist of land and buildings which can be developed at will, or left undeveloped, hoarded or allowed become run-down or derelict as a matter of landowners’ choice is as unacceptable to the modern mind as it is historically untrue. It is a myth.
When we in Dublin think about it, the parts of our city that we now consider most beautiful and most coherent visually are those parts which were actively planned by the Wide Street Commissioners, and by the major developer estates of the 18th and 19th centuries, including the Gardiner estate and the Pembroke estate, and by the artisan dwelling agencies. They were to Dublin what Haussman was to Paris.
By a system of development leases granted to purchasers and builders, those bodies implemented positive urban planning agendas as to use, visual appearance, and building standards which we simply cannot and do not aspire to under our modern system of planning law.
For a very brief period, post-independence Dublin toyed with the idea of a planned urban future – with the ambitious Abercrombie plan and with the role played by City Architect, Horace O’Rourke. But, as Frank McDonald has so cogently described, visionary planning withered away and was replaced by utterly ineffectual legislative and administrative negative controls.
The O’Connell Street Story
The most conspicuous monument to this process of planning degradation is the current architectural jumble and rundown social and commercial wasteland of Upper O’Connell Street, a street that was once regarded as the city’s principal thoroughfare.
The shocking state of that small corner of Dublin dereliction says all there needs to be said about the non-existent positive planning role of Dublin City Council and of its parent department in the Custom House (however labelled) which purports to provide the legislative framework for so-called urban planning in Ireland and the necessary financial resources.
The strange thing is that Part VII of the 1963 Act seemed on paper to vest in local authorities as planning authorities very wide powers of positive urban planning. These were re-enacted in the Planning and Development Act 2000.
The problem however was that successive governments have never dealt with the need to widen the scope and reform the methodology of compulsory purchase for the purposes of urban renewal, positive urban planning, and implementation of objectives set out in the plans adopted for urban areas.
Ironically, those powers of compulsory acquisition fell to be considered by the Courts in the case of Clinton v. An Bord Pleanála (No. 2), a decision which was ultimately given by the Supreme Court in May 2007, relating to property in Upper O’Connell Street which had been derelict and regarded as potential development land since 1998, at least.
Dublin City Council’s Chief Executive signed an order authorising the compulsorypurchase for regeneration of these lands in December 2003.
Under our cumbersome compulsory purchase laws, owners of the land were entitled to dispute the compulsory purchase order which required confirmation by An Bord Pleanála.
Ultimately, the Supreme Court took the view that it was open to the local authority to acquire the land for the purpose of urban regeneration even where the local authority was not proposing itself to carry out that regeneration and despite the fact that specific proposals for regeneration had not been specified, finalised or agreed.
The Clinton decision made it absolutely clear that there was no constitutional impediment problem with enacting laws conferring on planning authorities the right to initiate positive urban planning and urban regeneration combined with a right of compulsory purchase to enable such regeneration to happen.
The Constitution Is Not the Problem
Arguments about the Irish Constitution constituting an impediment to positive urban planning underpinned by compulsory purchase have now been largely settled.
Previous constitutional theories that compulsory purchase could only be deployed in cases of demonstrated necessity simply do not hold water. It is entirely open to the Irish legislature to empower statutory bodies and agencies with positive planning functions, including urban regeneration, and to support the implementation of those functions by compulsory purchase.
The evidence in the Clinton case is that the lands on Upper O’Connell Street had been the subject of redevelopment proposals in the mid-1990s. The irony is that the same important urban precinct remains undeveloped and derelict 30 years later. A truly shocking outcome.
Reforming CPO Law
The Law Reform Commission has submitted a report and draft legislationto Government proposing to modernise Irish law in relation to compulsory purchase. The proposals set out in that report have not yet been acted on.
But it is quite clear that a revolution in political thinking is also necessary to energise positive urban planning and that the whole process of compulsory purchase should be simplified and speeded up.
Under the Irish Constitution, all that is required is that landowners are fairly treated in relation to the price paid on compulsory purchase, compensation for disturbance, and freedom from arbitrary, disproportionate or irrational deployment of the power, when the “exigencies of the common good” justify compulsory purchase for legitimate reasons.
Positive planning, as distinct from negative control, of urban development and regeneration needs an entirely different approach from the organs of central and local government.
Tackling the Irish housing crisis and tackling Ireland’s very significant infrastructural deficits necessarily involves positive planning of our new and existing urban areas.
It is a monstrous self-delusion to imagine that we can build and regenerate beautiful, liveable, sustainable urban environments by simply leaving urban development to be carried out by private developers on a laissez-faire accidental basis depending on the serendipity of economic market forces and the private economic interests of those with a vested interest in preserving shortages.
The idea that developers can assemble development sites in random locations zoned for particular classes of development and then construct on isolated pocket handkerchief sized sites, towering apartment blocks when it is profitable to do so does not amount to urban planning on any reasonable understanding of that term.
There is an entirely constitutionally legitimate social interest in using compulsory purchase to create a supply of development land in inner cities and elsewhere, especially in relation ensuring that citizens have access to homes at reasonable cost.
Indeed, the Constitution at Article 45 mandates the Oireachtas by way of social policy to strive to distribute the material resources of the community to subserve the common good, to prevent the concentration of resources in the hands of a few to the detriment of the common good, to ensure that private enterprise is conducted to to protect the public from unjust exploitation, and to protect the economic interests of the weaker sections of the community. What more do we need?
And yet we hear suggestions that constitutional property rights are the impediment to positive urban planning. Nothing could be further from the truth.
We can create statutory powers, as we have done under our planning and development laws, but powers alone without positive implementation are next to useless. The simple fact is that our local authorities, as planning authorities, are largely speaking passive spectators in relation to urban development. They are not agencies of change; they are the institutional equivalent of night watchmen.
Legally, socially and economically, there is a better way.
Balanced Regional Development
Furthermore, if urban centres outside of Dublin need to be developed and expanded to ensure balanced development on this island, the supply of land and provision of infrastructure for that purpose cannot be left to the operation of random market forces and factors.
Tax Incentives and levies may have a role to play but they will never be the positive engine of urban planning or renewal.
Where are the targets for population growth in any of our urban centres? Where is the planning for infrastructure needed to support such urban development? What agencies are charged with the implementation of national development goals? Does Dublin City Council, Cork City Council, Limerick City Council, or Galway City Council, or any other urban planning authority have any actual plan for their future size, the degree of population concentration involved, planning densities, water and sewerage requirements, energy infrastructure, education and health facilities, or commercial and industrial workplaces?
The Visual Dimension
Legally and economically, there is a better way. From an architectural perspective, do we really engage in any serious way in visual planning of urban streetscapes and landscapes?
The areas of our cities that we most value in visual terms were constructed with local vernacular architectures, whether Georgian, Victorian, or 20th century suburban. Is there any identifiable vernacular architecture at play in current development in Dublin? Are most modern buildings now under construction in our cities in any way distinguishable from those being constructed in cities anywhere in the world? Do people like them or admire them?
Do streets and neighbourhoods in urban Ireland have anything characteristic about them? Even in areas of major urban redevelopment and renewal such as Dublin’s docklands, is it possible to identify any urban vernacular, or is development a visually random process determined only by general policy in relation to heights and densities and building to site area ratios?
Am I wrong in believing that political energy and effort in urban planning, at least in Dublin, seems more concerned with cycle lanes and bus lanes than it is with any other aspect of the urban built environment?
If land, whether suburban or inner city, whether greenfield or brownfield, and whether derelict or underused, is needed to confront our crisis in home building and home provision, why are we not using entirely constitutional legislative powers and implementation agencies to acquire such land and have it developed for home building? If we don’t, we will fail.
Why is it so difficult to carry out development in Ireland? Why is every development liable to be caught up in lengthy judicial review processes? Why do planning authorities not engage in site assembly rather than wait 20 years for private developers to assemble sites? Why don’t we use building leases to create satisfactory streetscapes and urban landscapes in the 21st century in the same way as was done in the 18th and 19th centuries?
Why does everything in urban planning take so very, very long? The idea of a Shannon to Dublin water main has been under consideration for 25 years. Even if it gets the go-ahead soon, best estimates for its construction are that it will take another decade to build.
How is it that a relatively simply project of that kind can take 30 years from inception to construction while Victorian railway builders could build a railway from Dublin to Cork in two years with vestigial Victorian era plant and machinery? Should we revert to legislative authority for major infrastructural projects rather than planning processes based on contested adversarial methods supervised by the courts?
Can we not learn from our experience in relation to our motorway network? When road building was the responsibility of local authorities (which also had responsibility for urban and rural planning), our road system was primitive by international standards. When the government finally implemented the motorway network construction process by public private partnership and tolled roads, a massive transformative infrastructural programme was put in place over a ten-year period.
If we really are concerned about balanced urban development across this island, intercommunication between those urban centres has to be developed. The energy infrastructure has to be provided. Sustainable alternative energy networks have to be built. If the Victorians could build railway lines by special legislative measures, why cannot we achieve the same scale of projects within similar timeframes 150 years later?
Architecture for People
My last point relates to the architectural quality of urban development and renewal. We can build urban communities to a human scale using streetscapes and population densities that we have chosen.
The planning disaster that was Ballymun of the 1960s seems to have taught us few lessons. Dublin City Council, which developed and then neglected its own social housing at Ballymun, undertook a Ballymun regeneration programme which has substituted one bleak urban landscape for another in the opinion of many people.
By adopting friendly visual vernaculars for streets and buildings, by careful consideration whether open public spaces are needed and making provision for their careful upkeep and management, by learning from what is most pleasant in our urban built environment with a view to using those lessons for future urban development, we can avoid excessive failures upon failure such as the Ballymun saga.
My message is one of optimism if, but only if, only we have the collective will to radically challenge and change our thinking and our ways.
Thank you for your attention.