I welcome the Minister of State and colleagues.
Planning and Development and Foreshore (Amendment) Bill 2022: Committee and Remaining Stages
SECTION 1
Amendment No. 1 in the name of Senator Moynihan is deemed to be out of order, as it is in conflict with the principles of the Bill.
Amendment No. 1 not moved.
Question proposed: "That section 1 stand part of the Bill."
It is essentially a sunset clause on the Bill, so the Bill can be in effect for 18 months. I have tabled previous amendments similar to this and they have never been ruled out of order.
The amendment would repeat all of the provisions of the Bill relating to the Planning and Development Act 2000 after a period of 18 months. The Bill, as read a second time, agreed to the principle of the Bill having permanent effect. The amendment must be ruled out of order in accordance with Standing Order 154, as it is in conflict with the principle of the Bill, as read a second time.
I will be very brief because this issue around sunset clauses has arisen before. Members will be aware that we have brought proposals related to this to the Committee on Parliamentary Privileges and Oversight, CPPO, to amend these Standing Orders. They are acting as an inappropriate constraint in the House.
When any Minister comes to the House to propose legislation, they ask the Oireachtas to give them, basically, permission - especially in relation to that legislation. In agreeing to the legislation, it absolutely and should be within the right of the House to place a restriction or criteria on the agreement that it gives. Even if that was not generally the case, though I think it is, the reason that other sunset clauses were not ruled out is because legislation was framed as emergency legislation. We have a Bill here that I agree should probably not be emergency legislation, but is being treated as such by the Government. It has been treated as emergency legislation by the Minister in the fact that he has sought to truncate the full process and we are here discussing Committee and Remaining Stages, as opposed to Committee and Report Stages.
The section that we will come to, section 5, which I will not discuss now, is the only piece that may be kind of justified as having an actual relevant urgency is and is the only part that can fit it. We cannot have Ministers say that this is urgent and we need to skip-----
With respect, let me explain in a helpful fashion. The ruling is made by the Cathaoirleach. The Senator can discuss it with the Cathaoirleach and the Clerk of the Seanad, Mr. Groves.
I understand that.
Also, the Senator can bring the point to the CPPO-----
I have brought the point to the CPPO and-----
The Senator can bring it again-----
----- I look forward to discussing it at our next meeting. However, I want to make a point to the Minister of State.
Does the Senator wish-----
There is a relevant point to make to the Minister of State as well, which is that, basically, if the Government is treating legislation as emergency legislation, it should be willing to accept a sunset clause.
There are 57 amendments today, so do not start giving out about that later.
At this point, I want to welcome the students and teachers from Drogheda Grammar School. It is great to have them here in the Houses of democracy. I hope they have a nice day in the city as well. Well done to the teachers, because it is important that the students come here. Hopefully they will not be so unimpressed that none of them will want to come here after it.
We will move on, on that basis. Did somebody want to speak to the section now?
Briefly on section 1, I acknowledge the ruling from the Cathaoirleach.
Please do not go back there, with great respect.
Just with respect-----
The Senator is just acknowledging it-----
We have four and a half hours to debate these 50-odd amendments. Let us use our time productively. There is a housing emergency out there. Let us get on with this.
Thank you. That is all. We are moving on.
Question put and agreed to.
SECTION 2
Amendment No. 2 in the name of Senator Higgins is deemed out of order as it is in conflict with the principles of the Bill and it is a direct negative.
Amendment No. 2 not moved.
Question proposed: "That section 2 stand part of the Bill."
I wish to speak to the section and I will speak to the policy point that I was seeking to address, which effectively builds on the extremely relevant point that I was making.
That point is that we are told this is legislation to respond to an emergency and that it is urgent. In fact, the only aspect of this Bill which can constitute urgency is the appointment of an interim chair. I proposed that the section on the interim chair proceed. It is relevant because the amendment was tabled to this section. The other massive changes that are being proposed in respect of An Bord Pleanála have not had proper scrutiny or consideration. Given the lack of public confidence in An Bord Pleanála, not only with regard to alleged conduct by members of the board but due to the board being found again and again by the courts to have not applied the law correctly, there is a crisis in public trust. It was clear from the briefings we had from officials that addressing the public trust issues in An Bord Pleanála has not been at the centre of anything in this Bill. The interim chair is the only matter that is urgent. I do not apologise for this. These are the choices of the Government and the schedule that we have.
That is already done. The Order of Business is already agreed.
With this, I would say that we would have a more productive discussion-----
There is no time limit on the debate.
-----if we were solely discussing section 5.
Question put and agreed to.
NEW SECTION
I move amendment No. 3:
In page 5, after line 26, to insert the following:
“Amendment of section 102 of Act of 2000
3. Section 103 of the Act of 2000 is amended by the substitution of the following subsection for subsection (2):
“(2) (a) The Board shall perform the functions assigned to it by this Act.
(b) The Board and every member and officer of the Board shall be independent in the performance of his, her or its functions.”.”.
This amendment is fairly self-explanatory. There is a concern that this Bill is a ministerial power grab with regard to appointments to the board. This amendment copper-fastens the fact that every member of the board should be independent in his or her performance of functions. I will not speak to the issues that have arisen in the public domain with regard to An Bord Pleanála for various reasons, but there is a concern that certain people are fulfilling Government agendas as opposed to proper, independent planning functions. This copper-fastens it.
I will not be accepting this amendment. The independence of the board is already provided for in section 30 of the Planning and Development Act 2000, which covers limitation on ministerial power, and provides that the Minister shall not exercise any power or control in relation to any particular case with which a planning authority or the board is or may be concerned.
With absolute respect, section 30 has been substantially chipped away. The Minister of State will recall the debate we had when sitting in the other House's Chamber a few years ago about the previously sacrosanct section 30, which stated that the Minister for Housing, Local Government and Heritage would not interfere when the functions of heritage were blended into the Department. Therefore, some specific powers about specific applications, which were meant to act as a counterpoint from the Minister responsible for heritage on the Minister responsible for housing and planning. Now, they are the same Minister. My amendment, seeking to have the Minister of State, Deputy Noonan, take up those functions, was not accepted, so the same Minister has those powers in multiple places. That was already an erosion of the spirit of section 30.
The briefings we received were no substitute for proper time and scrutiny and in no way constituted acceptance by me, or other members of the Opposition, of an alternative to proper process. Those briefings made clear that one reason, which we will come to, that temporary appointments might be made is to deal with certain categories of application. This moves against section 32. It is one thing to say that under section 30, the Minister cannot interfere in an individual case, but if the Minister is able to appoint individuals directly on a temporary basis to deal with certain categories, such as data centres or new gas-fired power stations for data centres; I will go further than Senator Moynihan and say that it is a power grab. The Minister could appoint persons for temporary periods specifically to deal with categories of applications. That brings the independence of the board into question. I have tabled my own amendments regarding another aspect of independence. To give any sense of public confidence about this Bill, the amendment from Senator Moynihan to make it clear that the members would be independent in all their functions is reasonable. The Government should seize the opportunity to accept it.
Before the Minister of State responds, I want to point out for the record and to keep everything straight, there is no time limit on this debate. It started at 10.30 a.m. and there is no suggestion of an end point. We are happy to arrange a rota of Chairs and to be here until tomorrow morning, continually if necessary. We will go back to the Minister of State.
There is a clear separation between the Minister and board members under section 30. The Government is satisfied that the independence of the board is already well-provided for in section 30.
Amendment put and declared lost.
SECTION 3
Amendment No. 4 is in the names of Senators Warfield, Gavan, Boylan, Ó Donnghaile and Higgins. Amendments Nos. 4, 23 to 25, inclusive, and 28 are related. Amendments Nos. 24 and 25 are physical alternatives to No. 23. Amendments Nos. 4, 23 to 25, inclusive, and 28, may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 4:
In page 6, line 8, to delete “concerned.” and substitute the following:
“concerned, while always maintaining a balance of expertise, experience across the Board and particular focus on ecological expertise and experience and environmentally sustainable development.”.
I only have one amendment in this grouping. This amendment is in light of the significance of ecological considerations under European law, which forms the basis of so much of our planning law, and in recognition of the interdependent climate and biodiversity crises, as highlighted by the Irish Peatland Conservation Council's latest assessment report earlier this year. I look forward to the Minister of State's response on the amendment. I know other Senators want to speak on the grouping.
I am a co-signer of amendment No. 4. I will speak on the group now. This is an attempt to ensure that the right balance is properly maintained in the board. It comes out of a concern, which we will come to later, about appointments to the board. There is currently a requirement to have two persons with environmental expertise. That is no longer guaranteed in the new way that the balance of the board is set out, where environmental skills are listed as one part among others, whereas there was previously a provision for an individual who would specifically have that expertise. There was a guarantee of that expertise being represented.
It is again an attempt to be consistent with the current legislation to say that there would be the balance of expertise but that there would be a particular focus on ecological expertise, experience and environmentally sustainable development.
Amendment Nos. 23 to 25, inclusive, in this regard go further. Amendment No. 23 opposes section 6(a), which sets out that the Minister shall, as far as practicable, ensure ordinary members of the board are persons who have satisfactory experience of, and it has a range of issues from infrastructure to development, housing, planning etc. The reason I am looking not to have section 6(a) come in is because the current legislation and current panel system are much stronger and clearer in that regard. The panel system sets out certain areas for the nomination structures and ensures a certain number of persons would be coming through these different nomination structures. There have been concerns about some aspects of the operation of the panel system. Those aspects could easily have been addressed and I have amendments later which would address those concerns about the panel system, for example, the issue whereby an entity that no longer existed was allowed to nominate two members to the board. That concern should have been addressed, but it is not a problem with the panel system; it is a problem with the implementation of the panel system. Instead of specific strands of experience being fed into the board, there is a general soup of lots of different skills which, as far as practicable, may or may not be balanced.
I address this in my amendment No. 25, which deletes "in so far as is practicable", because it may be decided that it is not practicable to have some of these skills and we end up with three or four people from one area of expertise. That was one of the issues previously in the Climate Change Advisory Council, when it ended up with a load of economists and barely any scientists. The concern in how this is newly constructed is, again, that we are not going to end up with an appropriate balance. "In so far as is practicable" is a very wide get-out clause which was not there under the previous system because there were actual strands feeding in.
Amendment No. 4 is almost a new or modern take on the balance that specifies ecological expertise, whereas my amendment No. 28, while it does something similar, mirrors the language that exists in the current legislation. Under the current legislation, the Minister would ensure that at least one ordinary member appointed under the section was a person who, in the opinion of the Minister, "has satisfactory experience, competence or qualifications as respects issues relating to the environment and sustainability". That is in the current legislation. I was told when I questioned this in briefings was that such a person was not always appointed. I would suggest that, if the failure was on the part of previous or current Ministers - I do not know what periods people were not being appointed for - had we had somebody with that expertise on environment and sustainability appointed to the board and performing his or her functions properly, as provided for in the current legislation, An Bord Pleanála might have lost fewer cases in the courts and fewer judicial reviews because it was found repeatedly to have failed to apply environmental law correctly.
The Minister is going to the biodiversity summit and we had the citizens' assembly on biodiversity. One of the assembly's top recommendations concerned Ireland's failure to apply European environmental law properly. Environmental law is not a limit. It is a context in which plans are made and things are built. It is not about not building or not granting planning permissions. It is a matter of building things and planning things correctly. The process would be much shorter and quicker if it were applied at the beginning so individuals did not have to pick it up at the other end through judicial reviews or by going to the European courts. The idea that, after the citizens' assembly on biodiversity and An Bord Pleanála being shown not to have applied this properly, the only safeguard has been removed and disappeared from this new legislation, and environment goes into a general mix instead of having specific designated expertise, is frankly wild and incredibly counterproductive. It will not only damage the confidence of anybody who cares about the environment in the planning system but also damage the effectiveness of the planning system. There is no guarantee that aspect will be there, that specific element that was recognised years ago in the original planning Act. Why is it now, when we are supposedly recognising we are in a climate and biodiversity crisis, that it is no longer recognised in this legislation?
I welcome the young people and their teachers in the Gallery. It is wonderful to have them here. I hope they have a nice day here.
I, too, welcome the visitors to the Gallery. It is great to have them here. On Senator Higgins's comments, I am sure the picture she is trying to present of this legislation having an impact in terms of the environment is well meaning but it is not grounded in fact. I am sure the Minister of State will confirm that in his comments. The Bill specifically says the Minister may appoint over and above 14 members, with specific reference to fulfilling its duty and objectives under various sections of the 2001 Act. They specifically reference items in relation to the environment. One of the major elements An Bord Pleanála will be dealing with in the coming period is offshore wind energy. It would seem incredible that there would not be environmental members on the board as part of that process. I am sure the Minister of State will confirm that will be the case. What is being put into the Bill is the flexibility to appoint people when needed in different areas of expertise as they arise. It may be the case that more are needed in a particular area for a particular time period or more may be needed to deal with backlogs in another area, such as housing, in another period. The Bill is building in flexibility to go to 14 members or more and bring in people who have expertise in an area. I understand why Senator Higgins is trying to present it as she is, but I am sure the Minister of State will confirm that is not actually the case.
I thank Senators for their contributions. That is the case, as Senator Cummins said. On section 6 and the matter of satisfactory experience, while Senator Higgins called it "a general soup" of expertise, it is quite specific in that it provides for the range of expertise that will be needed on the board. Regardless of that being there or not, we have to be mindful, and the Senator mentioned COP15, that we will soon have a new national biodiversity action plan, NBAP, and the nature restoration law regulations will be coming from the EU, all of which will govern all decision-making of the board, as will the climate law, the marine protected areas legislation and the infrastructure being put in place to ensure there is good environmental governance. By law, any decision-making by board members will have to take account of the NBAP, the climate law and the nature restoration law.
Quite a robust set of legislation and policies will be in place to ensure decision-making has to be governed by good environmental stewardship. I offer that by way of assurance to the Senator. In that regard, I will not be accepting this amendment as section 6 already provides for recruiting ordinary board members with environmental expertise. That is backed up by the points I have made.
The new section 6 does not provide a guarantee of a member who will have environmental expertise, which we had under the previous legislation. In that regard, it is a backwards step. The Minister of State is right there are very important laws in place, such as Fit for 55. There are more than 200 pieces of legislation coming through, including a lot of new legislation in respect of building regulations, which will be extremely relevant, even leaving aside the nature restoration law. These are laws that will have direct implications on building. Those are being negotiated at the moment.
The problem is there is already a lot of European law but An Bord Pleanála has not been applying it properly. That is not my opinion; that is what has been found in the courts on multiple occasions. I therefore do not regard having good laws as a safeguard if we do not have a structure and a system within An Bord Pleanála that looks at them properly and applies them. This costs everybody time and it costs money for the State. Again and again, individuals, groups or communities have had to take judicial reviews to re-remind An Bord Pleanála of the existence of the European laws and ask it to apply them. This is a point of debate and it is one that should be examined very carefully. There are constant proposals to make judicial reviews more difficult when the problem is not judicial reviews. The problem is the law is not being applied properly in the first place. The European law is not going to change massively. We constantly try to build in evasions and exceptions in laws here but the fact is European law is, as the Minister of State said, very strong. However, we need a body that is equipped to apply it, and not simply on a temporary basis with an individual selected by the Minister to come in on a kind of project for a year or two. There should be a permanent board member with environmental expertise. That is not guaranteed anymore in the proposal from the Government. That is a fundamental fact and that is why I will have to press my amendments.
Amendment put and declared lost.
Amendments Nos. 5 to 7, inclusive, 12 and 13 are related and may be discussed together.
I move amendment No. 5:
In page 6, to delete lines 9 to 16.
Amendment No. 5 seeks the deletion of section 3(b), which amends section 104 of the Planning and Development Act 2000 to allow the Minister to appoint additional ordinary members without placing a limitation on how many he may appoint, removing any existing limits on the proportion of the board that can be appointed by the Minister. Under the current legislation, there is a constraint. It was a constraint designed in the spirit of section 30 of the Act, recognising that section 30 does not sit alone but sets a mandate for the separation of powers and how planning should be separate from the Minister. In following through on section 30 and ensuring there is not undue influence by the Minister, the current legislation makes it clear that no more than one third of the ordinary members can be appointed by a Minister. This legislation removes that limit.
The phrase "power-grab" has been used. It is very clear in this regard because this would take us away from a situation where there is a constraint on the Minister's power to configure entirely the constitution of the board. Now, such limitations will be gone. It is a massive shift in power away from independent structures and away from civil society through the panel system and directly into the hands of the Minister. Under the proposed new rules, a future Minister could theoretically expand the board by whatever number of ordinary members and stack it with his or her own appointees. If a few of those members disagreed with the direction being taken by the board, or if dissent or concerns were raised around a particular category of development, the Minister could simply increase the board to ensure he or she had the numbers to win any vote or decision. While the current Minister may not have any intention of using the powers in such a way, we do not know what future Ministers may do. We are moving from a system that was carefully calibrated to try to limit the influence of a Minister. Ways around that seemed to be found at different times but the key point is it was designed to ensure separation and independence of the planning process from the Minister. This legislation seems designed to ensure the power of the Minister will be pre-eminent.
Amendment No. 6 seeks to insert a new subsection (2A) into section 104 which would provide that any orders to increase the membership of the board beyond 14 members would have to be approved by the Oireachtas. We have been told it is already within the power of the Minister to increase the number on the board, but under the current legislation, if the Minister increases it beyond 14 - or beyond nine, as it was - the Minister would have to bring that order to the Oireachtas for its approval. The capacity was there but there was a check and a balance on it. If the Minister wanted to go from nine to 12 because of capacity issues, because there was a huge volume or a backlog of cases, or whatever it might be, that power was there but it was subject to being brought to the Oireachtas, which is an appropriate check and balance and ensures scrutiny because we would know if the board were being increased. My amendment recognises and accepts the increase from nine members to 14 but stipulates that, when we go beyond 14, it should be brought to the Oireachtas for that oversight. For a board that has lost public confidence to the degree An Bord Pleanála has, we should not be removing checks and balances. This is yet another very small and reasonable check and balance that is being removed. Amendment No. 6 would reinsert that. Amendment No. 7 seeks the deletion of section 3(c). This relates to amendment No. 6 and requiring Oireachtas approval to increase the size of the board beyond its ordinary membership.
Amendment No. 12 seeks to delete the proposed provision removing the constraint on the proportion of appointments the Minister can make directly to the board and incentivises the Minister to move to a less discretionary and more transparent system of appointment. Amendment No. 12 would move away from that discretionary power of the Minister around appointments and would encourage the Minister to take a more transparent approach.
Amendment No. 13 seeks to insert a new paragraph (d) into section 104(4) of the Planning and Development Act, which would specify that before the Minister can appoint civil servants to the board, there must have been a public appointments process through the panel system provided for in section 106. This would have the effect of ensuring there is no situation where civil servants could be seen or perceived to have been handpicked by the Minister in a case where there had been no attempt to appoint additional members through an appropriate panel system. If the Minister is appointing civil servants because they say the gap cannot be filled, let us see that it cannot be filled. That allows for the Public Appointments Service to play its appropriate role and we would not have a situation where we simply have preferred candidates filling roles inappropriately.
Using language such as "power grab" is unhelpful. The Minister of the day is accountable to the Seanad and Dáil and it is here he or she is held to account. We had a debate on this matter at the joint committee and there were differing views on it. My opinion is that the Dáil appoints the Minister, he or she has responsibilities and we Oireachtas Members hold him or her to account in respect of those responsibilities.
We cannot ignore that there have been shortcomings in the panel system. To say otherwise and present it as something that is functioning perfectly is not an accurate reflection. There is no question that it is a well-meaning system but there have been shortcomings associated with it. As I said in reference to other amendments, the ability to increase the membership of An Bord Pleanála above 14 is there to provide predictability in terms of timelines throughout the planning process. We cannot guarantee favourable outcomes of planning decisions for one section or another but predictability as to timelines must be built into the system.
I spoke on Second Stage about unacceptable timelines for decisions at this time. Housing developments that have been appealed to An Bord Pleanála have gone through the statutory period and the extended period and people are left in the lurch, not having a clue when a decision will be made on the appeal that was lodged. That is an untenable situation. We will have to go beyond the 14 members in order, first, to address the backlog and, second, to put in place the appropriate numbers of individuals to be able to deal with all the new areas for which An Bord Pleanála is being given responsibility, particularly in the offshore sector. We must meet the climate targets for 2030 and deal with all the consent elements. To present what is being done as in some way a power grab is unfair to what the legislation is seeking to achieve.
I have not objected to the appointment of additional members. I have talked about the process by which additional members are appointed and I have objected to the imbalance in that the Minister appoints all of them, which is contrary to the spirit of section 30. I have asked for a very simple check and balance such that the Public Appointments Service be involved in identifying new members when they are needed.
I have also asked for an appropriate check and balance whereby when the Minister seeks to appoint new members, the matter will be brought to the Oireachtas. Senator Cummins said the Minister is accountable to the Oireachtas. Yes, that should be the case, but we are not seeing brilliant examples of it in this process whereby we do not even have a proper Report Stage debate on the Bill. The opportunity for us to scrutinise this legislation fully is part of the accountability the Minister should have to the Oireachtas. That has been largely disregarded and truncated in the way this Bill has been put through the House.
It is an open-ended debate. There is no time limit.
The debate is on Committee and Remaining Stages. There is no separate Report Stage. There is no spirit of proper engagement on Committee Stage, with the Minister of State listening to what we say and undertaking to come back with proposals on Report Stage. That is not happening and it means there is not a proper scrutiny process. It does not matter if we have a 900-hour debate; the fact is Stages have been skipped.
I have been very clear that all I am looking for is accountability to the Oireachtas. Why remove a provision whereby the Minister must tell the Oireachtas when he proposes to increase the number of board members? That is a fairly basic thing if we believe the Minister has the powers and the Oireachtas holds him or her to account in exercising them. The Minister being required simply to inform the Oireachtas by bringing forward a motion or order requesting that the numbers be increased from 14 to 18, 20 or whatever it might be is a very reasonable requirement. There is likely to be very good reasons the board might want to increase its numbers. Why remove that check and balance?
Does Senator Higgins not believe the Minister?
The point is that the Minister is removing a requirement to check with the Oireachtas before increasing the board numbers. That is a poor decision and it decreases accountability to the Oireachtas. That is just factual.
I have not suggested the panel system is perfect. I suggested it was designed in a very good way but the issue with it is that bodies that should not have been eligible within the system were allowed, even though they were no longer incorporated, to continue to nominate two members to the current board. I want to be clear that this is my issue with the panel system. I will come back to it in later amendments. The panel system was designed in a well-meaning way, as I said. I have not had enough time to examine the proposed new system and there has not been enough scrutiny of it for me to be equally confident it is likewise well-meaning.
I very much recognise the spirit of these amendments relating to the robustness and transparency of the appointment process. I take Senator Cummins's point about the accountability of the Minister. He is correct that it is about trying to ensure there is predictability in timelines and that we deal with backlogs. Decision-making certainly must be robust but there also must be a process within the system that gives certainty for communities.
I cannot accept amendment No. 5. It is appropriate that the overall number of ordinary board members may be increased by order to ensure full functioning of the board and allow it to process its significant workload efficiently, which includes new marine functions, as stated, under the Maritime Area Planning Act 2021.
Amendments Nos. 6 and 7 are not being accepted as a ministerial order will be made in the normal manner and a requirement for a resolution of both Houses to approve a draft order is not necessary.
I do not accept amendment No. 12. It is not deemed necessary to retain the requirement that the number of ordinary members appointed on a temporary basis shall not exceed one third of the total number of ordinary members at any one time. Temporary members are appointed for a term of no longer than 12 months.
Amendment No. 13 is not being accepted as the relevant provision provides for the urgent appointment of temporary board members where required due to the caseload of the board. The proposed amendment does not comprehend the urgency of such temporary appointments. It is wholly appropriate that temporary appointees to such sensitive public service positions will already have been recruited to the public service through previous competitions and been assessed as suitable appointees.
Amendment put and declared lost.
I move amendment No. 6:
In page 6, between lines 16 and 17, to insert the following:
"(c) by the insertion of the following subsection after subsection (2):
"(2A) Such orders made by the Minister under subsection (2) shall require approval by motion of both Houses of the Oireachtas.".".
Amendment put and declared lost.
I move amendment No. 7:
In page 6, to delete line 17.
Amendment put and declared lost.
Amendment No. 8 is out of order.
Amendment No. 8 not moved.
Amendment Nos. 9 to 11, inclusive, 16, 17, and 40 are related. Amendment No. 11 is a physical alternative to No. 10. Nos. 9 to 11, inclusive, 16, 17, and 40 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 9:
In page 6, to delete lines 18 to 30.
This amendment deletes section 3(d) of the Bill, which states that:
... where the Minister is of the opinion that one, or more than one, additional ordinary member should be appointed as a matter of urgency due to the number of applications, appeals, referrals or other matters ... the Minister may, ... appoint, from persons who are, or were formerly, established civil servants for the purposes of the Civil Service Regulation Acts 1956 to 2005, established public servants in state agencies or employees of the Board, one, or more than one person, who is, in the opinion of the Minister, a suitably qualified person on a temporary basis,
The idea staff from the Minister of State's Department would be appointed directly to the board is at its core unacceptable. This does not just fly in the face of section 30, which I have spoken to a great deal because it is important, but it also goes against the proper independence of our planning process and against the recognition we had, and had really early on, that that planning is part of democracy. We even had it in the 1922 Constitution, let alone the 1937 Constitution. We have in our planning laws the recognition that planning is part of democracy and that checks and balances are needed. It is not simply that planning is a function of a Department. Planning is treated separately because it is recognised to be fundamentally the decisions we make about how we live together and the public having their say in the decisions we make about how we live together. Those decisions, that process, is a part of democracy. It is not something that should be subsumed solely into a Department.
Again, there was a huge effort previously in the entire architecture of our planning structures to try to ensure we did not have undue capturing of that space and not just in section 30 but in various other measures such as the measure with the one third limitation around ordinary member appointments in the past. We will have a Minister effectively able to hand-pick appointees to the board on an entirely discretionary basis and alter the numbers of the board to ensure any vote will be won. We will see as members persons who will, in many cases, be returning to work for the Department whose career tracks are within the public service and potentially within that Department. We will have them in the situation of supposedly independently adjudicating and determining decisions. Again, I note the context of the number and the volume of applications, appeals and referrals but what we have heard on the other side of the House and, indeed, in the briefings is there is this intention to have certain categories and certain kinds of things such as, for example, whether we have mining, decisions on data centres and decisions in those regards. The concern is we can have a person or, indeed, a number of persons hand-picked by a Minister and put on the board to affect the decision. We must bear in mind there are plenty of opportunities already for the setting of regulations, the setting of the legal context in which the board makes its decision. The Government has many powers in relation to setting the legislative and regulatory contexts for the board in its decisions but it is not enough it is setting those contexts. It now wants to have the people in the room and that is a serious concern. I make absolutely no apologies for using the term "power grab" because that is what this constitutes.
Amendment No. 10 operates to avoid the Minister hand-picking civil servants and appointing them to the board and avoiding the obvious concern over the independence of civil servants. I again note there have been former civil servants on the previous board that all the concerns are about and that did not serve to alleviate those concerns. Thus, there is nothing in appointing former civil servants that will serve to alleviate the public confidence issues in An Bord Pleanála. It was already the case that there was persons who had been appointed from such a context.
Amendment No. 11 would provide that where the Minister is of the opinion that one person or more should be appointed, he may appoint members from the Civil Service but he may not appoint employees of the board to fill such positions. Again, we know in many cases the inspectors have played an important role in challenging the board.
Amendment No. 16 has the effect of ensuring the chair of An Bord Pleanála cannot be drawn from the Civil Service. This may be crucial. Even if the Minister of State will not agree with me on the appointees from the Civil Service, I ask that he strongly consider this amendment both in this House and in the Dáil. This is absolutely crucial to ensure we have an independent chair and one who has public confidence and is seen to be independent. Again, this is fundamental to the functioning of an independent planning system, which is vital to our democracy and to the confidence of the public in the planning system. Whether or not the Minister of State accepts my other amendments in respect of civil servants, I urge him to reflect. It seems, and has been very clear from the meetings we have had with the Department, that public confidence is not something that is a concern whatsoever with this legislation. We were told the plan to get rid of the panel system pre-dated any of the stuff with An Bord Pleanála, so there is nothing that is responding to the public confidence crisis in the board. I urge the Minister of State not to worsen the public confidence crisis and to give at least a signal of independence in the role of the chair of An Bord Pleanála. That is a very reasonable change and one the Minister of State should be able to make in this House, or if not here then in the Dáil.
Last of all, amendment No. 17 provides that in the proposed section 105 regarding the nomination of a temporary chair, that the individual appointed as temporary chair would not be an employee of the board.
There is a fundamental difference between ourselves and the Government on this Bill. It is one of the biggest problems we have with the legislation. It is no disrespect to civil servants but some will have been seconded, some may return and for us they are too close to the institutions of Government. Who should be on the board? The answer is qualified professionals from the public service and the private sector. Senator Higgins discussed hand-picking civil servants and appointing them to the board. This amendment operates to avoid that. Civil servants will be returning to the Department after a temporary period of service as a board member where they may have had to decide on matters of interest to such bodies. There is fundamental difference between ourselves and the Government here.
I will speak to the amendments. I do not accept amendment No. 9. This provision is necessary to ensure that ordinary board members can be urgently appointed, on a temporary basis, where the number of applications, appeals, referrals or other matters with which the board is concerned is at such a level so as to require the appointment of additional members.
Amendment No. 10 is not being accepted as the provision in section 9 of this Bill is providing for the urgent appointment of temporary board members where required due to the caseload of the board. The proposed amendment does not comprehend the urgency of such temporary appointments. It is wholly appropriate that temporary appointees to such sensitive public service positions will have already been recruited to the public service through previous competitions and be assessed as suitable appointees.
The independence of An Bord Pleanála and planning authorities from the Minister with regard to decision-making on planning cases is clearly set out under section 30 of the Planning and Development Act. This Sinn Féin proposal that public servants should not serve as temporary board members is at odds with the fact that planning decisions are made by public servants in local authorities.
Amendment No. 11 is not accepted. This provision is necessary to ensure that temporary ordinary board members can be urgently appointed from former or current public and civil servants, where the number of applications, appeals, referrals or other matters with which the board is concerned is at such a level so as to require the appointment of additional members. It is appropriate that public and civil servants, who have previously been suitably vetted on appointment as public and civil servants, would be used to fill these public service positions.
Amendment No. 16 is not accepted as in a liberal democracy, there could be no justification for prohibiting public servants from competing in an open competition for the recruitment of a chairperson for An Bord Pleanála, which anybody from either the private or public sector could compete for.
Amendment No. 17 is not accepted. The provision is necessary to ensure that an interim chairperson can be urgently appointed from former or current public and civil servants where the position of chairperson is vacant. It is appropriate that public and civil servants, who have previously been suitably vetted on appointment as public and civil servants, would be used to fill the public service positions.
Amendment No. 40 is not accepted as in a liberal democracy there could be no justification for prohibiting public servants from competing in open competition for the recruitment of ordinary board members for An Bord Pleanála, for which anybody from either the private or public sector could compete.
I will point out the word "vetting" because it is being used often. We should really think about the word and not use it. The term is undefined and vague and is being used problematically recently. The idea that because somebody has applied for a public service job, he or she is already suitable for absolutely any job gives the lie to the section we were just discussing a minute ago, which said there were all these specific skills and competences needed. The fact a person is a generalist who qualified through a public service job for something completely different gives absolutely no guarantee he or she will have any of that soup, although the ingredients are very good, or any of those skills.
Can we stop suggesting that somebody having qualified for a job once, in a general sense, means they are suitable for absolutely any role? An Bord Pleanála is not a generalist function of the public service. It is an expert board with specific expertise requirements and responsibilities. Maybe the problem of the Minister picking various people and sending them off can be addressed in the Dáil. There is nothing to say the Minister even considers the list of already-established expertise. It is simply a case of the applicants having been checked already. The idea of simply being qualified for something else does not carry through. That is not a correct argument to use. We would have no expertise. The Climate Change Advisory Council could just be anybody who had qualified for any job, anywhere, ever.
These are expert bodies with specific functions and if one is appointing somebody to one of those bodies, the person should be able to directly add to the body. The thing they add to it should not simply be that they used to work for the Minister. There has been a lack of scrutiny. The civil servant process could have been improved by linking the appointment system with the qualifications that were already identified as being what the board needs. Let us not act as if apples and oranges are the same.
With regard to the other issue of the chair and the open competition, we will come further to those sections but I would be interested to hear more about this open competition system and how exactly it will work. All we know is there will be systems and procedures the Minister will dream up. I would be interested to see what the open competition system is. With regard to the open competition determination, will there be a screening process? We do not know how it will be put forward. We only know there might be a board or a committee. How will the open competition system work, if we are keen to ensure absolutely everybody can apply? Maybe we will come to that when we come to the sessions on the appointment of a chair.
I will respond to specifically to the issue of the civil servants. It is certainly the case in our National Monuments Service and National Parks and Wildlife Service that the civil servants are scientists, entomologists, botanists and archaeologists. Throughout the Civil Service, there are professional, relevant skills. Under section 6, the Minister shall ensure, in so far as is practicable, this range of skills shall be included in the soup the Senator speaks about. It is critically important to note these are not just generalists. There are specialists throughout the civil service who provide a broad range of scientific and relevant skills that could really bolster the board.
Amendment put and declared lost.
I move amendment No. 10:
In page 6, lines 24 to 30, to delete all words from and including “and” in line 24 down to and including line 30 and substitute the following:
“, (c) and (d), appoint a suitably qualified person on a temporary basis, but in the interests of maintaining clear independence of the Board, such persons shall not include persons who are or were within a previous 12 month period been formerly, established civil servants for the purposes of the Civil Service Regulation Acts 1956 to 2005 or established public servants in the State agencies,”,”.
Amendment put and declared lost.
I move amendment No. 11:
In page 6, lines 27 and 28, to delete “or employees of the Board”.
Amendment put and declared lost.
I move amendment No. 12:
In page 6, to delete lines 31 to 34.
Amendment put and declared lost.
I move amendment No. 13:
In page 6, between lines 34 and 35, to insert the following:
“(iii) by the insertion of the following paragraph after paragraph (c):
“(d) where appointments are being proposed under paragraph (a), such appointments shall be made further to either a public call for applications or from a call for nominations from the panel system prescribed under section 106.”.”.
Amendment put and declared lost.
Question put: "That section 3 stand part of the Bill."
The Committee divided: Tá, 21; Níl, 10.
Tá
- Blaney, Niall.
- Buttimer, Jerry.
- Byrne, Maria.
- Carrigy, Micheál.
- Cassells, Shane.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Daly, Paul.
- Doherty, Regina.
- Dolan, Aisling.
- Fitzpatrick, Mary.
- Kyne, Seán.
- Lombard, Tim.
- Martin, Vincent P.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Reilly, Pauline.
- Seery Kearney, Mary.
- Wilson, Diarmuid.
Níl
- Boylan, Lynn.
- Craughwell, Gerard P.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Keogan, Sharon.
- McDowell, Michael.
- Moynihan, Rebecca.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Tellers: Tá, Senators Seán Kyne and Lisa Chambers; Níl, Senators Rebecca Moynihan and Alice-Mary Higgins.
Question declared carried.
SECTION 4
Amendments Nos. 14 and 15 are related and may be discussed together by agreement.
I move amendment No.14:
In page 6, between lines 36 and 37, to insert the following:
“(a) in subsection (2), by the insertion of the following paragraph after paragraph (e): 3“(ea) The Chief Commissioner of the Irish Human Rights and Equality Commission,”,”.
This amendment is to remove the reference including the Secretary General of the Department from the committee nominating Chairs of An Bord Pleanála. I do not have if in front of me but amendment No. 15 is about providing some perspective on equality and diversity in the panel ordinarily responsible for nominating names for consideration of the Chair of an Bord Pleanála in section 105.
In regard to amendment No.14, this amendment is not accepted as the basis for adding this officeholder is not apparent in terms of the relevance of their role.
Amendment put and declared lost.
I move amendment No. 15:
In page 6, between lines 36 and 37, to insert the following:
“(a) in subsection (2), by the deletion of paragraph (c),”.
Amendment put and declared lost.
I move amendment No. 16:
In page 6, between lines 38 and 39, to insert the following:
“(b) in subsection (10), by the insertion of the following paragraph after paragraph (a):
“(aa) is, or who was in the previous 12 months been, established civil servants for the purposes of the Civil Service Regulation Acts 1956 to 2005 or established public servants in State agencies,”,”.
Amendment put and declared lost.
Section 4 agreed to.
SECTION 5
I move amendment No. 17:
In page 7, lines 7 and 8, to delete “or employees of the Board”
Amendment put and declared lost.
Amendment Nos. 18 and 46 are related and may be discussed together.
I move amendment No. 18:
In page 7, between lines 10 and 11, to insert the following:
“(1A) Notwithstanding subsection (1), an individual who is or within the preceding 1 year was employed by the Department of Housing, Local Government and Heritage shall not be eligible for appointment under subsection (1).”.
Amendment No. 18 seeks to add a caveat to the proposed section 105(a) that while a temporary Chair may be sought from within the Civil Service, an individual who is or was within the preceding one year employed by the Department of Housing, Local Government and Heritage should not be eligible for appointment. Again, this comes back to the fundamental point about the independence of the planning system from the Executive, the separation of powers in respect of planning policy and legislation as set by Government, and the administration of proper planning process by An Bord Pleanála. Amendments Nos. 18 and 46 are simply trying to add clauses to the legislation to try to improve it.
Amendment No. 46 seeks to add a caveat to the proposed new subsection (4) of section 108 by stipulating specifically that a person who is or was employed by the Department of Housing, Local Government and Heritage within the past year may not be appointed as temporary chair or member of the board. The reason for this relates to the point I raised about the fusion or changing of the two Departments. It is not simply a matter of a public servant or somebody who has been employed in a Department or in a public body, such as the Environmental Protection Agency, or any of those bodies, but there is a specific intention within our planning architecture to separate the Department of Housing, Local Government and Heritage and the planning process.
In this regard, I am saying that even if public servants who may have certain expertise as civil servants are being appointed, they should not be coming from that Department. Again, this is being true to the spirit of section 30 and the wider spirit of the Bill which contains painstaking attempts to ensure there are checks and balances and that the Department which sets legislation and regulation in the area of planning should not then get to adjudicate on how that legislation or regulation is applied effectively through An Bord Pleanála.
Again, there is a particular requirement, which is principled and logical, for separation and that is why I am requesting that even if the Minister proceeds with the appointment of civil servants, he would at least guarantee the independence of An Bord Pleanála from the Department is ensured by ensuring officials from those Departments would not get transferred.
I welcome the young people to the very packed Public Gallery.
I cannot accept amendment No. 18. The legislation is clear that the public service position of interim chairperson will be open to all existing public and civil servants. It is appropriate that this position can be filled, as a matter of urgency, by a person who has been previously suitably vetted by the civil and publish service. For the same reasons, I will also not be accepting amendment No. 46.
I welcome the students from Ardagh National School in County Mayo, who are here with Deputy Dillon, and their principal, Mr. Harte. I hope they have a very good day.
Amendment put and declared lost.
I move amendment No. 19:
In page 7, to delete lines 16 to 19.
The purpose of this amendment is to delete section 105A(4), which states that a person appointed to be the chairperson under this section who ceases to hold office, either due to an expiration of his or her one-year temporary term or because the chair is permanently appointed, may be reappointed by the Government for a second term. This is the only section in the Bill in respect of which there is any urgency. A great deal has been inappropriately attached to addressing a small and specific issue relating to the appointment of an interim chair. The legislation is being used opportunistically to put through many things. Who knows what else will come forward in the Dáil?
Amendment No. 19 simply states that even if an interim chair is appointed, he or she should not serve more than one year on a temporary basis. The term should not be extended for a second year because a year should be enough time for the Government to be able to appoint a permanent chair. If ensuring that there is a chair for An Bord Pleanála is enough of a priority for the Government, then extending the term by a whole year should not be necessary. A 12-month period is more than enough to ensure that a role can be filled. If a role is not filled within 12 months, this indicates that filling the role is not being afforded sufficient priority by the Government. I do not think we need to have a rolling temporary chair. I am not opposing the appointment of an interim or temporary chair; I am only opposed to the extension of the term for which he or she will serve. There is a role for an interim chair, but it should not become the norm.
The Senator used the term "opportunistic". There is certainly nothing opportunistic about this Bill. It is important to stress that this is about ensuring that there is robustness and transparency in our planning system.
I will not be accepting the amendment. While it is not envisaged that this provision will be utilised, it is appropriate to provide for the reappointment of an interim chair for a second term in order to ensure that, should there be a delay in appointing a permanent chair for any reason, the existing interim chair can remain in place in the intervening period to ensure the efficient operation of the board.
Is the Senator pressing the amendment?
I will not press it. There may be an argument for one extension and it may then just be a case of ensuring that this is limited. Perhaps that matter can be addressed in the Dáil.
Amendment, by leave, withdrawn.
Question, "That section 5 stand part of the Bill", put and declared carried.
SECTION 6
I move amendment No. 20:
In page 7, between lines 21 and 22, to insert the following:
“(a) by the insertion of the following subsection after subsection (1):
“(1A) To ensure the currency and validity of the bodies included for the purposes of subsection (1), the Minister shall—
(a) in the month of January of each year, write to each of the bodies prescribed in accordance with subsection (1) requesting they confirm their continued existence and active operation, within one month of receipt of the Minister’s letter,(b) Where no response is received from a body or organisation to a request under paragraph (a) confirming their continued existence and active operation, the Minister shall as soon as may be, prescribe another body as a replacement for that body or organisation, so as to ensure and maintain the currency and validity of the panel system under subsection (1), and(c) The Minister shall inform any body or organisation impacted by proposal to remove them under paragraph (b) and they may request to be considered also when the Minister is considering updating the prescribed bodies to avoid any unjust or unfair replacements.”,”
There is merit in the panel system. An Bord Pleanála is in crisis. It has been rocked by a series of scandals, resignations and early retirements. There is no doubt that the panel system for appointing ordinary board members needs reform. However, our preference is for a hybrid system incorporating panels, including new panels for the environmental and community sectors. We deal with some of that in the amendment.
This amendment is not grouped with any others, but I believe that one of the later amendments proposes something similar.
Amendment No. 20 relates to the panel system. The reason the panel system exists is because it was recognised, as a point of principle, that the planning system is meant to be independent and separate from the Department. The function of the Department is in respect of putting forward legislation, regulations and so forth. The making of planning decisions and the discussion and examination of planning policy was set by An Bord Pleanála. It does not write the rules. It does not set the laws or regulations; it simply adjudicates on them. This separation is there for a reason. The panel system was designed in such a way as to ensure that the planning system would reflect civil society, that An Bord Pleanála would reflect specific areas of expertise and that the planning system would be owned by the public and would be reflect their democratic voice. That is why we have local development plans that communities write together. This is done through our local authority system but the public has the right to engage in the process. That is why we have various ways to allow people to engage and make objections or give their views or observations. Part of that was about ensuring that there would be a jury of their peers to ensure that the expertise would come through. That is why there are nominating bodies whose members have expertise in various fields.
The problem is that the panel system was not properly monitored or administered. Specifically, we had a situation whereby the Irish Rural Dwellers Association formally ceased to be incorporated and now no longer exists. A later amendment in my name deals with the situation where an organisation is no longer incorporated or constituted. Such an entity should automatically be ineligible to nominate anybody under the panel system. That would address the specific issues that have arisen. We are aware the Irish Rural Dwellers Association did not have a legitimate standing at the time when it nominated two members. There are questions regarding why two members were nominated by that body, which was one of the many organisations involved in that panel. It seems strange that two candidates from that one organisations would be selected when there were multiple potential nominating bodies within that subsection of the panel system. That has been problematic. As we know, there have been serious concerns not just in respect of the process of nomination but also with regard to at least one of the nominees.
If we are fixing an issue, that is the one we should be fixing. It is striking that parties right across the Opposition are attempting to address that issue. If we fixed the issue to which I refer, it would show that the Bill is being used to respond to people's concerns. I used the word “opportunistic”. I do regard the Bill as opportunistic. We have been told that the plans to get rid of the panel system predated things
There are lots of provisions the Government have wanted but what is not in the Bill, especially as this is meant to be urgent legislation, is a response to the crisis in public confidence in An Bord Pleanála. There is no sign that this has been considered. We will come to this matter later. There is nothing to strengthen the conflict-of-interest measures. There is nothing that addresses the problem with the panel system around inappropriate nominations. There is simply a new system dreamt up in the Department, which was only shared with us last week, that is being rammed through before Christmas. I do mean it in this regard. Not only is it opportunistic but it is unfortunate and poor. As well not addressing the issue of public confidence and showing that where we see bad practice, we address it, which our amendment does, the Government is simply pushing forward the thing we wanted to do anyway and is not addressing, in any way, the specific areas of bad practice that have been identified.
I disagree fundamentally with the Senator's use of the term "opportunistic". That is certainly not the case and I reiterate that this is about building greater transparency and robustness in our planning system. We are responding to the concerns and this is about restoring confidence and about transparency and accountability. I refer to section 6 on skills, competency and suitability. I agree wholeheartedly with the Senator in terms of public ownership and participation in decision-making and I hold that sacrosanct. We want to ensure the public still has the right to be democratically involved in the planning system and the making of development plans and by having a say in projects, which is critically important.
On amendment No. 20, I am absolutely aware of the issue raised by the Irish Rural Dwellers Association and the problems that caused in relation to the panel system, however, I do not accept the amendment. The Government has decided to end the outdated closed system of nominating bodies deciding who to put forward for board appointments and is instead putting in place an open competitive process by which any member of the public can apply to become a member of the board of An Bord Pleanála.
Amendment put and declared lost.
Amendments Nos. 21 and 22 are related and may be discussed by agreement. Is that agreed? Agreed.
I move amendment No. 21:
In page 7, between lines 21 and 22, to insert the following:
“(a) in subsection (1)(d), by the substitution of the following subparagraph for subparagraph (i):
“(i) organisations that, in the Minister’s opinion, are representative of persons concerned with representing social and ethnic diversity of Irish society and equality considerations,”,”.
Amendment No. 21 broadens the membership to organisations that are representative of persons concerned with representing social and ethnic diversity in Irish society and equality considerations. Amendment No. 22 ensures a broader range of skills among interim or permanent members of An Bord Pleanála are identified, including that persons are concerned with the protection and preservation of the built and natural environment and of amenities, with landscape and archaeology and with water and marine resources. I look forward to the Minister of State's response on these key issues.
Amendments Nos. 21 and 22 are not accepted as the Government has decided to end the outdated closed system of nominating bodies deciding who to put forward for board appointments and is instead putting in place an open competitive process by which any member of the public can apply to become a member of the board of An Bord Pleanála. Section 6 refers to knowledge of community and social affairs and planning and it outlines the skills and satisfactory experience, which would include experience of ethnic diversity and social inclusion issues the Senator spoke about.
Amendment put and declared lost.
I move amendment No. 22:
In page 7, between lines 21 and 22, to insert the following:
“(a) in subsection (1), by the insertion of the following paragraph after paragraph (d):
“(dd) 5 members shall be appointed from among persons nominated for such appointment by such—
(i) organisations that, in the Minister’s opinion, are representative of persons concerned with the protection and preservation of the built and natural environment and of amenities,
(ii) organisations that, in the Minister’s opinion, are representative of persons concerned with and having expertise in climate science,
(iii) organisations that, in the Minister’s opinion, are representative of persons concerned with and having expertise in the protection of water and marine resources, and
(iv) organisations that in the Minister’s opinion, are representative of persons concerned with landscape and archaeology, the Minister shall prescribe at least 3 organisations for the purposes of this paragraph.”,”.
Amendment put and declared lost.
I move amendment No. 23:
In page 7, to delete lines 22 to 32.
Amendment put and declared lost.
I move amendment No. 24:
In page 7, to delete lines 22 to 32 and substitute the following:
“(a) by the substitution of the following subsection for subsection (1):
“(1) The Minister in appointing ordinary members of the Board at all times under this Part, shall ensure, in so far as is practicable, that—
(a) the ordinary members of the Board are persons who, have satisfactory and demonstrable expertise or knowledge and experience of—
(i) planning,
(ii) environmentally sustainable development,
(iii) architecture,
(iv) archaeology,
(v) built heritage,
(vi) cultural heritage,
(vii) marine ecology,
(viii) terrestrial ecology,
(ix) climate science,
(x) water,
(xi) air quality,
(xii) engineering,
(xiii) landscape,
(xiv) hydrology,
(xv) hydrogeology,
(xvi) the Irish language,
(xvii) understanding of environmental law, and
(xviii) experience of organisational governance,
(b) there is an equitable balance across genders,
(c) that no more than sixty per cent of the Board shall be of the male gender, and
(d) diverse perspectives capable of representing the ethnic and societal diversity within Irish society are included within the Board.”,”.
Amendment put and declared lost.
I move amendment No. 25:
In page 7, line 23, to delete “, in so far as is practicable,”.
Amendment put and declared lost.
Amendment No. 26 has been ruled out of order as it imposes a potential charge on the Exchequer.
Amendment No. 26 not moved.
Amendment No. 27 has been ruled out of order as it imposes a potential charge on the Exchequer.
Amendment No. 27 not moved.
I move amendment No. 28:
In page 7, between lines 32 and 33, to insert the following:
“(b) by the insertion of the following subsection after subsection (1)—
“(1A) The Minister shall ensure that at least one ordinary member appointed under this section is a person who, in the opinion of the Minister, has satisfactory experience, competence or qualifications as respects issues relating to the environment and sustainability.”.”.
Amendment put and declared lost.
Amendments Nos. 29 to 39, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed. Amendments Nos. 30 and 31 are physical alternatives to amendment No. 29. Amendments Nos. 31 to 39, inclusive, are physical alternatives to amendment No. 30. Amendment No. 34 is a physical alternative to amendment No. 33. Amendments Nos. 36 and 37 are physical alternatives to amendment No. 35. Amendment No. 39 is a physical alternative to amendment No. 38. Amendments Nos. 29 to 39, inclusive, are related.
I move amendment No. 29:
In page 7, to delete lines 33 to 41, and in page 8, to delete lines 1 to 3.
Amendment No. 29 deletes the proposed provision of an entirely discretionary process whereby the Minister can set up any system to identify prospective nominees from which he then chooses an associated provision on the making of regulations. This is one of the parts of the Bill to which we are most fundamentally opposed. It is a recipe for undermining the independence of the board. We do not want the Minister to have the proposed amount of discretion. He should stipulate what it is he wants in legislation and we could then justify it. I will read the relevant section of the Bill into the record because I want to highlight how vague it is. The provision states, "The Minister shall establish a suitable, independent, objective, and transparent procedure (which may include the establishment of a committee), in accordance with which recommendations may be made to the Minister in relation to the appointment of ordinary members of the Board." This is vague in our view. We ask the Minister to say what he wants and what he wants to do, and let us scrutinise that, but we are fundamentally opposed to the drafting of that section because of its vagueness. The Minister should stipulate what he wants and present that to the Oireachtas.
I support amendment No. 29. I too have several amendments in this grouping. I do want to be pointlessly combative and insist on corrections of the record but we need to stop saying things that are not in the Bill. For example, the Minister just said it is going to be an open application process where everyone can apply. That is not in the legislation. Let us not call it an open system to which everybody can apply if it is not stated in the Bill. We have no idea what the system is going to be, frankly.
We do not know that everybody will be able to apply or how it is going to be structured because the procedure is not set out. Simply saying that we are moving away from the panel system and using the word "outdated" to describe it when there has been no proper analysis or justification of exactly why it is outdated is not good enough. That should be done at length, with proper scrutiny by a committee and the Houses, if one is making a fundamental change to how a board is appointed. That system has been truncated. Statements are going on the record suggesting that a new process is coming into place under which everyone will get to apply and it will be an open competition, but that is not what is in front of us. We know that the Minister "shall establish a suitable independent, objective, and transparent procedure". Adjectives are good and have a role in legislation, but adjectives alone do not make legislation or a procedure. This procedure "may include the establishment of a committee". Maybe it will made up of three people the Minister picks or the Minister will pick the people and recommend them to himself. Who knows? There may or not be a panel and there may or may not be a committee. It is extraordinarily vague.
The Department is rushing this legislation. It is one thing to rush legislation and another when it is not even fully written or when the Minister of State does not even know enough to commit and say what the procedure will be. Frankly, we should not be asked to rubber-stamp and rush through a Bill that says, effectively, I will think about it. Normally when we provide for powers to make regulations and so forth, it is subject to many caveats. We know exactly what powers we are being asked to transfer from the Oireachtas to the Minister. We do not know what the Minister is asking for in this case. He is asking that the Minister should be able to make up a procedure. That is extraordinary. With respect, recognising the issue on the interim chair and so forth, if legislation had been brought forward on that, it is an example of how this Bill is not ready or complete. We simply cannot simply sign off on legislation allowing the Minister to make things up in the future.
The procedure may or may not include the establishment of a committee and applications will "be invited from suitably qualified persons". That is not an open competition where all can apply. It may be an open competition or it may be an extremely narrow pool. A panel of candidates will "be prepared" but we do not know who will prepare this panel of candidates. It may be a committee or it may be some force in the universe that will prepare this panel of candidates, after which the Minister will be informed and a recommendation made. Again, however, the Bill does not specify who is inviting the applications, putting in place the panel of candidates, informing the Minister or recommending to the Minister because there is not even a commitment to establish a committee. I support the other amendments to this section. I will oppose the section because it is appallingly under-prepared. To replace a system, the removal of which has not been justified, with something that has not even been fully defined is poor law and legislative practice. Nonetheless, I have tried to constructively engage and make suggestions that could at least improve the process and make it somewhat better legislation in that regard.
Amendment No. 31 seeks to provide that, in the new subsection 2 of section 106, committees shall be established by the Minister. It is a small thing, but at least then there would be a committee that shall be established and perhaps that committee may perform the functions set out, which are currently unattributed in the Bill. It is a simple amendment to replace "may" with "shall". My amendment also seeks to ensure that it shall be an independent committee. That is reasonable, given the functions and the fact that we do not know the procedure. At least there would be a guarantee that the procedure will be overseen by an independent committee. That is a basic copper-fastening of the independence; otherwise, it could be five people or it could be the Secretary General of the Department who prepares this. Who knows? There should be a committee that is independent. At least, if there is ambiguity in the procedure, we will know the procedure will be administered in an independent way.
Amendment No. 32 is an attempt to safeguard against the dangerous overreach in this section. The amendment seeks to insert a new subsection 3A into section 106, which would provide that the regulations referred to in subsection (3) regarding the establishment of the committee would require Oireachtas approval before having legal effect. Given that we are not being presented with the procedure in this Bill, it is reasonable that the procedure and regulations would come back to the Oireachtas for approval so at least, even if we have not been told what we are being asked to sign off on now, there will be another opportunity for Oireachtas approval. That is something no Government should shy away from, especially if it is interested in transparency. The Government has the numbers, but it would ensure that the procedure was discussed within the Oireachtas and we were able to respond to what the procedure might be in the regulations.
Amendment No. 34 seeks to amend the amendment to section 106(4) proposed in the Bill by removing the provision that applications would be invited from suitably qualified persons for appointment as an ordinary member and replace it with a provision that applications would be sought through open public invitation for appointment of ordinary members of the board. There previously was system where nominations came from the panel system. We knew where nominations came from. Now, we do not know who will be suitably qualified persons. The Minister of State has just told us that it is going to be an open public competition that everyone can apply for. My amendment would state that it is an open public competition which everyone can apply for. Given that my amendment delivers what the Minister of State has already claimed will be the procedure, why not insert it?
Amendment No. 30 is a fundamental amendment. If there is not going to be a known system for nominating particular expert candidates, there should be an open competition, as suggested. The Minister of State stated he would prefer to move to an open competition.
Amendment No. 35 seeks to delete the provision in section 6 which provides for the deletion of subsections 106(6) to (8), inclusive. Subsection (6) provides for scenarios where nomination is not made under the existing subsection (4). Subsection (7) provides for the committee which oversees the recruitment process for ordinary members of the board. Subsection (8) provides for circumstances in which a request is made under subsection (4) and the organisation to which the request is made fails or refuses to nominate the number of candidates specified in the request. Amendment No. 35 is lengthy but basically seeks to ensure consistency with the earlier amendments to restore the panel system and protect the safeguards attached to the panel system.
Amendment No. 36 is not being moved.
Amendment No. 37 operates to disqualify acting or recently retired civil servants from being considered as ordinary members of the board to preserve independence and the appearance and perception thereof.
Amendment No. 38 seeks to delete the new proposed subsection (9), which would provide that the Minister may make regulations as regards any matter which the Minister considers expedient for the purpose of this section. The Minister is going to make up a process and we do not know what it will be. We know some of the adjectives the Minister hopes to apply to the process but we have no idea what the procedure will be. This subsection goes further again because it also states that the Minister can make regulations on any matter. It is not just a paragraph on planning and the board but addresses the relationship between the Legislature and the Executive - the Government and Parliament. We give powers to make regulations. When we are asked, as the Oireachtas, to transfer regulation, that is going from our primary law-making role and transferring it into the secondary function of regulations, we need to know what we are being asked to transfer. We have often agreed to do this.
I have no problem with the principle of transferring the power to make regulations but usually we are talking about regulations in relation to specific issues and matters and we have an understanding of what those regulations will be and what they will be trying to address. In this case we are talking about regulations as regards any matter the Minister considers expedient for the purposes of the section. It is exceptionally broad and inappropriate and is not good legislative practice. Such carte blanche provisions should not be included in a Bill which already gives quite drastic discretionary powers to the current and any future Minister over the processes, procedures, workings and regulations of a body which is required, intrinsically, to be independent.
Amendment No. 39 seeks the deletion of the word "expedient" and its substitution with the word "necessary" in the proposed replacement for subsection (9) of section 106 of the Act of 2000. Expedient is not appropriate language. The Oireachtas should not be giving powers to the Executive to expedite important processes which require care and scope for due process. "Necessary" is a better word as it allows the Minister to address the necessities in terms of issues of time but it also ensures the Minister is regulating the process as needed and not simply at speed. It provides an assurance that a quality approach is being taken. If the Minister of State cannot accept amendment No. 38, I urge him to consider amendment No. 39 which is a compromise that states the very wide powers to make regulations will at least only be used where necessary and not simply where it is convenient or suits the Minister. Of course, it is always convenient and expedient to bypass Oireachtas scrutiny. The more people one cuts out of the process, the faster one can go but expedient should not be the motivation here. Necessity should be the bar that is applied to the Minister making exceptional regulations under this section.
Before I specifically speak to the amendments, I would point out that there is already a committee system in place for the recruitment of a chairperson of An Bord Pleanála through an open and competitive process. The Bill provides that the Minister "shall establish a suitable, independent, objective and transparent procedure (which may include the establishment of a committee)", which is more than adequate in this regard.
I cannot accept amendment No. 29 as section 6 provides for a new open, competitive process by which any member of the public can apply to become a member of An Bord Pleanála-----
On a point of order, the phrase "open, competitive process by which any member of the public can apply" is not in the legislation. I was very clear. I did not challenge the Minister of State on this earlier but-----
Senator Higgins, please-----
I must ask that the record be corrected----
Please respect the Chair-----
Inaccuracies are being stated repeatedly.
Senator, please respect the Chair. That is not a point of order. The Senator can come back in when the Minister of State is finished speaking and he can respond to her.
This is a correction of the record.
It is not a point of order.
I put it very politely previously. It is not accurate.
This is a debate-----
It needs to stop being said and being put on the record because it does not stand up to scrutiny.
I ask the Senator to come back in when the Minister of State is finished speaking.
Again, my response to amendment No. 30 is the same as for amendment No. 29. Amendment No. 31 is not accepted because the text in the Bill is appropriate, providing that the Minister shall establish a "suitable, independent, objective and transparent procedure (which may include the establishment of a committee) in accordance with which recommendations may be made to the Minister in relation to the appointment of ordinary members of the Board.". Amendment No. 32 is not being accepted as a ministerial order will be made in the normal manner and a requirement for a resolution of both Houses of the Oireachtas to approve a draft order is not necessary. Amendment No. 33 is not being accepted as the Government has decided to end the outdated system of nominating bodies deciding who to put forward for board appointments and is instead putting in place an open, competitive process by which any member of the public can apply to become a member of the board of An Bord Pleanála.
Again, I object.
I will finish responding to the amendments, if I may.
My response to amendment No. 34 is the same as that for amendment No. 29. I am not accepting amendment No. 35 because subsections (6) to (8) are no longer relevant following the replacement of the nominating panel process under section 106(4). Amendment No. 36 has been withdrawn. Amendments No. 37 is not accepted as it is appropriate for the Minister to make regulations under section 6 (g) and the same point applies to amendment No. 38. Finally, I am not accepting amendment No. 39 as it is considered that the text as currently drafted is appropriate.
I support the amendments and oppose the section. These amendments and this section go to the very heart of the argument that this Bill is a fallacy. I want to correct the record in the first instance. The Bill requires the establishment of a suitable, independent, objective and transparent procedure which "may" include the establishment of a committee. It does not guarantee the establishment of same. We have heard Members of this House saying that they object to the use of the phrase "power grab" in the context of this Bill and that we are in the middle of a housing emergency but there is nothing in this Bill that relates to housing. A Government amendment is meant to be coming but it has not even been drafted at this stage, which shows the fallacy of the Government's position on this.
To be clear, this Bill is being rushed through this House. A very flawed procedure is being set up, supposedly in response to the issues that have arisen recently in An Bord Pleanála, but actually in response to the vacancies therein. The Bill does not in any way address the problem around political appointees and what happened at An Bord Pleanála that has led to the public's lack of trust in the body.
I want to bring people back to 21 December 2016 when we were told that we were in a housing emergency and needed to fast-track housing development. These two Houses, against the cautioning of the Opposition, set up the strategic housing development, SHD, process, a move that was led by Fine Gael and supported by Fianna Fáil. That process did not speed up the delivery of housing but led to a massive increase in judicial reviews because the legislation underpinning it was fundamentally flawed. Even if an amendment comes before us next week that has been approved by the Dáil, it potentially will not meet the legal requirements. The Minister of State can say that it is going to speed up the delivery of housing as much as he likes but it will not do so if it does not meet the legal requirements for what constitutes an emergency. The housing emergency cannot be used as a cloak to hide bad procedure and bad law. Objecting to this legislation does not mean that we are opposing action on the housing crisis; it means that we are trying to get this right.
Fundamentally, the Bill in front of us is concerned with the procedures related to An Bord Pleanála and every single part of it represents a ministerial power grab. The Minister of State can argue that it is not but it is clear, in black and white, that it is and it does not establish an independent procedure. The Bill states that the appointment procedure "may" include the establishment of a committee and that is the fundamental point Senator Higgins is making. We will see in a year or two whether this legislation increases public confidence in An Bord Pleanála but I do not think it will do so. This legislation aims to make An Bord Pleanála more answerable to the Department even though it is supposed to be an independent planning body. That is why we are trying to introduce a sunset clause into this Bill. Whatever about the next couple of months, we need to take a close look at how our entire planning system operates and spend time thinking about ways to improve it. That might mean we no longer have An Bord Pleanála but an entirely new procedure or committee. The Government should be considering that rather than ticking a box that states "job done" and appointing a whole load of departmental people to the board of An Bord Pleanála.
I must rise again and be really clear on these amendments. The Minister of State did not really address my concerns or my direct questions regarding who will be performing the various functions that are listed. Who will perform the functions?
Who will invite the applications? Who will put the short list in place? Who will inform the Minister? Who will make recommendations to the Minister? Is there is a clear answer on that? All the information we have is that it may be in the form of a committee. We have no idea who will be carrying out those functions. It is reasonable to ask the Minister of State to inform us who will perform these functions, which are outlined as likely to be part of the procedure under section 6.
I will make an additional point on the wording of “may”, rather than “shall” include a committee. If the Minister of State is so keen to retain the ambiguity by saying that it will not definitely be a committee and that it might be something else, it would be appropriate that he would elaborate on what else it might be, besides a committee. If he does not want to lock it down and say it will be a committee, what else might it be? Maybe we could hear two or three of the options that are being considered. That would explain why there is not the ability to commit and to say that it will be a committee.
Last, and I tried to make this point nicely in my first contribution but I did have to object about this. I will have to continue to object if Members are putting inaccuracies on the record of this House. I would not be allowed to stand up to speak about an amendment I have tabled and say that it will give free ice-cream to everybody if my amendment does not give free ice-cream to everybody, which it probably could not because that would incur a cost on the State. Similarly, the Minister of State does not get to state there will be an open, competitive process to which any member of the public can apply if that is not in the legislation. It is not in the legislation. I do not know how many times it appears in the Minister of State’s scripts but it is not there in the legislation. Can we therefore stop stating these things and misleading the public by suggesting that something is being suggested when in fact-----
Senator-----
-----it is not in the text of the Bill that is before us?
To be clear, the Senator must be careful in her use of language in relation to misleading information. People making statements in the House-----
I thank the Cathaoirleach for that. I will also note that it would be appropriate if the Minister of State would be clear in terms of his language because although that it is not currently in the Bill, we have heard it said on the record five times today. In fact, I did not raise the issue on the first few occasions. However, now, having raised it, I do not believe that it should be allowed to continue unchecked.
I will note that have tabled amendment No. 34, which specifies an open, competitive process to which any member of the public can apply. Unless the Minister of State accepts my amendment or unless he tables his own amendment in that respect, the Bill does not currently allow for an open, public, competitive process.
There are options here in respect of the committee. The committee would be similar to committee systems that already exist for the recruitment of the chair of An Bord Pleanála. There is a Public Appointments Service, PAS, competition or a hybrid of both that involves a PAS process or a committee. We are satisfied that in respect of the Minister establishing a suitable, independent, objective and transparent procedure, the legislation is correct and that this is the correct approach. I reject entirely the claims that have been made by the Senator about the open process, about the appointment of ordinary members of the board and around the issue of experience, as we have discussed already.
Senator Moynihan raised issues around housing policy and the delivery of housing. An Bord Pleanála is one important component of our planning system. There are already checks and balances in place for the delivery of sustainable housing that is connected to public transport services in local authorities through development plan processes and applications, as well as on the role of elected members at a local level. Again, this is not a ministerial power grab. We see a significant level of robustness to address the issues that we are trying to address here.
Amendment put and declared lost.
I move amendment No. 30:
"In page 7, to delete lines 33 to 41, and in page 8, to delete lines 1 to 27."
Amendment put and declared lost.
I move amendment No. 31:
"In page 7, lines 35 and 36, to delete “(which may include the establishment of a committee)” and substitute “(which shall include the establishment of an independent committee to oversee such procedure)”."
Amendment put and declared lost.
I move amendment No. 32:
"In page 8, between lines 3 and 4, to insert the following: “(d) by the insertion of the following subsection after subsection (3):
“(3A) Regulations made under subsection (3) shall require the approval by motion of both Houses of the Oireachtas.”."
Amendment put and declared lost.
I move amendment No. 33:
"In page 8, to delete lines 5 to 17 and substitute the following:
“(4) The procedure to be undertaken by the bodies or organisations provided for under subsection (1), shall require that further to a request from the Minister to make a nomination—
(a) they publicly invite applications from suitably qualified persons for consideration as a nomination as an ordinary Board member from such bodies or organisations as they may apply to,
(b) they execute a robust and transparent process to assess the suitability of such candidates seeking their nomination,
(c) they provide when nominating a candidate or candidates as the case may be, the reasons why such candidates are suitable for the appointment, and a recommendation on which candidate should be appointed as an ordinary member, and
(d) confirmation that the requirements of paragraphs (a) and (b) have been complied with.”,”"
Amendment put and declared lost.
I move amendment No. 34:
"In page 8, to delete lines 6 and 7 and substitute the following:
“(a) applications be sought, through open public invitation, for appointment as an ordinary member of the Board,”."
Amendment put:
The Committee divided: Tá, 9; Níl, 24.
Tá
- Boylan, Lynn.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Keogan, Sharon.
- Moynihan, Rebecca.
- Ó Donnghaile, Niall.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Blaney, Niall.
- Buttimer, Jerry.
- Byrne, Maria.
- Carrigy, Micheál.
- Cassells, Shane.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Doherty, Regina.
- Dolan, Aisling.
- Fitzpatrick, Mary.
- Kyne, Seán.
- Lombard, Tim.
- Martin, Vincent P.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- Seery Kearney, Mary.
Tellers: Tá, Senators Alice-Mary Higgins and Rebecca Moynihan; Níl, Senators Seán Kyne and Lisa Chambers.
Amendment declared lost.
I move amendment No. 35:
In page 8, to delete line 24
Amendment put and declared lost.
I move amendment No. 36:
In page 8, line 24, to delete “subsections (6) to (8)” and substitute “subsection (6)”.
Amendment put and declared lost.
I move amendment No. 37:
In page 8, line 24, to delete “and”
Amendment put and declared lost.
I move amendment No. 38:
In page 8, to delete lines 25 to 27.
Amendment put and declared lost.
I move amendment No. 39:
In page 8, line 27, to delete “expedient” and substitute “necessary”.
Amendment put and declared lost.
I move amendment No. 40:
In page 8, between lines 27 and 28, to insert the following:
“and
(h) in subsection (10), by the insertion of the following paragraph after paragraph(a):
“(aa) is, or who was in the previous 12 months been, established civil servants for the purposes of the Civil Service Regulation Acts 1956 to 2005 or established public servants in State agencies,”.”.
Amendment put and declared lost.
Question put: "That section 6 stand part of the Bill."
The Seanad divided: Tá, 24; Níl, 8.
Tá
- Blaney, Niall.
- Buttimer, Jerry.
- Byrne, Maria.
- Carrigy, Micheál.
- Cassells, Shane.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Doherty, Regina.
- Dolan, Aisling.
- Fitzpatrick, Mary.
- Kyne, Seán.
- Lombard, Tim.
- Martin, Vincent P.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- Seery Kearney, Mary.
Níl
- Boylan, Lynn.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Keogan, Sharon.
- Ó Donnghaile, Niall.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Tellers: Tá, Senators Seán Kyne and Lisa Chambers; Níl, Senators Fintan Warfield and Alice-Mary Higgins.
Question declared carried.
I warmly welcome the pupils from Ballinteer Educate Together National School. They are guests of the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Deputy Catherine Martin. It is very nice to have them here. I hope they have a lovely day. I also welcome their teachers, who made the extra effort to organise this visit.
Sections 7 and 8 agreed to.
SECTION 9
Amendments Nos. 41, 42, 47 and 48 are related and will be discussed together. Amendment No. 42 is a physical alternative to amendment to No. 41.
I move amendment No. 41:
In page 9, to delete line 5.
This amendment seeks to delete subsection 9(b), which proposes to delete subsections (1A) to (1D), inclusive, of section 108 of the 2000 Act. I give notice that I may withdraw this amendment in favour of my amendments Nos. 47 and 48, which are more tightly framed and address the same fundamental concern around local government autonomy. One welcome aspect of the Bill is its proposal to repeal of some of the very poor quorum provisions in section 108 of the 2000 Act that led to poor decision-making due to the lax requirements for scrutiny. I refer to the provision allowing for a quorum of two, which has been associated with poor decision-making and a number of decisions that have been challenged.
I also intend to withdraw my amendment No. 42 in favour of amendments Nos. 47 and 48. The latter try to address the issue that while it is good to withdraw the possibility of a quorum of two in favour of a quorum of three, the Government proposal also removes an important safeguard that was previously in the legislation providing for a higher quorum where a decision that is before the board materially contravenes a relevant development plan. A higher standard was applied in such cases because local development plans are a fundamentally important part of our democracy. Amendment No. 48 deals solely with that issue. It seeks to maintain the spirit of the original legislation, which required that in circumstances in which a proposal or development materially contravenes a relevant development plan, there must be a quorum of five. As I said, I welcome the general improvement whereby the quorum will increase from two to three. I am further proposing that the provisions in section 108(1C) of the 2000 Act be retained, which recognised the need for an especially high level of scrutiny and protection where there is a contravention of a development plan. Amendment No. 48 proposes to transfer that principle from the previous legislation into this Bill.
Amendment No. 47 is broader in that it proposes that the higher quorum of five, which should be achievable given we are now talking about a board of 14 members rather than nine, will apply when the decision before the board concerns not just a proposal that would contravene a local development plan but also in respect of large-scale residential developments, strategic infrastructure developments and developments or classes of developments referred to in regulations made under section 176 of the 2000 Act. These are decisions that potentially have greater consequences.
We know that some of these kinds of decisions are likely to lead to the need for a judicial review if they are not made correctly. Therefore, I am trying to ensure we have a greater and higher level of scrutiny with regard to these deeply consequential and substantial decisions. That should be possible within the heightened number of the board.
I hope the Minister of State might consider amendments Nos. 47 and 48. I may put forward amendment No. 42. It is a little bit trickier but, effectively, it is trying to ensure subsection (1C) of the original Act that recognises official protection would not be thrown out with subsections (1A), (1B) and (1D), which should be appropriately removed. Amendment No. 42 is simply trying to preserve subsection (1C) whereas amendment No. 48 is trying to translate the spirit of subsection (1C) into the new provisions of the Act. Amendment No. 47 slightly extends that to ensure we address some of the major significant pieces.
I will say one last thing on this area, which is one of the last large groupings I have. It is quite improper, really, that we are not going to get to discuss on Committee and Report Stages the planned amendments in respect of local development plans, zoning and any of those areas that are of huge interest to everybody. I also believe this is of huge interest to many Members of this House, many of whom were elected by local authority members. It is very regrettable that such large and substantial, I would not even say amendments but rather additions, to this Bill are going to be added in the Dáil at the last minute and come back to this House, not for proper Committee Stage and Report Stage scrutiny but solely for Committee Stage scrutiny at the very end of the process. The decision and choice to bypass half of the legislative scrutiny process in terms of this House when bringing these new proposals forward, which will be very significant for local development plans and for local authorities, is very regrettable. My amendment is addressing the only part of local authority policy that comes under the remit of other sections. It is trying to ensure we at least have a high bar on decision-making when we go against a local development plan that has been agreed and democratically decided upon by the population and which is their collective mandate for how they want to live together in their area.
I assume Senator Higgins is withdrawing amendment No. 42.
I will withdraw amendment No. 41. I may withdraw amendment No. 42 depending on the reply.
I will reply to all the amendments, if that is okay. I do not accept amendment No. 41. The Bill removes the provision that currently allows the board to determine, by resolution, that a quorum for a meeting of the board for particular case types should be two. Action 14 of action plan for An Bord Pleanála recommends that the board should operate with a minimum quorum of three and that the current statutory provision be removed. In its phase 1 report into certain systems and procedures used by An Bord Pleanála in the delivery of its statutory planning functions, the Office of the Planning Regulator, OPR, also recommended that the mechanism allowing board meetings with a quorum of two persons be permanently removed. The response is the same for amendment No. 42.
Amendment No. 47 is not accepted. The minimum quorum is three, but the board already has a higher quorum for certain categories of cases.
Amendment No. 48 is not accepted. Section 37(2)(b) provides for the circumstances where An Bord Pleanála can make a decision that materially contravenes a local development plan. The planning legislative review will reinforce the position that the board will only be able to materially contravene a development plan where the plan is in conflict with matters of strategic national or regional importance clearly set out in Government policy, regional spatial and economic strategy, the national planning framework, ministerial or Government guidelines, or where there are conflicting objectives in the development plan or the objectives are not clearly stated insofar as the proposed development is concerned.
It is anticipated that, in combination with the greater reflection of the plan-led system in the legislation emanating from the planning legislative review and the alignment of the current cycle of the plans with the national planning framework and regional spatial and economic strategy, operationally, this will bring a greater alignment of plans and decisions. This also aligns with recommendation 11 of the Office of the Planning Regulator phase 1 report, which recommends that the restatement of the decision-making context for An Bord Pleanála decisions should be founded on the basis, subject to exemptions along the lines just articulated, that the decisions should be generally consistent with the relevant development plan or local area plans.
To clarify, I am withdrawing amendment No. 41. I will press amendment No. 42, however, which does, in fact, agree with the removal of the possibility of a quorum of two. Amendment No. 42 removes subsections (1A), (1B), and (1D) but does not remove section (1C), which requires a higher quorum in respect of changes or proposals that materially contravene it. To be very clear, I am pressing amendment No. 42 and withdrawing amendments Nos. 41 and 43. Amendment No. 42 is important, however, in that it ensures there is a recognition of that higher level of responsibility.
I am genuinely asking the Minister of State this question regarding amendments Nos. 47 and 48 because I would like to know and it would assist me. With regard to amendment No. 47, the Minister of State mentioned there is already a specification that a higher quorum may be required in terms of certain categories or classes of decision. That is what I am proposing in this amendment. I am setting out a number of categories or classes of decision I believe should require a higher quorum. The Minister of State indicated he believes there is already provision. I genuinely want to understand that. I would like him to specify where that provision is. I say that genuinely as it would be useful to know where that is. Will he clarify where that provision is and what exactly the text of that provision is that would allow for a higher quorum with regard to certain categories?
I will have to press amendment No. 48 because, of course, the decisions should take into account the local development plans. The point is that it is in the checks and balances, however. It is a very serious thing when a development is in material contravention of a relevant development plan. It should have a higher level of scrutiny. It is reasonable and appropriate, especially given how much power has been transferred away from local authorities to the Department over recent years. We have had multiple amendments around the power of local authorities to attach conditions to certain things and with regard to different kinds of category of decision. I am not saying a development may sometimes need to come into play that does contravene a plan. It is not saying that cannot be the case. It is not a ban on developments that contravene a relevant development plan. It is saying we need to have a lot of scrutiny on that and we need to be confident on that decision. That is why there should be balance on a board. At least five people should be bringing a range of skills to look at and examine such a development from a number of perspectives.
Does Senator Higgins propose to press amendment No. 41?
I asked the Minister of State for a response in respect of an issue.
It is with regard to certain categories. It is in relation to strategic housing developments.
I raised a number of other categories as well. I thank the Minister of State for that response, however. I will look at that and the other legislation.
That is good. Is the Senator withdrawing the amendment?
I will withdraw amendment No. 41.
Amendment, by leave, withdrawn.
I move amendment No. 42:
In page 9, line 5, to delete “subsections (1A) to (1D)” and substitute “subsections (1A), (1B) and (1D)”.
Amendment put and declared lost.
Amendments Nos. 43 to 45, inclusive, are related. Amendment No. 45 is a physical alternative to No. 44. Amendments Nos. 43 to 45, inclusive, may be discussed together, by agreement.
I move amendment No. 43:
In page 9, to delete lines 6 to 17.
This seeks the deletion of the proposed new subsection (4) of section 108, which currently provides that where, owing to the illness of the chairperson or of an ordinary member, or for any other reason, a sufficient number of members of the board is not available to enable the board effectively to perform its functions, the Minister may, as an interim measure, appoint from persons who are or were or are established civil or public servants or employees of the board. This is the same issue, the one I have spoken about at length. I do not believe it would be appropriate to create a law allowing a board, which for the sake of the democratic process must be independent, to be staffed, even on an interim basis, by civil servants and employees of the board. This does not constitute a separation of powers. I will not elaborate further but believe there is genuine concern about this issue.
One reason we need to expand the number making decisions, which is what other parts of the section are doing, is that we need to ensure the appropriate skills and expertise are applied in the making of decisions. Amendment No. 43 fundamentally opposes the proposal that persons of specific expertise would be replaced by civil servants chosen by the Minister.
Amendment No. 44 amends the proposed subsection (4) by restricting persons who are or who have in the previous 12 months been established civil servants from appointment to the positions of temporary chair or temporary member of the board. The temporary chair position is of particular concern in this regard.
Amendment No. 45 seeks to delete the provision in respect of employees of the board.
I do not propose to accept amendment No. 43. The provision it seeks to amend is necessary to ensure temporary ordinary board members can be urgently appointed from former or current public and civil servants where, owing to the illness of the chairperson or of an ordinary member, or for any other reason, a sufficient number of members of the board is not available to enable the board to effectively perform its functions. It is appropriate that public and civil servants, who have previously been suitably vetted on appointment as public and civil servants, would be used to fill these public service positions.
I do not propose to accept amendment No. 44 as the associated provision in section 3 provides for the urgent appointment of temporary board members where board members are not available due to illness or otherwise. The proposed amendment does not comprehend the urgency of such temporary appointments. It is wholly appropriate that temporary appointees to such sensitive public service positions will have already been recruited to the public service through previous competitions and assessed as suitable appointees. The independence of An Bord Pleanála and planning authorities from the Minister in decision-making on planning cases is clearly set out under section 30 of the Planning and Development Act. The Sinn Féin proposal that public servants should not serve as temporary board members is at odds with the fact that planning decisions are made by public servants in local authorities.
I do not propose to accept amendment No. 45. The associated legislative provision is necessary to ensure that temporary ordinary board members can be urgently appointed from former or current public and civil servants where, owing to the illness of the chairperson or of an ordinary member, or for any other reason, a sufficient number of members of the board is not available to enable the board to effectively perform its functions. It is appropriate that public and civil servants, who have previously been suitably vetted on appointment as public and civil servants, would be used to fill these public service positions.
Amendment put and declared lost.
I move amendment No. 44:
In page 9, to delete lines 12 to 17 and substitute the following:
"appoint, for a term not in excess of one year, from persons nominated by an expedited and equitable procedure across the panel system provided for under section 106, one or more than one person who is in the opinion of the Minister, a suitably qualified person, to be an ordinary member, whilst preserving the balance of skills, expertise, experience and perspectives across the Board, and where such appointments shall not be drawn from persons who are or who have in the previous 12 months been, established civil servants for the purposes of the Civil Service Regulation Acts 1956 to 2005 or established public servants in State agencies.".".
Amendment, by leave, withdrawn.
Amendment No. 45 not moved.
I move amendment No. 46:
In page 9, between lines 17 and 18, to insert the following:
"(d) in subsection (4) by the insertion of the following paragraph after paragraph (a):
"(aa) Notwithstanding paragraph (a), an individual who is or within the preceding 1 year was employed by the Department of Housing, Local Government and Heritage shall not be eligible for appointment under paragraph (a).".".
Amendment put and declared lost.
I move amendment No. 47:
In page 9, between lines 17 and 18, to insert the following:
"(d) by the insertion of the following subsection after subsection (4):
"(4A) Notwithstanding any provision of this section, a quorum shall be 5 where the decision before the Board concerns any of the following:
(a) large-scale residential developments;
(b) development that would materially contravene the relevant development plan;
(c) strategic infrastructure development; or
(d) a development or class of development referred to in regulations made under section 176.".".
Amendment put and declared lost.
I move amendment No. 48:
In page 9, between lines 17 and 18, to insert the following:
"(d) by the insertion of the following subsection after subsection (4):
"(4A) Notwithstanding any provision of this section, a quorum shall be 5 where the decision before the Board concerns a development that would materially contravene the relevant development plan.".".
Amendment put:
The Committee divided: Tá, 9; Níl, 23.
Tá
- Craughwell, Gerard P.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Keogan, Sharon.
- Moynihan, Rebecca.
- Ó Donnghaile, Niall.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Blaney, Niall.
- Buttimer, Jerry.
- Byrne, Maria.
- Carrigy, Micheál.
- Cassells, Shane.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Doherty, Regina.
- Dolan, Aisling.
- Kyne, Seán.
- Lombard, Tim.
- Martin, Vincent P.
- McGahon, John.
- McGreehan, Erin.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- Seery Kearney, Mary.
- Wilson, Diarmuid.
Tellers: Tá, Senators Alice-Mary Higgins and Rebecca Moynihan; Níl, Senators Seán Kyne and Lisa Chambers..
Amendment declared lost.
Section 9 agreed to.
SECTION 10
Amendments Nos. 49 to 51, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 49:
In page 9, lines 26 and 27, to delete all words from and including “may” in line 26 down to and including line 27 and substitute “shall-”.
Amendment No. 49 proposes to delete the discretion on action where there has been a complaint or a breach of the code, or other failure as specified. We seek to replace “may” with “shall” on a number of occasions. Amendment No. 50 refers to page 9, line 39, where we propose to delete the discretion on ministerial action where there has been a complaint and-or a breach of the code, or other issue of failure as specified. Amendment No. 51 provides for oversight of the chair and for a balanced Oireachtas oversight approach. There should be no discretion here. There should be an obligation on the chair to act immediately and there should be an obligation on the Minister to act immediately.
I want to indicate my very strong support for these amendments. In a Bill that gives such an incredible amount of discretion to the Minister, it is regrettable that it also gives absolute discretion to the chair in regard to addressing issues of concern. Again, this comes in the context where we have to acknowledge there is a crisis of public confidence in An Bord Pleanála, a crisis for good reason because there have been very significant concerns and there are investigations under way. At an absolute minimum, the public should be confident that where there has been a failure to comply with codes of conduct, they have to act. I have my own amendments coming later in respect of those codes of conduct.
Again, in terms of which actions they may take, we cannot accept the idea not just of putting in discretion, but absolute discretion. The codes of conduct are created under legislation because they are part of what good practice is. They are not a discretionary or voluntary piece; they are a requirement. Similarly, proper investigation and action in respect of their breach should be a requirement. It is very poor to be sending such a signal to the public, given the significant issues in respect of potential, apparent or alleged breaches of the code of conduct that we have seen reported very widely. The public need to know that the chairperson will take such breaches very seriously and will act on them, or “shall” act on them, rather than “may” act on them. These are very sensible amendments from the Sinn Féin Senators.
These amendments are not accepted as it is considered that section 10 of the Bill makes sufficient provision for the chairperson to act on a complaint or otherwise and, in particular, gives the Minister sufficient powers to intervene, where appropriate, to require the chairperson to report to the Minister on the result of an interview or investigation. The existing provisions under the Act required the chairperson to first reach an opinion in relation to the conduct of a board member, which required an initial process to reach that opinion, before they could interview the board member or initiate an investigation. This effectively created a two-stage process which unnecessarily prolonged the process of initiating an investigation. This initial requirement for the chairperson to first reach an opinion is now being repealed. We think this is a much more streamlined, efficient and robust approach.
While it is a one-stage process and that is appreciated, it is a one-stage process that may or may not apply, and may or may not be acted upon. I do not think there is a contradiction between the Minister of State's intent in terms of it being a one-stage process and the intent of these amendments, which would ensure it is a one-stage process which shall be applied.
The language is interesting. We start with a “may”, as in “may have failed”, and then the “ordinary member may have been such as to bring the Board into disrepute”. Affording the chairperson the absolute discretion in one sense would not tie the hands of the chairperson. Because it is an absolute discretion, this person, who we would expect to be competent, can act and may decide in an awful situation to go directly to the Garda or may report it directly to the Minister, who is in a position to take action. I think the “may” is important because no one is guilty without due process.
Overall, I agree with the point made by Senator Higgins about An Bord Pleanála being at its lowest ebb and being in crisis at the moment. I hope that objective, fair-minded persons would see that this and the other statutory provisions improve the situation, which is far from perfect. The Legislature may come at it at a later stage but when this Bill is enacted, it will improve a dreadful situation, although it might not be to anyone’s utmost satisfaction. That board lacks the confidence of the people and it also lacks confidence in its efficiency.
On a general point, we need to move things along. There have been protracted delays and there may be grounds for 50 or 60 people, once they are suitably qualified, to sit on the board to deal with the disputes, just like the Residential Tenancies Board, which has different panels and there can be 40 to 60 on certain panels. Overall, I get the general thrust of this section, although I am not entirely happy with it. In this crisis situation, where we are trying to get building done, An Bord Pleanála will be in a stronger and better place after we enact this legislation. I say that on the general point. In its totality, it is better.
I was going to make this point before Senator Martin made it. The reality is that all of us in this House know we are in a dreadful situation with An Bord Pleanála at the moment, and it simply cannot be allowed to continue. I accept that amendments have been put forward by Senators Warfield, Higgins and others, but it has to be an improvement to implement what we are proposing here. Given where we are at the moment, it must be done. To be honest, and to explain this to Senator Warfield if he is not happy with me, I am meeting very ordinary people with ordinary planning applications that have either been turned down by the local authority or appealed to An Bord Pleanála. The hold-ups there are unacceptable. The country cannot move on with housing and other things if we do not sort out An Bord Pleanála. While I can understand some reservations, we have to do something now. It is necessary that we move, and move quickly.
Will we leave the last word with Senator Warfield and take Senator Higgins first?
I might speak first.
Senator Warfield is first in order so he may go ahead.
With respect to Senators Martin and Murphy, I do not think this Bill will improve the situation. I reiterate Sinn Féin’s complete opposition to what is being done here. In our view, if these measures are introduced, they will make matters worse. We are fundamentally opposed to the Bill. It is not-----
It cannot be any worse.
It will be. The legislation is completely unclear and has the potential to undermine the work of the board. We want to work with the Minister to improve and clean up the board and restore public confidence, and we have tabled amendments to that effect today. This is not an acceptable way to progress.
Having said that, if a vote is called today, we will abstain because we understand amendments will be tabled around social and affordable homes. As I said on Second Stage, we will support any Government measure that seeks to accelerate the delivery of social and affordable homes. We will judge those amendments when we see them. We are very dissatisfied and deeply unhappy with how today’s proceedings have gone. In our view and in response to the two Senators' who spoke before me, this Bill will make things worse in terms of An Bord Pleanála.
Yes. It will make matters worse. Things have been pretty bad. Let us be clear on that.
Very bad.
It is very interesting. We have had this again and again and we have raised concerns about An Bord Pleanála. One would not think there had been any problem with An Bord Pleanála for the past few years because everybody in the Government has talked constantly about how wonderful it is, how nobody should ever challenge a decision it makes and how terrible it is that people would take judicial reviews against poor An Bord Pleanála. This is despite what were then found to be huge problems with how the board was operating and making its decisions. It is a bit of a contradiction to be told the board could not be any worse having been told for years that there should be no judicial reviews taken and nobody should ever challenge decisions of the board.
We had legislation before the summer that asked us to bounce things directly past the local authorities and have them go straight to An Bord Pleanála because the Government prefers when things go to the board. That is what the policy has been doing. We need to be bit honest. The problem is not simply with some individuals on the board. The problem has been with a joined-up and systemic approach that seeks to fast-track things in a way that skips good decision-making.
The delays in An Bord Pleanála, whatever their source may be, are to be examined and would be worth examining. It is interesting to note where some of the delays have been made in its decision-making and, indeed, in some of the dilution of judicial review powers, which have been floated constantly. Certainly, one of the main issues that is a problem for An Bord Pleanála is the quality of its decision-making. To give just one direct example of how this legislation will make matters worse, the choice has been made not to have an environmental law expert on the board guaranteed. That is a choice that has been made. Again, that is a dilution of what we had before, where there was meant to be somebody with environmental and sustainability expertise on the board. We are not guaranteed that we will have that. That is one of the areas where the decision-making of the board has repeatedly been found to be deeply remiss.
The amendments tabled here are, like my own amendments to which I will come in a minute, very helpful. We are trying to address the confidence in the board by providing that where there are problems, let us ensure they are investigated early and do not drag on as they have previously.
Senator Martin stated there may be different ways to respond. The text already allows the Minister, where he or she considers it appropriate to do so, to investigate the matter. A wide set of actions is covered in the language. The problem is the board “may” take an action. The amendments from Senator Warfield are not being prescriptive around which action must be taken. Rather, they simply prescribe that action should be taken.
I fully accept that the thrust of the amendments is to improve the legislation. I also agree that this legislation is not about making matters slightly better but about really improving the robustness, transparency and quality of the decision-making of An Bord Pleanála. That is what we are setting out to achieve.
I go back to the point about environmental experts or environmental law experts. Regardless of the constitution of the board, the raft of climate, environmental and nature law coming before us, as a State, will govern decision-making. That is significant for whoever populates the board and the decision-making of An Bord Pleanála, as well as the work of local authorities in planning. I just wanted to make that final point.
Amendment put and declared lost.
I move amendment No. 50:
In page 9, line 39, to delete “may” and substitute “shall”.
Amendment put and declared lost.
I move amendment No. 51:
In page 10, between lines 3 and 4, to insert the following:
“(c) by the insertion of the following subsection after subsection (2):
“(3A) Where the Minister considers further to a complaint of otherwise that the conduct of the Chair may have been such as to bring the Board into disrepute or may have been prejudicial to the effective performance by the Chair or the Board of all or any one or more of its functions, he or she may request the chairperson to—
(a) provide a report to the Minister on the matter, and
(b) attend an interview with the Minister and the relevant Joint Oireachtas Committee.”.”.
Amendment put and declared lost.
Section 10 agreed to.
NEW SECTION
I move amendment No. 52:
In page 10, between lines 3 and 4, to insert the following:
“Amendment of section 150 of Act of 2000
11. The Act of 2000 is amended in section 150 by the insertion of the following subsection after subsection (2):
“(2A) Such codes of conduct described in subsection (2) shall require any member of an authority or the Board to disclose—
(a) interests and relationships where the interests and relationships are of relevance to the work of the authority or the Board, as appropriate,
(b) membership of other organisations, associations and bodies, professional or otherwise which are of relevance to the work of the authority or the Board, and
(c) membership of, or other financial interests in, companies, partnerships or other bodies.”.”.
Amendment No. 52 seeks to insert a new section in the Bill, which amends section 150 of the principal Act by introducing a new subsection (2A) to provide that the codes of conduct in subsection (2) shall require any member of an authority or the board to disclose interests and relationships where the interests and relationships are of relevance to the work of the authority of the board, as appropriate; membership of other organisations, associations and bodies, professional or otherwise, where that is of relevance to the work of the authority of the board; and membership of or financial interests in companies, partnerships or other bodies where that is relevant to the work of the board.
At the moment, section 150(2) simply lists many items that will be in a code of conduct and it "may" address any of these issues, whereas my amendment would ensure that the code of conduct “shall” include certain core provisions, for example, it shall require disclosure of interests and relationships, memberships of organisations and financial interests in companies, partnerships or other bodies. That is appropriate. It should not be the case that a code of conduct may or may not include those factors; it should require such disclosures. We have seen very good reason for that in some of the investigations we have seen taking place and some of the very serious concerns that have been raised in respect of issues around conflicts of interest and, indeed, financial interests in respect of the decision-making of the board.
This amendment complements Senator Warfield’s amendment. I am trying to ensure the code of conduct is robust, while the Senator's amendment sought to ensure that the code of conduct that would be enforced. These are complementary amendments. I know the Minister of State will not accept them in this House, but I know he is bringing amendments in the Dáil. I strongly encourage him to look at my amendment and Senator Warfield’s amendment and seize the opportunity to include in the Bill at least one component that seeks to address the public confidence issues that have arisen by providing for some combination of the two amendments.
The requirements in relation to the code of conduct are already contained in Part 7 of the Act. The board is currently revising its code of conduct. An Bord Pleanála board members are also required to make annual declarations under Part 7. In addition, board members are required to make separate ethics in public office declarations.
It is the responsibility of individual board members to comply with the code of conduct and to make their own relevant declarations.
I would ask the Minister of State to return to and examine the issue because at the moment there is a requirement that there is a code of conduct, and there is a list of issues that the code may address, but this does not necessarily include these requirements. We saw how the internal regulation and self-monitoring systems of the board failed to address the issues that arise and got into the public domain. I therefore think it is reasonable to ask that such internal mechanisms would be made more robust.
We can look into the points that have been raised.
I thank the Minister of State for his positive response.
Amendment put and declared lost.
Sections 11 and 12 agreed to.
SECTION 13
I move amendment No. 53:
"In page 10, line 16, after “subsoil” to insert “to a depth of 30 feet”."
This amendment relates to another part of the Bill on the foreshore. It seeks to amend the definition of "foreshore" in section 13 of the Bill to clarify that, as was the case in the 1933 Act, the foreshore is considered to include subsoil but to a depth of 30 f. Under the current legislation, even on the first page of the 1933 Act, there are specifications that make the depth. It specifically mentions subjects such as mineral extraction, for example, and that it is to a depth of 30 ft. to which foreshore licences may relate.
The definition of foreshore, as proposed in this Bill, is, “is deemed to include, and always to have included, the subsoil below, and the water column above the bed and shore referred to in that definition.”.” Although it is in another part of the Bill, my concern is that it no longer seems to have the specification of 30 ft. Could the Minister of State elaborate on that?
I thank Senator Higgins for being vigilant on these matters. Part 3 of the Bill seeks to change the definition of foreshore. That has raised concerns, including among the wind energy developers. It is also likely to be of concern to any marine survey providers or to those who carry out wildlife surveys or geological surveys or even wildlife photography. Is the Minister of State in a position to clarify this point, either today or as the Bill makes its journey through the legislative Stages? Is the Minister of State in a position to allay the concerns and to clarify if a foreshore site investigations licence will be required to carry out non-invasive surveys which effect neither the seabed nor marine habitats?
The concern we have with this is the length of time it is taking to process these licences. Prior to 2019, it is understood that it was taking 13 to 18 months. Post 2019, the time has now gone up to 20 months. It is not appropriate to have a situation where it can take just less than two years for an exploratory site investigation to take place or a simple wildlife survey. It will be simple in one sense but will require high levels of skills in another sense. Overall, in substance, it is not an insurmountable survey to do. I know it has its complexities, but it is a straightforward issue.
The implications go beyond wind energy generation. They touch on ecology and on marine biology. I am hoping the Minister of State can give us assurances that such surveys will not be impeded.
Before we proceed, it is my pleasure to welcome my constituency colleague and neighbour, Deputy Niamh Smyth, to the Visitors Gallery along with Dr. Teresa O’Callaghan and her son Leon O’Callaghan, who are also neighbours of mine. Dr. Teresa O’Callaghan provides a great public service in the administration of Cavan General Hospital. All three of them are extremely welcome to the Visitors Gallery and we hope they enjoy the proceedings.
Does the Minister of State wish to respond?
I do. I wish to join with the Leas-Chathaoirleach in welcoming Teresa, Leon and Deputy Niamh Smyth to the Gallery.
In response to amendment No. 53, the effect of this amendment would be to limit the authority of the Minister to regulate the foreshore to a depth of 30 f. It is necessary that the Minister’s authority under the Bill to require a licence and to appropriately assess the impact of that activity extends beyond a depth of 30 ft. For example, bore hole drilling, as part of geotechnical surveying conducted by potential developers in the foreshore area, can extend to 80 m. Current practice is that these types of activities require a foreshore licence and applications are assessed in accordance with both the birds and habitats directive and the EIA directive. Many licences have been granted on that basis. This amendment would undermine the State’s authority to meet its obligations under those directives.
On the point raised by Senator Martin on marine and wildlife surveys, we can come back with a more detailed response, but I do not think that there will be a negative impact there.
I am quite alarmed. In the briefing, I had asked if the 30 ft. issue would be affected, and I was told that it would not be. I was looking for reassurance in the House that it would not be affected, but the Minister of State has now told us that will be affected. Effectively, this has begun to look like another land grab by persons who may be given licences of particular kinds.
It is extremely concerning to include: “and always to have included, the subsoil below”. If we are talking about an indefinite depth that is quite significant. There is a reason the 30 ft. criterion had been put in place before. That is not to say that there might not be another mechanism that could apply in relation to those projects that may go below 30 ft. The idea that a foreshore licence given to anybody automatically includes an indefinite depth is a significant departure from the foreshore Act and the previous understanding of it. I am surprised by this. I will note that it is contradictory to what I was told in the briefing. Perhaps it is an issue that others will be able to explore further in the Dáil. I will press the amendment.
Amendment put and declared lost.
Question, “That section 13 stand part of the Bill”, put and declared carried.
NEW SECTIONS
Amendments Nos. 54 and 55 are related. Amendments Nos. 54 and 55 are logical alternatives and may be discussed together.
I move amendment No. 54:
"In page 10, between lines 17 and 18, to insert the following:
“Provisions in respect of foreshore licensing requirements for certain surveying activities
14. The Act of 1933 is amended by the insertion of the following section after section 3:
“Obligations 3AA.
Notwithstanding anything in the definition of the foreshore in section 1, and the powers of the Minister to grant a licence under section 3, and without prejudice to the view that there is already provided an obligation to secure a foreshore licence in order to conduct geophysical or geotechnical surveys in the subsoil and water column above the foreshore, and in the airspace above the foreshore, to ensure compliance with the State’s obligations with the duty to—
(a) provide for assessments necessary to effectively implement a system of strict protection for species listed in Annex IVA of the Council Directive 92/43/EEC of 21 May 2002, and
(b) assessment and protections required under Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009,
the following requirements are explicitly clarified—
(i) that a foreshore licence consent shall be required in order to pursue the following activities:
(I) geophysical surveys using acoustic survey equipment or geotechnical surveys for the purposes of surveying for oil and gas or renewable energy site investigation or for related species studies;
(II) geophysical surveys using acoustic survey equipment or geotechnical surveys for the purposes of scientific studies,
and
(ii) that a derogation licence under Article 54 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011) shall be required to be secured in advance of the grant of any such foreshore licence for the activities in subparagraphs (I) and (II) of paragraph (i), in respect of any breach of the protections required under Article 12 of Council Directive 92/43/EEC of 21 May 2002.”.”."
Does Senator Warfield wish to speak to the grouping?
I will await the Minister of State’s response.
Does Senator Higgins wish to make a comment?
I wish to speak to amendment No. 55, which is in the same grouping. My amendment No. 55 has a similar purpose to amendment No. 54. It seeks to insert a new section into the Bill, notwithstanding anything in the definition of the foreshore in section 1, and the powers of the Minister to grant a licence under section 3. This is without prejudice to the view that the Bill already provides an obligation to secure a foreshore licence in order to conduct geophysical or geotechnical surveys in the subsoil or water column. This might address the issues that were raised earlier. The amendment seeks to insert provisions to ensure compliance with the State’s obligations with the duty to provide for strict protections of species as listed in Annex IVA, in the Council directives, and assessments and protection. Under the habitats and water and birds directives, it would effectively ensure that there would be clarification.
We were told the purpose of the section was to clarify that the column of water above the foreshore would be included in the foreshore licence. I am concerned that there now seems to be a different purpose, which relates to the depth of a foreshore licence. However, we were told the purpose was to clarify that the column of water would be included. Even though the view was that this was already the case and the section was a clarifying piece, I wish to similarly clarify that if the column of water is included, all the useful and relevant obligations in respect of the birds, habitats and water directives be reflected also.
In fact, there is a need for very specific regulations on geophysical surveys. If we are clarifying that the column of water is included, then the conditions and regulations attached to the issuing of a foreshore licence should also address matters pertaining to the column of water, specifically the use of surveys that use acoustic survey equipment, and the use of such equipment around geotechnical surveys, including for scientific studies. There should be a requirement for derogation under Article 54 of the EU birds directive regulations in the granting of such a foreshore licence. In effect, if we include that column of water, we need to make sure that we are regulating for sonar, survey and seismic activity in that area. This is very relevant because we are aware, as is the Minister of State, of the very significant implications of how and when surveys are done in terms of their impact on cetaceans and marine life. Again, this might be as simple as providing regulations that specify certain months within the year that are part of the migration period during which certain kinds of activities would not happen. It is not to say that nothing happens but that it is a matter that should be specifically regulated. If the column of water is included, regulations for how that column of water is treated need to be included.
The amendments provided for in the Bill are intended to amend the Foreshore Act 1933 in order to ensure that there is no doubt over the definition of foreshore and the Act can operate as it always has. This includes requiring a foreshore licence for the lawful undertaking of geophysical and geotechnical surveying. The existing consent process includes assessments required under the birds and habitats directive, and the environmental impact assessment, EIA, directive, where required. I am confident that the Bill allows the State to regulate the use of the foreshore, including developer activities identified by the Senators in this proposed amendment, meet its obligations with respect to a range of directives for the protection of the maritime area, and provide for a streamlined and transparent consenting process. Therefore, I am not accepting amendments Nos. 54 and 55.
Amendment put and declared lost.
I move amendment No. 55:
In page 10, between lines 17 and 18, to insert the following:
“Provisions in respect of foreshore licensing requirements for certain surveying activities
14. The Act of 1933 is amended by the insertion of the following after section 3:
“Obligations
3AA. Notwithstanding anything in the definition of the foreshore in section 1, and the powers of the Minister to grant a licence under section 3, and without prejudice to the view that there is already provided an obligation to secure a foreshore licence in order to conduct geophysical or geotechnical surveys in the subsoil and water column above the foreshore, to ensure compliance with the State’s obligations with the duty to—
(a) provide for assessments necessary to effectively implement a system of strict protection for species listed in Annex Iva of the Council Directive 92/43/EEC of 21 May 2002, and
(b) assessment and protections required under Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009,
the following requirements are explicitly clarified—
(i) that a foreshore licence consent shall be required in order to pursue the following activities:
(I) geophysical surveys using acoustic survey equipment or geotechnical surveys for the purposes of surveying for oil and gas or renewable energy site investigation or for related species studies;
(II) geophysical surveys using acoustic survey equipment or geotechnical surveys for the purposes of scientific studies,
and
(ii) that a derogation licence under Article 54 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011) shall be required to be secured in advance of the grant of any such foreshore licence for the activities in subparagraphs (I) and (II) of paragraph (i) above, in respect of any breach of the protections required under Article 12 of Council Directive 92/43/EEC of 21 May 2002.”.”.
Amendment put and declared lost.
Question, "That section 14 stand part of the Bill," put and declared carried.
NEW SECTION
I move amendment No. 56:
In page 11, between lines 5 and 6, to insert the following:
“Amendment of Act of 1933
15. The Act of 1933 is amended by the insertion of the following section after section 8:
“Rights of way
8A. For the avoidance of doubt no provision of this enactment shall be construed as limiting or infringing upon public or private rights of way or any provision of the Land and Conveyancing Law Reform Act 2009.”.”.
This amendment seeks to insert a new section providing that, "For the avoidance of doubt no provision of this enactment [especially changes in respect of the foreshore] shall be construed as limiting or infringing upon public or private rights of way [or, indeed, profit à prendre] or any provision of the Land and Conveyancing Law Reform Act 2009.” It ensures that, for example, in respect of traditional usage of seaweed gathering, foraging, the photography that was mentioned and all of these issues, where there is an established public right of way, a private right of way by practice, or an established profit à prendre, these should not be in any way affected by the issuing of foreshore licences under the revised provisions.
I again thank the Senator. I know she has a major interest in the issue of rights of way. The existing operations of the foreshore consent regime have not encountered any difficulties regarding the interference with existing rights. The Bill is not providing for or introducing any new regulatory powers or amendments to the consenting arrangements that prevailed before doubt was cast over the definition earlier this year. This proposed amendment is, in my view, unnecessary and would require further examination for unintended consequences in this complex legal area, therefore, I am rejecting it.
Amendment put and declared lost.
Question, "That section 15 stand part of the Bill," put and declared carried.
Question, "That section 16 stand part of the Bill," put and declared carried.
Question, "That section 17 stand part of the Bill," put and declared carried.
NEW SECTION
I move amendment No. 57:
In page 12, after line 20, to insert the following:
“Amendment of Act of 1933
18. The Act of 1933 is amended by the insertion of the following section after section 13AA:
“Regulations on undersea noise and sonar
13AB. Any licenses or leases issued in respect of the foreshore and the associated column of water shall include conditions and regulations pertaining to undersea noise arising from human activity on the foreshore, including in respect of the use of sonar technology, and shall reflect obligations under the Habitats Directive and the Water Directive as well as the need to protect and promote marine biodiversity.”.”.
I will not speak at length. The amendment addresses a similar issue to that I previously raised with the Minister of State, which is that where there are:
licenses or leases issued in respect of the foreshore and the associated column of water [such licences or leases] shall include conditions and regulations pertaining to undersea noise arising from human activity on the foreshore, including in respect of the use of sonar technology, and ... [indeed] reflect obligations under the Habitats Directive and the Water Directive as well as the [wider] need to protect and promote marine biodiversity.
Again, it is about trying to ensure that these licences, especially given the new definitions and the heightened focus on the column of water, would reflect these key principles, including the very significant emerging area around the need for regulation of sonar technology, which the Minister of State is aware of.
The amendments provided for in the Bill are intended to amend the Foreshore Act 1933 in order to ensure that there is no doubt over the definition of foreshore and the Act can operate as it always has. This operation includes requiring a foreshore licence for the lawful undertaking of geophysical and geotechnical surveying, including the use of sonar and other modern methods of investigation. The existing consent process includes assessments under the birds and habitats directive, and the EIA directive where required, as well as detailed formal consultation with a range of prescribed expert and scientific bodies. It is normal practice that licences granted would be subject to the kinds of conditions identified by the Senator. Again, I am rejecting this proposed amendment on this basis.
I will add that the marine protected area, MPA, legislation is due shortly, which will add another layer of protection in respect of activities in MPAs. That will be a very broad and inclusive approach to marine protection.
Amendment put and declared lost.
Title agreed to.
Bill reported without amendment.