Landed gentry

Martin’s FF is no different from every other FF since 1960. Check the new LDA bill...

Darragh O'Brien holds a number of pages while standing in front of a fancy white fireplace
Darragh O'Brien publishes the LDA Bill. Photo: Darragh O'Brien | Twitter.

Land has long been a contested political and economic resource in Ireland. Britain’s colonial over-reach had its origins in post-Restoration Ireland. Accumulation by dispossession was a central part of the British and wider European colonial project and for a good two centuries; Ireland was the laboratory. 

In many ways, the development of pre-capitalist formations comes from struggles over the taking of Irish land and its re-ordering. To the present day, land and how it is used and organised remains a central part of our politics. 

This is not because we have some soil-bound nativist attachment to farming it, selling and buying it. There’s nothing distinctively Irish about attachment to land as a resource of economic activity. 

Of course, the Great Famine utterly changed the way in which society in Ireland was organised but these events did not cause our presumed obsession with land. Quite simply, land, and especially the way it is used and parcelled up, is one of the best means by which to appreciate and accumulate capital. 

In a country with few extractive resources and industry, it is the use and ownership of land that drives so much of our political activity. The social and economic policies of twentieth century Ireland have been shaped decisively by the ownership and use of land as a resource. Fianna Fail’s electoral and political successes from the 1960s until 2010 were centred on who had access to land and which class fractions got to administer the sale and purchase of it. 

It should come as little surprise then that a Fianna Fail-led government (supported by Fine Gael and the Green Party) should be the ones to foster the primary legislation for placing the Land Development Agency (LDA) on a legislative footing.

Until this point the LDA has been governed by a statutory instrument. The new LDA Bill (introduced earlier this year) seeks to “regulate relevant public land in order to increase the amount of land available for the provision of housing so as to address deficiencies in the housing market.” In this short review of the bill as published, I want to examine selected provisions of the Bill from a political viewpoint.

Where in this bill does opportunity arise for powerful actors in the land use and management business? What role do LDA Subsidiaries play in the Agency’s business and, perhaps most crucially, how democratic is the LDA planned to be in light of the role Local Authorities currently play? 

The Land Development Agency Bill

Bills, which are changed through Oireachtas deliberation and debate, consist of a number of parts, sections and subsections. The LDA Bill has ten parts, many of which are procedural and refer to other Acts of the Oireachtas and the roles played by ministers of the government in governing the LDA. At its base, the Bill’s purpose is to provide for the formation of what is now called a DAC (or Designated Activity Company) to develop and regenerate relevant public land for the delivery of housing. Secondly, it is to develop and manage housing on that and other land, including with other persons or bodies. 

There are 19 public bodies listed in the Bill’s schedule 2, through which the LDA would be authorised to act to procure and develop land. These include but are not limited to state bodies like An Post, Coillte, Irish Water, RTÉ and TngG. Schedule 1 of the Bill lists 27 other state and government bodies through which the LDA could operate similarly: the EPA, Enterprise Ireland, the HSE etc. So that describes who; what about the where? Section 4 (1) of the Bill specifies that relevant public land is all land within [or contiguous to] a census town [equal to or greater than 30,000 people] owned by a relevant public body and that on land owned by the local authority. 

The Bill sets out that the LDA is concerned particularly by large-scale sites. The Minister for Housing is ultimately the one who can direct the LDA to act in this way although of course the Agency has and will have its own plans, with oversight by Oireachtas committees when requested.

The functions of the LDA are many but in summary:

  1. to manage and develop certain relevant public land and prepare that land for development 
  2. to facilitate the provision of housing for the public good
  3. to develop housing on relevant public land for the public good
  4. to manage and to provide housing for rent or purchase
  5. to provide, or assist in the provision of, publicly owned infrastructure to service sites for housing and housing development 
  6. to develop, or facilitate the development of, large-scale local authority sites for housing and, where appropriate, mixed-use development
  7. to assess and prepare plans and make planning applications for the purpose of the development of relevant public land 
  8. to take measures to promote the sustainable development of housing
  9. to acquire relevant public and other land and to dispose of land owned by the Agency
  10. to enter into commercial contracts and other commercial arrangements (including joint ventures) with local authorities or other parties 
  11. to support the implementation of the National Planning Framework and advise the government about this 
  12. to contribute to the economic and social development of the State and to enhance the competitiveness of the economy of the State, including by encouraging innovation in housing design and construction methods and preparation of masterplans
  13. to create investment vehicles to facilitate the development of relevant public land and land owned by the Agency
  14. to enter into commercial arrangements for the development of relevant public land and land that is privately owned

These functions (Part 2 of the Bill) are significant, each in their own way, but it is clear from the start that the LDA will not solely be a dull and dry functional government agency. There is enough evidence at this point to indicate that the LDA will be an agency with power to plan for housing and other mixed-use development (shops, medical clinics, small offices etc.) within masterplans it itself derives with the consent of the minister or directed by the minister or the government.

What it means

In short, the LDA will be given power under this Bill to re-shape spatial planning as currently understood by the Irish state. It is to work with local authorities and to consult with them in order to develop these masterplans as well as to work with local authority lands to make adequate and sustainable housing possible. We all know that local government in Ireland is politically weaker than elsewhere in Europe so to understand this Bill in a broader context means trying to understand what interactions would take place between the LDA (and any subsidiary it creates) and local authorities and bodies within the Schedule. The very next Section in this Part (Section 14) outlines the services it will provide with local authorities. 

In fact Section 14 (4) (b) states very clearly that when the LDA cannot provide a service to a local authority (six weeks after a report submitted to the minister) and where the minister “is satisfied that it is in the interests of the proper and effective management and development of relevant public land, the provision of housing or proper urban development, …direct the Agency in writing to provide the service requested under subsection (1) and give notice accordingly to the local authority concerned.” In other words, and I am not a lawyer, the LDA could ask a private company (or skill itself sufficiently but we all know how this goes in Ireland) to come and provide a service to a local authority under the aegis of the LDA. Technically speaking, Oakmount or Colony Capital could be asked to provide a service on behalf of the LDA to South Dublin County Council where the LDA cannot show that it can reasonably provide this service. 

Does this seem like privatisation? 

Section 22 of the Bill provides for how disclosures of interests are to be dealt with. However comprehensive this may seem to the outsider, there is no mention of a register of interests in order to disclose in the disclosure process. 

The obligation is on the director, an officer or an employee of the LDA or one of its subsidiaries to make the LDA aware of any conflict in interest. This particular section of the Bill appears – to this lay analyst – to be foreshortened and not prescribed by other legislation covering the governance and control of interest registers. Furthermore, confidential information is loosely defined in the Bill and perhaps needs further examination. 

Finally, Part 4 of the Bill outlines the basis for LDA Subsidiary companies. Section 32 outlines the main purposes of this and the justification which is stated as “the purposes of performing any one or more of its functions the Agency may as it considers appropriate, with the consent of the Minister and the Minister for Public Expenditure and Reform, cause such one or more than one subsidiary.” This Part of the Bill includes provisions of staffing and services to a subsidiary DAC established by the LDA and is barely one page in length.

It seems to me that this allows for the establishment of further companies spinning out from under the LDA, as constituted by this Bill, and to function as relatively autonomous actors within the lucrative land use and management sectors within Ireland.

Transparency

This, what might be called, vehicular approach to governance requires far more scrutiny than this provision outlines in the Bill. It is not evident to what extent the governance of the LDA proscribes the actions of any subsidiary DAC or vehicle other than that they report to the Agency. As we know from our experiences with NAMA, there is little oversight provided to the public in the use of vehicles like these and effectively, any subsidiary created by the LDA could act on its behalf and obscure the functions and purpose of that subsidiary DAC. It is not at all clear from the Bill what means and to what extent, financial or legal, a subsidiary DAC acts on the LDA’s behalf. We must be clear and be satisfied that all work conducted by the LDA as proposed here remains within public view, particularly if that means the provision of sustainable housing and associated infrastructure for housing. Imagine then a scenario where a subsidiary DAC is formed to provide water and waste facilities to a large site, this is sub-contracted to a private company with specialism in this service and this company acts on behalf of the LDA. Is this company then accountable to the Oireachtas committees or even the local authority on whose land they are working on in conjunction with the LDA? 

Many questions remain from this brief and non-expert review of the Bill. The least of these is how the Bill understands ‘affordable housing’ but some Oireachtas parties and others are fighting this battle. Given the role that An Bord Pleanála now plays within the Strategic Housing Development process and the diminution of the elected members within that development process, this Bill seeks to take further democratic control away from elected members, already limited to specific reserved functions. 

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