I welcome the Minister of State, Deputy Alan Dillon.
We will recommence on the block of amendments that started with amendment No. 923. We have a couple of amendments left to discuss in this grouping, and I suggest we start with ministerial amendments Nos. 948 to 952, inclusive. I ask the Minister of State to speak to those amendments in whatever logical order he thinks appropriate.
Amendments Nos. 948, 949, 951 and 952 are of a technical and drafting nature and seek to bring clarity to sections 248 and 249 of the Bill, which empower planning authorities to enter private lands or maritime sites to lay cables, wires, ducts and pipelines and associated apparatus and set out procedures for confirming such power with the commission where the owner or occupier withholds consent. As currently drafted, sections 248(10) and 249(11) provide that for the purpose of Part 6, "Environmental Assessments", neither owner or occupier consent nor an order from the commission confirming the power to enter the land or site constitutes a development consent, that is, for the purpose of EIA or AA. On reflection, this provision is not clear and, therefore, the proposed amendments seek to delete these provisions and instead subject sections 248 and 249 to Part 4. This clarifies that, in addition to having the power to enter the land or maritime site under these sections, the works must have the necessary planning permission under Part 4.
Does anybody wish to respond? No. The last couple of amendments in this block are mine. They are amendments Nos. 933 to 939, inclusive. I ask someone to take the Chair while I speak briefly to those amendments, if anybody would be willing to do so. I propose Deputy O'Callaghan. Is that agreed? Agreed.
I submitted amendments Nos. 933 to 939, inclusive. They reflect a Private Members' Bill I have submitted that I think is on Second Stage at the moment. Essentially, this is an environmental protection measure in acknowledgement of sites in our local areas that are environmentally sensitive or of value. They might not meet the threshold to be designated as a Natura site or a natural heritage area, but in the local context they are important. I am setting out to try to create a designation for these sites, which I have deemed locally important for ecology. The amendments also refer to tree preservation orders, I think, under section 242.
Amendment No. 933 sets out a method to identify and propose these sites, the rationale for such sites and the types of sites and habitats that might be applicable. It sets out the objectives for protecting these sites. It is important to state that these sites would not prevent or stymie development. What they propose to do is focus or sharpen the mind of a developer, an applicant or a local authority that these sites are important. They could comprise something quite small, such as a small patch of wetland or trees or other natural sites. The voting process for elected members to agree or to propose such a site and the process to amend or to revoke a designation are set out. It is critical that when we designate tree preservation orders, TPOs, for these sites, there is always an opportunity to amend or to revoke them. One of the issues that has prevented some TPOs is that there is no exit strategy from a TPO at all. I have spoken to people who are very familiar with TPOs and trees in general and they are of the view that if there were an opportunity to amend or revoke such an order, it would be very likely that there would be less resistance to entering into one of these protections. I set out the requirement for the Minister to provide by regulation how this would be done and set out offences for contravening such a designation.
Amendment No. 934 expands on what is set out in amendment No. 933, that is, that the Minister issue guidelines to local authorities on how to implement, identify and designate sites and how to include them in development plan objectives.
Amendment No. 935 sets out a requirement for a register of these sites, quite similar to how we have a register for TPOs or a register of protected structures.
If I am right, amendments Nos. 936 to 938, inclusive, refer to TPOs. I think they set out how a TPO is actually started. For a TPO, the relevant section currently reads, "If it appears to a planning authority that it is expedient, in the interests of amenity". I want to include "or by resolution of members". One of the things I have found in my experience at local authority level is that TPOs often come very far down the list. Often we do not have the money to do them. They are generally done during the development plan process. They can be done outside of that but, generally, they try to do it as part of the development plan process. I think it would be beneficial for the process if local authorities had some type of funding stream that they could apply for to create TPOs. I have spoken to the Minister of State previously about this. If we were to include a resolution of the members to put forward TPOs, I think it would be beneficial.
Amendment No. 937 is one of these shall-or-may-type amendments. It relates to section 243. As it stands, the local authority "may" for that purpose make an order. Again, I suggest "shall" because if it is a resolution by the members, they should carry out that resolution if the trees being proposed meet that bar of "in the interests of amenity or the environment".
Amendment No. 938 sets out a process for a landowner to apply for a revocation or an amendment to a TPO.
Amendment No. 939 relates to the protection of trees. It is a new subsection relating to public bodies managing and protecting trees on their lands. It sets out steps that this should stop trees becoming hazardous by proper management and provides that where trees are removed, they must provide the Minister with evidence of why they were removed.
I do not think for one instant that a district engineer wakes up in the morning and decides to cut down trees. Obviously they are constrained by budgets and there is often good reasons that trees have to be removed. It is just that we do not often get to see the evidence of why those trees had to be removed. I do not think it is something that is done lightly although I have seen trees being removed and when I asked for the reason, I was told it was because residents requested it. I have never really understood that.
I have set out that we need to have a clearer TPO register so that it is clearly set out what trees are protected. In my own local development plan we have a map and you have to try to use your judgement with the little tree icon on the map whether a particular tree is the one that is to be protected. It is not often accompanied by a very clear written statement to help identify it by location settings. Essentially, this is about environmental protection, in the context of TPOs. It is about giving a little more power to local members who know their area as well as anybody – better than anybody – to be able to invoke these locally important for ecology, LIFE, sites and improve the process around TPOs.
I expect the provision with regard to LIFE sites is probably a step too far at this stage. I have a Private Members' Bill on it. I would like the Minister and the officials to consider it, especially in relation to the nature restoration law that will be introduced. One of the tenets of the nature restoration law is a concentration on the urban environment too. It is not just about rewetting bogs, which has been the focus of much of the discussion we have seen on it. It is important for urban centres that we maintain and protect ecological and natural sites.
Amendments Nos. 933 to 935, inclusive, seek to add a procedure for a new type of designation, “a site locally important for ecology order”. There are already significant environmental designations which are available and currently widely used. The introduction of such a new designation would add further complexity to the planning system. There is sufficient provision within the planning system to suitably protect the environment while balancing this against the necessity of promoting sustainable and appropriate development. I therefore cannot accept amendments Nos. 933 to 935, inclusive.
Will the Minister of State outline the sufficient provisions that do exist in this Bill to designate? I have set out clearly the types of habitats or features that would be protected by this. If we have a Natura site and an SAC, for example, very strong conditions are imposed regarding what can be done within those areas. The conditions regarding natural heritage areas are a little less strong. Special areas of amenity come with the need to seek planning for all types of development within them and there are very few exceptions. I am thinking about small parts of large sites, for example in my own constituency where there is a really important clump of trees that would be very beneficial for the development that is going in there. I refer to the provision of green spaces and nice places for people to sit and look out on. The measure seeks to protect nature in urban centres. Do sufficient provisions exist for those types of small sites that are locally important to people and councillors, but do not meet the bar to be designated as an NHA, SAC or SAAO?
Section 48, on page 107, provides that as part of a development plan, a local authority "shall prepare a strategy for the conservation ... of the natural and built heritage". That includes landscapes, places of natural beauty and areas of natural heritage. It is covered within section 48. There are sufficient provisions in the current planning system to suitably protect the environment and to ensure that places, sites and other objects of archaeological, geological, historical, scientific and, most importantly from the Deputy's point here, ecological interest are assessed.
I accept that is a good section - it is wide ranging and covers a lot - but it involves setting out a strategy. Does it enable the local authority to draw a line or circle on a map and say that this is a site that needs to be considered if development takes place?
Yes, it does.
Okay. That is fine. Obviously, it is done through the development plan process under that strategy. I thank the Minister of State.
Amendments Nos. 936 to 939, inclusive, propose to amend the TPO provision in section 205 of the Bill to provide that a TPO can be made by resolution of the members in addition to being capable of being made by the planning authority; that a TPO "shall" be made rather than "may" be made where it appears necessary; that a person can apply to the planning authority seeking a TPO to be amended or revoked; that there is an appeals process regarding TPO decisions; that public bodies shall manage trees on their land that are subject to a TPO to ensure they do not become a hazard and shall report to the Minister where there is a need to cut down trees; that the development plan shall include a register of TPOs; and that any trees subject to a TPO that are removed shall be replaced. I understand the merit of the proposed amendments and would like to consider them further with a view to seeing if they can be included in the Bill. I ask the Deputy to withdraw the amendments to allow me to consider them and for my officials to discuss them with the Office of the Parliamentary Counsel. Given the complexity of the Bill, it is important that any proposed amendment is properly scrutinised and reviewed to ensure consistency with the Bill. If considered appropriate, I will bring forward amendments on this matter on Report Stage. It is on this basis that I cannot accept amendments Nos. 936 to 939, inclusive, at this time.
I appreciate that the Minister of State will look into this further. When the TPO process is going through, there is a consultation with the land owner and the land owner can make the submissions. That happens when the TPO is being made. I am talking about a process that will apply when the TPO has been made and has been in existence for some number of years. I am seeking to ensure there is an opportunity for the land owner to say they would like to have it revoked or amended. In other words, it should not be a one-way trip into a TPO - there should be a provision whereby it can be assessed.
We will look at that and bring forward a response.
I move amendment No. 926:
In page 422, between lines 28 and 29, to insert the following:
“(4) In any proceedings for an offence under subsection (3), it shall be a defence for the defendant to prove, on the balance of probabilities, that the defendant took all reasonable steps to comply, or secure compliance by the other person, with the notice.”.
I move amendment No. 928:
In page 426, line 7, to delete “it has in” and substitute “assigned to it by”.
I move amendment No. 929:
In page 426, between lines 34 and 35, to insert the following:
“Continued application of section 180 of Act of 2000 for certain purposes
240. Section 180 of the Act of 2000 shall, notwithstanding its repeal by section 6, continue to apply and have effect on and after that repeal in relation to any request under the said section 180 made before that repeal.”.
I move amendment No. 930:
In page 431, between lines 1 and 2, to insert the following:
“(c) its cultural importance to the community or to the nation,”.
I move amendment No. 931:
In page 431, between lines 10 and 11, to insert the following:
“(c) its cultural importance to the community or to the nation,”.
I move amendment No. 932:
In page 432, between lines 11 and 12, to insert the following:
“(12) (a) An order under section 202 of the Act of 2000 made (but not confirmed under section 203 of that Act) before the repeal of that section by section 6 shall be deemed to be an order made but not confirmed under this section.
(b) An order under section 202 of the Act of 2000 that, immediately before the repeal of that section by section 6 was a special amenity area order within the meaning of that Act shall remain in force on and after that repeal and be deemed to be an order confirmed under this section.
(13) (a) Section 202 of the Act of 2000 shall continue to have effect on and after the repeal of that section by section 6 in relation to a direction given (but not complied with) under that section before such repeal, and accordingly the planning authority shall comply with the direction as soon as may be after such repeal in accordance with the said section 202.
(b) An order under section 202 of the Act of 2000 made in accordance with a direction referred to in paragraph (a) shall be deemed to be an order made, but not confirmed, under this section.”.
I move amendment No. 941:
In page 436, between lines 2 and 3, to insert the following:
“(5) It shall be the duty of a planning authority to vindicate public rights of way where they exist, and to work to establish rights of way, where possible, to advance the right of people to access any monument, seashore, mountain, lakeshore, riverbank or other place of cultural or natural heritage, natural beauty or recreational utility.”.
I move amendment No. 942:
In page 436, between lines 2 and 3, to insert the following:
“Orders and notices under section 205 of Act of 2000
247. (1) An order under section 205 of the Act of 2000 in force immediately before the repeal of that section by section 6 shall—
(a) continue in force and have effect on and after such repeal, and
(b) be deemed to be an order made under section 243, and may be amended or revoked accordingly.
(2) Section 205 of the Act of 2000 shall, in relation to a notice served and published in accordance with subsection (3) or (7) of that section before the repeal of that section by section 6, continue to have effect on and after such repeal.”.
I move amendment No. 943:
In page 436, between lines 2 and 3, to insert the following:
“Agreements under section 206 of Act of 2000
248. Section 206 of the Act of 2000 shall, in relation to an agreement under that section made before the repeal of that section by section 6, continue to have effect on and after such repeal.”.
I move amendment No. 944:
In page 436, between lines 2 and 3, to insert the following:
“Orders, notices and appeals under section 207 of Act of 2000
249. (1) An order under section 207 of the Act of 2000 in force immediately before the repeal of that section by section 6 shall—
(a) continue in force and have effect on and after such repeal, and
(b) be deemed to be an order made under section 245, and may be amended or revoked accordingly.
(2) Section 207 of the Act of 2000 shall continue in force and have effect on and after the repeal of that section by section 6 in relation to—
(a) a notice served and published in accordance with the said section 207 before the said repeal, and
(b) the appeal of an order under the said section 207 pending immediately before the said repeal.”.
I move amendment No. 945:
In page 436, between lines 2 and 3, to insert the following:
“Landscape conservation areas.
247. (1) A planning authority may, by order, for the purposes of the preservation of the landscape, designate any area or place within the functional area of the authority as a landscape conservation area.
(2) (a) Notwithstanding any exemption granted under section 4 or under any regulations made under that section, the Minister may prescribe development for the purpose of this section, which shall not be exempted development.
(b) Development prescribed under paragraph (a) may be subject to any conditions or restrictions that the Minister may prescribe.
(3) An order made by a planning authority under this section may specify, in relation to all or any part of the landscape conservation area, that any development prescribed by the Minister under subsection (2) shall be considered not to be exempted development in that area.
(4) Where a planning authority proposes to make an order under this section, it shall cause notice of the proposed order to be published in one or more newspapers circulating in the area of the proposed landscape conservation area.
(5) A notice under subsection (4) shall state that—
(a) the planning authority proposes to make an order designating a landscape conservation area, indicating the place or places and times at which a map outlining the area may be inspected, and shall give details of the location of the area and any prescribed development which it proposes to specify in the order, and
(b) submissions or observations regarding the proposed order may be made to the planning authority within a stated period of not less than 6 weeks, and that the submissions or observations will be taken into consideration by the planning authority.
(6) The members of a planning authority, having considered the proposed order and any submissions or observations made in respect of it, may, as they consider appropriate, by resolution, make the order, with or without modifications, or refuse to make the order.
(7) Where a planning authority wishes to amend or revoke an order made under this section, the planning authority shall give notice of its intention to amend or revoke the order, as the case may be.
(8) A notice under subsection (7) (which shall include particulars of the proposed amendment or revocation of the order) shall be published in one or more newspapers circulating in the landscape conservation area.
(9) A notice under subsection (7) shall state that—
(a) the planning authority proposes to amend or revoke the order, and
(b) submissions or observations regarding the proposed amendment or revocation of the order may be made to the planning authority within a stated period of not less than 6 weeks, and that the submissions or observations will be taken into consideration by the planning authority.
(10) The planning authority, having considered the proposed amendment or revocation of the order and any submissions or observations made in respect of it, may by resolution, as it considers appropriate, revoke the order or amend the order, with or without modifications, or refuse to make the order, as the case may be.
(11) Before making an order under this section, the planning authority shall consult with any State authority where it considers that any order relates to the functions of that State authority.
(12) (a) A planning authority shall give notice of any order made under this section in at least one newspaper circulating in its functional area, and the notice shall give details of any prescribed development which is specified in the order.
(b) Notice under this subsection shall also be given to the Board and to any other prescribed body which in the opinion of the planning authority has an interest in such notice.
(13) Where 2 or more planning authorities propose to jointly designate any area or place, which is situated within the combined functional area of the planning authorities concerned, as a landscape conservation area, the functions conferred on a planning authority under this section shall be performed jointly by the planning authorities concerned, and any reference to “planning authority” shall be construed accordingly.
(14) Particulars of an order under this section shall be entered in the register.”.
I move amendment No. 947:
In page 436, between lines 20 and 21, to insert the following:
“(4) Section 209 of the Act of 2000 shall, in relation to a notice served under that section before the repeal of that section by section 6, continue to have effect on and after such repeal.”.
I move amendment No. 948:
In page 436, line 22, after “subsection (12)” to insert “and Part 4”.
I move amendment No. 949:
In page 438, to delete lines 16 and 17.
I move amendment No. 950:
In page 438, between lines 25 and 26, to insert the following:
“(13) A consent referred to in section 182 of the Act of 2000 given, before the repeal of that section by section 6, by the owner or the owner and occupier, as the case may be,
of land shall be deemed to be a consent under subsection (4) given by that owner or that owner and occupier, as may be appropriate.”.
I move amendment No. 951:
In page 438, line 27, after “subsection (13)” to insert “and Part 4”.
I move amendment No. 952:
In page 440, to delete lines 26 and 27.
I move amendment No. 953:
In page 440, after line 33, to insert the following:
“(14) An approval referred to in subsection (1A) of section 182 of the Act of 2000 given before the repeal of that section by section 6 for development on a maritime site shall be deemed
to be a consent under subsection (5) given by that owner or that owner and occupier, as may be appropriate.”.
Amendments Nos. 954 to 956, inclusive, and amendment No. 979 are related and will be discussed together.
I move amendment No. 954:
In page 441, between lines 4 and 5, to insert the following:
Judicial review of applications, appeals, referrals and other matters
250. (1) Where a question of law arises on any matter with which the Board is concerned, the Board may refer the question to the High Court for decision.
(2) A person shall not question the validity of any decision made or other act done by—
(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,
(b) the Board in the performance or purported performance of a function transferred under Part XIV of the Act of 2000, and which continues to be vested under section 378,
(c) a local authority in the performance or purported performance of a function conferred by an enactment specified in section 214 under the Act of 2000 and which
continues to be vested under section 377 relating to the compulsory acquisition of land, or
(d) without prejudice to the right of appeal referred to in section 325—
(i) the competent authority (within the meaning of the Aircraft Noise (Dublin Airport) Regulation Act 2019), or
(ii) the Commission in its capacity as the appeal body from decisions of such competent authority, otherwise than by way of an application for judicial review under Order 84
of the Rules of the Superior Courts (S.I. No. 15 of 1986), in this section referred to as “the Order”.
(3) Subsection (2)(a) does not apply to an approval or consent referred to in Chapter 1 or 2 of Part 10.
(4) A planning authority, a local authority or the Commission may, at any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (2) applies and which relates to a matter for the time being before the authority or the Commission, as the case may be, apply to the High Court to stay the proceedings pending the making of a decision by the authority or the Commission in relation to the matter concerned.
(5) On the making of such an application, the High Court may, where it considers that the matter before the authority or the Commission is within the jurisdiction of the authority or the Commission, make an order staying the proceedings concerned on such terms as it thinks fit.
(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the publication of the decision or notification of the decision whichever is the later or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.
(7) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(b) or (c) applies shall be made within the period of 8 weeks beginning on the date on which notice of the decision or act was first sent (or as may be the requirement under the relevant enactment, functions under which are transferred under Part XIV or which is specified in section 214, was first published).
(8) The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in either subsection may be made but shall only do so if it is satisfied that—
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.
(9) References in this section to the Order shall be construed as including references to the Order as amended or replaced (with or without modification) by rules of court.”.
By way of a general introduction to this group of amendments, to submit some high-level questions as to the rationale for these sections of the Bill, this would be a good place to start. This is probably the most, if not the second most, controversial part of the Bill. During pre-legislative scrutiny there was near unanimous criticism of the entire Part of the Bill from planners, legal professionals who work in this area - barristers and lawyers - residents' associations, environmental groups, local authorities and others. The two principal issues they raised were, one, that the intention behind these sections of the Bill is to deny people access to justice in an attempt to reduce the number of judicial reviews. For me, probably what was more significant was the fact that almost everybody who was an expert in this area and who commented on it said that not only would it not work but, in fact, it would open up a Pandora's box of litigation - satellite litigation and superior court litigation - all of which will lead not only to more planning applications and appeals ending up in the courts but much-needed infrastructural development, residential development and renewable energy development being delayed. It seems to me to be incredibly bizarre that the Government on the one hand would try to restrict people's rights under Irish, European and international law but to get it so badly wrong that the stated intention of its actions, which is to speed up the planning process, would actually have the opposite impact. We will go through the detail of all of that when we get into it.
My initial question is: on what basis, analysis and empirical information have the profound changes proposed in this part of the Bill been introduced? We know from the Office of the Planning Regulator that only a tiny number of planning applications in a given year are subject to judicial review. More than 30,000 planning applications, and sometimes anything up to 40,000, pass through our planning system annually between the local authorities and the board. Only about 3% of appeals to the board end up in the courts for judicial review and less than 0.4% of all planning applications end up in the courts. It really is hard to understand, given the small number of legal challenges, why we would be making such profound changes and taking such profound risks with our planning process. I am very strongly of the view that I would like to see the lowest number of judicial reviews possible. In some respects judicial reviews are a failure of the system, either bad planning applications, poor quality decisions or, in a very small minority of cases, vexatious actions by third parties. Therefore, the best way to deal with these issues is to make sure the planning system is robust and makes good quality decisions based on good public participation so that nobody feels the need to go to the courts.
Likewise, where judicial reviews do arise - and they will always arise; they cannot be removed from the system - we need to ensure the courts system is adequately resourced to expedite those decisions. While the Government recently made an announcement of three judges in the sub-panel of the High Court, it is really only two judges because two of them are not working full time on these cases. Most of the experts we spoke to suggest we need approximately five full-time judges dealing with planning and environmental issues, one of whom would probably spend more time outside of Dublin than in it to ensure JRs, if and when they do occur, happen in a very timely manner. In fact, one expert I spoke to who spent a lot of time in the courts on these matters said that if we had five dedicated High Court judges dealing with these matters through the planning and environment panel, we could be looking at timelines of three months, which of course would be ideal.
Before we get into the amendments my initial questions on the analysis of the profound changes in this Part of the Bill. Why was it changed, despite all of the advice of this committee, including from the Bar and the Law Society? Two of the most powerful presentations were from the legal representatives who not only take judicial reviews but defend against them and they told us that what is in this Part and these sections of the Bill will not work and will make things eminently worse.
We have been here before. We saw a significant increase in judicial reviews because of really bad planning law introduced by the Minister of State's party colleague, Deputy Coveney, when he was the Minister with responsibility for housing. They created enormous conflict on the ground and dramatically increased levels of judicial reviews that were upheld by the courts because of the poor-quality decision-making of the board. That eventually forced the Government to change the planning process to something many of us had argued for for a much longer time. This is a really important Part of the Bill and it is important we scrutinise each of these sections individually, and my colleagues and I intend to do that. There is a need, which has not yet been put in the public domain, to justify what is in front of us. I will be very interested to hear the Minister of State's response to that initial question before we get into the meat of the amendments.
I thank Deputy Ó Broin. I will now go to Deputy O'Callaghan. I think we will have quite a bit of discussion on this grouping, so I will allow the time for that. I know Deputy Bacik wants to discuss her amendment as well. We will try to do the amendments in a logical order if possible.
In follow up to that, it relates to all of our amendments here and certainly to amendment No. 954, that overall question of the changes proposed here, what are the problems that is trying to be solved? What is the evidence for it? What data is there? Can that data and evidence be shared with the committee? What is the intended impact of the changes? What analysis has been done on the predicted effects of each change?
When will that be shared with the committee and made publicly available? A review of judicial review was committed to on page 57 of the programme for Government. Has that review been carried out? If so, will it be published and shared with the committee? Presumably the review would inform the changes proposed here.
Does Deputy Bacik want to come in at this point?
Thank you, Chair. I appreciate that and apologise for coming in late. I will speak to amendment No. 959, which is in this grouping and the purpose of which is to introduce an offence relating to the abuse of the planning objection process for financial gain. Minister of State, I think this is my first time addressing you as Minister of State-----
My apologies, I did not see the second dot here. That is actually in the next grouping. We are on the grouping containing amendments Nos. 954 to 956, inclusive, and No. 979.
Mine is in the next grouping
You will be the first in the next group.
Excellent. I will reserve my words but it is my first time addressing the Minister of State in his new capacity so I congratulate him.
I ask the Minister of State to respond to the initial questions from Deputies O'Callaghan and Ó Broin.
I thank the Deputies for their opening remarks and questions. I agree one of the most important areas of reform in the Bill is Part 9, which updates the processes and parameters of planning judicial reviews, as well as introducing a scale of fees relating to the judicial reviews legal fee and an environmental legal costs financial assistance mechanism. Principally, this is to ensure the costs associated with proceeding with a judicial review are not prohibitive and to maintain compliance with Ireland's commitment under the Aarhus Convention.
Deputy Ó Broin asked what analysis the Government has undertaken. The reform has been underpinned by a detailed review and advice from the Office of the Attorney General, as well as extensive engagement with stakeholders and other relevant Departments, in particular the Department of the Environment, Climate and Communications, which leads on the establishment of the scale of fees and the environmental legal costs financial assistance mechanism. A comprehensive amount of work has been undertaken and there has been extensive engagement on this. It is one of the most important areas of reform in the Bill and due diligence has been carried out.
In relation to the wider exercise around reviewing the judicial review process, that is being undertaken by the Department of Justice and the Minister, Deputy McEntee. It is not the responsibility of the Department of Housing, Local Government and Heritage.
I think we are in for a long afternoon. We are told there is an ongoing review of the judicial review process in another Department, yet profound changes to the judicial review regime are being introduced in this Bill. That seems to me to make no sense whatsoever. Generally, we are told the reason we cannot have legislative reform, for example yesterday on compulsory purchase orders, CPOs, was because there is a review between two Departments on CPOs and the Law Reform Commission's report and that, therefore, the Department of Housing, Local Government and Heritage could not proceed with some areas of reform in planning without dealing with the wider issues of CPO and valuation. Here we are being given the opposite argument, that a wide review is being undertaken but the Department has decided to press ahead nonetheless. That is the first concern.
The second concern is I do not believe there is a detailed review of judicial review. If there is, publish it. I am not saying there was not advice given by the Attorney General or discussions between the Attorney General and the group of senior counsels responsible for drafting this Bill. We are asking if there is an actual analysis of planning permissions judicial review processes that has fed into the drafting. If there is, it should be published. I do not mean legal advice but, rather, actual empirical analysis. The only data we have is from the Office of the Planning Regulator. That office publishes a really helpful report each year detailing the total number of applications, the fact the overwhelming majority of them are approved within the statutory time limits of our local authorities - there is a separate issue ongoing in the board - and the really small number of legal challenges. The evidence from the independent Office of the Planning Regulator is telling us this is not as big a problem as sometimes the political and public debate seems to suggest.
On the other hand, we used to have a relatively standard number of judicial reviews related to planning environmental matters in the courts each year. That ballooned out of control following the introduction of mandatory ministerial guidelines on building heights and design standards for apartments under the SHD process. The residential development community tells us now the large-scale residential development process has led to a dramatic reduction in judicial reviews on residential development, combined with the revised development plans. We are moving back to where we were before the SHD and SPPR impacts. What is to be fixed here if the empirical evidence suggests otherwise?
The Minister of State referred to "extensive engagement with stakeholders". That is not what stakeholders told us in this committee. Representatives of the Irish Planning Institute told us the level of engagement with them in the planning forum was very high level and they were surprised by large elements of the Bill. Many other sectors, such as environmental NGOs and legal bodies, did not give the impression the Minister of State suggests or, in some cases, were outright critical of the lack of engagement on the detail of this.
We have no idea what the cost regime will be because it is not in the Bill. The Minister of State is correct that it is being dealt with by another Department. The problem with costs, which we will get into when we deal with the sections, is that for two or three years there was an enormous backlog in the courts because of the dispute over costs in the Heather Hill case. That meant any judicial review with a similar dispute over costs could not proceed and that clogged up the courts and the system. That was resolved and there is clarity for the first time in years on costs. We are being asked to throw that certainty and clarity away for a legal aid scheme that has yet to be designed or published. Nobody understands how it will operate and be funded or how much it will cost. There is a fee-setting mechanism, which I am not against in principle, but there is no clarity on how it will work.
Here is the problem. I appreciate the Minister of State is new to the portfolio but I am sure he followed some of these debates. I do not want to see good planning applications for good quality residential development, offshore or onshore renewable energy or critical infrastructure, particularly by our semi-State bodies, stuck for several years in the courts because the Department has ditched Heather Hill and introduced as yet undefined cost protection measures which end up being litigated on and slowing everything down.
I ask again what empirical, policy-based evidence, not legal advice, are these measures based on? If there is such a thing, will it be published? Why is the Minister of State not listening to the long list of professionals who work this system, including planners and developers, whether public, private or semi-State, and legal professionals working on both sides of the litigation process? They told us in committee through clear submission and stark testimony. Some of them have been writing publicly in newspapers over the last while. The Irish Planning Institute's conference is today and this matter is being discussed on the platform as we speak. Why is the Minister of State not listening to the voices of the experts who will be working this system when they tell him he has got this wrong and it will lead to increased conflict, litigation and delay in our planning system, particularly for crucial infrastructure, residential development and renewable energy projects?
The questions I asked were these. What are the problems here that are trying to be solved? What is the supporting evidence or data for the changes proposed? What is the intended impact of the changes proposed? What outcome is envisaged? What analysis has been done on the predicted effects of each change? If analysis has been done and there is data, will it be shared with us? It is important we get clear answers to those questions.
I have a concern about the landscape around JRs. Since this was envisaged there was a higher level of JRs because of very badly designed SHD legislation. Warnings were sounded about this at the time. It created a lot of delays and clogged up the system, rather than acting as a fast track for planning. There is extensive research on how it was lobbied for and how the changes lobbied for were delivered, lock, stock and barrel, according to one of the lobbyists in an academic paper published by researchers from Queen's University and University College Dublin. I have a concern about that landscape having shifted. We have not heard what the problem is that Government is trying to solve here. Is this trying to solve a problem because we are getting back to normality in terms of the number of JRs? That effectively is not there but we have not heard on it.
The detailed review of judicial reviews being carried out by the Department of Justice was committed to in the programme for Government four years ago. Has it started? If so, what stage is it at? When is it due to be completed? Why is the Government not waiting for it to be completed before making substantial changes to judicial review in the Bill here? If it is a comprehensive review, would it not be a good place to start in terms of any changes? Presumably, the comprehensive review will have some data or analysis that could then inform changes. Where is the data and analysis - the supporting evidence for the changes being proposed - and will it be shared with us?
I raised this issue in my contribution on Second Stage. There is immense concern about the issue of costs generally and about the proposals on judicial review. I echo the comments of Deputies Ó Broin and O'Callaghan about the need for greater clarity, in particular on timing. The more I speak to those engaged in planning - the stakeholders and so on - the more concern I hear about aspects of the Bill and this in particular. There is a concern that more time should have been given to considering the ramifications of this and to consider better ways of making reforms.
This is for the benefit of people who may be watching. One of the reports of the Office of the Planning Regulator had an annex that outlined in some detail judicial reviews that were determined between 2012 and 2022. Some of that data is available and people may not be aware of the fact. I just wanted to say that for clarity and information.
This is a really important part of the Bill, for reasons the public are well aware, regarding the speed of the judicial review process. It is our intention that we would have quicker decisions and swifter delivery of housing and infrastructure projects. In that regard, there is a requirement for reform of the process and the parameters of planning judicial reviews. That is central to this Bill. Extensive discussions have been held with the Office of the Attorney General on the legal advice on the preparation of these provisions. That analysis has taken a long time to prepare. It is embedded in this section. It is really important that we have sound advice and analysis in that regard. As the committee will understand, this legal advice is not published. However, we have enlisted many professional experts in the preparation of this section. It is a misrepresentation to say we have not. It has been an extensive process and a number of years in the making. We want to ensure that with any judicial reviews we have a quicker decision-making process and that we have an established procedure for them that is not prohibitive or expensive and maintains compliance with Ireland's commitments under the Aarhus Convention. That is really important. I look forward to debating the amendments tabled by the Opposition parties and understanding their reforming intention in this regard. From our side, we want to make the process more streamlined and more effective.
The question has still not been answered so I will ask it again. No one on this side is misrepresenting the consultation process. We are merely saying what we were told by the people involved in the process during pre-legislative scrutiny. I urge the Minister of State to go back and read the transcripts or even ask his officials to give him a summary during the break. In fact, during PLS, many of us commented on the fact that we had extensive engagement with the officials from the Department. However, what we were told by the key stakeholders - the people who will work this system - is that the consultation was not extensive and the outcome on the other side was very surprising to them. If the Minister of State wants to accuse them of misrepresenting the process, that is fine, but they made very strong criticisms of it here. One of the most striking was from the Irish Planning Institute. The testimony of professional planners who make and decide on planning applications was very strong.
I am in complete agreement with the Minister of State. I would like to ensure that we have a system whereby when a judicial review of a planning matter is taken, it is taken as speedily as possible. As I have said, the single best way of addressing that is to resource the courts. However, the Minister of State is not addressing the specific questions that legal and planning professionals have raised with this committee and that we have an obligation to raise with him, namely, that what is being done in this section will have the opposite effect. I am not asking for the legal advice because I know that the Attorney General's advice cannot be shared and published, unless someone wants to leak it from a Government party to the press on the eve of a referendum but that is a separate day's craic.
This is an important analogy because it is directly related to the issue of JRs. When Deputy Simon Coveney and the then head of planning in the Department, Niall Cussens, who is now the Planning Regulator, introduced the strategic housing development legislation, we asked for the empirical evidence on which the legislation was based. We had to fight to get it by threatening an FOI application. We eventually got the evidence in the form of a spreadsheet showing a set number of large-scale planning applications and how long they were in preplanning, planning, further information and appeals. When we saw the actual evidence, it did not support SHD and we made that case at the time. We argued for statutory timelines at all stages of the process. We told the Government that this was the wrong approach. It was not just me who said this; other members of the Opposition, including Senator Boyhan, who is still on the joint committee, also did so. We urged the Government to take a different approach. We said that this would lead to delay and conflict. The Government did not listen. Very significant numbers of planning applications ended up in the courts or ended up in judicial review and created a backlog in An Bord Pleanála. We were proved correct and years later, the Government did, broadly speaking, what this committee and the Opposition had asked for. I will press the Minister of State again on the question. Is there empirical evidence on this? Did someone conduct a review of judicial reviews within the planning system and based on that empirical evidence come up with the proposals? The Chair is absolutely right,; there is quite a detailed annex in the OPR's report. This does not support the types of changes set out here.
Will the Minister of State tell us if there is empirical evidence underpinning this set of legislative proposals? If so, will he give it to the committee so that we can scrutinise it in advance of Report Stage? Those of us on this side are lay people trying to make our way through a very complex Bill. What does the Minister of State say to the professional bodies, the Bar Association, the Law Reform Commission, specialised committees on planning and environmental law and the Irish Planning Institute? The latter body told this committee, and has said so publicly, that what is here will make things worse, not better. There are two questions and then we will start moving into the amendments.
Regarding the speed of the judicial review process, I cannot for the life of me understand, given the importance of housing and key infrastructure, why the Government simply does not appoint a sufficient number of High Court judges to speedily look at judicial reviews. Overall, as a society, the gain we would get for this would be well worth it rather than bringing forward changes that will potentially lead to long delays and satellite litigation. For the life of me, I cannot understand this.
I understand the Attorney General gives legal advice. That is the function of the Attorney General to the Government. I am not talking about this Bill in particular, but such advice is often presented as we got the advice from the Attorney General, therefore we are on the right path. However, the advice the Attorney General generally gives would normally contain options, choices and so forth, the same as any other legal advice. That is the way it happens. However, our question here is not about the legal advice. I understand the Government does not publish the legal advice from the Attorney General. I am asking what data and analysis was presumably given to the Attorney General to inform the advice the Attorney General then gave to the Minister and the Department. The Attorney General presumably did not just do all of this from scratch. Surely there was some empirical data and analysis that the Department or the Minister got done on this and gave to the Attorney General. It is that data, analysis and evidence that I am seeking. Is there data and analysis that was conducted by the Department or that the Minister had that then formed the basis of what was given to the Attorney General or informed the basis of these changes being brought forward to us?
I want to move on to the amendments now but it was important to set out the-----
I have one follow-up question based on-----
Does the Deputy want to put that follow-up-----
No. It is based on the answer. I am trying to find out whether there is data.
I will try to synopsise. There have been several requests from members on the data, reports and analysis that inform this. Notwithstanding, I note the AG’s advice cannot be published. If there are data, reports and analysis that can be published, I ask that they be made available to the members of the committee.
On Deputy Ó Broin’s point, I think we all agree that a faster, speedier judicial review process would be beneficial. I think there was reference to the programme for Government, where there would be a review of the judicial review system in tandem with the establishment of a planning environmental court, which has been established, with three judges on it. That speaks to Deputy Ó Broin’s point about the better resourced courts. It is also important to recognise there seems to be a reduction in JRs because the SHD system has been removed and they were contributing to many judicial reviews, notwithstanding there are still some tailing out of the system.
The review and analysis was led by the Office of the Attorney General. Any research that was undertaken fed into the legal advice provided. As part of that process, the advice led to the provisions now being included in this section. With regard to Deputy O’Callaghan’s question on the assignment of more judges, that is a matter for the courts system. We have set up a specific court, but in respect of the case management and the load, that is not within our remit. We have made progress in that regard and I am sure further progress will be made in the time ahead.
With regard to the fundamentals of this section, Deputy Ó Broin specifically stated twice that this will have the opposite effect, which I disagree with. He feels we will have slower decision-making time and he feels there will be, again, a failure to deliver on housing. I disagree. It is important we get this section right. The Government is bringing forward important steps to ensure we have quicker decision-making and we can have faster delivery of housing infrastructure. That is principally the reason we have gone to great lengths to include this section. We have also gone to great lengths to get the most accurate advice from the AG and the legal advisers on the legal process for judicial reviews. That is central to what the Government is bringing forward here.
Deputy Callaghan to respond, and then we will move to the amendments.
First, the Minister of State told us, and I think this is correct, that any research undertaken was fed into the review undertaken by the Attorney General’s office.
That is correct.
However, that is vague. That does not tell me whether research was undertaken, who undertook it or what sort of research was undertaken by the Department. If it was undertaken by the Department, why can that research not be shared with us? We would then see some of the data and evidence we are looking for that informs this. We know the Attorney General’s legal advice will not be released and we understand that. However, with regard to the data and empirical evidence that was fed into the Attorney General’s office, what was it, will it be published, will it be shared, can we see it and can the Minister of State tell us about it? "Research undertaken" could mean from zero to a huge amount of research. If the Minister of State wants to respond to that, I have just one question after that.
The research is within the Office of the Attorney General. It is not our research; it is contained within its department. On those grounds, we understand that research has been undertaken and has formed the process in respect of the provisions we have today.
Have the Department and the ministerial team seen that research?
Yes.
But the Minister of State will not share it with us.
We cannot, as the Deputy is aware. It has been already-----
He could. That is a decision of Government not to share the research that informs this.
The Deputy needs to understand that is legal advice. To his point, it is contained with the AG’s remit.
My view is that legal advice and research are two separate things. Us looking to see the research on this is entirely legitimate. I think if it were put in the public domain, we might understand some of the rationale here and so forth.
I have a question on this. The European Union Court of Justice in the Puškár judgment made clear the need to evidence any changes in EU law rights, that they be proportionate and justified. Where is, and will the Minister of State provide, the evidence to make sure we are in compliance with the Court of Justice of the European Union's Puškár judgement that we need to see the evidence to justify these types of changes that are put forward?
The Attorney General has conducted a review and is satisfied it is in compliance with legislation.
The Government will not provide the evidence to make clear these changes that are needed as per the Puškár judgment. Is that the situation? We will not be provided with it.
The Attorney General is confident the provisions in the Bill are proportionate obligations. We can tease that out as we go through the amendments.
I suggest we take amendments No. 954, 955 and 956. They are insertions into section 250. Is that logical?
We can take them one after another.
Yes. They are all insertions into section 250, in the interpretations.
Yes, they are.
Let us start with amendment No. 954 please. The Minister of State, Deputy Dillon, will leave us now. I thank him for his attendance this morning. I welcome Minister of State, Deputy Noonan, to committee for the rest of the session.
We thank him for his attendance. I know he was listening in.
Amendment No. 954 replaces Part 9 entirely and reinserts provisions from the existing Act in sections 50, 50A and 50B. The amendment makes some minor changes to what is currently in the legislation, particularly in terms of the counting of the eight-week judicial review window. Part of the reason is to ensure it is compliant with the European Court of Justice decision in case No. 470 of 2016, as well as doing away with undertakings, which is something the Department does in the Bill.
To justify this, I am absolutely convinced that what motivates the new Part 9 is a group of legal professionals who are fighting the last war. They are looking backwards at things that have happened that concerned them which are no longer necessarily the problems we will face in future. They are fixing things that no longer need fixing, particularly under the large-scale residential development process.
Very quickly, I want to insert into this response three related responses to the Minister of State, Deputy Dillon. They are related to the amendment. It would be entirely possible for the Department to compile a summary of the evidence base upon which the Attorney General has recommended the section I am essentially trying to remove. It is clearly the custom and practice for the Government not to release Attorney General advice, although previous governments have published an Attorney General's advice in advance of referendums in the interests of transparency. It would be possible for the hard-working officials of the Department to produce a policy summary and for this to be published and forwarded to the committee. I urge the Department to do this because, other than repeating again that we want to reform and speed up the system, nobody has set out an evidence base for why these particular proposed reforms will work in the way it is proposed they will. I press the Minister of State on that.
I want to correct the Minister of State Deputy Dillon. While the arrangements for the Courts Service are a matter for the Courts Service, the addition of dedicated judges on the environmental planning subpanel of the High Court is ultimately a matter for the Minister for Justice. The Minister for Justice has to provide the resources for this to happen. In fact, when the announcement was made recently that three judges - although it is really only two full-time judges - would work on this matter, it was a Government announcement with the Minister alongside it claiming credit. It is not the case, just to correct the record of the committee, that the expansion of the number of judges dealing with judicial reviews on environmental planning matters is a matter for the Courts Service. Ultimately, it is a matter for the Government and more should be provided.
The Minister of State, Deputy Dillon, kept using the phrase, when speaking to the Opposition, that "we feel" that what is in this will make things worse. None of us have said we feel that way. We have listened to expert testimony from the people who are going to work the system, including on the section I am trying to replace with this amendment. They tell us that, based on their professional expertise as planners, lawyers and barristers, this will make it worse. This is not about a soft feeling among the Opposition; it is the considered view of the overwhelming majority of people working in the field who give testimony on this matter.
Of course there will always be differing opinions. Expert planners advise the Department and they may well take different views. There will never be unanimity. However, there is very strong consensus that what is in the sections of the Bill that my amendment is trying to alter will make things much worse. On this basis, the amendment as outlined is trying to remove the damaging sections, so far unjustified and unexplained on any evidence base by the Government, and at least allow us to continue with the system which, especially with respect to residential developments, is now working well. This is not my view or feeling; it is what residential developers tell us. They are asking us to leave well alone, let large-scale residential development bed down and let them get on with the process of applying for planning permission and delivering the homes that people need.
When I was raising the Puškár judgment of the European Court of Justice the Minister of State, Deputy Dillon, said there was advice from the Attorney General on it. The Minister of State, Deputy Noonan, might advise us of the number of instances on which the Attorney General's advice or, indeed, the Government acting on the Attorney General's advice, has been found not to have been the correct path to follow at the European Court of Justice. It has been presented here as if it is the full answer. There have been judgments where Ireland has been found to be in breach. The Minister of State might tell us the number of cases in which this has happened.
What we seek to do in the amendments is to prevent the type of delays and satellite litigation that may arise if these changes go ahead. These are delays we simply cannot afford from a housing point of view or from a critical infrastructure point of view either. Amendment No. 954 deals with an issue that came up at the Aarhus Convention Compliance Committee, namely, that the clock is meant to start ticking from the date a decision is known by the public. It is three years since the committee made that finding. Why, in terms of these changes in the Bill that the Minister is bringing forward, is this finding not being addressed? When the law is clarified at European level or at Aarhus Convention Compliance Committee level, Ireland must act. It is not an option simply to ignore it. Why has this not been addressed, as amendment No. 954 seeks to do?
I will now address amendments Nos. 954 to 956, inclusive, which have been jointly tabled by Deputies Cian O'Callaghan, Ó Broin, Gould, Ó Snodaigh, Boyd Barrett, Bríd Smith and Gino Kenny. These amendments seek to remove sections 250 to 274, inclusive, covering all the proposed process, parameter and cost reforms relating to planning judicial review and proposing instead to revert to the arrangements that are contained in the Act of 2000.
It is worth reminding ourselves at this juncture that the Bill before the House is the culmination of not only the 15-month review led by the Office of the Attorney General but also an extensive process of stakeholder engagement through the planning advisory forum and bilaterally with relevant Departments. It also has been subject to a comprehensive pre-legislative scrutiny process, of which many of the recommendations were incorporated into Part 9 of the Bill before us, which the proposed amendment wishes to dismiss summarily and in its entirety, without nuance or regard to many of the varied benefits and improvements contained within.
The reforms contained in Part 9, as published, can be categorised as improvements to processes, which either have the potential to speed up or cut costs on planning judicial review; clarification of language and parameters regarding standing, which remove ambiguity and improve transparency in the system while protecting rights defined in European law; and reduction of costs, both to the State and applicants, through the introduction of a scale of fees and the availability of an environmental legal costs financial assistance mechanism, which protects applicants from prohibitively expensive costs.
This is a complex area of the Bill that requires careful balance.
Ireland has legal obligations regarding access to justice under the Aarhus Convention and a proud record of public participation that must be maintained and respected, while also recognising that the status quo is not sustainable, either in financial cost or in terms of the cost exacted on delivery of key infrastructure.
The changes regarding judicial review should be seen in the context of the Bill as a whole and the key aim of moving to a plan-led system and ensuring a greater consistency of approach to national planning policy, including providing for limited grounds for material contravention in planning decisions by An Coimisiún Pleanála.
Among the positive reforms contained in Part 9 which amendments Nos. 954 to 956, inclusive, seek to remove are as follows: applicants will no longer need to apply to the High Court for leave to take a judicial review case. This change will save time and cuts expense while improving access to justice; and applicants will still need to demonstrate that they have sufficient interest and standing to take the case. Timelines previously set out within the draft Bill for the various stages of the process have been removed as these matters will be dealt with by the rules of the High Court. This change from the draft Bill of December 2022 was on foot of advice from the Courts Service and recommendations of the PLS.
Another important change is the inclusion of a provision for unincorporated organisations, such as residents’ associations, to take judicial review, subject to certain criteria, including having sufficient interest, taking a vote of members and providing information to the court to state who is taking the case. This change was also on foot of recommendations from committee members. The governance requirements contained can only be seen as a necessary improvement in transparency and there has never been a more important time to bolster that aspect of the planning system. To that end, further amendments have been tabled, amendments Nos. 969 and 979, with regard to persons taking judicial reviews for the sole purpose of delaying a development or for securing the payment of moneys.
Further amendments will be tabled on Report Stage to deal with those making spurious submissions on applications or taking spurious appeals and address the matters raised in the media recently, which are of concern to all of us present.
Environmental NGOs will still enjoy special status within this Bill and aligned to Ireland’s commitments under the Aarhus Convention, subject to certain criteria.
Chapter 2 contains the provisions pertaining to the new environmental legal cost financial assistance mechanism. The mechanism will facilitate the making of a contribution to the costs of all planning judicial review cases that are deemed to be Aarhus proceedings under the Bill. It will cover a full range of approved normal costs for legal cases in accordance with the financial assistance mechanism save for those that are deemed to be frivolous or vexatious. This improves access to justice by removing a significant cost barrier in a high-cost legal environment.
The financial assistance will be administered and regulated by the Minister for the Environment, Climate and Communications, who will by way of regulation, set a scale of fees payable within the scheme. The agreement of the Ministers for Housing, Local Government and Heritage and Justice, and the consent of the Minister for Public Expenditure and National Development Plan Delivery and Reform, is required. Details regarding the rates to be paid under the mechanism will be set out in regulations. The introduction of these cost measures - the scale of fees and cost mechanism - will introduce a level of certainty and predictability to the State’s exposure to judicial review costs while not limiting or diminishing the important role that judicial review plays within the Irish system.
The Department of Environment, Climate and Communications intends to bring forward further legislation with judicial review matters for all other consenting systems and to fully implement the Aarhus Convention for all consenting systems.
Environmental assessment provisions have been reviewed to ensure full compliance and alignment with EU directives.
In place of these reforms, the amendments prefer challenges presented by the status quo, including: delays to the delivery of key infrastructure due to the current lengthy and complex system, including at the early application to leave stages; a cost system based on a High Court ruling, which could change again based on future court direction, meaning no level of predictability for the State and no management of costs of judicial review in the State, which are among the highest in Europe in this area; the continuation of the "no foal, no fee" system whereby applicants are reliant on finding legal representation based on this approach as otherwise the costs of taking the case may be prohibitively expensive, a situation that has been criticised heavily by Europe and may not remain fully compliant with the country’s commitments under the Aarhus Convention. This model also means that in many cases only those cases chosen by legal representatives have a chance to progress.
The ongoing increase in frequency of judicial review as well as the costs associated have been widely acknowledging as adding a cost to infrastructure delivery, both in terms of delays to delivery and final cost of delivery, as well as having a potential effect on inward investment.
The proposed amendments seek to ignore the flaws identified in the current system and the benefits proposed within the Bill, which will future-proof our planning system while balancing key pillars of Irish planning such as public participation and access to justice, environmental considerations and delivery of key infrastructure such as public transport and renewable energy.
The Bill can be a cornerstone to our sustainable and balanced development as a country but only by having the courage and ambition to pursue the necessary reforms and not the caution and lack of imagination displayed by the amendments proposed. For these reasons, I oppose amendments Nos. 954 to 956, inclusive.
Should I speak to amendments No.979?
We can deal with the first three and then go back to amendment No.979.
While I have been accused of many things in the Chamber and in the committee, it has never been lack of imagination, but there is always a first time. Imagination is not what we are looking for; we are looking for reforms that will work and will improve our planning system. That is the issue at hand here.
The Minister of State has said that the status quo is not sustainable. That means that if this legislation had been in place last year, fewer judicial reviews would have been taken and the JRs that were taken would have been processed more speedily. I do not believe there is any evidence to support that. I believe four unmanned wind energy licences were issued in the past 12 months, all of which were subject to JR. I spoke to some of the industry people involved and I do not believe anything in this Bill would have altered that fact if this legislation had been in place. That is my understanding. We have spoken about large-scale residential developments. The volume of judicial reviews in residential developments has declined significantly because we have a two-stage large-scale residential development process and greater consistency between development plans and Government policy.
On the one hand, with onshore wind there is nothing in this Bill that would make a significant impact on the status quo, which the Minister of State said is unacceptable. We have seen a resolution of the spike in JRs in residential developments as a result of bad planning legislation. I ask him to convince us. If this had been in place in the past 12 months, what would be different from what is currently the case?
The two changes the Minister of State referenced arising from pre-legislative scrutiny are not objectionable but they are really minor. He spoke about the removal of the leave stage, which is often the shortest and least contentious part of the process. The legal experts we have spoken to have said that of course it is not objectionable but will not make a significant difference to the overall time. Likewise with the unincorporated bodies, the big concern from residents' associations is that the chill factor is still there notwithstanding the modest change that has been made.
We have spoken to legal representatives who often represent residents' associations and also crucially legal representatives who represent residential developers. They are telling us two things about that section of this Part. First, they believe it will not work; people will find a workaround to it very quickly meaning that the Government's efforts will have been in vain. Second, they believe it will be challenged in the courts which will delay all sorts of other decisions. I do not accept for a second that those two minor and modest changes amount to significantly addressing the serious concerns that were raised during PLS by professionals in the field.
With respect to the fees, the problem is that we do not know what the fee structure is. We do not know what the legal aid system will be. We know that we have a legal aid system that does not work. The people who most need protection under that scheme can rarely avail of it. While I am not arguing that Heather Hill is perfect, we are being asked to dispense with something that at least provides legal clarity for something that is completely unknown. If the Minister of State could outline to us exactly how the fee structure system will work and the legal aid system, that would be great. His counterparts in the other Department do not have clarity on all that.
Therefore, I am not hearing anything that is convincing me. I am open to being convinced, but every time we ask for evidence that supports the claims being made, all we are given is rhetoric about needing to speed things up and improve them. Everyone agrees with that, but we are looking for evidence to substantiate the claim that what is in the Bill will do that and we will not be back here in two or three years like we were with SHDs, SPPRs and building height and design standards when the fears raised with us by professionals in the field, and that we in turn raised here, came to pass and we were proven right.
What in this Bill would have made a difference over the past year? Using real-life examples, how would it have improved the status quo? What will the fee structure and legal aid regime look like? If the Minister of State wants to convince us to replace one system with something else, he needs to tell us what that something else is.
Respectfully, when it comes to legislation, it should not be a matter of imagination, but hard data, evidence and facts. That is what we have been asking the Minister of State for. We do not want people imagining things. We just want to see what the data and evidence are. Will he provide them to us? Can the legislation and the changes the Government is making be justified by hard data and evidence? We can leave imagination to other discussions, but legislation should be evidence-based.
Regarding the Minister of State’s comments about the extensive process with the planning advisory forum, I received strong feedback from the forum’s members to the effect that they did not feel there had been strong engagement with them on the judicial review changes. In fact, they said they had sought the identification of issues in the current JR system in terms of evidence, analyses of impacts and changes, and assessments of the changes’ legal compliance with the Aarhus Convention and EU and international law, but that none of that was provided. They said it was missing from the discussion papers supplied to them and that the rationale for and detail of the changes in the Bill were not provided. As such, there is a strongly different view from members of the planning advisory forum.
The Minister of State might address my question on the proposed section 250(6), which relates to the eight-week window for applying for leave for judicial review. The Aarhus Convention compliance committee’s communication ACCC/C/2015/131, which issued on 26 July 2021, clarified that the running clock for a window to seek judicial review should not start until the public is notified of the decision, with relevant information on that decision being available. That is clear in paragraph 175(a), which addressed this and stated: "The time frame for bringing an application for judicial review of any planning-related decision within the scope of article 9 of the Convention is calculated from the date the decision became known to the public and not from the date that the contested decision was taken." It is almost three years since that communication, so why is it not addressed in the changes the Government is making through the Bill?
We do not want imagination. We just want the data and evidence and compliance with our international legal obligations.
If I miss some of the questions, the Deputies might remind me of them.
Regarding Deputy Ó Broin’s question about fewer judicial reviews, that is not anticipated, nor does the Bill try to have fewer judicial reviews. There would be quicker processing of reviews and certainty about costs. It is not the intention to try to stop people from taking JRs. This is about speeding up the process.
The interdepartmental group on environmental legal costs was chaired by the Department of the Environment, Climate and Communications and was established to examine the implementation of the proposed changes. As approved by the Government, the group’s remit is to progress the drafting of the necessary regulations on the scale of fees review to mitigate any potential risks arising from the establishment of a financial assistance mechanism. The Government has approved in principle the establishment of a cost assistance mechanism, and the Bill will set out the provisions for that. The role of such an evaluation would be to identify any potential risks arising from the establishment of the mechanism and how they are to be mitigated. To date, the group has met four times, examined the legal necessity for the mechanism, decided on the approach to consultation with stakeholders with a professional interest in environmental legal costs, and progressed work on identifying and assessing risks associated with the establishment of a financial assistance mechanism. The Minister for the Environment, Climate and Communications will report to the Government on this matter within three months of the Bill’s passing.
Deputy O’Callaghan asked about amendment No. 954. We are satisfied that the notification procedures are appropriate and align with the Aarhus Convention. This is based on advice from the Attorney General.
The Planning and Development Act 2000 required an application for leave to apply for a judicial review of proceedings. The original intention was for it to act as a form of screening for valid cases, but due in part to the widening in scope of the environmental parameters related to planning JRs, almost all cases now proceed past leave stage in practice. Removing the leave stage removes a time cost and unnecessary legal costs for all parties. In every case, all applicants must provide evidence of sufficient grounds and interest to proceed. A further provision on an application to strike out a Part 9 judicial review maintains the ability of a party to apply to the court to strike out the proceedings on a stated criterion, such as lack of standing, being out of time, a failure to exhaust appeals and administrative procedures, and a failure to disclose an arguable case. Additionally, the court may deem applications to be frivolous or vexatious.
Deputy O’Callaghan stated that the planning and advisory reform did not receive good engagement in terms of-----
The proposed changes to judicial reviews and the data we are seeking now.
I cannot respond on that matter, as I was not aware of it. These recommendations came from PLS and engagement with this committee.
I have two follow-up questions. This is the first time a Minister or Minister of State has publicly stated that there will not be fewer judicial reviews. Indeed, one of the Minister of State’s predecessors, the now Minister for Enterprise, Trade and Employment, Deputy Peter Burke, spoke publicly about a judicial review industry in a high-profile interview that made it onto the front page of a newspaper. The clear implication - certainly by Fine Gael Government members - was that one of the primary intentions of these sections was to reduce the number of judicial reviews. At least we now have the Government accepting-----
The point I am making is that this will speed up-----
I will get to that. That was the second point the Minister of State made. It is interesting that the Government now says it does not anticipate any reduction in the number of judicial reviews. In some sense, that tallies with the legal opinions received by this committee that the Bill is likely to increase the number.
The Minister of State spoke about quicker processing times. I will ask a simple question. What was the average processing time of a planning-related judicial review in the past year or two? On average, how much time will the measures the Minister of State has set out and tried to justify in the Bill knock off that? How much time will we save by, for example, deleting the leave stage? The public and the committee have a right to know whether there is analysis that shows it has taken X amount of time in the past 12 to 24 months and that these changes will reduce that time on average. That is what we were told about SHDs, but it did not work out that way.
Is that analysis there? Is it a kind of guess that if we get rid of the leave stage, between the jigs and the reels, the processing time may be shorter? Is there something hard and concrete to tell us, as the Minister of State said, that the status quo is not sustainable and is taking this amount of time on average but, under the new and improved, whiter than whiter regime, it will save this amount of time? That is the kind of analysis we are looking for.
The Minister of State referred to costs. He indicated that we will have no idea what those might look like for another three months. Will he tell us, as explicitly as possible, what the cost regime and the legal aid system will be like? There is currently no clarity or certainty for anybody with respect to that. The Minister of State is asking us to take a punt in faith to dispense with the clarity provided by the Heather Hill case and, again, I am not saying that is perfect and could not be reformed, for a regime that has yet to be actually decided, defined or costed.
The Minister of State said he is satisfied that this proposal is Aarhus compliant and that the Attorney General has told the Department it is compliant, which is the standard response when I raise anything to do with Aarhus. We are told that the Attorney General has looked at this and that it is Aarhus compliant. Has the Attorney General specifically looked at the Aarhus Convention compliance committee communication, ACC/C/2015/131, issued on 26 July 2021? This communication states:
The time frame for bringing an application for judicial review of any planning-related decision within the scope of article 9 of the Convention is calculated from the date the decision became known to the public and not from the date that the contested decision was taken ...
If the Attorney General's office looked at that communication, how could it possibly think this proposal is Aarhus compliant? Will the Minister of State explain that? If the Attorney General's office has looked at this communication specifically and concluded the proposal is Aarhus compliant, it rubbishes anything the Minister of State said regarding what that office stated is Aarhus compliant. Clearly, this is not Aarhus compliant. We need to adhere to that instruction from the Aarhus compliance committee and it should be in the legislation. It is deeply worrying. If the Attorney General's office has looked at that communication and stated that we are Aarhus compliant, it is deeply troubling. Will the Minister of State confirm that it has looked at that specifically? If it has, how can it possibly conclude the proposal is Aarhus compliant?
We understand that the Attorney General's office has looked at this. We will get clarification on that specific-----
Will the Minister of State provide us with a note on how that office believes the proposal to be Aarhus compliant?
Okay. Will I come back in on the other points?
Yes.
The concern is not about less judicial reviews. As Deputy Ó Broin said, residential development JRs have gone down since the SHD issue was resolved, but this is around better alignment of plans and decision-making and the removal of the leave stage, which will save time. In fact, it will save weeks. Again, I do not have specific data-----
Did the Minister of State say "weeks"?
Yes. The removal of the leave stage-----
It will save a few weeks.
Yes. To go back to the point about the advisory forum, it is our understanding there has been substantial engagement with that forum on the review. That might be disputed, but it is our understanding that there has been engagement. Are there any other points I missed?
Yes. I asked two questions. How much time will this save overall? The Minister of State said the removal of the leave stage will save weeks. JRs can take a year or 18 months to two years. They are very slow, although it is to be hoped they will speed up. Is the Minister of State saying there is no assessment of how much time on average these proposed changes are likely to save? I thought that would have been one of the objectives here. Is the Department hoping to get JRs down to a year, or six or nine months? My second question sought more detail on the cost regime.
Could we leave the cost regime until we get to that-----
To the section. Sure.
-----chapter.
I am happy to do that.
We will just deal with the timelines. A JR is a two-way process. It is not always in the control of one person to determine how long it will take because someone can look for a stay. It is probably a difficult question to answer definitively. I will give the Minister of State an opportunity to do so.
To respond to the Chair, if the Government's defence of this legislation is that it will speed up the process and save time, one would imagine the Government or officials have some kind of analysis of how much time might be saved or how much it will speed it up by-----
I will allow the Minister of State to answer.
-----even within a range.
The point is we cannot dictate what the courts will do in terms of timelines. Certainly, the planning court will speed up the process. The entire Bill is about better alignment and it is ensuring that. I cannot put a figure on it in respect of the number of weeks, but it is about better alignment in our planning system and speeding up those processes in the planning court.
In the context of the discussion Deputy O'Callaghan and I were trying to have with the Minister of State, Deputy Dillon, on whether an analysis was underpinning this, the Minister of State is essentially confirming that there is no analysis of the actual amount of time it is likely to save. There is a hope that this will do something, but no actual assessment.
It will.
How do you know that if there is no analysis stating what it potentially could save time-wise?
As I said, what the Bill is setting out to achieve throughout-----
Will the Minister of State stick to these reforms in these sections?
I will just get a-----
We have no idea how much time it will save.
I could not put a specific time-----
We do not know. It might not save any time, other than maybe a few weeks.
I argue that it will.
Other than a few weeks. That is the only certainty the Minister of State has.
On the planning court and speeding up JRs, the leave stage has become an unnecessary step. Removing it will lead to a quicker process. There is a time saving there.
That is not the question. The planning court is separate. That is a resource issue, which we support in that we would like to see more resources. We agree on that. The Minister of State has set out that getting rid of the leave stage will save some weeks. In terms of the rest of the change, however, some weeks will not cut it for people who are stuck in a JR. The Minister of State is saying to us that the Government has absolutely no idea what, if any, time will be saved as a result of the much more profound changes elsewhere in the sections of the Bill these amendments are trying to change.
As I said, I cannot put a figure on it.
Okay. Will the Minister of State give any further clarity on the cost regime, other than there is a group working on it, and the Minister is to report back in three months?
Are we dealing with the costs-----
Apologies. We will deal with that when we get to the section. I am happy to do that.
Deputy O'Callaghan has something on the time question. I will then go to amendment No. 979.
It is amendments Nos. 955 and 956.
Sorry, I thought you had spoken to those.
I have only spoken to amendment No. 954.
The Deputy has a question relating to amendment No 954. We will then go to amendment No. 955. I propose we take a five-minute break at 12 noon, which we need to do.
We established from the discussion that there is no analysis or projection on what time savings the proposed substantial changes to judicial reviews may or may not lead to. There may be a hope around that but if there is no data or analysis on it, then that is clearly not the rationale for these changes. The Minister of State also said this will not lead to a reduction in the number of judicial reviews taken so that is not the rationale either. What is the rationale for these substantial changes?
At present, a JR applicant may bring amended grounds beyond those originally filed in his or her application. This is one of the time savings that can accrue from this change. Amended grounds can cause significant delays to the court and the defendant, as they consider the merits of each new amended ground. The Bill reforms this by requiring that an application for a judicial review may only be made on the grounds of the challenge raised by the applicant in the statement of grounds filed with the application. Limited criteria are set out in the Bill by which the court may allow subsequent amendments to the statement of grounds. That, in itself, is a means by which the Bill will allow time to be saved in the process.
We will move to amendment No. 955.
Does Deputy Ó Broin wish to introduce and speak to amendment No. 955?
The three amendments are really interrelated
They are kind of insertions.
For the record, what this does is substitute the equivalent of section 50A of the existing Planning and Development Act after the insertion of the equivalent of section 50. It does not carry forward some of the concerning requirements with respect to undertakings. Again, that is something we dealt with dealt with in a previous amendment, which should not be controversial as the Bill deals with that. Along with the amendment afterwards, this is really just removing the bulk of what the Government is proposing and reinserting a slightly improved version of the existing sections of the Act. I would be interested to hear the Minister of State's formal response.
I believe this is also Deputy O'Callaghan's amendment.
Exactly. The issue of undertakings relates to things that can block access to justice in terms of being prohibitively expensive. That is a positive to remove undertakings.
I thank Deputy O'Callaghan. The Minister of State to respond, please.
I have spoken-----
He has actually responded to those three amendments.
I have responded, but I will just read this out.
That is fine.
Among the positive reforms contained in Part 9, which amendments No. 954, 955 and 956 seek to remove, applicants will no longer need to apply to the High Court for leave to take a judicial review case. This change will save time and cut expense while improving access to justice. Applicants will still need to demonstrate that they have sufficient interest and standing to take the case. Timelines previously set out within the draft Bill for the various stages of the process have been removed as these matters will be dealt with by the rules of the High Court. This change from the draft Bill of December 2022 was on foot of advice from the Courts Service and recommendations arising from pre-legislative scrutiny.
Another important change is the inclusion of a provision for unincorporated organisations, such as residents’ associations, to take judicial review, subject to certain criteria, including having sufficient interest, taking a vote of members and providing information to the Court to state who is taking the case. This change was also on foot of recommendations from the Oireachtas committee members. The governance requirements contained can only be seen as a necessary improvement in transparency and there has never been a more important time to bolster that aspect of the planning system.
To that end, further amendments have been tabled, namely, amendments Nos. 969 and 979, with regard to persons taking judicial reviews for the sole purpose of delaying a development or for securing the payment of moneys. Further amendments will be tabled on Report Stage to deal with those making spurious submissions on applications or taking spurious appeals. These will address the matters raised in the media recently that are of concern to all of us here today.
Environmental NGOs will still enjoy special status within this Bill and aligned to Ireland’s commitments under the Aarhus Convention. Chapter 2 contains the provisions pertaining to the new environmental legal cost financial assistance mechanism, which we discussed. This mechanism will facilitate the making of a contribution to the costs of all planning judicial review cases that are deemed to be Aarhus proceedings under the Bill.
I thank the Minister of State. Deputy Ó Broin, please.
I am good.
That is grand. Does Deputy O'Callaghan wish to come back in?
I am fine on amendment No. 955. Are we going to move to amendment No. 956?
We can move to amendment No. 956.
The Cathaoirleach said he does not want to discuss costs, or can we do so on amendment No. 956?
We will discuss costs when we think we will get to the relevant section.
Amendment No. 956 is related to costs and environmental matters.
If it is referenced in the Deputy's amendment, he can obviously refer to it, but we will probably discuss the cost regime in more detail when we get to Chapter 2.
It is just that amendment No. 956 is specifically about costs.
If the Bills Office has placed it in this grouping and deemed it to be relevant to this section, we can go on to amendment No. 956.
There has been some discussion relevant to amendment No. 956 already and I appreciate there will be further discussion later. As the Minister of State will be aware, however, there have been many changes in costs over the years. One of the issues with the proposed changes is that, effectively, the State is going to have full control over the rates that are paid. That means the State will have control over what types of lawyers can be hired and so forth. In terms of equitable access to justice, that surely throws up many issues, particularly in terms of the March 2018 ruling of the European Court of Justice, which talks about fair, equitable, timely and not prohibitively expensive access to justice. That raises issues. Even the wording in the Bill around reasonable costs does not specifically say or use the language of not being prohibitively expensive. Reasonable costs are quite vague. Who determines what is reasonable and what is not? The Minister of State might explain first what is meant by reasonable costs. Who decides that? How is this going to be decided? We do not have oversight of that scheme at present.
If it is helpful, this amendment is grouped here because the Deputy's amendment suggests to insert into section 250 the interpretation "costs and environmental matters". That is why it has been grouped with it.
Obviously, when we get to Chapter 2 and separate sections on costs, we can discuss those aspects as well. That is just to be helpful.
This is bringing back memories for me because I was one of a number of plaintiffs, shortly after when the Aarhus Convention was enacted here, who were seeking a not prohibitively expensive order from the High Court to take a case. That was very early days in terms of Ireland's compliance with Aarhus.
It is really important that we get this right. It is a very important provision that the State is meeting its requirements in this regard. There has been a review of the administration of civil justice. The report on that identified that there was a high level of legal costs in Ireland comparable with other jurisdictions. I will state that this will be developed in the regulations. As I said, the Department of the Environment, Climate and Communications is leading on that and will engage in a very extensive public consultation to determine the scale of fees and how that operates. That is going to happen within three months. That public consultation process will report back to Government within three months of that process concluding. There is a process to go in terms of determining the scale of fees and how that is to be operated. As I said, however, that process is being led by the Department of the Environment, Climate and Communications, which will draft the regulations in that regard.
Has the Minister of State no concerns about what he is proposing in terms of how this might affect the number of people who seek leave for judicial review? I am not saying the current system is perfect, but one of the issues around the current system, which I have seen myself, is that it allows for representatives to approach people for legal representation on the basis of a no foal, no fee basis. That creates a certain threshold. It means that when approaches are made on that basis, people are often told there is not a case or that it is not strong enough, or the case will not be taken and they will be advised not to proceed or whatever. That creates a certain sifting process and a certain threshold. Is there not then a danger with this whereby we have that system in place but we should have standard access to a legal representation fees scheme so that kind of threshold is removed and no longer there?
When the new scale of fees comes into effect? Is that the question the Deputy is asking?
This can only be a positive in terms of groups and NGOs, in particular, and their ability to take JRs in confidence that the legal costs are not going to be burdensome. That is what the spirit of Aarhus is about in terms of access to environmental justice. It is absolutely a positive. As I said, the regulations still have to be drafted on foot of the public consultation process, so I cannot anticipate how that process will be in terms of the engagement, what recommendations will come through from the public consultation and what goes to Government on that.
Then we are in the same position. The Minister of State is saying this can only be positive but he has no idea what it is. How can he come to the committee and say this can only be positive from the point of view of environmental and non-governmental organisations when he does not actually know what is being proposed? That is the fundamental problem. It is important that we disentangle two things because there is the free legal aid scheme and the cost-setting mechanism for the legal professionals, which we will deal with when we get to them. However, the more basic point is that the Minister of State is coming to us, a bit like the last discussion, saying this is going to speed things up but we should not ask by how long because he does not know as there is no analysis. Here we are again, saying this is going to be much better, with greater levels of cost protection, but just do not ask the Minister of State to explain why because he has no idea because it has not been decided. That is the fact of it, is it not?
This is the enabling legislation and it is in the regulations that the detail-----
There will also be separate legislation from another Government Department that the Minister of State has no sight of because it has not been written.
We are on the working group for that.
Will the Minister of State tell the committee what the cost regime and legal aid are going to look like? How will he convince us that this is not going to be as appallingly inefficient and unfair as the existing legal aid scheme is for other matters?
I understand Deputy O Callaghan wishes to come in.
The aim is to have this scheme as efficient as possible and not to deter people from taking JRs.
We know all of that. That is not the issue. What we want to know is the detail. For example, the current legal aid scheme has all sorts of restrictions with regard to reducing costs and cutting costs that deny people access to legal representation on their day in court and a whole range of other matters. The Minister of State wants us to dispense with the current regime that is in place. This amendment seeks to leave that current cost regime in place. The Minister of State should convince us, not tell us what he hopes or aspires might happen at some point when somebody else produces some regulation.
No, that is what will happen.
The Minister of State does not know it is going to happen. He might not even be in government when those regulations come out, and they could be very different from what he has been promised.
I will just give the elements that the departmental group is considering: the appropriate rates for different types of legal work under the scale of fees appropriate to the superior courts; the financial assessment criteria for all applicants, including NGOs and unincorporated bodies, and the practicality of their application; the funding arrangements for the financial assistance mechanism; the contribution rates and financial assessment criteria for the financial assistance mechanism; and the operational model for the establishment and management of the mechanism. Those are the issues that are going to be considered in developing this.
That is the problem. The Minister of State has told us what the group is going to consider. What he has not told us is what the outcome of that consideration has been. Of course, he cannot tell us that because it has not been decided.
As I said, that process is under way and this will emerge from the public consultation as well.
There are a number of sections on cost in regard to Chapter 2 and we will probably flesh out the discussions a little bit more at that stage.
I would like to come in on this point.
I would let you go ahead but I need to take a break shortly.
We can take a break but I want to come back on amendment No. 956.
With regard to the current section 50B, that is intended to continue until the new cost protection mechanism scheme is in place.
I have never taken a judicial review but I know people who have. While that mechanism has proven to work, there is always a massive concern and worry that you have to come up with a fee upfront in order to retain somebody. There is an element of risk in that regard. I know it is well protected in section 50B but there is still an element of risk. It is my understanding that what is being proposed here would remove that requirement to try to cobble together €30,000, €40,000 or whatever it might be to retain somebody in order to proceed. Maybe neither system is perfect.
We will go to amendment No. 979 in Deputy O'Callaghan's name.
Sorry, I wanted to come in on amendment No. 956 and then we will move to amendment No. 979. Is the Minister of State saying of the scheme that will come in that if there is a change of Government, say there was one that was hostile to environmental NGOs, it could change the scheme and make it as difficult as possible for environmental NGOs? What is the situation?
The scheme will be set out in legislation, will it? How will it be done?
It has to follow the principles of Aarhus. It does not matter what government is in place. It must obviously follow the Bill when it is enacted as well. There will not be an inconsistency regardless of what government is in place. It has to follow the principles of Aarhus and that is what this Bill sets out to achieve and what the regulations will achieve once they go through their process.
On the principles set out in the Bill on this, why is the language of Aarhus of not being prohibitively expensive being used in the Bill?
We do not have to use that specific language to give effect to what the State is required to do under Aarhus. We have to do give effect to it but we do not have to use the specific language in the Bill.
I know you do not have to use the specific language. I understand that. The Government can bring forward whatever wording it sees fit and it does not have to use that language but why is it not using that language? Does the Minister of State not share my concern that there could be a government or Minister who is hostile to the environment – it is not hard to imagine that this could happen given all sorts of history in this country – so why not use robust language such as “prohibitively expensive” and ensure that any cost scheme is not prohibitively expensive? Why not do that? Would it not be a better approach? I know the Government does not have to.
Every state will draft its own legislation to give effect to Aarhus. Obviously, it can be tested if the legislation is not Aarhus compliant. Therefore, the Government is confident that it is and that the text, as drafted, will give effect to the State’s requirements under Aarhus.
I have a second question on this if the Minister of State wants to address that.
I want to support that. Section 266 deals with the regulation of cost payable in respect of prescribed matters. In section 266(3) on page 451 states:
Before making regulations under subsection (2), the Minister for the Environment, Climate and Communications shall have regard to—
(a) the need to ensure that proceedings to which this Chapter applies can be taken by applicants in a manner that is not prohibitively expensive
The wording is actually there.
Okay. I thank the Minister of State.
Is that okay?
Yes. The Minister of State just told me for a while that he would not use the language and then he told me that we have the language.
We do have the language. I do apologise.
On section 279-----
I have a second question. Say an environmental NGO is taking a case, for example, and the State is on the other side. The State is able to apportion whatever resources it wants to defend its side of the case. The State then, through this scheme, is able to dictate the resources available to the other applicant in the procedure. Is there not an imbalance here that the State can put as much resources in as it wants but the applicant under the scheme will not have the same access to resources? Does that not create an inequitable access to justice?
No, it should not. We have had that imbalance in the planning system for many years in terms of communities against a big project but certainly this is not the case here. The critical thing here is to create a level playing field to ensure that an NGO can participate in the system, be it a case against the State, and that it can do that in a way that is equitable. That is what this is about.
What the State is giving is a contribution to the cost. It is open to the applicant to pay in excess of that. That is under section 265(4), which states:
The costs that a party is ordered to pay to an applicant under subsection (2) shall not exceed the monetary amount prescribed in respect of those costs under section 266 unless the court awarding such costs is satisfied that, due to the exceptional circumstances presented by a particular case—
(a) there is a reason of exceptional public importance for awarding costs exceeding that amount …
The Minister of State is saying it should not be a problem that the State will be making a contribution to the costs. The current arrangement is not perfect but a no-foal, no-fee basis means applicants with a strong case can get access to strong legal representation, whereas the Minister of State is just talking about the State making a contribution towards costs. Some may have access to additional resources but many do not, putting them at a disadvantage. People with a strong case can get better representation on a no-foal, no-fee basis than if the State makes a contribution towards the costs. From what the Minister of State has said, I do not see how what is proposed would not be inequitable and therefore fall foul of the Aarhus Convention. The Minister of State said it should not be inequitable, but why would it not be? What is in the legislation to guarantee no inequity?
If you lose under a no-foal, no-fee arrangement, you must pay the costs under the current Act. The Bill before us has a cost mechanism. In many cases, lawyers are going after winnable cases. The Bill will assist in the taking of cases that may be marginal. This could help to improve our environmental system, which is the important part.
Is it the Minister of State's view that these changes will result in the taking of more judicial reviews?
No, what I am saying is that-----
He said marginal cases that otherwise would not be taken will be taken.
But it provides an opportunity for-----
Does that not mean-----
-----in terms of being confident of being supported. This is what the Aarhus Convention is directing the State to do.
Therefore, the Minister of State is saying he believes the changes will lead to more judicial reviews and that marginal cases that would otherwise not be taken will be taken.
Really, this is about putting a structure in place that is fair and equitable for everyone. It proposes a much fairer system than one that would operate on a no-foal, no-fee basis. It would provide a level playing field for the taking of cases with merit on environmental grounds and in terms of the State's requirements under the Aarhus Convention.
On the level playing field-----
We are going to discuss the sections on costs later. Section 266(3) is probably relevant here. That would probably be the opportunity to discuss equity and the regulations.
To be fair, we have had a good discussion and I am just about to conclude, so we might as well-----
I am glad because Deputy Ó Broin has indicated a desire to contribute.
I am asking about the level playing field. The current system means there is a basis for people to get decent legal representation, whereas under the Bill the level of legal representation could be reduced. I am concerned about how level the playing field will be. Although the Minister of State is telling me there will be a level playing field, how could it be the case if most people will be restricted by the costs, creating a ceiling on their level of representation? The current system, based on a no-foal, no-fee basis, offers more scope for flexibility. Could the Minister of State answer that? I have asked him the question a few times, so I will not come in again on it.
I will respond on that point before Deputy Ó Broin contributes. I have read out section 265(3)(a). Section 266(3)(b) refers to "the need for equitable and orderly access to the courts for all persons to be ensured in accordance with law" before the Minister makes the regulations. Section 266(3)(c) refers to "the need to ensure that court and judicial resources are utilised for the common good and in the interests of justice". The level needs to be set appropriately in a way that ensures applicants can get representation. That is in compliance with the Aarhus Convention, which is about access to justice in environmental matters that is not prohibitively expensive.
I will deal with the matter I wished to raise when we get to the relevant section, just to be helpful.
We will move on to amendment No. 979 and try to deal with it before lunch, if possible.
I just want to raise one issue on that. It is relevant to amendment No. 956. Amendment No. 979 seeks to address two points, one of which I referred to when discussing a previous amendment. I referred to the notification of the public.
The second mistake I am trying to correct concerns the ruling of the Court of Justice of the European Union on 15 March 2018 on North East Pylon Pressure Campaign in case C470/16. In the ruling, the court took issue with the lack of safeguarding in terms of cost exposure in Irish legislation. Paragraph 65 refers to it specifically. The ruling was made more than six years ago but the matter has not been dealt with in the legislation. Why not if it is six years outstanding? Will the Minister of State accept my amendment, which seeks to deal with this?
I ask the Minister of State to respond.
I will read the note. First, amendment No. 979 is consequential on amendments Nos. 954 to 956, inclusive. It attempts to retrofit some provisions regarding costs and timeframes without the necessary legal framework or consideration that underpins the Government’s own position, as reflected in Part 9, as initiated. I will therefore be opposing that. The cost provisions will deal with that issue of cost exposure that Deputy O'Callaghan mentioned in terms of the European Court of Justice ruling.
For clarity, under the Bill is there is an opportunity for somebody prior to going forward with the judicial review to seek clarification on their eligibility for costs?
That is in it. That is okay. I just wanted to check that.
I move amendment No. 955:
In page 441, between lines 4 and 5, to insert the following:
“Supplemental provisions
250. (1) In this section—
“Court”, where used without qualification, means the High Court (but this definition shall not be construed as meaning that subsections (2) to (6) and (9) do not extend to and govern the exercise by the Supreme Court of jurisdiction on any appeal that may be made);
“Order” shall be construed in accordance with section 50;
“section 250* leave” means leave to apply for judicial review under the Order in respect of a decision or other act to which section 250(2)* applies.
(2) (a) An application for section 250* leave shall be made by motion ex parte and shall be grounded in the manner specified in the Order in respect of an ex parte motion for leave.
(b) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.
(c) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave)—
(i) if the application relates to a decision made or other act done by a planning authority or local authority in the performance or purported performance of a function under this Act, to the authority concerned and, in the case of a decision made or other act done by a planning authority on an application for permission, to the applicant for the permission where he or she is not the applicant for leave,
(ii) if the application relates to a decision made or other act done by the Commission on an appeal or referral, to the Commission and each party or each other party, as the case may be, to the appeal or referral,
(iii) if the application relates to a decision made or other act done by the Commission on an application for permission or approval, to the Commission and to the applicant for the permission or approval where he or she is not the applicant for leave,
(iv) if the application relates to a decision made or other act done by the Board or a local authority in the performance or purported performance of a function referred to in section 50(2)(b) or (c), to the Board or the local authority concerned, and
(v) to any other person specified for that purpose by order of the High Court.
(d) The Court may—
(i) on the consent of all of the parties, or
(ii) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,
treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.
(3) The Court shall not grant section 250* leave unless it is satisfied that—
(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed,
(b) (i) the applicant has a sufficient interest in the matter which is the subject of the application, or
(ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176, for the time being in force, as being development which may have significant effects on the environment, the applicant—
(I) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection,
(II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives,
and
(c) the applicant has exhausted any available appeal procedures or any other administrative remedy available to him or her in respect of the decision or act concerned.
(4) A sufficient interest for the purposes of subsection (3)(b)(i) is not limited to an interest in land or other financial interest.
(5) If the court grants section 250* leave, no grounds shall be relied upon in the application for judicial review under the Order other than those determined by the Court to be substantial under subsection (3)(a).
(6) The determination of the Court of an application for section 250* leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
(7) Subsection (6) shall not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.
(8) If an application is made for judicial review under the Order in respect of part only of a decision or other act to which section 250(2)* applies, the Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring invalid or quashing the remainder of the decision or other act or part of the decision or other act, and if the Court does so, it may make any consequential amendments to the remainder of the decision or other act or the part thereof that it considers appropriate.
(9) If, on an application for judicial review under the Order, the Court decides to quash a decision or other act to which section 250(2)* applies, made or done on an application for permission or approval, the Court shall, if requested by the applicant for permission or approval, remit the matter to the planning authority, the local authority or the Commission, as may be appropriate, for reconsideration, subject to such directions as the Court considers appropriate, unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so.
(10) The Court shall, in determining an application for section 250* leave, an application for judicial review on foot of such leave or an application for leave under subsection (6), act as expeditiously as possible consistent with the administration of justice.
(11) On an appeal from a determination of the Court in respect of an application referred to in subsection (10), the Supreme Court shall—
(a) have jurisdiction to determine only the point of law certified by the Court under subsection (6) (and to make only such order in the proceedings as follows from such determination), and
(b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice.
(12) Rules of court may make provision for the expeditious hearing of applications for section 250* leave and applications for judicial review on foot of such leave.
(13) For the avoidance of doubt, where—
(a) the Court has granted leave to appeal its decision in accordance with subsection (6), or
(b) an appeal has been brought to the Court of Appeal in accordance with subsection (7),
any party to the appeal may, at any time thereafter prior to the determination of such appeal, without any prior application to the Court of Appeal, apply to the Supreme Court under Article 34.5.4° of the Constitution to determine the appeal.
(14) Where the Supreme Court grants an application referred to in subsection (12), the Court of Appeal shall, in respect of the proceedings before it in relation to the appeal, provide by order for the discontinuance of those proceedings, which order of discontinuance shall be confined to the grounds upon which the Supreme Court granted leave to appeal, whether or not any application in relation to the appeal has been made to the Court of Appeal.
(15) The Supreme Court shall act as expeditiously as possible consistent with the administration of justice in determining any application referred to in subsection (12) and, where the Supreme Court grants the application, any appeal.”.
I move amendment No. 956:
In page 441, between lines 4 and 5, to insert the following:
“Costs in environmental matters
250. (1) This section applies to proceedings of the following kinds:
(a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of—
(i) any decision or purported decision made or purportedly made,
(ii) any action taken or purportedly taken, or
(iii) any failure to take any action,
pursuant to a statutory provision that gives effect to—
(I) a provision of Council Directive 85/337/EEC of 27 June 1985 to which Article 10a (inserted by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to Justice Council Directive 85/337/EEC and 96/61/EC) of that Council Directive applies,
(II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment,
(III) a provision of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control to which Article 16 of that Directive applies, or
(IV) paragraph 3 or 4 of Article 6 of the Habitats Directive;
(b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a);
(c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in relation to a proceeding referred to in paragraph (a) or (b).
(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986) and subject to subsections (3), (4) and (5), in proceedings to which this section applies, each party to the proceedings (including any notice party) shall bear its own costs.
(3) The costs of proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the actions or omissions of the respondent or notice party, or both of them, contributed to the applicant obtaining relief.
(4) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so—
(a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious,
(b) because of the manner in which the party has conducted the proceedings, or
(c) where the party is in contempt of the Court.
(5) Notwithstanding subsection (4), the Court shall not award any costs against a party which would be prohibitively expensive for that party.
(6) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.
(7) In this section, a reference to “the Court” shall be construed as, in relation to particular proceedings to which this section applies, a reference to the High Court or the Supreme Court, as may be appropriate.
(8) In this section, “statutory provision” means a provision of an enactment or instrument under an enactment.”.
I move amendment No. 957:
In page 441, between lines 9 and 10, to insert the following:
“ “Part 9 judicial review” shall be construed in accordance with section 251;”.
I move amendment No. 958:
In page 441, line 11, to delete “(within the meaning of section 251)”.
Before we move on, can I confirm that we are going to go through the other sections in this bit afterwards?
I ask members to remain. We will ask the officials to come back in and then Deputy Ó Broin may put his question.
Section 251(2) at the top of page 442 states:
A person shall not—
(a) question the validity of any decision made or act done in the performance, or purported performance, of any function under this Act by a relevant body, or
(b) question the alleged failure of a relevant body to perform a function referred to in paragraph (a)
From memory, I thought we had removed or amended such language in other sections,l yet it seems to remain here. Will the Minister of State confirm whether that is the case and explain the impact or effect of section 251(2)?
It is reflective of the current Act. This section provides that the procedures in this Chapter are the exclusive means by which the validity of decisions made, acts done or failures to perform functions under the Act may be challenged.
That does not answer the question. What I am trying to understand is what this prohibits because it clearly prohibits something. Does it prohibit other kinds of legal actions?
It means you can only deal with it through judicial review.
That is as opposed to civil or criminal proceedings.
Exactly.
Am I correct that such a formulation elsewhere in the text of the Bill has been amended? That formula of words is repeated elsewhere and I had thought there had been amendments altering it.
We will check that and revert to the Deputy.
Okay.
Amendments Nos. 959 to 963, inclusive, 965 to 967, inclusive, and 969 to 971, inclusive, are related and may be discussed together by agreement. Perhaps be could begin with discussion of amendment No. 960. We can then go back to Deputy Bacik's amendment when she returns from the Chamber. We are only going to have about five minutes so perhaps the Minister of State can introduce the amendments and we can then come back to the section. There will be no more votes before the break if people have other duties to attend to.
I will be moving amendments Nos. 960 to 963, inclusive, 967 and 969 to 971, inclusive,. One of the most important areas of reform in this Bill is Part 9, which updates the processes and parameters of planning judicial review and introduces a scale of legal fees relating to the judicial review and an environmental legal costs financial assistance mechanism to ensure that the costs associated with proceeding with a judicial review are not prohibitively expensive, maintaining compliance with Ireland’s commitments under the Aarhus Convention. These reforms have been underpinned by the detailed review and advice of the Office of the Attorney General and by extensive engagement with stakeholders and other relevant Departments, in particular the Department of the Environment, Climate and Communications, which is leading on the establishment of the scale of fees and the environmental legal costs financial assistance mechanism.
Amendments Nos. 960 to 963, inclusive are of a technical and drafting nature. Amendments Nos. 960, 961 and 962 propose to add the words “or would relate to” in section 253, which deals with the time limits applicable to Part 9 judicial review. This section provides for the eight-week window from the date of decision in which an applicant must initiate a judicial review. The addition of "would relate" provides that, should the eight-week timeline elapse, the language would refer to a matter that judicial review may have related to rather than to an active case that is in being.
Amendments Nos. 963 and 967 expand the sections 256 and 260 to clarify which relevant body and which amendment is referred to in each section, respectively, by way of insertion of reference to the identifying subsection. Amendment No. 970 deletes the words “of this section” from section 268(1) as it is not required.
Amendments Nos. 969 and 971 enable the court to dismiss a judicial review if it “considers that the proceedings are brought for the sole purpose of delaying a development, or proposed development or securing the payment of money, gifts, consideration or other inducement, by any person to any other person”.
These amendments seek to strengthen the judicial review process under the Bill by providing that the court may make an order as to costs where it considers that the judicial review proceedings have been brought for the purposes of either delaying the development or securing the payment of money, gifts, consideration or other inducement. Where such an order is made by the court, the applicant will not be entitled to receive a contribution to his or her own costs from the environmental legal cost financial assistance mechanism.
The judicial review provisions currently provide that each party shall bear its own costs unless the court makes an order that a party shall pay costs to another party. Courts will now be able to make such an order where they are of the view that the proceedings were taken to delay the development or to secure the payment of money or other inducements. The court may already make such orders where it considers that the proceedings are frivolous or vexations.
I am also giving consideration to bringing further amendments on Report Stage to deal with spurious planning submissions and appeals. Among the issues being examined is the requirement for a person or an organisation making a submission on a planning application, to submit a standardised statutory declaration with the original submission confirming his or her or its bona fides and that the submission is made in good faith. Penalties would also be introduced for anyone making a false declaration.
This is essentially to exclude somebody from the legal aid scheme, as I keep calling it, where he or she has been found by a court to be instigating the proceedings purely on the grounds of delaying the development or securing the payment of money. That would be the court considering the judicial review, or would it be a separate court action being taken?
It is part of the judicial review process.
I am not opposed to it, by the way. It is just for clarity.
Section 265(3) states:
A court may order such costs as it considers reasonable to be paid by a party in proceedings to which this Chapter applies to another party in such proceedings where the court considers it appropriate to do so—
(a) because the court considers that a claim or counterclaim ...
This amendment then is going in.
It is going in there.
It is going in there, yes.
This is the court that is hearing the judicial review.
Yes. It will make the decision while hearing it.
Under the subsection as it currently stands, where, for example, the court believes that the JR being taken is frivolous or vexatious, obviously, it does not proceed, but in that case they could still order costs against the person who is taking the vexatious JR. In the same way with this amendment, if, at any stage, during the core process the judge takes the view that here is what is going on, evidence might be presented or whatever, he or she can award costs against the litigant for everything up to that point to pay the other side's costs. Is that essentially what it does?
Yes. And they will not get access. That is the point.
They would automatically be excluded from the legal aid scheme.
Unless there are further questions on the ministerial amendments, I suggest that we suspend now and reconvene at 2 p.m. in this room.
With that, I thank the Minister of State, Deputy Noonan, for his attendance this morning.
Good afternoon. I welcome back everybody to the Select Committee on Housing, Local Government and Heritage where we continue our Committee Stage deliberations on the Planning and Development Bill 2023. I welcome the Minister of State, Deputy Byrne, to the committee this afternoon.
We are dealing with the block of amendments that starts with amendment No. 959. We have spoken to and addressed the ministerial amendments. Now I suggest we deal with amendments Nos. 965 and 966 together in the name of Deputy Cian O'Callaghan. I call on Deputy O'Callaghan to speak to amendments Nos. 965 and 966, if he wishes.
I have a few questions on amendment No. 965. I will deal with those and then move on quickly to amendment No. 966.
Amendment No. 965 reads: "In page 446, to delete lines 8 and 9." That is the requirement for an environmental NGO membership to be ten or more members in order to access justice through JR.
In terms of the threshold on membership here, this is the section on sufficient interest following on from entitlement to bring proceedings. This section, as it is currently written, places a number of requirements on the applicant. A number of them are problematic, but the amendment is focusing in on the "10 members at the time the proceedings are brought". I would be grateful if the Minister of State would explain the rationale for specifying a threshold on membership.
Deputy Cian O’Callaghan's amendment proposes to delete the requirement in section 258(2)(c) that environmental NGOs, who enjoy privileged status and rights of appeal within the Irish system, must have at least ten members. This criteria and others in section 258, such as the requirement to have existed for at least one year prior to the taking of judicial review, guard the system from misuse by those that could establish an organisation solely for the purpose of taking judicial review applications and enjoying the status and privileges rightfully belonging to legitimate environmental NGOs, who play a very important role within the planning system and whose rights are enshrined and protected within this Bill. That is the reason I oppose amendment No. 965.
I do not see how this specifically stops misuse and abuse because if someone wanted to abuse the system they could gather together 11 people. There are some very good environmental NGOs that do not necessarily have ten members or are established as a company. I have previously given the example that you could have an excellent environmental NGO with ten members. As happens in organisations there might be lively discussions, robust debate and disagreements. You can even have splits arise in an organisation when two people disagree with a position and head off to set up another organisation. It seems to be qualifying the eligibility of environmental NGOs to participate on a crude criteria of ten, as if an organisation with ten has a better standing than eight. How was ten arrived at? Was any analysis done to come up with that specific threshold?
I will have to leave it at what has been said already in that regard.
I do not expect the Minister of State to have all of the answers to these things straight off, especially when he has just arrived from Topical Issues in the Dáil.
The threshold was set at ten, which we believe is an appropriate level. In fact, the Aarhus Convention allows a country to set a threshold and we are doing that. There are thresholds in other EU countries and at EU level that are higher. There is precedent for this. We are allowed to do it and we think it is a reasonable number and at an appropriate level.
Was an analysis done of thresholds in other European countries?
Yes.
Are there thresholds in every other European country?
I do not have all of that information, but they definitely can do it. It is provided for and is allowed under the Aarhus Convention.
Will the Minister of State share that analysis with the committee?
I cannot commit to doing that, but the Deputy can ask the Minister the question. However, there certainly has been a study done on this and we are satisfied this is a reasonable figure set at an appropriate level.
I am asking the Minister of State because he is here, and that is why I put the question to him. There is wording in the Bill about "significant effects". How and where is the likelihood of significant effects to be determined? This is in section 258(2).
The section states, where "proceedings relate to a development that is likely to have significant effects". Is that the question?
The Deputy wants to know what "significant effects" are.
How and where is that going to be determined?
That is determined in the environmental impact assessment that is part of the planning process.
I turn to the requirement to be a company. The Minister of State has referenced bad actors. Bad actors can set up a company like a bogus environmental NGO. You can have good actors who are not constituted as a company, so what is the rationale for that? Why would we want to exclude?
It is not just a company; it is a company or an undertaking incorporated under the laws of a member state that has limited liability and a constitution. Those are the criteria. It is of course similar to a company but it does not necessarily have to be a company incorporated under Irish law. It is to ensure we know they are properly established. The majority of non-governmental organisations in this space will be registered as companies limited by guarantee. This is not a burdensome requirement. This is standard governance for organisations at that level, and they do it anyway. There is a legal requirement here that I suggest is not going to impose a burden on anyone. It is almost protection for themselves that they would do this without this legislation. The legislation is merely formalising it to ensure transparency is there and they have proper governance.
I turn to amendment No. 966, which states, "In page 447, delete lines 2 to 4". There are a lot of problems with this section, and in this amendment I am highlighting one aspect of it. There are three specific issues with this. There is a requirement to publish names and addresses. Will the Minister of State explain the rationale for that and why they are seeking to do this?
The amendment seeks to delete section 258(4)(d)(iv)(II), which requires members of an unincorporated body, such as a residents’ association, that votes to proceed with a judicial review case to provide their names and addresses to the court as part of the affidavit supplied to the court with the judicial review application. Transparency is a fundamental pillar of the planning system. As we have learned over the decades, sunlight is the best disinfectant for many matters. For these reasons, it has been a well-established practice that all parties submitting observations on planning applications must supply their names and contact details and similarly, all parties making observations on development plans must supply their names and contact details. It follows that if a group of individuals with a genuine case for judicial review wishes to proceed to court, all parties, including defendants and the court itself, should know who is taking the case in the interests of transparency. There is little benefit from enabling an anonymised route to take judicial review cases or in any aspect of participation in the planning system. The court furthermore requires that it knows which individuals are taking a case and therefore it is a normal requirement to supply the courts with such information. For that reason I have to oppose amendment No. 966.
I take issue with a number of the statements in the response. In no way was I making any case for anonymising. The Minister of State has said it is a well-established practice to provide name and contact details. I have not suggested for a second that should not happen. However, the current situation is that if a residents' association puts in a submission to the planning process, it will generally give the name and contact details of the secretary or the chair of the association. It does not give the name and address of every member of that residents' association. If there is a vote in the residents' association about whether to put in a submission, it does not require the name and address of all residents. I do not think it is relevant to use that as an example here. This is trying to impose a requirement that does not apply to anyone else who could be engaged in the process. If a developer or development company is taking a judicial review, they are not required to put in the names and home addresses of all of their staff or their board or anything like that. They would simply put in the name and address of the company, and one name and address would be sufficient. They would not have to list all of the board members or shareholders of the company. The Minister of State is applying a different standard here to residents' associations than he is to developers.
We are actually not. This is about unincorporated residents' associations or unincorporated bodies. In the case of the incorporated bodies the Deputy has mentioned, the names and contact details of members of their boards are publicly available information. The shareholders of those companies would be listed in the share register of the company, which again is publicly available. I suggest the example given by the Deputy is not relevant in this case. This relates to unincorporated bodies where that information is not available publicly.
Is the Minister of State saying that when the board of an incorporated body or developer takes a vote on whether to take a judicial review, the names and addresses of the board members who vote in favour will be submitted to the court? Is that what he is saying?
The names of every board member are publicly available. Anyone taking a judicial review in these cases is able to apply for a contribution to costs under the financial assistance mechanism.
It is reasonable to express the need to ensure there are appropriate governance arrangements, especially where money is involved.
With Deputy O'Callaghan's indulgence, could I bring in Deputy Bacik on her amendment? She is due in the Chamber.
Absolutely. We will just finish this discussion here and then go straight to Deputy Bacik.
The Minister of State was saying the same applies to a developer as is required of residents' associations here. However, I asked him whether it is a requirement under the Bill where the board of a development company is taking a judicial review that the board take a vote and a requirement that when submitting a judicial review application to give the names and addresses of all those board members who vote in favour of taking the review. Is that the case in the Bill?
It is the case a board of directors has to approve a resolution in accordance with the constitution authorising the bringing of the act.
Are the names and address of those who vote in favour brought to the court?
The names and addresses are publicly available of board members and indeed the share register is publicly available.
I am sorry, but the Minister of State is saying this is the same and it is not, because the names and addresses of those who vote in favour at a residents' association have to be brought into the court, but the names and addresses of board members of a company or developer taking a judicial review do not have to be supplied to the court. To say this is the same simply is not the case. I will return to this if I may.
We can return to this, absolutely. Does the Minister of State want to answer that? Then I will bring in Deputy Bacik.
The point is the financial assistance mechanism is there. That is available and it is reasonable for the State to ensure there are appropriate governance arrangements where money is involved. That is one of the key reasons for transparency in these particular cases.
Why then is the Bill treating residents' associations completely differently to developers?
Because they are not companies, essentially, and there are specific rules under company law for companies in this space.
Is the Minister of State saying residents' associations should have to be able to form into companies to have the same-----
We are not saying that at all. Then again, some of them are, but we are not saying they are required to do that at all.
The Bill is putting onerous obligations on them it does not put on-----
I am sorry, but the onus in terms of registering as a company is far greater than what is required here.
I am talking about seeking access to justice, but anyway we shall facilitate Deputy Bacik.
I thank the Deputy for that. We can return to those two amendments.
I thank the Chair and colleagues for facilitating me as I have to speak in the Dáil Chamber. I have been listening and many residents' associations will also be listening with interest to the discussion of the legal embodiment they may seek to favour.
My amendment No. 959 is very much a stand-alone one. It seeks to insert a new section 252 into the legislation. I spoke in the Dáil about this before Christmas and also spoke on Second Stage of the Bill about this. The Minister responded quite positively, at least in principle, to what we are seeking to do here. The purpose of the amendment is to introduce a new offence relating to abuse of the planning objection process for financial gain. It would create an offence for a person directly or indirectly, whether for themselves or for any other person, to request, accept or agree to accept money from another person, or offers, etc., to give money to another person in consideration of the person to whom money is given or sought to be given to refrain from making an application for Part 9 judicial review or withdrawing such an application if it has been made. The offence would not apply to cases where compensation is claimed for an injury to a right or interest already known to the law or to agreements regarding costs.
The background to this is in recent times we have become increasingly aware of concerns around abuses of the planning system. Particular aspects were exposed on "RTÉ Investigates" before Christmas. There have also been reports about a number of incidents where individuals have sought to abuse the planning system for financial gain and I identified an instance of this before Christmas in the Dáil. The amendment makes exceptions in the sense local residents affected by a planning decision that might adversely affect them would not be criminalised by our amendment. We are seeking to tackle this harmful practice that undermines confidence in the planning system and which can also help to create delays in the process. It is to tackle bad faith working of the planning system and we seek to help restore confidence in the planning process to prevent corruption at the source. I am interested to hear the Minister of State's view on it. As I said, the Minster seemed quite receptive to the principle of this.
The Deputy is right. Her amendment has lots of merit. The Minister feels the issue the amendment deals with is already covered by amendments brought forward by Government, as well as what the Minister has said about giving consideration to bringing other amendments forward on Report Stage to deal with what he described as spurious planning submissions and appeals. Among the issues being looked at for that Stage is having the person or organisation making a submission submitting a standardised statutory declaration with the original submission confirming bona fides the submission is made in good faith and providing penalties for anyone making a false declaration. We feel that between the amendments that have already been made and what will be coming on Report Stage, the issue the Deputy has raised, with good reason, is really already covered. Essentially, we agree with her, but we will come forward with our own amendment on Report Stage.
I thank the Minister of State for that response, which is very positive. I certainly will not be pushing this amendment at this Stage given he has said there will be amendments coming forward on Report Stage. We will reserve our position until we see what those are.
Can I take it the Deputy is withdrawing while reserving the right to reintroduce it on Report Stage?
Precisely. I thank the Chair.
I thank Deputy Bacik. We will go back now. Had Deputy O'Callaghan finished with his question?
We will let Deputy Ó Broin in and then I will speak.
I thank the Minister of State for his time. The use of the word "disinfectant", though not intended to have impact it could have had, was an unwise choice. The Minister of State talked about sunlight being the best disinfectant for - what was the phrase?
We are looking for transparency.
I know, but he used the phrase that "sunlight is the best disinfectant for ...".
"... for many matters".
Okay. I am not so sure in this discussion it is the best choice of language, but how and ever. On the substantive point, with all these sections one of the things we are trying to understand is what problem the legislation is trying to fix. When significant changes to legislation are introduced, generally they are trying to resolve, fix or address a problem. It used to be pretty unheard of for a residents' association to apply for a judicial review.
I am listening, but I want to give a good answer also.
Sure, but there is plenty of time between listening to the question and answering it. The Minister of State should go ahead. I do not want to interrupt.
I am in the hands of the Chair.
If Deputy Ó Broin wishes to put the question, the Minister of State can listen and take note as well. That is the way we have been working throughout.
Now that I have the Minister of State's attention, it used to be pretty unheard of-----
I am in the hands of the Chair.
Please. This is the way we have been operating. The Minister has been getting notes and updates from the Department staff while questions are being asked and they are capable of doing both.
I am capable of doing both.
If it is not working we can change tack. Go ahead, Deputy Ó Broin.
We will see about that.
For a long time it was virtually unheard of for residents' associations to take judicial reviews on residential developments. It was literally exceptionally rare. The surge of judicial reviews that took place a number of years ago has now significantly dissipated. There are fewer and fewer judicial reviews being taken by residents' associations, so I am trying to understand is what this section is trying to fix. I am in support of Deputy O'Callaghan's two amendments. For example, the Bill states the body must have a constitution. Why should it have to? Lots of residents' associations do not have a constitution. What difference does it make to the functioning of a residents' association whether it has or has not a constitution? It seems completely arbitrary. The body must hold a vote among its members. There are two issues here. The first is how long it takes to convene the meeting. There is a short judicial review window, if that is what the residents intend to do. What happens if there is a division among the residents? This takes place in real life. Residents' associations split and we get conflicting and opposing associations in a single area.
Section 258 contains the following subparagraph, "(iii) is authorised to bring the proceedings in relation to the ground by no less than two thirds of the members casting a vote." In terms of our international obligations under the Aarhus Convention and EU law, my understanding is that everybody has a right to access justice. It is not two thirds of people, but everybody, whatever way they are constituted. I simply do not understand this provision. I would be interested to know why two thirds is the decision-making threshold in this regard.
A sworn affidavit is needed. Obviously, this takes time to obtain because of the necessity to go to a solicitor. There is then this issue of the names and addresses. Let us be very clear about what is involved. This is about a chill factor and a desire on the part of the Government to send a signal to the diminishing number of residents associations which may be contemplating taking judicial review proceedings that there are risks involved in doing so. What are these risks? They include strategic litigation against public participation. We have already seen certain developers threaten and in some cases take litigation proceedings against the chairs of residents associations engaging in the planning process. There is also the ability to be able to pursue people for costs.
My concern, and I said this at the outset before the Minister of State was arrived, is that I wish to see the lowest number of judicial reviews possible. I would like to see all our planning decisions being made within our planning authorities. I would also like to see far less legal contestation. Denying or attempting to deny people access to justice, however, which is a domestic, European and international legally enshrined right and obligation, is problematic. I am interested to hear what difference a constitution makes in this regard. Why is there a reference to two thirds of people? What happens if there are competing residents associations in the one neighbourhood? It is possible to have an estate that has residents associations for each street or cluster of streets, so who would decide then what is the properly constituted body?
Does the Minister of State at least understand the point being made when organisations like the Dublin Democratic Planning Alliance are saying that they genuinely fear the requirement for names and addresses - a matter Deputy O'Callaghan tried to deal with - will create a chill factor and a fear of strategic litigation against public participation? Even if it is not the Government's intention, that will be the impact and outworking of this provision. I do not understand the reasoning behind its inclusion in the Bill. I am not so sure there is a problem that needs to be resolved. I will explain what I think this is going to do. Again, I make this point because the Minister of State was not here at the earlier session. While the intention of this measure is clearly to create a chill factor, what it is going to do is to open planning applications and decisions to further satellite litigation and, ultimately, to longer delays.
In answering some of the questions posed, there is a need to ensure that all members of residents associations are aware that a judicial review is being taken. This is important. We must ensure there is authorisation to do this and that the residents association is properly set up. This is a reasonable thing to do. Many residents associations take it upon themselves not only to have a constitution, which Deputy Ó Broin seems to diminish the importance of, although it has always been the first item on the agenda of any residents association I have set up, but to go further and establish an incorporated company limited by guarantee.
In the context of the requirement for an affidavit, the Deputy suggested that this could delay matters. Every judicial review is founded on an affidavit that the person taking the review submits. In this case, there is an added requirement in terms of an affidavit. This certainly does not add to any burden for anyone taking a case in this context. It does, however, ensure that it allows unincorporated bodies, such as residents associations, although we are not just talking about residents associations, to take judicial reviews with some minimal governance tests. This differs from the draft version of Bill, which proposed that such organisations would either become incorporated, so we are not requiring this anymore, or undertake the judicial review as a collective of individuals, which is clearly more difficult.
The revisions from the draft Bill take account of the recommendations from the Joint Committee on Housing, Local Government and Heritage and stakeholders' input that called for the inclusion of unincorporated bodies, such as residents associations. I refer as well to the requirement for incorporation as a legal entity, which many associations would do anyway. We are not, however, specifically requiring that as part of this legislation. What is being put forward are some minimal requirements to ensure good faith and good governance arrangements when these cases are being taken. I refer to the idea that an affidavit is going to delay a court case when every court case will have an affidavit anyway, and, in some cases, multiple affidavits. This is simply not an additional requirement but simply protects the common good and the associations themselves.
I had two other questions concerning why there is a requirement for two thirds of the members and regarding the chill factor and fear of strategic litigation.
First, the requirement is two thirds of the voting members, that is, those who actually vote. It is not a requirement for all members of the association, which would be a much greater burden. Again, this is a reasonable thing to do in terms of governance in respect of the big decisions that must be made. I am sorry. What was the other question?
It was about the chill factor and the fear of strategic litigation.
There is no chill factor and no fear of strategic litigation against public participation. This is about public participation. It provides for unincorporated bodies of the public to take cases, but just ensures some minimal level of transparency attaching to this aspect in the interests of the common good and of the members themselves who are purported to be represented by the association.
When bodies representing residents associations, then, like the Dublin Democratic Planning Alliance, came to this committee during pre-legislative scrutiny and expressed a direct concern about exposing members of the residents associations beyond the officer board to strategic litigation against public participation undertaken by developers, including cases where this has actually happened, the Minister of State is just dismissing these concerns and saying they are not founded and are not going to arise if these measures are introduced. He is saying it will not happen.
This is not a concern. In fact, what I would say is-----
For whom is it not a concern?
Regarding this particular provision, the revisions and changes to the draft version of the Bill take account of the public participation at the joint committee by stakeholders such as those mentioned by the Deputy. We do not see this as an issue in the same way they do.
I thank the Cathaoirleach.
I would like to get a clarification. Regarding the comment concerning a situation where someone's name and address may be down and the concern this might lead to a strategic litigation process, is the question referring to a litigation process outside the judicial review process, where the developer or the applicant in respect of the other party to the judicial review would somehow come back with another court case-----
Yes.
On what grounds? I do not understand on what grounds.
Exactly. During pre-legislative scrutiny, in fact, I think it was Senator Mary Seery Kearney of Fine Gael who raised this issue directly because a residents association in the neighbourhood in which she lived and that she had supported had been subject to a threat and legal correspondence around defamation. I think it was a Tidy Towns group out in the southern part of County Dublin.
There is often the threat and the solicitor's letter and it is unfounded much of the time. However, I take the Deputy's point that it would perhaps be enough to put fear into someone not familiar with the process. The cost protection system is coupled with this provision, so I do not understand this point. It is not the fear of taking the judicial review that is of concern here but the fear of a follow-on case that is the worry in this regard. Am I correct in saying this?
No. There are two things. Again, these are the views that were expressed-----
I apologise to the Minister of State. We probably should not be talking about this issue here.
The Chair can relax. I am not in any-----
It is useful for the Minister of State to hear the issues raised during pre-legislative scrutiny. If the Chair remembers when the Dublin Democratic Planning Alliance representatives were in with us, as well as representatives from other groups, they expressed two concerns with regard to this particular provision. One was that it could open a larger group of members of the residents association, especially those who voted in a particular way, to possible strategic litigation or the fear of such litigation-----
Yes. Okay.
-----which, in and of itself, could influence their votes in the meeting. Second, where cost protection is not provided, those individual named members either could be or could fear being financially liable for the costs, even though they were good-faith actors and engaged in the process in good faith.
They do have the option available to them to get a declaration stating they would be eligible for costs prior to the judicial review.
Until we see the full details-----
No, that is in here.
Sure, but until we see the full detail of the cost protection regime and the legal aid system, we will not know the exact operational extent of it. All I am doing is expressing the views that people expressed to the committee, but it seems the Minister of State does not think these are problems at all. On that basis, we will leave the matter there.
I am sorry for that sidebar conversation. I call Deputy O'Callaghan.
From my work as a public representative and my interactions with people in the local community, I will comment and use an example not to do with judicial review. We could be working on any issue in the local area, such as being involved with a Tidy Towns group or writing a letter for that kind of group. Even when it comes to something as uncontroversial as that, I know from interactions on the ground that most people, unlike public representatives, are not in the public eye and enjoy their privacy. When they get involved, then, collectively, in a residents association, a local clean-up group or whatever, they are not looking to get their names and addresses put out there.
They like to be able to participate collectively and have their privacy respected. That is before one goes anywhere near something as contentious and conflict based, potentially, as a judicial review. People want to respect that. They want that to be respected. As we were told in the testimony we got as a committee, there is no question that a provision like this will have a chilling effect, although the Minister of State disputes that. All I can say to the Minister of State is that he must have a very different interaction with people in his local community than I have because my experience of this has been very different.
There is a practical issue that must be given some thought. There is an eight-week window between a decision being made and a group or an individual deciding to take a judicial review. In that eight weeks, a huge amount of work would have to be don, so the practicalities of a residents' association convening a meeting of all of its members, getting them all together, or even deciding to do that, and then doing all the subsequent work to prepare for a judicial review means a curtailment of access to justice.
I will outline what worries me the most, as a public representative. We have talked about this issue when discussing other sections of the Bill and it is public participation and the fees to make a submission. One must pay €20 to the local authority. It costs €50 to lodge an observation with An Bord Pleanála, and it costs €220 to lodge an appeal with An Bord Pleanála. In my constituency there are significant areas where people can participate and pay those fees but there are other parts of my constituency where people simply do not have €20 at the end of the week between trying to juggle their heating bills, put food on the table and get children to school or whatever. Some of my constituents simply do not have €20 at the end of week to pay fees. Making access to justice and rules governing it more difficult means that the communities that are already really outside of participation in the planning process, and really do not have capability and wherewithal in terms of a judicial review, are an even further distance away if it were something they had a particular need to do.
The Minister of State has talked about transparency. Access to justice is critical for transparency. I want to see as few JRs as possible, for JRs to be dealt with as fast as possible and, critically, for lessons to be learned from JRs when they do happen. Judicial activism is often talked about in a negative sense. However, one can see that judicial activism has over the years, and not just in planning, produced good results for us in a lot of areas. All the discourse around judicial activism is all negative but we would not be the country we are today without it. In fact, some of the rights that I enjoy in my personal life are the result of judicial activism that was taken by people decades ago.
Finally, can the Minister of State tell me whether there has been an analysis of the effect of this provision and the impact on the short window of time people have to apply for a JR? Has there been any analysis done on what effect this will have on, and how it might restrict, access to justice?
Is there scope for a party to apply for a time extension under one of these sections? In reference to the point made by Deputy O'Callaghan, would it be up to a judge to decide that?
I have worked with quite a number of residents' groups, some of whom have sought judicial reviews. I say quite a number but it was actually not that many. They are highly organised and ready. These requirements would not impose any burden on them because, in some cases, they have gone to the court in Luxembourg. These are not extra requirements on them, in my experience. I also reject the notion that there are people sitting at home wondering whether to buy food or pay for electricity or, instead, lodge a planning objection. That is not real life. We need to get back to real life because what has been mentioned is simply not realistic. The reality is that the primary access to justice in terms of planning, and the main driver of a planning decision, is the appeal to An Bord Pleanála. Again, in my experience of residents' associations fees of €20 and €40 are not an issue because a number of people can come together, which happens all the time and Deputy O'Callaghan knows that. It is at An Bord Pleanála where the full review of a decision is made.
As members will know, and maybe the public are not always aware, a judicial review of a planning decision is exactly that. It is a review. It looks at whether procedural mistakes were made by An Bord Pleanála in that case. It does not substitute the views of the judge for the views of An Bord Pleanála and simply sends it back to An Bord Pleanála. We can get caught up in all this stuff about judicial reviews but the reality is that there is a number of people who take judicial reviews. There is a number of people who have to and there is a number of people who, quite frankly, do not have to. Those who have taken them, in my experience, are well able for it. In fact, from what I have seen, they tend to be advised already by lawyers at a very early stage of the process and not simply when the clock starts ticking on the eight weeks. We do not see any issue with access to justice here. We see this as simply a means of getting greater transparency, better governance and ensuring the planning system can operate in the fairest possible way, in accordance with all law that we are subject to, but also ensures the system can work, works efficiently, that there are not people out there who are not the type of residents whom the Deputies and I know are genuine cases and that there are not people out there simply trying to slow down the planning system and the national objectives we have.
I agree with one of the points made by the Minister of State and disagree with another of his points. I have direct experience in my constituency of, for example, where there was planning permission for a significant number of apartments and it included some community facilities but the applicant went to remove some of those community facilities that had been granted permission as part of the planning permission in the first instance. I have direct experience of residents in that area being very exercised about this matter and wanting to participate in the planning process but genuinely not having the money to pay the fees. That might not be part of the reality the Minister of State recognises but I can tell him that it is absolutely the case in my constituency. Fees are a barrier to participation for some people, and I am not saying that is the case for everyone who deeply cares about their community and are deeply involved yet genuinely do not have that sort of money. Although the Minister of State may not think so, there are people in this country who deeply care about their community and planning applications but do not have the money to pay the fees.
In terms of how the Minister of State has described community or residents' groups being well organised and these fees will not cause issues for them, that is exactly my point. I say that because there are residents' associations and communities which are well equipped to access justice, judicial reviews and so forth but that is not my concern. My concern is where something happens that is very significant in a community or an area that does not have a track record of taking judicial reviews or anything else, does not have that experience, is not well equipped, is not well set up and all that sort of stuff, and maybe was not effectively trained for it through the SHD process because that was a way for the State to train a certain number of people in how to go through this process. If something very significant happens or they see that it warrants a judicial review, I am concerned about the ability of those groups to access justice in those exceptional circumstances and who simply do not have experience or a track record. I am not concerned about those who may have a track record and experience because I have no doubt they can comply with these provisions or set up companies to comply or whatever it is. I am concerned about the wider access to justice which is just as important if not more important as those who may have experience in this area.
I do not think there is anybody here to press amendment No. 959 so it falls. I think Deputy Bacik indicated she might, having moved it, resubmit it on Report Stage.
Not agreed. I think Deputy O'Callaghan has a question.
I do. In paragraph (2)(c), there is an obligation to inform notice parties when seeking leave. It is not always clear who the notice parties need to be. Currently, during the leave process, an applicant can seek the guidance of the leave judge on this matter. The leave process will not be there under this Bill, so will the Minister of State clarify how an applicant is to identify all the relevant notice parties? Sometimes it is obvious and clear but it is not always so.
It should be obvious and clear. If it is not, the Government will give guidance on that. Applicants are required to do this in general. It will be obvious in general, but if there is any issue with that, there is always recourse to the courts to get their support on that. In general, however, this will not present an issue.
Sure. Usually, when it is an issue, that can be done during the leave process. Given, however, that there will not be a leave process, how can it be done?
This is a regular feature of court actions where parties can be added. This is not related just to planning. The rules of the superior courts already have this for various types of cases. People are added at different stages. In general, however, on a judicial planning review, the notice parties will be very well known. If they are not, there are ways to facilitate that, and the legislation provides for that in subsection (3).
Okay, so it will not cause an issue if the applicant needs to do that-----
-----and someone is later notified that-----
It will not cause an issue.
No. It is pretty standard.
I move amendment No. 960:
In page 443, line 9, to delete “relate,” and substitute “relate, or would relate if the proceedings were commenced,”.
I move amendment No. 961:
In page 443, line 10, to delete “relate, or” and substitute “relate, or would relate if the proceedings were commenced, or”.
I move amendment No. 962:
In page 443, line 11, to delete “relate,” and substitute “relate, or would relate if the proceedings were commenced,”.
As regards paragraph (2)(b), relating to the matters which led to the omission of the ground being outside the control of the applicant, will the Minister of State explain the rationale for that?
The situation here is that, in general, the applicant is not entitled to amend the statement after the judicial review proceedings have been commenced. The section does, however, allow the court to give leave to amend it, provided that the conditions in the section are met.
Providing which conditions are met?
Those in paragraphs (a) and (b) of subsection (2). The court has to be satisfied that there is good and sufficient reason for allowing the applicant to do so. Again, this puts it in the hands of the court. Paragraph (b) reads: "the circumstances that resulted in the failure to include the matter to which the amendment relates ... were outside the control of ... the applicant". Again, that type of situation would be the reason for an amendment to be made in this particular case.
Even if the issues that gave rise to this are outside of the control of the applicant, it is entirely within the-----
Yes. They have to go before the court, and it is entirely within the discretion of the court to take their case. There is a man here who knows more than I do about this.
I thank the Minister of State, Deputy Byrne, for his attendance and welcome the Minister, Darragh O'Brien.
I move amendment No. 963:
In page 445, line 17, to delete “the relevant body” and substitute “the relevant body referred to in paragraph (a)”.
I move amendment No. 964:
In page 445, line 37, to delete “issued” and substitute “brought”.
I move amendment No. 965:
In page 446, to delete lines 8 and 9.
I move amendment No. 966:
In page 447, delete lines 2 to 4.
Before I put the question on section 258, we are looking for clarification. We might invite the officials back in. We will have more votes so I ask members to stay close by.
The Minister spoke about how someone may be "materially affected by the matter". Is that defined or how is that to be determined?
That is determined; I asked the officials just before that. The phrase is "directly or indirectly materially affected by the matter". For argument's sake, directly would be I could be living adjacent to the proposed development or the site that is directly in the area. Indirectly materially affected may mean someone has familial ties to the area. There may be an environmental issue where it is appropriate that an environmental NGO would be able to show that it is materially affected by the matter based on the remit it has but they do not to live adjacent to it. How is that determined? That would be determined at the discretion of the court. We are not defining it. It would be discretionary and would be adjudicated on as to whether someone is directly or indirectly materially affected.
I presume an individual would not be able to make the case that they might be indirectly affected materially at an environmental level, for example, by pollution or by impact on climate or-----
Yes, absolutely
Some people are concerned that this might restrict. However, from what the Minister is saying it is quite an open definition.
It is, and I am glad the Deputy asked that. There is no fear of restriction in that place. It would be at the discretion of the court. An individual, for argument's sake, as the Deputy said, on environmental grounds could be concerned about pollution of watercourses or potential pollution of watercourses. Somebody could absolutely make that case.
They would be materially affected as per the Minister's understanding of this.
I seek a small clarification on that. Would an individual, who may not live in an area and may not have familial ties in an area but who regularly goes there for recreational reasons to walk around and enjoy the area be included?
They would be able to make that case. They would be able to put the argument forward that they are directly or indirectly materially affected and that would be adjudicated on by the court. Certainly, there is nothing to stop then making that case.
I understand that they could make the case because anyone could make the case. However, how is the threshold set? What does that mean in terms of-----
It would be the function of the court to decide upon that.
Sure, and our function is to understand the legislation and the wording here. On the phrase, "directly or indirectly materially affected", can the Minister give-----
I have given a couple of examples in reply to Deputy Ó Broin. It could be familial ties. I am just giving examples but again this would be for the court to decide upon. A person would make the case. It could be that they regularly holiday in that place. Even though someone is not living in that particular area or adjacent to it, there is nothing to stop them bringing forward that case. I do not set the bar for the decision; it is obviously for the court. It is clearly outlined that there is no restriction on anyone in making the case and that is why the word "indirectly" is there. Someone could be from Bray but spend a lot of time in Bandon and know the place well. He or she might have an environmental concern about a watercourse in the area. He or she can absolutely bring that forward and it would be adjudicated upon by the court.
A material interest as used in some other contexts, normally means economic or monetary; it is not that.
No, absolutely not,
It is anything that directly or indirectly affects-----
An individual will need to have been part of the process. Obviously, there are the prescribed groups. The individual would have had to make their observation at an earlier stage as is normal. It is not "materially" in the sense of financial loss or anything like that.
Or property or any ties.
No. It is that it in some way actually affects the person. It is in that sense materially.
Can the Minister give an example of his understanding of somebody who would not be directly or indirectly materially affected?
I would caution against giving an example on the basis that that would be something that the court itself would decide upon based on a submission made to the court.
Hypothetically.
Again, that would be for the court. I am not setting any restriction on that. It would be open to the court to make that decision. I am not being evasive; it would not necessarily be right for me to say. Obviously, we all have trust in the Judiciary, the independence of the process and indeed the judges themselves. It is open to anyone to bring forward and to make that case. That is why including the word "indirectly" is important. I did not want it just to be seen that a person needed to live in an area or be directly affected by it. A person can make the case that they have a specific interest.
I move amendment No. 967:
In page 448, line 7, to delete “the amendment” and substitute “the amendment referred to in subparagraph (ii) of paragraph (a) of subsection (1)”.
Amendment No. 968 is ruled out of order.
Before we proceed, we said earlier there would be more discussion around costs.
We are into the costs now. That relates to section 263 onwards. Does the Deputy wish to take them section by section?
I am happy to have a general discussion. That will allow us to get through it more quickly.
For the information of members, we will take a short break at 4.15 p.m. for 15 minutes. That will leave us an hour and a half for the final part of the session. Is that agreed? Agreed. We will now have questions on section 263 onwards.
We are trying to get maximum clarity around the two core pillars of the cost regime that the Bill proposes. The Minister of State, Deputy Noonan, earlier gave an outline of what is happening in the interdepartmental groups and when the Minister and his Department is meant to report back. The real question many of us have is that there has been a degree of certainty provided by the Heather Hill judgment which had not been there for a period of time. We have heard lots of evidence to this committee, including from legal professionals, to say what is here is going to disrupt and disturb that certainty and potentially create a significant amount of uncertainty and litigation. The greater clarity the Minister can provide to the committee and through this committee to the public on what is actually likely to replace the Heather Hill judgment, the better. We do not need him to repeat the principles because in fairness to Deputy Malcolm Noonan, he gave us that earlier. What is actually expected to be put in place? How is it going to operate?
One of the big concerns people have is that they could end up in a David and Goliath situation whereby if costs are set at a particular level, for example, by a Government - it could be this Government or a future Government - they could end up having access to a lower level of resources than the person, or the corporate entity in many cases, on the other side of the legal battle. Therefore the principle of fairness which the Minister of State, Deputy Noonan, spoke of earlier, would not actually transpire in reality. There is also a significant concern around how the fee-setting mechanism would operate over time and how what I call the legal aid scheme, because it is the only way I can understand that and because we all understand how legal aid currently works in its imperfections and challenges, and the cost regime being proposed here would not have the same weaknesses and pitfalls of legal aid as it stands. Obviously legal aid is of huge benefit to many people but many end up being excluded from it because of the way in which it is constructed and the budgetary constraints regularly imposed on it.
Under section 266(3)(a), (b), (c) and (d), what is really important is the need for equitable and orderly access to the courts for all persons to be ensured in accordance with law and the need to ensure the court and judicial resources are utilised for the common good and in the interests of justice. That obviously underpins it. The Minister of State, Deputy Noonan, mentioned that the drafting and preparatory work on the cost scheme is being done by the Department of the Environment, Climate and Communication, so I will not read that. What I envisage is a scale of fees that will be set out. Obviously if one wins, costs are covered. There will be a mechanism. I envisage an element of means testing within it, but at a very low level. I see this as a good protection mechanism for people. It is clear what the scale of fees are, what the costs recovery would be or what the cost that would be incurred potentially would be. There would be an appeals mechanism within it. We are working towards the cost scheme being published three months after the passing of the Bill. They will come back to the Government to update and we will advise the committee of that. We intend to have substantial public consultation on that. I see this as a real assistance for groups. I think all of us can agree that legal costs in some instances have been and continue to be I will not say inflated but substantial. It is right and proper we make sure the resources of the State are used appropriately. When people take cases and win, they are covered. There is a clear cost scheme set forward for people and groups that decide to take a case.
That is the thinking around it. We will have a public consultation. There will be a scale of fees, an element of means testing and an appeals mechanism . It is important for the legal fraternity to see what the appropriate fees are. All of us want to ensure access to justice. That underpins everything we do. It is appropriate, in everyone's interests, that we look at costs to make sure the resources of the State are used appropriately.
Is the Minister in a position at this point to give us any indication on the following questions? Who will decide the scale of fees? Will that be a decision of the Government or of a particular Minister? What is the mechanism by which that will be introduced? With respect to the means test, is there any additional information the Minister can give us at this stage as to what that is likely to look like or what the parameters of that may be?
With respect to public consultation, because I presume this cuts across not just the Minister's Department but also the Department of Justice, is it the Minister's intention to have any formal Oireachtas involvement? The issue has been raised with us about a David and Goliath type battle. For example, we can imagine a situation where there are local residents or environmental campaigners versus, let us say, a corporate entity that could potentially be involved in activities that are polluting or negative to the environment or public health. There is a fear that if the architecture the Minister just outlined and the scales and means test are set in the wrong way, people who are trying to defend the public interest, public health and the environment could have access to far fewer resources than, for example, a corporation that could be involved in polluting activity that is negative to public health and the environment and that there would not be that fairness and equality. How does the Minister ensure that equity and fairness he was talking about is guaranteed in such cases, even in cases where people might not win the case but could be taking the case on very legitimate public interest grounds?
In regard to process, the Minister for the environment is leading on this. The consultation there is between the Department of Justice, the Department of Public Expenditure and Reform, the Minister for the Environment and the Minister for housing, which is me in this instance. The public consultation will be just that, so when the draft costs scheme is published, it will go out and we will have stakeholder engagement. The Minister for the environment, Deputy Ryan, will be leading that. I expect the Oireachtas input on that to be through the environment committee. That is something in which members here will have a particular because they have done the heavy lifting on this legislation.
What is the purpose of that? What does it mean?
It is to take a judicial review. It has not had any-----
I apologise, I am not being in any way being disruptive. Does the £35,000 relate to income or costs?
It is costs.
People can only get a maximum of £35,000 back.
Yes, that is in Britain. I am not saying that is guiding us, but when we look at something like that and other costs schemes that are in place, they are not stopping people from taking judicial reviews. It is important that when people take a judicial review and win, their costs are covered.
The other point the Deputy made was that in a number of instances people might take a judicial review case and may not win, but the case may be deemed to be of national importance or elements within the case may be. That is provided for in section 265(4), which states:
(4) The costs that a party is ordered to pay to an applicant under subsection (2) shall not exceed the monetary amount prescribed in respect of those costs under section 266 unless the court awarding such costs is satisfied that, due to the exceptional circumstances presented by a particular case—
(a) there is a reason of exceptional public importance for awarding costs exceeding that amount, and
(b) it is in the interests of justice to so award.
A higher amount could be awarded. The court will have discretion to award costs under that section where a group or individual is not successful, but the court judges it to be of importance that the case was brought.
A lot of work has gone into the scheme. The public consultation will be important because it will stand to us for the next ten, 20 or 30 years. The costs scheme will be reviewed every five years. It is set down in section 266(4) which provides that "The Minister for the Environment, Climate and Communications shall conduct a review ... not less than once in every period of 5 years after the making of the regulations." That is on lines 30 and 31. It is important that the costs scheme is kept up-to-date and under review. We want to get it right at the start, so we will engage in public consultation, come back for assessment and go to the Oireachtas joint committee, in this instance, the joint committee on the environment. However, I would expect, given its committee in this matter, that this committee would provide some input into it. I will raise that with the Minister, Deputy Eamon Ryan.
What about the means test?
I do not have detail on the means test yet, but it will be a low bar.
Will it apply to individuals and organisations or how will it operate?
It could, potentially, but they will be done separately. There will be a means test threshold for an individual and one for a group.
It is pretty clear if it is a company, but the unincorporated bodies we have just discussed are collections of individuals. Would the means test apply to them collectively or what is the thinking?
In most instances, it is unlikely an unincorporated body would have assets, means or an income. I do not think it will be an issue for those bodies. I am trying to think of an unincorporated body that-----
Let us say a residents' association has 100 members and 75% of them voted for judicial review.
We are not going to means-test the individuals.
Will the individual means tests of the 75 individuals who will be named in the affidavit in the judicial review be added up?
No. That would not be the intention. I have not seen the most up-to-date draft, but we would not be means testing. We have already dealt with this. Let us take a residents' association that is properly incorporated. The decision is recorded and the residents' association and those taking the case are named. We would not means-test the people.
The people in the residents' association.
No, because they are members of a properly incorporated body under what will be the Act.
They are unincorporated as per the example I am talking about, so will the means test apply to the residents' association, that is, the body with its credit union account and the money it has or the individuals who are-----
I do not envisage it being the individuals at all. It is the body.
The entity.
Yes, the entity itself. That is the type of work that is being teased out right now, but I do not envisage that one would look at a residents' group and means-test each of the individual members.
What does the Minister think about the question of the David and Goliath fear, that equal resources would not be available?
The scale of fees is important because it works for everyone in that instance. Section 266(3) provides for that as follows:
(3) Before making regulations under subsection (2), the Minister for the Environment, Climate and Communications shall have regard to—
(a) the need to ensure that proceedings to which this Chapter applies can be taken by applicants in a manner that is not prohibitively expensive,
(b) the need for equitable and orderly access to the courts for all persons to be ensured in accordance with law ...
That is the balance that would be struck in the scale of fees because it would apply to both parties.
Yes, absolutely, if both parties were seeking to recover their costs. However, there could be a corporate entity for whom recovery is not the primary interest in the case and that is quite willing to pay a significantly higher amount of fees on the market, notwithstanding that they will not be recovered.
I understand the point the Deputy is making. The scale of fees is set and if people want to go further, they pay themselves and that is not recovered.
That is my point.
The Deputy is saying that, effectively, it is not the recovery of fees, it is the scale of the team and so forth.
It could be about the financial firepower of the other side in the case.
I will share what my team is saying. We will use Britain as an example. The system has adjusted to that and it will adjust, but it is important there is an appropriate balance. That will also be based on experience. I am also aware that we are discussing this section without having the draft costs scheme.
Yes, and that is part of my challenge.
Yes, I understand that challenge and respect it fully. The Minister of State, Deputy Noonan, has outlined the guiding principles. I am trying to explain the road of travel on this and what the parameters of it will look like. I can assure the Deputy and all members of the committee that the public consultation and Oireachtas input will be very important in ensuring the scheme strikes the right balance. I am confident we can do so.
Finally, to those legal professionals from the Law Society and the Bar Association who gave testimony to the committee and strongly argued that their fear about this uncertain scheme is that it will reopen what everyone thought was closed with the Heather Hill v. An Bord Pleanála case. That could lead to legal challenges and delays. What is the Minister's response to those legal professionals who were warning against that and concerned about it? These are people who both take and defend against judicial reviews.
We have done an immense amount of work on this and the structuring of it with the Attorney General and his office. We had input into this in the preparation of the legislation through our team of senior counsel who have been very involved in these cases. What I would say to those who have raised what they see is as legitimate concerns - we take that on board as they are commenting, as they are entitled to, in the absence of seeing the scheme - is that they will be important to the public consultation on the scheme and I would expect them to make an input into it. The Bill sets the architecture to bring forward the costs scheme. No one has spoken to me about the architecture we are setting in the Bill. The next piece is the costs scheme and we will listen carefully to those who are engaged in the process and know it well, as we have done heretofore.
The public consultation will be very important. I will assess the feedback we get, as I am certain the Minister Deputy Ryan will, particularly feedback from the practitioners because they are the people at the coalface. We will listen respectfully and take on board their views.
I will make another point. It is not a question, although the Minister can reply if he wishes. I have not heard any legal professional support or respond positively to the architecture in the Bill during their engagement with the committee and in subsequent conversations. I want to put that on record. In any profession there are differing views. The legal specialists in the Bar Council and Law Society who deal with planning law, environmental law and local government matters have been very critical and sceptical of the architecture. The Minister is absolutely right that they have made the point that they have been asked to take, in good faith, an architecture the details of which none of us know because they have not been decided. It is important that the Minister and his officials hear that there is a lot of scepticism about the architecture itself.
I suppose-----
I want to put that on record.
To counter this, I listen to the views that people have. When we are looking at cost containment, for some it might not be welcome. In some instances the cases taken can be paid for and the fees can be lucrative for some businesses. I understand that. We want to be fair and we will be fair. It is right and correct that, as a Government, we manage the resources of the State appropriately. We will certainly listen when the scheme comes up for review. It is important to note the review of civil justice identified Ireland as having very high legal costs. Most people recognise that.
Yes.
For those who make a living from cases and run firms, bringing in a cost scheme may reduce this in some instances. It would be natural for some of them not to welcome it. I will engage positively and openly with them through the public consultation process.
The Minister probably does not have the information I am about to ask for. I have not considered it previously but perhaps it can be provided to the committee. In terms of the types of judicial reviews that relate to planning and environmental cases, who pays when the State is paying the costs? Obviously, it is not the Department. Do we have visibility on what these costs are on an annual basis?
The Chief State Solicitor's office pays the cost.
Perhaps Deputy McAuliffe can tell us whether this matter has been raised at the Committee of Public Accounts. Has the Committee of Public Accounts been given information about this? It would give the committee a sense of the scale of the cost to the State.
The Office of the Planning Regulator did some research on this. It has been furnished to the Department of the Environment, Climate and Communications to help it.
If it is possible to share that with the committee, it would be great.
We have not actually published it. We are waiting to see what the response to it is. It is a piece of work done by the Office of the Planning Regulator. For example, with regard to legal costs, An Bord Pleanála paid €10 million last year.
We know that.
It is substantial. The Office of the Planning Regulator research was done and it is with the Department of the Environment, Climate and Communications. We cannot publish it yet. The Department is working through it.
When the Minister is in a position to share that research with the committee, members would be very-----
When we are in position to do so we certainly will.
I move amendment No. 970:
In page 452, lines 20 and 21, to delete "of this section".
I move amendment No. 971:
In page 453, between lines 3 and 4, to insert the following:
"(iii) the proceedings were brought for the sole purpose of—
(I) delaying a development, or proposed development, to which the proceedings relate, or
(II) securing the payment of money, gifts, consideration or other inducement, by any person to any other person,”.
I move amendment No. 972:
In page 455, line 41, to delete "subsection (1), may" and substitute "that subsection may".
I move amendment No. 973:
In page 457, line 7, to delete "matters" and substitute "matters to be".
I move amendment No. 974:
In page 457, line 16, to delete "means by which" and substitute "means by which,".
I move amendment No. 975:
In page 457, line 21, to delete "mechanism" and substitute "environmental legal costs financial assistance mechanism".
I move amendment No. 976:
In page 457, line 23, to delete "mechanism" and substitute "environmental legal costs financial assistance mechanism".
I move amendment No. 977:
In page 458, lines 30 and 31, to delete "was in a position to, but did not make submissions of a material nature," and substitute "was in a position to make, but did not make, submissions of a material nature".
I move amendment No. 978:
In page 459, line 5, to delete "having regard to all the circumstances of the case" and substitute "(having regard to all the circumstances of the case)".
I move amendment No. 979:
In page 462, between line 28 and 29, to insert the following:
"Amendment of Act of 2000
275. (1) The Act of 2000 is amended—
(a) in subsection (6) of section 50 by the deletion of "within the period of 8 weeks beginning on the date of the decision or" and the substitution of the following:
"within the period of 8 weeks beginning on the date of the notification or publication of the decision, whichever is the later, or",
(b) by the deletion of subsection (6) of section 50A, and
(c) in section 50B, by the insertion of the following after subsection (3):
"(3A) Notwithstanding subsection (3), the Court shall not award any costs against a party which would be prohibitively expensive for that party.".
(2) Notwithstanding subsection (1), and anything to the contrary in this Act, this section shall commence on the passing of this Act.".
I move amendment No. 980:
In page 463, between lines 4 and 5, to insert the following:
"other relevant person for the purposes of notice of endangerment for the property" shall include the following:
(a) legal representative, professional, or management firms or individuals managing or responsible for the property registered in an offshore company;
(b) a financial institution or fund which has taken title to the property as a result of a loan;
(c) administrators, liquidators or receivers responsible for the property after a loan, default or repossession; and
(d) parties responsible for the maintenance of a building site or structure which is causing endangerment to an adjoining Protected Structure.".
I move amendment No. 981:
In page 464, between lines 4 and 5, to insert the following:
"(5) Sections 54 and 55 of the Act of 2000 shall continue to apply and have effect in relation to a record of protected structures included in a development plan—
(a) under that Act, and
(b) that, by virtue of section 66, remains in force after the repeal of those sections by section 6.".
I move amendment No. 983:
In page 465, between lines 19 and 20, to insert the following:
"(8) Section 53 of the Act of 2000 shall continue to apply and have effect, on and after the repeal of that section by section 6, in relation to a recommendation under the said section 53.".
I move amendment No. 986:
In page 471, between lines 31 and 32, to insert the following:
"(14) A declaration under section 57 of the Act of 2000 made before its repeal by section 6 shall have effect on and after such repeal as if made under this section.
(15) Notwithstanding the repeal of section 57 of the Act of 2000 effected by section 6, the Act of 2000 shall, subject to Part 17, continue to apply and have effect in relation to a request or appeal under that section made before that repeal.".
I move amendment No. 987:
In page 472, line 2, after “structure” to insert “and any other relevant person for the purposes of notice of endangerment for a property”.
I move amendment No. 992:
In page 472, line 30, after “structure” to insert “and all such other relevant person for the purposes of notice of endangerment for the property”.
I move amendment No. 994:
In page 473, line 21, after “occupier” to insert “and all such other relevant person for the purposes of notice of endangerment for the property”.
I move amendment No. 995:
In page 473, line 23, after “structure” where it secondly occurs, to insert “and all such other relevant person for the purposes of notice of endangerment for the property”.
Amendment put and declared lost.
I move amendment No. 997:
In page 473, line 35, after “area” to insert “and all such other relevant person for the purposes of notice of endangerment for the property”.
I move amendment No. 998:
In page 476, line 1, to delete “court” and substitute “Court”.
I move amendment No. 999:
In page 477, line 11, to delete “court” and substitute “Court”.
I move amendment No. 1000:
In page 477, line 14, to delete “court” and substitute “Court”.
I move amendment No. 1002:
In page 480, after line 38, to insert the following:
“ Notices under sections 59 and 60 of Act of 2000
299. (1) A notice under subsection (1) of section 59 of the Act of 2000 shall, on and after the repeal of that section by section 6, continue to be valid and, accordingly, those sections and sections 61, 62, 63, 64, 65, 66, 67, 68, 69 and 70 of that Act shall continue to apply in relation to such a notice to the extent that they would have applied had that repeal not been effected.
(2) A notice under subsection (2) of section 60 of the Act of 2000 shall, on and after the repeal of that section by section 6, continue to be valid and, accordingly, those sections and sections 61, 62, 63, 64, 65, 66, 67, 68, 69 and 70 of that Act shall continue to apply in relation to such a notice to the extent that they would have applied had that repeal not been effected.”.
I move amendment No. 1003:
In page 481, between lines 2 and 3, to insert the following:
“ Definition
299. In this Chapter “draft special planning control scheme” has the meaning given to it by subsection (1) of section 303.”.
I move amendment No. 1005:
In page 485, line 6, to delete “chapter” and substitute “Chapter”.
I move amendment No. 1006:
In page 494, between lines 34 and 35, to insert the following:
“(10) A notice under section 88 of the Act of 2000 in force immediately before the repeal of that section by section 6 shall continue in force on and after such repeal and be deemed to be a notice served under this section.”.
I move amendment No. 1007:
I move amendment No. 1008:
In page 498, between lines 6 and 7, to insert the following:
"Scheme under section 85 of Act of 2000
313. A scheme approved under section 85 of the Act of 2000 in operation immediately before the repeal of that section by section 6, shall—
(a) continue to apply and have effect on and after such repeal, and
(b) be deemed to be a special planning control scheme,
and accordingly references in this Act to area of special planning control shall be construed as including an architectural conservation area, or part of an architectural conservation area, to which that scheme applies.”.
I move amendment No. 1009:
In page 498, between lines 6 and 7, to insert the following:
“Draft scheme under section 84 of Act of 2000
314. A scheme prepared under section 84 of the Act of 2000 in respect of which there has been compliance with any one or more of the provisions of section 85 (other than subsection (7)) of that Act before the repeal of those sections by section 6 shall be deemed to be a draft special planning control scheme within the meaning of Chapter 2 of Part 10.”.
Amendments Nos. 1010 to 1015, inclusive, and 1017 to 1026, inclusive, are related and may be discussed together.
I move amendment No. 1010:
In page 498, between lines 10 and 11, to insert the following:
“ “curtilage”, in relation to a dwelling, means an area immediately surrounding or adjacent to the dwelling which is used in conjunction with the dwelling, other than any part of that area that is a public place;
“dwelling” includes—
(a) a building or structure (whether temporary or not) which is constructed or adapted for use as a dwelling and is being so used,
(b) a vehicle or vessel (whether mobile or not) which is constructed or adapted for use a dwelling and is being so used, or
(c) a part of a dwelling;”.
This amendment relates to definitions. It came up in discussion with somebody experienced in enforcement. This seeks to define "curtilage" and "dwelling" in section 313. The definition of "dwelling" exists in various pieces of legislation, and for those working in enforcement to have it all concisely together in this section of the Bill would be helpful and would add clarity. The amendment refers to a vehicle or vessel which is constructed or adapted for use as a dwelling. If somebody were living in a boat in their front garden, it would be hard to apply the definition of "dwelling" to that in terms of enforcement measures. I seek clarification on that.
The proposed definition of "curtilage" is similar to that in section 362(7) but also proposes adding an exclusion that the area of the curtilage does not include any part of that area that is a public place. When the term “curtilage” is used in section 362(2), it is provided that "an authorised person shall not, other than with the consent of the occupier, enter a dwelling or the curtilage of a dwelling (other than any part of the curtilage to which the public have access whether as of right or by permission and whether subject to or free of charge)".
That is a more appropriate way of providing that a person can enter a part of a curtilage that is a public place.
The term “dwelling” appears to be defined for the purpose of the definition of “curtilage”. “Dwelling” is not defined in the Bill and takes on its ordinary meaning and is used within the definitions of “house” and “habitable house” in the Bill. The proposed defined term could have the unintended consequence of limiting its ordinary meaning.
It arose in discussions on enforcement that there was difficulty in using the current definition of "dwelling". I have supplied definitions here to try to expand the meaning of "dwelling". How do you take enforcement action against somebody-----
Living in a boat in the front yard.
In a front garden, yes.
That would be an unauthorised development. A boat on a river is fine, but if it is in your front garden and you are living in it, that is a structure and would be unauthorised. We have dealt with that under unauthorised.
So any vehicle, vessel or anything is defined as a structure if it is within the curtilage of a building for dwelling.
Yes, it would, if it is being used in an unauthorised way. For argument's sake, a boat in a driveway used as a dwelling is unauthorised.
I tabled the amendment because it was raised with me as having created difficulty previously in enforcement. If the Department is satisfied-----
I am advised by colleagues it does not pose any difficulty.
Okay. The definition of "dwelling" exists in a number of places. Would it be beneficial to bring it into the Bill?
What is found more appropriate is to use the ordinary meaning of it, and that is, as I outlined, used within the definitions of "house" and "habitable house" in the Bill. We are content with that.
Okay. That is fine. I am happy with that then. Will I deal with my amendments that are in this grouping?
Please do. I think Deputy Matthews is the only contributor to that grouping.
The Minister as well.
I have a couple of amendments.
I will fly through them. Amendment No. 1013 relates to section 314. That is where I thought it might be applicable to insert this amendment. It is on page 499. It is to try to collate decisions and particulars relating to sections 315, 316 and 317. These would be collated and reported to the Minister as prescribed in regulations. We often talk about enforcement, which probably does not get the same priority within planning authorities, or it certainly seems to come under quite a lot of pressure. It seeks to ensure the Minister will have overall sight of enforcement and enforcement matters - for example, where warning letters or enforcement actions have been issued, or where decisions have been taken not to proceed. I would be happy if the Department, the Planning Regulator or somebody else was collating a national view of actions under Part 11.
To be helpful, section 315(12) on page 502 states:
A report of a local authority under section 50 of the Local Government Act 1991 or section 221 of the Local Government Act 2001 shall specify the number of—
(a) warning letters served by that authority,
(b) enforcement notices served by that authority,
(c) proceedings for an offence brought under this Part by that authority, and
(d) applications for planning injunctions made by that authority,during the period to which the report relates.
That is the annual report of the local authority, which would come to the Department. In addition, the National Oversight and Audit Commission, NOAC, would also collate data in its annual report.
So each local authority is doing that-----
-----and they send that into the Department. Does the Department collate that information? I might ask how many warning letters were issued in Ireland in 2023 or how many were followed up within six weeks. I do not want to put any more work on the Department because it has enough as it is.
No, the Deputy is okay.
Is it something for the regulator or the Department?
It is actually done now. That is collated by NOAC. NOAC is the body that collates it. Each planning authority, in its annual report, will detail it and then NOAC takes the national view of that. It is the one that collates it. It does not go to the OPR, does it? No.
If I was trying to look at a pattern over the years, I would have to pull NOAC reports together and pull the detail out of that.
Sorry, I should have said this. There are existing powers in Part 18, Chapter 3 of the Bill for the OPR to conduct of its own accord or at the Minister's request a review of the performance of a planning authority's functions, including enforcement functions. I see the merit in what the Deputy has said. One would have to pull a NOAC report, and that is at a national level. The Deputy is representing Wicklow, so I will use that as an example. Wicklow County Council, in its annual report, has to detail the details as outlined in section 315(12). Therefore, these matters are detailed per each planning authority. At a national level, it is NOAC. Under this, the OPR could conduct of its own accord, or at my request, a review of the performance of a planning authority’s functions, including enforcement functions.
It is within the Minister’s gift. If the Minister wanted to have an overview of enforcement actions throughout the country-----
I would ask the OPR.
-----he could direct or ask and NOAC would then provide that report.
NOAC does-----
The OPR would do it for the Minister, sorry.
The OPR does it and NOAC publishes its report, which is available to everyone. I could request that of the OPR, or the OPR could do it on its own initiative. It is basically around the performance of the planning authorities and their functions, which includes the enforcement function.
Has that ever been requested?
Not to date.
Do we know what patterns are like in enforcement in this country? Are we getting better, are we slowing down or are we static? I am just wondering.
To be honest, I do not know. It has not been done heretofore, so I see merit in it.
The Minister has the powers to do that, so I will leave it there. Perhaps it is something to consider. Will I speak on amendments Nos. 1037 to 1039, inclusive?
Sorry, what numbers am I on? Sorry, amendments Nos. 1045 to 1052, inclusive. Is okay if I do those?
Sorry, those are not in this grouping. It is amendments Nos. 1010, 1011, 1014 and 1015, and 1017 to 1026, inclusive.
The latter are Deputy O'Callaghan's amendments. I am done on this grouping.
I am conscious we are coming up to 4.15 p.m. Which ones have I got? I have amendments Nos. 1011, 1012, 1014 and 1015. Amendments Nos. 1011 and 1012 refine the section 313 definitions at the start of Part 2, enforcement, with regard to the Maritime Area Regulatory Authority, MARA. In the vast majority of circumstances, maritime enforcement is dealt with by MARA while land-based enforcement, which includes the nearshore, is the responsibility of the planning authority. Amendments Nos. 1011 and 1012 further clarify the enforcement area of both for the avoidance of conflict or confusion. However, in a limited number of cases, it may be more appropriate for MARA to lead the enforcement in such instances. This may include enforcement that is both in the sea and stretching across the nearshore onto land.
Amendment No. 1014 enables MARA and the relevant planning authority to agree in writing that the MARA shall be the enforcement authority in respect of a particular development or proposed development situated or proposed to be situated in the nearshore area of the coastal planning authority, or partly on land and partly in the nearshore area of the coastal planning authority.
Amendment No. 1015 clarifies, for the avoidance of doubt, that an enforcement notice may not be served on a Minister of Government.
I think I have addressed the other amendments. Those are the Government amendments.
Do members have any comments? No. We can move on. Amendments Nos. 1017 to 1026, inclusive, are Deputy O'Callaghan's; is that correct?
These are substitution amendments, so they all have the same content; is that correct?
Yes. This is a proper grouping, so I will speak once as there is one issue. They are amendments Nos. 1017 to 1026, inclusive. The section is on time limits with respect to enforcement action. Rather than the envelope for time being seven years, I am seeking to change it to 15 years. It is fairly clear. It is not so complicated, unlike many other aspects of the Bill. I look forward to hearing the Minister’s response.
I understand what the Deputy is saying but – there is a "but" – seven years is currently prescribed and that is consistent with the Statute of Limitations. Last week, we dealt with another section related to quarrying and peat extraction, where we can go past that date, which I think we all agreed would be a good thing. The proposal to extend it to 15 years would remove the impetus from a planning authority to initiate enforcement proceedings, if you look at it the other way around. A planning authority should investigate alleged breaches of the planning code at the earliest opportunity and proceed with full enforcement, where appropriate, without undue delays. I know this is not the Deputy’s intention but if it is changed to 15 years, the urgency is removed. It is a doubling of the period of time. We obviously want planning authorities to take enforcement promptly. I think having the seven-year period, which is in line with the Statute of Limitations, strikes a good balance. If we were to extend it to 15 years, we could potentially be waiting for just over double the period of time for a planning authority to do anything, and we would not want that.
The Minister has put forward an interesting counterargument.
I personally do not buy it. The problem is that in some cases things time out because, as we know, local authorities and enforcement authorities can be slow in this whole area. It also happens that the issues sometimes do not arise. There have been well-publicised cases where unauthorised development has come to light. Someone builds a structure, building or whatever and because it is found eight years afterwards, enforcement action cannot be taken so it is grand for them to carry on as is, even though the person or entity operated without planning permission. Local authorities are not fast enough in this area but I do not think extending the period to 15 years will lead to less enforcement action. It means there can be recourse in cases that time out and people escape enforcement action. If it is something minor and immaterial, so be it, but it might be something substantial that comes to light in year eight.
I have often seen problems start to emerge but it takes time for people to get on top of the issue, assemble the facts and all that sort of stuff. People who raise enforcement issues may not have engaged with enforcement before and may not know their way around planning law. All of that can lead to delays. We see cases timing out at seven years and local authorities say there is nothing they can do because the matter has timed out.
Even if the Minister is not inclined to accept my proposal for a 15-year period, perhaps he will consider another period. Seven years is too tight in a number of instances, which means totally unauthorised developments where an enforcement action should have been taken benefit from the seven-year limit.
I know the Minister has an engagement at 4.15 p.m.
I have something to do at 4.15 p.m but I will be straight back at 4.30 p.m.
I ask him to respond when he returns. I know Deputy Ó Broin also wants to contribute. We will resume at 4.30 p.m.
Will the Minister respond on the issue of the extension to 15 years?
It is coterminous with the Statute of Limitations. If Deputy O’Callaghan were to take an enforcement action on day 364 of year 6, he would not need to have it disposed of within the seven years. It just has to have been initiated. People are clear on that.
Under this paragraph, any development still remains unauthorised. Even if it had gone past the seven-year mark and someone sought to retain it, he or she would not get to do so without planning retention, so it would have to go through the planning process.
I genuinely understand Deputy O’Callaghan’s intent, but an unintended consequence of the amendment could be planning authorities not taking enforcement actions within the time we want them to. If someone is in breach of a condition of a planning permission, there is no time limit because the work is in breach and unauthorised. I have explained why accepting an extension to 15 years could prolong the process and lead to slower action in enforcement proceedings.
If the Minister is concerned that local authorities would act too slowly if there was a 15-year window for enforcement issues to be raised and acted upon, I would be happy to work with him on setting timeframes in this section to ensure that issues had to be dealt with within a certain amount of time of being brought to light. However, that is not what my amendment is about. It is about the window within which enforcement action can be taken. There is a solution to the problem the Minister presents. I am sure he is aware of plenty of instances of cases being timed out. They often come to light in year 5 or 6, but by the time everything has gone through the process, communities are told that the seven-year limit has kicked in and nothing can be done.
In an instance where something starts in year 5 or 6, someone would only be initiating the process, so would not be timed out at the seven-year mark.
But where it is not initiated and the issues begin to come to light, it can take time for the facts to be gathered and for people to understand the processes. They push to have enforcement action taken only to be told that the seven-year limit has kicked in and nothing can be done. That is the issue I am trying to address.
I know that Deputy Ó Broin wishes to comment, so I will reply afterwards.
I support Deputy O'Callaghan's amendment. I do not accept the Minister’s argument that 15 years would disincentivise local authority enforcement action. In the majority of cases, local authority enforcement action is initiated by a planning enforcement complaint from a member of the public, and on foot of that, a statutory process kicks in. I do not see how what the Minister is saying would operate.
The real solution is to go further than the amendment. I will table an amendment on Report Stage. It should be a set number of years from discovery. We have had this conversation in the context of defects.
That is right.
This is a live discussion in the North, as some defects have been found in an apartment block in Belfast. In the case of building defects, the period is seven years from construction. What really matters is when the planning authority, the member of the public who makes the complaint or the homeowner discovers the breach of planning or of building control.
I urge the Minister to consider this matter. The solution is an appropriate number of years from discovery. That would not necessarily need to be 15 because once it is discovered, it can be acted on. I support Deputy O’Callaghan’s amendment, but I will more than likely table a Report Stage amendment.
I have certainly encountered this issue in terms of apartment defects. The suggestion that the Statute of Limitation should start from the date of independent verification or discovery is being examined in that context. I know what the Deputies’ point is. I will reflect on it, if that is okay.
In this instance, the development is unauthorised. If someone did not have planning permission at all but built a house anyway, it would still be unauthorised if it was only discovered post seven years.
It cannot be sold. As a result, the owner will have to opt for retention and go through the planning process. That opens up the observation period. Having said that, if a person had permission and did something contrary to the conditions, planning permission for a development, let us say, and the planning conditions are the legal permission that is given, the application will not be timed out because of not fulfilling the conditions of a planning permission. However, I know of instances, as Deputy O'Callaghan does, whereby people have only discovered something after that period. I am going to reflect on this point. There is a balance to be struck, and I was not in any way trying to be smart in my response to the Deputy. We want to make sure there is a level of urgency among the local authorities. It would be interesting to know how many enforcement actions - and this goes to the point the Cathaoirleach made earlier - are taken or the number of times the process has been started due to the public raising matters, as opposed to it being initiated by a planning authority of its own volition. That is the type of thing I will have a look at.
In relation to conditions, section 320(5) states:
... enforcement action may be taken at any time in respect of any condition concerning the ongoing use of land or a maritime site to which the permission is subject, and proceedings for an offence under section 317 may be brought and prosecuted at any time ...
This deals with someone operating outside of their conditions so there is no time limit but give us a bit of time before Report Stage. If Deputy Ó Broin intends to bring an amendment, I will reflect on it also to see if we can find a balance. If there is any good reason why we cannot do it, I will let the Deputies know, but I will look at it. I take the point. I have come across those issues.
The issue around discovery has still not been resolved. It is not in this amendment as such, but-----
What does the Deputy mean?
There is no interpretation that the clock can be started from discovery.
That is only being looked at.
There is an issue around the Statute of Limitations. It is better if we just deal with it in the context of the planning matter by means of enforcement. I will look at this and will come back on Report Stage to see if we can find a compromise that could potentially work better.
Thanks.
I move amendment No. 1011:
In page 498, to delete lines 20 to 24 and substitute the following:
“(a) in relation to a coastal planning authority, its functional area,”.
I move amendment No. 1012:
In page 498, to delete lines 30 to 33 and substitute the following:
“(ii) any part of the functional area of a coastal planning authority to which an agreement under subsection (10) of section 315 applies made by the Maritime Area Regulatory Authority with the coastal planning authority;”.
I move amendment No. 1014:
In page 501, to delete lines 26 to 40 and substitute the following:
“(10) The Maritime Area Regulatory Authority and a coastal planning authority may agree
in writing that the Maritime Area Regulatory Authority shall be the enforcement authority in respect of a particular development or proposed development situated or proposed to be situated—
(a) in the nearshore area of the coastal planning authority, or
(b) partly on land and partly in the nearshore area of the coastal planning authority, and for that purpose, the maritime site (in the case of an agreement under this subsection to which paragraph (a) applies) or the land and maritime site (in the case of an agreement under this subsection to which paragraph (b) applies) upon which the development or proposed development is situated or proposed to be situated shall form part of the enforcement area of the Maritime Area Regulatory Authority.”.
I move amendment No. 1015:
In page 504, line 21, to delete “person” and substitute “person (other than a Minister of the Government)".
I move amendment No. 1016:
In page 510, line 32, to delete "subsection," and substitute "subsection".
I move amendment No. 1017:
In page 513, line 7, to delete “7 years” and substitute “15 years”.
I move amendment No. 1018:
In page 513, line 10, to delete “7 years” and substitute “15 years”.
I move amendment No. 1019:
In page 513, line 12, to delete “7 years” and substitute “15 years”.
I move amendment No. 1020:
In page 513, line 24, to delete “7 years” and substitute “15 years”.
I move amendment No. 1027:
In page 522, to delete line 20.
I move amendment No. 1028:
In page 531, line 18, to delete “asks for” and substitute “requests”.
I move amendment No. 1029:
In page 531, line 21, to delete “ask” and substitute “request”.
I move amendment No. 1030:
In page 531, line 23, to delete “for”.
I move amendment No. 1031:
In page 531, line 24, after “or” to insert “first-mentioned”.
I move amendment No. 1032:
In page 531, line 25, after “or” where it firstly occurs to insert “first-mentioned”.
I move amendment No. 1033:
In page 531, line 26, after “or” to insert “first-mentioned”.
I move amendment No. 1034:
In page 531, line 27, after “or” to insert “first-mentioned”.
I move amendment No. 1035:
In page 531, line 29, to delete “asks for” and substitute “requests”.
I move amendment No. 1036:
In page 535, to delete lines 2 to 9 and substitute the following:
“(14) (a) Where an oral hearing relates to development within the Gaeltacht, the hearing shall be conducted in the Irish language, by a chairperson competent in the Irish language, unless the parties to the appeal, application, referral or request to which the hearing relates agree that the hearing should be conducted in the English language.
(b) Where an oral hearing relates to development partly within the Gaeltacht, the hearing shall be conducted bilingually, in the Irish and English languages, by a chairperson competent in both the Irish and English languages, unless the parties to the appeal, application, referral or request to which the hearing relates agree that the hearing should be conducted in the Irish language only.
(c) Where an oral hearing relates to development outside the Gaeltacht, the hearing shall be conducted in the English language, by a chairperson competent in the English language, unless the parties to the appeal, application, referral or request to which the hearing relates agree that the hearing should be conducted in the Irish language.”.
Amendments Nos. 1037 to 1039, inclusive, 1045 to 1052, inclusive and 1086 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 1037:
In page 537, between lines 7 and 8, to insert the following:
“(8) In this section—
“application” includes a submission of a scheme for approval under section 49 of the Roads Act 1993, an application for approval under section 51 of the Roads Act 1993, and an application for a railway order under section 37 of the Transport (Railway Infrastructure) Act 2001; “party” includes a person who submitted a scheme for approval under section 49 of the Roads Act 1993, made an application for approval under section 51 of the Roads Act 1993 or made an application for a railway order under section 37 of the Transport (Railway Infrastructure) Act 2001, and the planning authority in whose functional area the development the subject of the submission or application is situated.”.
These amendments reinstate certain provisions relating to road and railway orders that applied under the Planning and Development Act 2000. Road orders are sought under the Roads Act 1993 and railway orders under the Transport (Railway Infrastructure) Act 2001. Currently, these applications are dealt with by An Bord Pleanála under these Acts. This will continue under the Bill, with applications for road and rail developments made to an coimisiún under those Acts. The Act of 2000 contained a provision that allowed any application to the board to be withdrawn or declared invalid.
Amendment No. 1037 amends section 342, which relates to the withdrawal and invalidity of applications to extend the power to withdraw applications to include road and railway order applications, as was previously provided for under the 2000 Act.
Amendments Nos. 1038 and 1039 extend the general powers of the commission under section 343 to appoint a person to report on any matter before the commission. This will include reporting on matters relating to applications for road and railway orders.
Amendment No. 1086 amends the definition of "application" in Part 17 relating to the governance and organisational matters of the commission to include road and railway order applications. This will have the effect of applying matters relating to applications in Part 17 to road and railway order applications also. For example, under section 433(11), the chief officer shall take all practical steps to determine applications efficiently and expeditiously.
Under section 436(5), procedures should be put in place for dealing with applications under section 437(2). Such procedures should be reviewed every two years.
Under section 438(3), the Minister can increase the number of planning commissioners, where the number of applications to be decided upon warrants it. All of these examples would now include references to applications for roads and railway orders. I may bring forward further amendments on roads and railway orders on Report Stage.
The other grouped amendments are the Cathaoirleach's own ones.
I will not speak about them because some of them are quite self-explanatory but I would like the Minister to read his response. They are amendments Nos. 1045 to 1051, inclusive. I propose to withdraw amendment No. 52 because I do not believe it is necessary.
Amendment No. 1046 and 1047 seek to add clarity to the text of section 351(5), surrounding the disclosure of contact information and personal data. While I do not see a particular difficulty with the proposals, it would be inconsistent to accept the amendments and not equally insert "telephone" before "number", so I think it would be better to hold the amendment for consideration on Report Stage and, if tabled, to include "telephone". If that is done, we can accept what is proposed.
Amendment Nos. 1048 and 1050 seek to provide that documents or information greater than 12 years from the creation or receipt by MARA or the planning authority shall be archived, and made available for inspection on application, as prescribed in regulations. While I understand the need for certain historic records of planning – we discussed e-planning in detail and I gave members further detail on the roll-out – relevant information will be available online. It is not practical to store all correspondence in hard copy format indefinitely, and under GDPR certain information should be stored only for as long as is necessary. I cannot accept this amendment from a document-management point of view. However, I acknowledge some planning applications are of historic importance. All our local authorities have archivists and we have seen much of the good work they are doing, and in this context I can think of current applications that would be worth maintaining in some form or other. I am not sure whether this is appropriate to the Bill but I will think about what threshold should be set. Many things we see now will be of historical importance in the future, and the associated documents, particularly those related to significant changes to an area, are such that there is much validity to what the Cathaoirleach has proposed. I would like to refine it a little and talk to him again about it. There is merit in what has been proposed and we should examine it.
I am seeking clarification. This relates to MARA. A MAC may contain details on the decommissioning aspect of an installation. It is a matter of being able to know in 40 years what the decommissioning requirements were.
I understand. That would be kept on the MAC side, but there is also a point more broad than the one on the maritime aspect we are referring to. We will have a look at the matter and revert to the Cathaoirleach.
I accept that.
Amendment No. 1049 seeks to amend section 351(9), which allows the owner or occupier to request documents or information relating to their land or maritime site to include a reference to any person requesting this information. Section 351(1) already provides that a member of the public can seek copies of the register or the documents outlined in section 350, so there is no need to add them to this provision, which relates solely to the owner or occupier of the land. That can be done anyway.
Amendment No. 1051 seeks to amend section 352 in a similar manner relating to documents of an coimisiún. Has the Cathaoirleach proposed to withdraw that amendment?
I propose to withdraw amendment No. 1052.
I am sorry. However, documents of the commission will also be made available through the planning authority under section 351(1). We are covered by that.
That completes the discussion on the grouping.
I move amendment No. 1038:
In page 537, line 11, after "Act" to insert "or any other enactment".
I move amendment No. 1039:
In page 537, between lines 23 and 24, to insert the following:
"(5) In this section "application" includes a submission of a scheme for approval under section 49 of the Roads Act 1993, an application for approval under section 51 of the Roads Act 1993 and an application for a railway order under section 37 of the Transport (Railway Infrastructure) Act 2001.".
I move amendment No. 1040:
In page 538, between lines 30 and 31, to insert the following:
"(e) Where the appeal, application, referral or request relates to development in a Limistéar Pleanála Teanga Gaeltachta or a Baile Seirbhíse Gaeltachta within the Gaeltacht—
(i) the protection of the linguistic and cultural heritage of Irish language and Gaeltacht communities including the promotion of Irish as the community language,
(ii) any relevant Language Plan agreed pursuant to Acht na Gaeltachta 2012."
Amendment No. 1041 has been ruled out of order.
I move amendment No. 1042:
In page 538, between lines 34 and 35, to insert the following:
"348. (1) The Commission may make proposals to the Minister on fees that may be charged, which shall be subject to the approval of the Oireachtas, in relation to—
(a) the making of an appeal, application, referral or request,
(b) any function of the Commission under this Act or any other enactment, and
(c) any procedure arising in connection with an appeal, application, referral or request, or function of the Commission, including the making of submissions, the lodging of reports or other documents, consultations, meetings or other procedures, and a fee as so approved shall be payable to the Commission by any person concerned as appropriate.
(2) The Commission may, subject to the approval of the Oireachtas, provide for the payment of different fees in relation to different classes or descriptions of matters referred to in paragraphs (a) to (c) of subsection (1), for exemption from the payment of such fees in specified circumstances and for the waiver, remission or refund in whole or in part of such fees in specified circumstances.
(3) The Commission shall review the fees determined under subsection (1) or exemptions under subsection (2) from time to time, but at least every three years, having regard to any change in the consumer price index since the determination of the fees for the time being in force, and may make proposals to amend the fees to reflect the results of that review for the approval of the Oireachtas.
(4) Where the Commission wishes to make a proposal under subsections (1), (2) or (3), it shall first submit the proposal to the Minister, and the Minister shall—
(a) request the relevant Joint Oireachtas Committee to consider the proposal and make recommendations in relation to it, and
(b) request the Oireachtas Committee in preparing its recommendations on the proposal to in particular consider the objectives, obligations and requirements as the case may be of the following in so far as these relate to third parties engagement—
(i) the importance and value of public participation,
(ii) rights to access to justice,
(iii) requirements to ensure participation is not prohibitively expensive and the obligations provide for wide access to justice, and
(iv) to also consider the cumulative cost implications for a person or group, and in particular environmental organisations, seeking to engage in the environmental decision-making,
and shall highlight the following:
(i) the Convention on Access To Information, Public Participation in Decision-Making And Access To Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998, the Aarhus Convention,
(ii) the Public Participation Directive, 2003/35/EC, and
(iii) Article 47 of the Charter of Fundamental Rights.
(5) The proposal made under subsections (1), (2) or (3), together with any report from the Joint Oireachtas Committee, shall be laid before both Houses of the Oireachtas, and shall not be approved until a resolution approving it is made by each such House.
(6) Where the Oireachtas does not approve the proposal laid before them within 3 months of the proposal being laid under subsection (5), the Minister shall—
(a) request the Commission to prepare another proposal, and
(b) address such other proposal as if it were a proposal made under subsections (1), (2) or (3), and proceed accordingly.
(7) Where fees are approved in accordance with this section, the Commission shall—
(a) give notice of the fees in one or more than one national newspaper not less than 8 weeks before the fees come into effect, and
(b) make a statement of the fees available for inspection at the offices of the Commission and publish the statement of the fees on the Commission's website.
(8) The Commission shall specify fees for the making of copies of any document required to be made available by it to the public, which shall not exceed the cost of making the copies.
(9) The Commission shall operate a waiver fee to ensure the cost of purchasing copies of any document required to be made available to the public shall not be prohibitively expensive for the person or group requesting it.
(10) For the purposes of this section, "change in the consumer price index" means the difference between the All Items Consumer Price Index Number last published by the Central Statistics Office before the date of the determination under this section and the said Number last published before the date of the review under subsection (3), expressed as a percentage of the last-mentioned Number.".
I move amendment No. 1043:
In page 539, between lines 30 and 31, to insert the following:
"(7) The Minister before approving any fees or exemptions under this section, or the Commission before revising them, shall conduct a public consultation on the proposals made under subsections (1), (2) or (3).
(8) The Minister in approving any fees or exemptions under this section, or the Commission in revising them, and notwithstanding subsection (3), the Minister, or the Commission as the case may be, shall consider the following in particular:
(a) the input from the public consultation;
(b) the importance and value of public participation;
(c) rights to access to justice;
(d) requirements to ensure participation is not prohibitively expensive and the obligations provide for wide access to justice;
(e) the cumulative cost implications for a person or group, and in particular environmental organisations, seeking to engage in the environmental decision-making;
(f) the importance of ensuring any fees or exemptions set to do not operate as a barrier to participation or access to justice,
and shall in particular consider the following in as much as they relate to such matters:
(i) the Convention on Access To Information, Public Participation in Decision-Making And Access To Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998, the Aarhus Convention,
(ii) the Public Participation Directive, 2003/35/EC, and
(iii) Article 47 of the Charter of Fundamental Rights, and shall publish a report to reflect how due consideration was given to the matters referred to in paragraphs (a) to (f) and such other matters as were taken into account in the decision.".
I move amendment No. 1044:
In page 540, between lines 36 and 37, to insert the following:
"(10) The maintenance, on and after the repeal of section 7 of the Act of 2000 effected by section 6, by a planning authority of the register kept by that planning authority under the said section 7 shall constitute compliance by that planning authority with this section, and a reference in this Act to the register shall, in so far as the reference relates to a planning authority, be construed accordingly.
(11) Any information that, but for the repeal of section 7 of the Act of 2000 effected by section 6, would have been required to be entered in the register kept by a planning authority under that section shall be entered in the register by that planning authority.".
I move amendment No. 1054:
In page 559, after line 38, to insert the following:
"(4) An agreement under section 212 of the Act of 2000 in force immediately before the repeal of that section by section 6 shall, on and after that repeal, be deemed to be an agreement made under this section, and accordingly this section shall apply to that agreement.".
I move amendment No. 1055:
In page 560, line 22, to delete "land," and substitute "land;".
Amendments Nos. 1059 to 1076, inclusive, are related and may be discussed together.
I move amendment No. 1059:
In page 570, between lines 34 and 35, to insert the following:
"Entitlement to Compensation
389. A person from whom land is acquired pursuant to a compulsory purchase order to which this Part applies is entitled to be paid compensation in accordance with the subsequent provisions of this Part.".
We have this large group of amendments. However, they all relate to the same issue of compulsory acquisition of land and refer to this Part. In some ways, how the amendments have been arranged does not make sense but that is an issue of form rather than content.
I will speak to the purpose of the amendments. I will break them into two sets, if I may. The first set runs from amendment Nos. 1059 to 1074. They are based on the draft acquisition of land Bill appended to the 2023 Law Reform Commission report on compulsory acquisition. These sections restate, in accordance with the commission's recommendations, the current rules governing compensation for compulsory acquisition generally, together with the commission's proposed reforms dealt with in chapter 5 of that report. The commission proposed that the basic rules of compensation, namely, market value, severance, injurious affection and disturbance, are not in need of reform but should be set out clearly in one single code. It recommended some refinements and improvements, such as a presumption that the value of land lying 10 m or more below the surface is nil, unless it is proven to be of greater value. We have taken on board all the commission's recommendations in these amendments, which it argues will simplify the compulsory acquisition process.
This relates to the bigger problem of the current compulsory purchase order, CPO, process taking far too long. That is generally agreed. With thousands of properties lying vacant and a scourge of vacancy and dereliction countrywide, there is an understanding that we need to streamline and simplify the process, and make it more efficient for local authorities to purchase homes and sites for the sake of the common good. We believe that implementing the commission's proposal will go some way towards creating a smoother and more efficient CPO process. This first set of amendments runs from amendment No. 1059 to 1074 and is based on sections 60 to 76 of the draft Bill appended to the 2023 Law Reform Commission report on compulsory acquisition.
There is a second set of amendments in this group. It comprises the last two amendments Nos. 1075 and 1076. They are based on the Labour Party Bill, proposed by my colleague, Deputy Kelly, the Acquisition of Development Land (Assessment of Compensation) Bill 2021, which passed Second Stage in the Dáil on 3 June 2021. This Bill essentially seeks to implement aspects of the Kenny report. The amendments provide for a cap on compensation, as outlined in amendment No. 1075, such that it will not exceed 125% of the current use value of development land. That is set out in the proposed new section 389(3) under that amendment. This relates to land where the open market value exceeds its current use value, as the Kenny report recommended. The purpose of these amendments is to reduce the capacity for speculation on land. The Kenny report is often referred to as a very important proposal in tackling that issue. We know that land speculation and sitting on vacant land are contributing significantly not only to the vacancy crisis but to the cost of delivering housing. We spoke at length previously about vacancy, dereliction and trying to get more effective ways of tackling this. We have been trying to encourage people to use even the existing mechanisms of tackling vacancy and dereliction. We want to see change made on this. At this point, we need to see legislative intervention in line with the Kenny report.
Land is a finite resource. We know it should be used for housing or amenities, not for the purpose of speculation or land hoarding. We currently have legislation equipping local authorities to use CPOs but cost is a principal restraining factor, as is delay. Local authorities simply cannot afford to acquire land on the necessary scale for the purpose of development for housing at open market rates where, in many cases, those rates greatly exceed the current use value of the land. The availability of land at a reasonable price for housing, especially in our main urban centres, such as Dublin, has been a deep cause of concern for almost 50 years. We all know the Kenny report arose out of those concerns. It remains relevant today. We are keen to see it implemented in this way.
The main proposal from the Kenny report was that local authorities should be enabled to acquire potential development land, designated by the High Court, at existing use value plus 25%. While the proposal initially raised objections that it might amount to a proposal that was contrary to the Constitution because it would constitute an unjust attack on property rights, in our view, case law clarifies that the State is entitled to regulate and interfere with property rights. That is not just our view. It is what case law has established. However, the State may not regulate in a manner that constitutes disproportionate interference with those rights. An interference is proportionate if it has due regard to the principles of social justice and the exigencies of the common good. We are in a severe housing crisis. When we have such high levels of vacancy and dereliction throughout the country, social justice and the common good must surely require that landowners should not accrue huge gains simply by sitting on vacant land and seeking land value to increase, without any development for the purpose of housing. On the constitutional issues, we secured the opinion of Feichín McDonagh SC on Deputy Kelly's original Acquisition of Development Land (Assessment of Compensation) Bill 2021. That opinion endorsed our approach. It stated there was a strong case that it would be constitutional to legislate along the lines originally proposed in the Kenny report. That Bill was also endorsed by the Think-tank for Action on Social Change, TASC, in its report on land and housing.
Given that towns and cities cannot expand ever outwards, with amendments Nos. 1075 and 1076 we aim to capture the overvaluing not just of agricultural land but brownfield sites in urban areas. I will refer again to the Law Reform Commission. When it looked at proposals for compulsory acquisition of development land, it stated:
While there may be some constitutional and legal issues involved—and the Commission presents an overview of some ... —many of the relevant policy considerations are outside the remit of the Commission and are more appropriately resolved by the Oireachtas.
This a matter the Oireachtas is entitled to legislate on. It has been a long time since the Kenny report came out. It has been subject to extensive debate. We are in a housing disaster, however. We are at a point where current measures to tackle vacancy and dereliction have simply not worked. In our view, now is the time to proceed with these provisions, which have already been debated and passed Second Stage in the Dáil through the Bill we put forward in 2021. I await the Minister's response.
I thank the Deputy for the Labour Party amendments and her comments in introducing them. I agree with her wholeheartedly on uplift and Kenny-style measures. That is why we are bringing forward the land value sharing, LVS, Bill. The Deputy asked me about that in the Dáil. The LVS Bill will soon be available for publication. It is undergoing final checks in the Attorney General's office. That the State will be able to capture part of the uplift in value of a site due to rezoning is a long-overdue measure that needs to be taken. We put a lot of work into that Bill. I expect its publication to be imminent. It is to be hoped it will be published in advance of Report Stage on this Bill. I am committed to doing it and have Government approval to do so. This will be in addition to Part V, which I have changed, as the Deputy knows, by adding 10% affordable to the 10% social. The LVS Bill will enable a further capture of between 20% and 30% of the uplift of the value to be retained by the State to provide the services and amenities we need. That Bill will be published imminently. I am not disagreeing with anything the Deputy said. I am not in a position to accept her amendments at this stage. They will be in the LVS Bill.
I will turn to the CPO piece. All of us want to make sure that is better. I will make a general point about local authorities purchasing land. Last year and again this year, I brought forward the land acquisition fund for local authorities. We spent approximately €98 million last year on that, or maybe a little more. We also have an allocation for this year. Local authorities are buying land. They are now buying through the Department facilitated by the Housing Agency. It has gone very well. I also removed debt from local authorities that had previously purchased land that was encumbered with legacy debt. There were quite a significant number of such sites - more than 30. We took that debt off local authorities on the basis that they deliver additional social housing and that it is done using modern methods of construction, MMC. The first three sites are in preparation in that regard.
Some local authorities use this, and the threat of it, effectively. In many instances there is no need to go down the full route because the threat of using a CPO actually activates a property. Even on a non-CPO basis, we have seen the success of the vacancy grant. There is a great demand as well for people to take old properties back into use. Some local authorities do this well.
In the context of CPOs, I must oppose the provisions the Deputy put forward in the Labour Party's amendments. I am not saying we are not going to change anything, but these would, in effect, add a compensation procedure for land that is subject to a CPO. I know this is not the intent of the amendments, but it would do this. As I previously informed the committee - we had a good discussion on the matter, and the Deputy alluded to this point as well - provisions relating to CPOs in Part 14 are largely aligned with those in the Planning and Development Act 2000, as amended. The Law Reform Commission's report, to which many of the amendments from the Labour Party refer, was published in 2023 while the Bill was being drafted. Given the complexity of this matter in particular, the Government agreed - I brought a memo to Cabinet on this - that it would be prudent not to update the provisions relating to CPOs as set out in the 2000 Act but to review them in conjunction with the commission's report. As such, any future reform of compulsory acquisition provisions will take account of the recently published report of the Law Reform Commission.
I am not saying that I am opposed to the Deputy amendments, but I am not proposing to accept them on this Stage. We wish to get this Bill passed as it stands and allow the review of the Law Reform Commission's report on CPOs to take place. This was four to five years in coming forward, as the Deputy knows.
Yes.
There is a great deal in that report. We need time to assess it, take it on board and see what changes we need to bring forward. I did not want to delay this Bill by waiting for the Law Reform Commission's report. We had worked through the Bill and the committee had been working through it too. The Law Reform Commission then published its report, which I welcome. It gives us a basis to look at what we can do by way of changing this process.
As for any future reform of compulsory acquisition, again, as I said, we will take into account these recently published findings of the Law Reform Commission. Amendments Nos. 1059 to 1076, inclusive, will be assessed as part of any future legislation in this area. We will take these amendments as they stand and assess them as we are assessing the Law Reform Commission's report. I cannot accept the amendments at this point, so I will have to oppose them.
I thank the Minister for his comprehensive response and for providing some clarity on the publication of the proposed land value sharing and urban development zones Bill. We are conscious it has been long awaited. It is on this basis that we proceeded with these amendments. As I said, we had already produced a Bill that passed on Second Stage in the Dáil in June 2021 on this very issue. The Minister has said that Bill will be published in advance of the taking of Report Stage of this Bill.
Yes. Final checks on the Bill are being undertaken by the Attorney General and his office prior to publication. It is imminent. It depends how long more we are in this committee.
We could take it then after tea if the Minister wishes.
Yes, we could take it directly after that.
I am sure that the Chair would be delighted to add another Bill to the portfolio of the committee.
I am using the word "imminent", and it is.
Okay.
After this committee has concluded its deliberations, I will contact the Attorney General. It is not the case that he needs a fire put under him, but we will just say that it is very important legislation.
Absolutely.
It is very detailed. I will be delighted to be able to bring it forward. I am sure that people will have views on it, and rightly so. I will endeavour to get an updated timeframe and come back directly to Deputy Bacik and the Chair for the information of members.
That is very welcome. It certainly speaks to our amendments Nos. 1075 and 1076. I will withdraw those in light of what the Minister has said and reserve the right to bring them back on Report Stage.
Sure.
Regarding the other amendments, the earlier group, these are about the CPO process more generally. Again, I understand that the Minister said he is reviewing these issues generally-----
-----in light of the Law Reform Commission's report. He will be assessing the findings of the Law Reform Commission during the process of this Bill. Am I correct in saying that?
No. We were preparing this Bill and drafting it, and then the report of the Law Reform Commission dropped. I did not want to stop and delay the process. The Law Reform Commission report was published while this Bill was being prepared, as I said. We decided at Government that the CPO provisions in the Bill should reflect those in the current Act and that a more comprehensive review of the CPO provisions, looking at both the steps up to when a CPO has been confirmed, as well as the steps that should be undertaken, should also take into account the report of the Law Reform Commission. What I have said is this report is being assessed. The Law Reform Commission did four or five years of work on it.
Yes.
We need a bit of time to assess it. The amendments put forward by the Labour Party will form part of our review in this regard. I think all of us believe the CPO system and process need to be improved. I am committed to doing this, but we have not gone through all the implications of the recommendations of the Law Reform Commission report. We will come back to them, but I am going to do so in this Bill. I wish to be clear that a separate piece of work will be done for that undertaking.
As a general point, I regularly engage with local authorities to support them in getting up to the level of those local authorities that are operating very well on the basis of the threat of a CPO, as well as using them in practice. This is why we brought forward the third round of urban regeneration and development fund moneys in the amount of €150 million. This fund was very much focused on vacant and derelict properties in the context of the local authorities. The urban regeneration and development fund is in addition to the land acquisition fund. In many instances, local authorities are undertaking these endeavours by agreement, so they do not have to pull the trigger on the CPO. Certainly, the threat of it has worked and some local authorities are doing this extremely well, such as those in Limerick, Waterford and Louth, to name only three that deserve particular mention. In my county of Fingal, the vacancy rate is very low in comparison, and the local authority there is also doing very well in this regard.
I digress. We are looking at this legislative undertaking as a separate piece of work and I will take the amendments proposed by the Labour Party as part of the review of that work, but I cannot accept them right now as part of this Bill.
I thank the Minister for his clarification. To be clear, there will be a separate Bill related to CPO processes following this legislation.
This speaks to a broader issue with the Bill, and I said this earlier in front of a Minister of State here. Every stakeholder that we speak to now is very concerned about the number of amendments being made to this Bill as it is in process by the Government. There is a sense out there that the legislation was produced prematurely before the ducks were in a row. It does not make sense to have a separate CPO Bill when this legislation is going through the Houses with CPO provisions. I am glad to hear the Minister say he will review the Labour Party's amendments. That is very positive. I will not press them on this Stage on that basis, but it does beg the question as to whether this Bill was produced at the right time or if more time should have been taken to prepare a more finalised text to come before the Oireachtas.
In terms of the local authority CPO issue, the Minister is quite right that there are local authorities that are much more efficient and proactive about using existing mechanisms to tackle vacancy and dereliction. It has taken Dublin City Council some time to get on top of this issue but there are now some CPOs going through, which is very welcome, to tackle vacant buildings to bring them back into use for housing. The lack of consistency across local authorities in this regard, though, is a very serious issue. It does need to be addressed through central legislation and policy. I am thinking about the lack of consistency in applying the Croí Cónaithe scheme and the tenant in situ scheme. I am certainly hearing from so many people in different counties in this regard. I am digressing, but the Minister did start this discussion about consistency among local authorities.
I am going to call a halt to this general discussion, if possible.
I thank the Chair. Just to finish, I wish to check that there will be a separate Bill on CPO coming through after this legislation.
Yes. To be fair - this will be my last remark on this - the Bill, all 707 pages of it, is extremely comprehensive. There was preparation right the way through, and the committee engaged with that. Pre-legislative scrutiny, stakeholder engagement, the planning forum - all of that was done. There is no way we will stop with the Bill. For how long does one consider the LRC report and its recommendations? I contend - I would, would I not? - that this is a sensible approach to it. We need the legislation passed, and Deputy Ó Broin agrees with me, so there you go.
I am resisting the temptation-----
I am not sure that was an agreement.
I want to put us back on track. Deputy Bacik, will you confirm to me, based on the Minister's response and his commitment on that further legislation, that you are withdrawing amendments Nos. 1059 to 1076, inclusive?
Yes. I am withdrawing at this stage but reserving the right to resubmit. We will look again at what the Minister has said. I thank him for the response.
No problem. I thank the Deputy.
I move amendment No. 1077:
In page 582, line 1, to delete “subsection (2)” and substitute “subsection (3)”.
Amendments Nos. 1078 to 1084, inclusive, are related and may be discussed together. The Minister might read his response to my amendments in this grouping along with his remarks on the amendments in this grouping in his name.
I move amendment No. 1082:
In page 587, lines 1 and 2, to delete “an application for judicial review under Part 9” and substitute “Part 9 judicial review proceedings within the meaning of section 250”.
Amendments Nos. 1082 and 1084 are minor typographical amendments that update wording to reflect defined terms and remove unnecessary punctuation. I will now address your amendments, a Chathaoirligh, that is, amendments Nos. 1078 to 1081, inclusive, and amendment No. 1083.
I tabled these amendments as somebody from a seaside town that has a lot of funfairs and events from time to time.
Bray, is it?
Correct.
I would have thought so. These amendments deal with the granting of licences to hold events. Amendment No. 1078 deals with the matters to be prescribed by regulation by the Minister with regard to applications for licences for events and, in particular, proposes that such regulations would include a requirement that the contact details of the person in charge of the event be publicly available. I do not consider that this amendment is required as the Minister can already prescribe the form and content of an application for a licence, the information to be submitted with an application and other information the Minister considers appropriate. Having said that, we can look at the regulation to seek that this be included. It seems to me to make eminent sense, so I give you a commitment, a Chathaoirligh, that we will do that.
Thank you.
Amendments Nos. 1079 to 1081, inclusive, seek to expand the conditions to which an events licence is subject. Amendments Nos. 1079 and 1083 look to include references to noise monitoring and air quality matters, but I consider that this is already covered by conditions relating to the protection of the environment. Amendment No. 1080 looks to include a reference to a mobility plan, active travel and public transport. At this stage, I do not consider that this is necessary as it would be covered by the condition relating to the provision of adequate means of public transport. However, I will reflect on the amendment about active travel and public transport. You have mentioned Bray, a Chathaoirligh. I refer to the example of last year or the year before, that is, the Bray air show and those types of things.
Yes, exactly.
There is merit in this so I will look at it, but I will not accept the amendment now.
Amendment No. 1081 seeks to include a new condition regarding the payment of a bond to ensure that the site is restored or repaired to its condition before the event or preparations for the event took place. Again, having examined the conditions as set out in this section, I do not consider that this is necessary because an applicant for an events licence will have to comply with any conditions regarding the protection of the environment in which the event is to be held, as well as paying a financial contribution to the local authority towards the cost of measures taken by the local authority in connection with the event.
That deals with the amendments you have tabled, a Chathaoirligh. I will look at the active travel and public transport elements of amendment No. 1080.
To clarify, the local authority, being the issuer of the licence, can attach a condition or a bond for restoration of the site.
Yes, and many do. In addition, the regulation to include the information, such as the contact details of the person in charge of the event, should be in the regulations. I will make sure that-----
Okay. That is a matter for regulations, which we will come to after-----
Yes, and we will make that change.
That is grand.
I move amendment No. 1084:
In page 590, line 30, to delete “ “development” ” and substitute “development”.
I move amendment No. 1085:
In page 590, after line 37, to insert the following:
“Licences under Part XVI of Act of 2000
427. A licence granted under Part XVI of the Act of 2000 in force immediately before the repeal of that Part by section 6 shall remain in force and have effect on and after that repeal as if granted under this Part.”.
I move amendment No. 1086:
In page 591, line 9, to delete “has the meaning it has in section 325;” and substitute the following:
“means an application to the Commission referred to in section 325, a submission of a scheme for approval under section 49 of the Roads Act 1993, an application for approval under section 51 of the Roads Act 1993 or an application for a railway order under section 37 of the Transport (Railway Infrastructure) Act 2001;”.
The amendments in the next grouping, beginning with amendment No. 1087, include amendments in my name and that of the Minister. I am interested to hear the Minister's comments on my other amendments in this grouping.
I move amendment No. 1088:
In page 592, line 12, to delete “Commission” and substitute “Coimisiún”.
I will address the amendments tabled by Deputy Matthews.
Amendment No. 1087 seeks to maintain the name "An Bord Pleanála" for the organisation. I have proposed a name change because "An Coimisiún Pleanála" will be more reflective of the work of the commission, which will soon contain planning commissioners in place of board members and will demonstrate this updated structure as well as the transformational change that is ongoing. I have engaged with staff in what is currently An Bord Pleanála. There were differing views on this, frankly. I think there is an understanding now as to why we are doing this. It is not just a rebrand but it also reflects better the work being done. We are rightly changing the governance structure within the board. We have a new chairperson, as you know, in Peter Mullan. With the passing of this Bill, we will be able to move forward with the appointment of planning commissioners and have a better structure within the board. We will have a governance structure, the governance spine, the staff management piece and the decision-making piece. That is very distinct. It is very important that An Bord Pleanála is already embarking on transformational change by way of the additional resources and the new structure that are there. The name "An Coimisiún Pleanála", I firmly believe, much better reflects the role it will have at the apex of our planning system as a reformed An Bord Pleanála will become An Coimisiún Pleanála. Therefore, I cannot accept amendment No. 1087.
Do you want me to speak to the other amendments, a Chathaoirligh?
Deputy Ó Broin, did you indicate on this?
Yes.
Go ahead. Then I will call Deputy O'Callaghan.
First, I will speak briefly in support of the Chair's amendment. Then I will speak briefly to my two amendments in the interest of time.
I understand that the original idea to change the name of the board predates the controversy that engulfed the board last year and the year before.
In principle, I was more than happy with the proposition to change the name for the reasons the Minister has outlined. However, the employees of the board and the union representatives have met many of us at an earlier point in the passage of the Bill and the problem is that even though there is a longer-standing intention to change the name of the board to reflect the comprehensive nature of its work, there is a very strong feeling among a large number of staff that the name change in some way reflects badly or is a judgment on the work they have done. I know that is absolutely not the case, which also is the Minister's view and that of many of us here, but in deference to the staff and given the strength of feeling, I am more than happy to support the Chair's amendment. I ask the Minister to revisit that issue or at least give it some thought. This is not a matter for the Bill but when the union representatives met many of us, they expressed a concern that their employer, which I acknowledge is not the Minister or the Department but is the board, had not engaged sufficiently with the workforce around what are significant and fundamental changes. These are changes I broadly support. They are good. We raised this previously with officials but in his engagement with senior management of the board and the board itself, the Minister should impress upon them the need for the staff, who were not responsible for any of the controversies that have engulfed the board, to be engaged with and listened to in this period of transformation. That is absolutely crucial.
Very briefly, I will speak to my amendments once in the interests of time. Amendment No. 1101 seeks to ensure the chief planning commissioner and deputy chief planning commissioner, as they are set out in the Bill, would need to have one or more of a range of very important skills that are set out in the amendment. Amendment No. 1102, with respect to the ordinary planning commissioners, again asks that they would have one or more of a key sets of skills that are there.
Which one is that?
Amendments Nos. 1101 and 1102. While I suspect the Minister is not going to support the amendments, I really impress upon him, given where we have come from, the need to ensure that whatever the final configuration of section 439 of the Bill might be, the planning commissioner or the deputy chief planning commissioner and the ordinary planning commissioners between them will have a range of skills necessary for them to do the very important job they have. I look forward to the Minister's response on all three issues.
Does Deputy O'Callaghan wish to speak on these amendments?
First, on the Cathaoirleach's amendment No. 1087, I also met representatives of staff and their union Fórsa about this Bill and they articulated their views on it. One of the key concerns they had was about the proposed name change. Long-standing staff especially placed particular value on the name. They felt the name change did not recognise the huge value of all the work, which we would all recognise, the staff put in An Bord Pleanála. It is important to articulate that. There were also concerns with the lack of engagement with the staff about the proposed changes in the Bill and how that would affect them. There were concerns as well about a working group being set up within An Bord Pleanála to look at how to implement proposed changes arising from the Bill but there being a lack of staff representation on that working group. The Minister may wish to comment on some of those things.
My amendment No. 1108 in this section relates to a declaration of interests and seeks to change the €13,000 value, which is substantial, to €1,000. Will the Minister comment on why the sum of €13,000 was provided for? When I was reading through the Bill, it struck me. If there is a good rationale for €13,000 that is fair enough but I could not decipher this from reading the Bill and otherwise. I ask for a value of €1,000 to be put in instead.
To answer Deputy O'Callaghan's question first on amendment No. 1108, which seeks to reduce the total value of shares from €13,000 to €1,000, we believe €13,000 is the appropriate level at which shares should be declared as part of a declaration of interest. The reason for that is that this amount is in line with the levels set by other bodies, including the Standards in Public Office Commission. It is the same level and we pitched it at that, as opposed to €1,000, to keep the consistency of declarations when compared with other agencies.
Regarding the staff and the board, I have had two town hall meetings with the board, most recently in January when I met and spoke to staff and we had a good engagement. I also met the board members on their change of management plan and the new structures in preparation to it. The team here and officials within the planning Department, such as Mr. Paul Hogan, engage on a regular basis with the board and it is something in which we are very interested. That staff engagement is happening. I am not sure when the Deputies had their last meeting with the staff but I certainly discerned a much better and positive atmosphere within the board on my last visit in January. What is also good to see in respect of the filling of posts is that people still see An Bord Pleanála as being worth applying to. Even with the issues that were there for a short time, this does not take away from the excellent work the vast bulk of the staff have been undertaking for years. They should be very proud of the work they have done and that they continue to do. I am very supportive of that. That engagement between management and the board through the chairperson and the HR function is very robust now. Some months ago, a number of the staff union representatives wrote to me regarding the proposed name change, in which I firmly believe, and I responded to their correspondence. However, I met with the staff there and it was good. The point is that people are applying to join An Bord Pleanála in the knowledge that it will become an coimisiún pleanála and there will a new structure that underpins it. That is why I am firmly of the belief that the name change is one thing but it is a new departure for this organisation and the Bill underpins that, so it is appropriate there. I will get to Deputy Ó Broin's amendment now-----
Before the Minister does that, I wish to press one point with him in respect of the staff. Will he use his offices to press upon the management of An Bord Pleanála, soon to be an coimisiún, to have the deepest level of engagement with the staff, both existing and new, during this period of transition? They have asked us to ask him to do that and it is very important.
I can assure the Deputy that I will. We are engaged with management and staff in the board on a regular basis but on foot of the requests by Deputies Ó Broin and O'Callaghan, I will reinforce that message. It is good that it is being raised here on Committee Stage. We have all mentioned our high regard for the staff there already and for the important work they do. They have all our support. I will make sure that is done.
There were another couple of amendments there. Deputy Ó Broin had tabled amendment No. 1088, which related to the use of an Ghaeilge tríd an mBille. We are looking at what we can do without getting into 1,000 amendments but I am looking at it where appropriate. We have had good debates faoin teanga earlier on in the Bill and I will be coming back with some Report Stage changes on foot of what has been raised.
On amendments Nos. 1101 and 1102 regarding the appointment of the chief planning officer and ensuring a mix of experience, where practical. There are all listed on pages 603 in section 439(3). What Deputy Ó Broin has put in there relates to it being collectively proposed to amend the list of qualifications and experience for the planning commissioner, including both chief and deputy chief and to insert both reference to ecology and experience in Irish language, the Gaeltacht and language planning pursuant to Act na Gaeltachta 2012. First, regarding the insertion of "ecology" as proposed in amendment No. 1103, I am opposing this, as the qualification list already contains reference to the environment which can and should be construed to include experience of ecology. I am also opposing amendments Nos. 1101, 1102 and 1106 as planning is already a listed qualification and would include knowledge and experience in language planning pursuant to Acht na Gaeltachta as also contained in the Planning and Development Bill.
In addition, an coimisiún as a public service body is already required to meet, and rightly so, certain requirements under the Irish language Acts.
That said, we do have a job of work to do in particular. I will come back on Report Stage on the counties that have Gaeltachtaí within them and ensure people in counties that have Gaeltachtaí can engage with planning authorities through Gaeilge as well. I will be coming back with some significant amendments on the special area plan. They can also deal with the commission through Gaeilge. I refer the Deputy also to the head of planning in Dublin. I was at the recent launch of An Chomhairle Chraiceáilte in City Hall. A fantastic group of staff provide services through Irish across a number of departments in Dublin City Council and the council must be commended on that. We will work with them as to how we can extend that across other services too.
We may bring forward further amendments on Report Stage in relation to an coimisiún around governance and so on. We are working through it and I just want to flag this with the committee.
Will the Minister comment on amendment No. 1106?
I did mention that I am also opposing amendment No. 1106 as planning is already a listed qualification. I dealt with that when discussing amendments Nos. 1101, 1102 and 1106.
Amendment No. 1106 proposes to insert "The Chief Planning Commissioner may assign to suitably qualified Commission Inspectors, decision making powers, in relation to minor appeals".
I see that.
It was put in the context, for the Minister's consideration, whether, for minor appeals, it is necessary to have a core of three board members for good governance and oversight checking.
The board can put in the structures for the administrative working through of minor appeals but they all must go to the board for decision. Legally that is what they have to do and they structure that. They do that already with some smaller cases working through the backlog but it does have to go to the board for decision legally. It cannot be hived off. I understand the point made by the Cathaoirleach.
It was just a provision to clear some of the work. If there were some minor extensions to houses, for example, does it need three board members?
In practical terms, the way in which the work is structured now is to focus on that, move them through and look at additional resources to do it, but legally they must go to the board for a decision. One cannot devolve that power to just one person.
I thank the Minister. There are no more comments there. We will go back to the grouping of amendments. Amendment No. 1087 is not a hill I am prepared to die on but as somebody who has grown up and always had that respect for An Bord Pleanála as an independent arbiter, notwithstanding previous events that came to light, this was why my amendment proposed to keep the name "An Bord Pleanála". It has, in general, been a very good organisation with good people working in it. I will withdraw amendment No. 1087 based on the Minister's comments on that. The Minister might consider it and have a think about it before Report Stage.
I move amendment No. 1089:
In page 592, line 14, to delete “Governing Board” and substitute “Bord Rialúcháin”.
I move amendment No. 1090:
In page 592, line 15, to delete “Planning Commissioners” and substitute “Coimisinéirí Pleanála”.
Amendment No. 1091 has been ruled out of order.
I move amendment No. 1095:
In page 596, line 26, to delete “chief executive officer” and substitute “príomhoifigeach feidhmiúcháin”.
I move amendment No. 1096:
In page 597, line 25, to delete “ask” and substitute “request”.
I move amendment No. 1097:
In page 599, line 40, to delete “ask” and substitute “request”.
I move amendment No. 1098:
In page 602, between lines 9 and 10, to insert the following:
“(7) A direction given under subsection (2) of section 109 of the Act of 2000 that, immediately before the repeal of that subsection by section 6, had not yet been complied with shall be deemed to have been given under subsection (2).”.
I move amendment No. 1099:
In page 602, line 14, to delete “Chief Planning Commissioner” and substitute “Príomh Choimisinéir Pleanála”.
I move amendment No. 1100:
In page 602, line 15, to delete “Chief Planning Commissioner” and substitute “Leas Phríomh Choimisinéir Pleanála”.
I move amendment No. 1101:
In page 603 to delete lines 14 to 20 and substitute the following:
“(3) The Governing Board shall ensure, in so far as is practicable, that the Chief Planning Commissioner and Deputy Chief Planning Commissioner are persons who, in the opinion of the Governing Board, each have satisfactory experience of, or a satisfactory mix of experience and knowledge of, one or more than one of the following:
(a) infrastructure delivery;
(b) housing;
(c) physical planning;
(d) sustainable development;
(e) architecture;
(f) heritage;
(g) the Irish language;
(h) the Gaeltacht;
(i) language planning pursuant to Acht na Gaeltachta 2012;
(j) community affairs;
(k) social affairs;
(l) planning;
(m) the environment;
(n) the marine;
(o) climate change;
(p) law and corporate governance.”.
I move amendment No. 1102:
In page 603, to delete lines 26 to 31 and substitute the following:
“(a) the ordinary planning commissioners are persons who, in the opinion of the Governing Board, have satisfactory experience of, or a satisfactory mix of experience and knowledge of, one or more than one of the following:
(i) infrastructure delivery;
(ii) housing;
(iii) physical planning;
(iv) sustainable development;
(v) architecture;
(vi) heritage;
(vii) the Irish language;
(viii) the Gaeltacht;
(ix) language planning pursuant to Acht na Gaeltachta 2012;
(x) community affairs;
(xi) social affairs;
(xii) planning;
(xiii) environment;
(xiv) the marine;
(xv) climate change;
(xvi) law and corporate governance;
and”.
Amendments Nos. 1104 and 1105 have been ruled out of order.
I move amendment No. 1108:
In page 613, line 24, to delete “€13,000” and substitute “€1,000”.
I move amendment No. 1109:
In page 614, between lines 11 and 12, to insert the following:
“(11) Where a person has complied with section 147 of the Act of 2000 in respect of the year in which that section is repealed by section 6, he or she shall be deemed to have complied with this section in respect of that year.”.
I move amendment No. 1110:
In page 614, line 12, to delete “section,” and substitute “section”.
I move amendment No. 1111:
In page 615, line 38, after “English” to insert “, including no fewer than 20 per cent of all new staff appointments annually from 1 January 2030”.
I move amendment No. 1112:
In page 616, after line 43, to insert the following:
“(9) A scheme under section 121 of the Act of 2000 in force immediately before the repeal of that section by section 6 shall continue in force and have effect on and after that repeal as if made under this section.”.
I move amendment No. 1113:
In page 616, after line 43, to insert the following:
“ Effect of repeal of section 120 of Act of 2000 on existing employees
461.The repeal of section 120 of the Act of 2000 by section 6 shall not affect the terms and conditions of employment of a person who, immediately before such repeal, was employed—
(a) pursuant to an appointment under subsection (1) of the said section 120, or
(b) under subsection (2) of the said section 120.”.
I move amendment No. 1114:
In page 617, between lines 23 and 24, to insert the following:
“(5) The repeal of section 122 of the Act of 2000 by section 6 shall not affect any arrangement for the provision of a service under that section made before that repeal.”.
I move amendment No. 1115:
In page 617, between lines 32 and 33, to insert the following:
“(e) becomes a member of the Board of Údarás na Gaeltachta,”.
I move amendment No. 1116:
In page 618, between lines 1 and 2, to insert the following:
“(e) becomes a member of the Board of Údarás na Gaeltachta,”.
I move amendment No. 1117:
In page 618, between lines 13 and 14, to insert the following:
“(d) a member of the Board of Údarás na Gaeltachta,”.
I move amendment No. 1118:
In page 618, between lines 16 and 17, to insert the following:
“ Continued application of section 110 of Act of 2000 for certain purposes
463.(1) Notwithstanding the repeal of subsection (2) of section 110 of the Act of 2000 effected by section 6, the said section 110 shall continue to apply and have effect in relation to a requirement made, or investigation commenced, under that subsection before that repeal.
(2) Notwithstanding the repeal of subsection (3) of section 110 of the Act of 2000 effected by section 6, the said section 110 shall continue to apply and have effect in relation to a request made, or investigation commenced, under that subsection before that repeal.”.
I move amendment No. 1119:
In page 618, between lines 16 and 17, to insert the following:
“ Effect of repeal of section 115 of Act of 2000
464.The repeal of section 115 of the Act of 2000 by section 6 shall not affect the obligation of the Commission under that section in relation to a duty discharged before the repeal of that section.”.
I move amendment No. 1120:
In page 618, between lines 16 and 17, to insert the following:
“ Scheme under section 119 of Act of 2000
465.A scheme under section 119 of the Act of 2000 in force immediately before the repeal of that section by section 6 shall continue in force and have effect after that repeal as if made under section 458.”.
I move amendment No. 1121:
In page 618, between lines 16 and 17, to insert the following:
“Continued application of Chapter III of Part IV of Act of 2000 for certain purposes
466. (1) Notwithstanding the repeal of Chapter III of Part VI of the Act of 2000 effected by section 6, that Chapter shall, to the extent that it applied to an application, appeal, referral or request immediately before that repeal, continue to apply and have effect in relation to each such—
(a) application, appeal or referral pending immediately before that repeal, and
(b) request made (but not fully complied with) before that repeal.
(2) Regulations under section 142 of the Act of 2000 shall, to such extent only as is necessary for the purposes of subsection (1), continue in force and have effect on and after the repeal of that section by section 6.”.
I move amendment No. 1122:
In page 618, line 24, to delete “Deputy Planning Regulator” and substitute “Leas Rialaitheoir Pleanáil”.
I move amendment No. 1123.
In page 618, line 25, to delete “Office” and substitute “Oifig”.
I move amendment No. 1124:
In page 618, line 30, to delete “Office of the Planning Regulator” and substitute “Oifig an Rialaitheoir Pleanáil”.
I move amendment No. 1125:
In page 619, line 4, to delete “Planning Regulator” and substitute “Rialaitheoir Pleanáil”.
I move amendment No. 1127:
In page 624, between lines 15 and 16, to insert the following:
“(f) (i) the need to protect the linguistic and cultural heritage of Irish language and Gaeltacht communities including the promotion of Irish as the community language, specifically by supporting the implementation of language plans in Limistéir Phleanála Teanga Ghaeltachta and in Bailte Seirbhíse Gaeltachta within the Gaeltacht, pursuant to Acht na Gaeltachta 2012,
(ii) the need to protect the linguistic and cultural heritage of Irish language and Gaeltacht communities including the promotion of Irish as the community language, specifically by supporting the implementation of language plans in Bailte Seirbhíse Gaeltachta outside of the Gaeltacht and in Líonraí Gaeilge, pursuant to Acht na Gaeltachta 2012.”.
I move amendment No. 1128:
In page 624, between lines 15 and 16, to insert the following:
“(f) the necessity of protecting the linguistic and cultural heritage of the Irish language and Gaeltacht communities and promoting the use of Irish and the viability of Irish as the spoken language of Gaeltacht areas, Gaeltacht Service Towns, and Irish Language Networks, supporting the implementation of language plans pursuant to the Gaeltacht Act 2012.”.
I move amendment No. 1129:
In page 624, between lines 34 and 35, to insert the following:
“(e) the material consistency of the plan or draft, variation or amendment thereof, with any language plan relating to the place agreed pursuant to Acht na Gaeltachta 2012;”.
I move amendment No. 1130:
In page 625, between lines 11 and 12, to insert the following:
“(c) any language plans agreed in accordance with the Gaeltacht Act 2012 relevant to a Gaeltacht Language Planning Area, Gaeltacht Service Town or Irish Language Network within the functional area of the development plan;”.
I move amendment No. 1131:
In page 625, between lines 14 and 15, to insert the following:
(e) (i) where the functional area to which the development plan relates includes a Limistéar Pleanála Teanga Gaeltachta or a Baile Seirbhíse Gaeltachta within the Gaeltacht, any relevant Language Plan agreed pursuant to Acht na Gaeltachta 2012,
(ii) where the functional area to which the development plan relates includes a Baile Seirbhíse Gaeltachta outside the Gaeltacht or a Líonra Gaeilge, any relevant Language Plan agreed pursuant to Acht na Gaeltachta 2012;”.
I move amendment No. 1132:
In page 625, between lines 30 and 31, to insert the following:
“(d) (i) the role of such authorities, assemblies, and the Commission under this Act, in respect of supporting the implementation of language plans in Limistéir Phleanála Ghaeltachta, in Bailte Seirbhíse Gaeltachta and in Líonraí Gaeilge pursuant to Acht na Gaeltachta 2012,
(ii) the role of such authorities, assemblies, and the Commission under this Act, in respect of supporting the implementation of language plans in Bailte Seirbhíse Gaeltachta outside of the Gaeltacht and in Líonraí Gaeilge pursuant to Acht na Gaeltachta 2012,”.
I move amendment No. 1133:
In page 625, between 30 and 31, to insert the following:
“(d) the role of such authorities, assemblies, and the Commission under this Act, in respect of supporting the implementation of language plans in Limistéir Phleanála Ghaeltachta, in Bailte Seirbhíse Gaeltachta and in Líonraí Gaeilge pursuant to Acht na Gaeltachta 2012,”.
I move amendment No. 1134:
In page 628, between lines 39 and 40, to insert the following:
“(h) Údarás na Gaeltachta;”.
I move amendment No. 1135:
In page 632, between lines 20 and 21, to insert the following:
“Continued application of sections 31AS, 31AT and 31AU of Act of 2000 for certain purposes
479. (1) Notwithstanding the repeal of section 31AS of the Act of 2000 effected by section 6, the said section 31AS shall, on and after that repeal, continue to apply and have effect in relation any review under the said section 31AS commenced before that repeal.
(2) Notwithstanding the repeal of section 31AT of the Act of 2000 effected by section 6, the said section 31AT shall, on and after that repeal, continue to apply and have effect in relation any request of the Minister under the said section 31AT made before that repeal.
(3) Notwithstanding the repeal of section 31AU of the Act of 2000 effected by section 6, the said section 31AU shall, on and after that repeal, continue to apply and have effect in relation any examination under the said section 31AU commenced before that repeal.
(4) Notwithstanding the repeal of section 31AU of the Act of 2000 effected by section 6, the said section 31AU shall, on and after that repeal, continue to apply and have effect in relation any request of the Minister under the said section 31AU made before that repeal.”.
I move amendment No. 1136:
In page 632, line 26, to delete “director” and substitute “stiúrthóir”.
Amendment No. 1137 has been ruled out of order.
I move amendment No. 1138:
In page 633, between lines 34 and 35, to insert the following:
“(e) becomes a member of the Board of Údarás na Gaeltachta,”.
I move amendment No. 1139:
In page 634, between lines 2 and 3, to insert the following:
“(d) becomes a member of the Board of Údarás na Gaeltachta,”.
I move amendment No. 1140:
In page 637, line 17, to delete “fresh” and substitute “new”.
I move amendment No. 1141:
In page 637, line 33, to delete “section 33AK” and substitute “section 31AK”
I move amendment No. 1143:
In page 647, after line 35, to insert the following:
“Effect of repeal of section 255 of Act of 2000
500. Notwithstanding the repeal of section 255 of the Act of 2000 effected by section 6, the said section 255 shall continue to apply and have effect in relation to any request, direction or appointment under that section made or given before that repeal.”.
I move amendment No. 1144:
In page 648, line 25, after “fees” to insert “on a full cost recovery basis”.
This is my final amendment and is the last chance for the Minister to be generous in this eight-week long saga.
I have been very generous all the way through, as the Deputy knows. Tá brón orm.
As it is almost 6 o'clock I propose that we stay on for the duration of this legislation. Is that agreed? Agreed.
I move amendment No. 1149:
In page 653, line 22, to delete “subsection (4)” and substitute “subsection (3)”.
I move amendment No. 1150:
In page 653, line 40, to delete “subsection (4)” and substitute “subsection (3)”.
I move amendment No. 1153:
In page 658, between lines 5 and 6, to insert the following:
“Prohibition on interference in performance of functions of planning authority, Commission or Maritime Area Regulatory Authority
506. (1) A relevant person shall not influence or attempt to influence a planning authority or the Commission in the performance of any of its functions, in relation to a request under section 10 or an application for permission or an appeal under Part 4, except where he or she is—
(a) the person who made the request,
(b) the applicant for permission, or
(c) a party to the appeal.
(2) Subject to this Act, a relevant person shall not influence or attempt to influence a planning authority or the Commission in the performance of any of its functions under section 12, Chapter 3 of Part 8 or Part 13, 14 or 16.
(3) A relevant person shall not influence or attempt to influence an enforcement authority, within the meaning of Part 11, in the performance of any of its functions under that Part.
(4) Notwithstanding subsection (1), a Minister of the Government is entitled to make submissions to a planning authority or the Commission in relation to an application for permission or an appeal under Part 4 where it is necessary or expedient for the effective performance of his or her functions under this Act or any other enactment.
(5) In this section “relevant person” means—
(a) a Minister of the Government,
(b) a person appointed under subsection (1) of section 1 of the Ministers and Secretaries (Amendment) (No. 2) Act 1977 to be a Minister of State, or
(c) a special adviser to—
(i) a Minister of the Government, or
(ii) a person referred to in paragraph (b),
appointed under section 11 of the Public Service Management Act 1997.”.
I wish to withdraw my amendment.
Probably better to.
Amendments Nos. 1156 to 1163, inclusive, 1165, 1166, 1170, and 1177 are related and may be discussed together.
I can speak to amendment No. 1156. There is quite a lot in this group.
Yes.
Plus there are only two other amendments, which related to the Long Title. There is quite a bit in this grouping but it is up to the Cathaoirleach and I can read my response into the record.
On amendments Nos. 1056 to 1058, inclusive, does the Minister consider it necessary to add the word "climate" to the supplemental provisions in section 382.
Does the Minister believe that they are adequately covered by environment?
Yes, I do indeed.
What about amendment No. 1159?
Amendment No. 1159 seeks to insert "and facilities" after "infrastructure." It is not necessary to refer to public infrastructure as it is already covered in "infrastructure."
What about amendment No. 1160?
It is not necessary to include a reference to public infrastructure and facilities. That is pretty much the same answer. It is already covered.
Am I correct that Deputy McAulliffe is withdrawing his amendment No. 1160?
It is already covered.
I think amendments Nos. 1161 and 1162 relate to UDZs. Is that right?
Yes. Amendments Nos. 1156 and 1161 seek to insert ‘the local authority functional area or’ after ‘benefit to’ in sections 515 and 520. The process is to identify land which is strategic in nature and will have benefit to the State and its citizens. The land is put forward by the local authority chief executive to the Minister for recommendation, as a proposed candidate UDZ. As the process involves action by the local authority from the outset, it is not necessary to reference the local authority functional area.
While I cannot remember the exact wording, it is not limited to the benefit of the State. If it is just to the benefit of the local authority, does that suffice?
Okay, I am happy with that. We will move to amendment No. 1162.
Amendment No. 1162 seeks to insert the line "which may specify maximum and minimum building heights and densities, aligned with relevant planning guidance" after the word "development". The legislation already, however, provides for "a range of building densities, heights and typologies". Consequently, it is considered that the existing text, specifically the use of "range", will facilitate maximum and minimum heights and densities.
Okay, then that amendment is not necessary.
What of Deputy McAuliffe's amendment No. 1163?
I wish to hear the Minister's response.
The planning process facilitates engagement at numerous points in the plan. With regard to UDZs, there is a requirement for a pre-designation consultation, which allows interested parties to make submissions. In addition, the process of considering a variation to incorporate a candidate UDZ into the development plan requires statutory consultation and consideration by the elected members. Furthermore, the preparation of a draft development scheme providing detailed proposals regarding the development of the candidate UDZ also will require statutory public consultation and consideration by the elected members. It is considered that appropriate opportunity for consultation is provided for within the legislation.
On that basis, I will withdraw amendment No. 1163.
Amendment No. 1165 suggests consultation with the Office of the Planning Regulator, OPR.
What about amendment No. 1164?
Amendment No. 1164 has been well discussed previously.
Okay.
As for amendment No. 1165, under section 56(7) of the Bill, the local authority must send copies of any proposed variation to the OPR and must publish notice as part of the formal statutory process. The pre-designation consultation sets out a requirement for a consultation paper to be published and for submissions to be invited from the public. There is no restriction on the OPR making submissions under section 522, which are then taken into account by the chief executive. It is not considered necessary, however, to insert a mandatory provision when there is statutory provision for interaction with the OPR under the section 56 process of considering a variation to the development plan.
This in relation to-----
Amendment No. 1165.
-----a UDZ.
Okay. There is already consultation with the OPR on that.
On that basis, I can withdraw amendment No. 1165.
We now move to Deputy McAuliffe's amendments Nos. 1166, 1170 and 1177.
Amendment No. 1166 proposes that prior to proposing to make a variation of a development plan under section 523, a planning authority shall publish a pre-designation consultation paper and consult with the public - and here is the change - and "landowners, enterprise and employers located within the site" in accordance with this section. The existing wording requires consultation with the public. This includes those mentioned and does not specifically identify groups, such that precise wording would have to be introduced for other stakeholders. Basically, I am saying that the current wording provides for that already.
On that basis, I will withdraw.
Does that cover the three amendments?
That covers amendment No. 1166. Amendment No. 1170 seeks to insert a provision to "include details of the implications the proposed scheme will have on enterprise and employment". Prior to designating a suitable site as a candidate UDZ in its development plan, a planning authority must prepare a planning framework and may then undertake a more detailed development scheme. The planning framework will set out the strategies, principles, information and maps required to facilitate the development of a site. The development scheme sets out in greater detail the extent of proposed permissible development and contains scheme-specific proposals relating to differing aspects regarding delivery of development on the land, including identification of land needed for public infrastructure and facilities necessary for the comprehensive development of the candidate UDZ. Supporting strategies for any development of this scale would include analysis of existing land use and the necessary implications which the comprehensive development of the candidate UDZ will have on those existing uses. The adoption of the planning framework and making of the development scheme involve public participation processes which allow stakeholders including those who own and work in existing enterprise and employment activities to make submissions. Therefore, the amendment is not required.
On that basis, I will withdraw those amendments.
That covers that grouping.
What about amendment No. 1177?
That covered amendment No. 1177.
Sorry.
That concludes that discussion on that grouping.
Amendments Nos. 1167 and 1168 are ruled out of order.
Amendment No. 1172 is ruled out of order.
Amendment No. 1174 is ruled out of order.
I move amendment No. 1178:
In page 690, after line 5, to insert the following:
“PART 23
ADDITIONAL TRANSITIONAL PROVISIONS
Application of sections 27 and 28 of Interpretation Act 2005
542. For the avoidance of doubt, this Part shall not affect the application and operation of sections 26 and 27 of the Interpretation Act 2005 except to the extent that this Part otherwise provides (either expressly or by necessary implication).”.
I move amendment No. 1179:
In page 690, after line 5, to insert the following:
“Validity of acts done under Act of 2000
543. This Act shall not affect the validity of anything done under a provision of the Act of 2000 before the repeal of that provision by section 6.”.
I move amendment No. 1180:
In page 690, after line 5, to insert the following:
“Continued application of Act of 2000 for certain purposes
544. Notwithstanding the repeal of any provision of the Act of 2000 effected by section 6, that Act shall, subject to Part 17, continue to apply and have effect in relation to—
(a) an application for permission under Part III of that Act made before the repeal of the provision concerned,
(b) an application to the High Court under subsection (6) of section 35 of the Act of 2000 made before the repeal of the provision concerned,
(c) an application under subsection (1) of section 42 of the Act of 2000 made before the repeal of the provision concerned,
(d) a notice served, or an appeal brought, under section 44 or 46 of the Act of 2000 made before the repeal of the provision concerned, and
(e) an appeal under section 37, or paragraph (b) of subsection (10) of section 48, of the Act of 2000 brought before the repeal of the provision concerned.”.
I move amendment No. 1181:
In page 690, after line 5, to insert the following:
“Continuance in operation of statutory instruments made under Act of 2000
545. (1) Save where otherwise provided for by this Act, a statutory instrument in force immediately before the repeal by section 6 of the provision of the Act of 2000 under which it was made shall continue in force on and after that repeal as if made under such provision of this Act as, in substance, confers a power to make a statutory instrument in the same or similar terms as the first-mentioned statutory instrument, and may be amended or revoked accordingly.
(2) In this subsection “statutory instrument” has the meaning assigned to it by the Interpretation Act 2005.”.
I move amendment No. 1182:
In page 690, after line 5, to insert the following:
“Bringing of proceedings as if Act of 2000 not repealed
546. Notwithstanding paragraph (c) of subsection (2) of section 26 of the Interpretation Act 2005, any proceedings (whether civil or criminal) brought before the repeal of any provision of the Act of 2000 in respect of—
(a) any right, privilege, obligation or liability acquired, accrued or incurred under the Act of 2000, or
(b) an offence under, or contravention of, the Act of 2000,
may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of the offence or contravention may be imposed, as if the provision concerned had not been repealed.”.
I move amendment No. 1183:
In page 690, after line 5, to insert the following:
“Continued application of Part VIII of Act of 2000 for certain purposes
547. Notwithstanding the repeal of Part VIII of the Act of 2000 effected by section 6, the said Part VIII shall, for the purposes of—
(a) any warning letter or enforcement notice served under that Part before that repeal, or
(b) the performance, before, on or after that repeal, of any function under that Part consequent upon the service of that warning letter or enforcement notice,
continue to apply and have effect.”.
I move amendment No. 1184:
In page 691, lines 24 and 25, to delete “(a wind farm)”.
Deputy Joe Flaherty is not present.
I move amendment No. 1186:
In page 692, line 32, to delete “groundwater abstraction” and substitute “ground water or surface water abstraction”.
I move amendment No. 1190:
In page 701, line 21, to delete “paragraph,” and substitute “paragraph”.
I move amendment No. 1192:
In page 708, line 12, to delete “paragraph,” and substitute “paragraph”.
Amendments Nos. 1193 and 1194 are related and will be discussed together. I ask the Minister to speak to amendments Nos. 1193 and 1194.
I move amendment No. 1193:
In page 25, line 5, to delete “development;” and substitute the following: “development; to provide for proper planning and sustainable development in the interests of the common good;”
These amendments relate to the Long Title of the Bill. Amendment No. 1193 amends the Long Title of the Bill to clarify that the purpose of the Bill is to consolidate and revise the law relating to planning and development; to provide for proper planning and sustainable development in the interest of the common good.
Amendment No. 1194 adds the word “replace” to the Long Title to clarify that the purpose of the Bill is to both repeal and replace the Planning and Development Act 2000.
In the published Bill, the reference to “proper planning and sustainable development” and “in the interests of the common good” were inadvertently omitted. This wording appeared in the Long Title of the Planning and Development Act 2000 and in a similar form in the 1963 Act. The Long Title is an outline description of the purpose of the Bill and therefore I believe it is important to retain this wording to clarify the purpose of the Planning legislation as set out in this Bill.
I move amendment No. 1194:
In page 25, line 6, to delete “repeal” and substitute “repeal and replace”.
Pursuant to Standing Order 187(3), the clerk will report specially to the Dáil that the committee has amended the Title.
Before I invite the Minister to say a few words, if he so wishes, it is important to express our thanks to the Bills Office, which did an incredible job in putting this together. This is a fairly comprehensive, very complicated document. I thank it for dealing with all the amendments that came in and for getting them to us in time. I take my hat off to the secretariat, which has done a fantastic job. I think I have the proud record of having served under every clerk of the secretariat at this stage. I thank the Minister’s departmental staff, who have been here throughout and have been really helpful. They have done a fantastic job. I thank all members of the committee. There was good co-operation, there were not too many rows and we got through it. I thank everybody who is involved in this. Does the Minister wish to make some concluding remarks?
Yes. First and foremost, I thank all the members of the committee. There has been detailed, useful and informative interaction through this very detailed Committee Stage. We have given more than due consideration to the amendments that have been tabled. I look forward to working with the committee on Report and Final Stages to pass this vital and urgent legislation that will update and reform planning legislation in this country. This is a once-in-a-generation Bill.
I wish to be associated with the Cathaoirleach’s remarks. I wish to give my personal thanks to the Bills Office, the secretariat, and all those who are behind the wall there-----
They are our broadcast staff.
I thank our broadcast staff, in particular. I thank the planning team and my own team in the Department for the work they have done, and not just here in the committee room. They have responded to queries and have updated the administrative teams behind this team. They have done an incredible job. We are not there yet, but we are getting there. The Committee Stage of this Bill has been a monumental piece of work.
I genuinely want to thank people and assure them that where we said we would consider matters, we will do so. We need time between now and Report Stage. I want to thank the Cathaoirleach personally for the manner in which he has guided this Bill through Committee Stage. I have worked with many Chairs during the 17- or 18-odd years in which I have been in the Oireachtas. I mean this - and I do not refer just to this Bill, but also to the Affordable Housing Bill and the Land Development Agency Bill - I have never worked with a more efficient and fair Chairperson than Deputy Matthews. I want to commend him on the leadership and stewardship he has shown. I thank both Opposition and Government members for the manner in which they have engaged on this as well. We have been able to deal with each other in a courteous manner as colleagues in trying to get this Bill right, and I am confident that we will do so.
If you think about it, we have been in the basement for approximately 120 hours. There have been more than 1,000 amendments and 500 sections. Like the Minister and Chair, I want to first thank all the secretariat and Oireachtas staff. I thank the ushers who carried the Minister’s boxes in and out of the rooms outside, the broadcast staff, the transcription staff and the Bills Office because this is an enormous undertaking.
I want to single out the departmental staff, who have been incredibly patient with us. They have not just provided written answers; they have also provided oral answers outside of meetings and have given further explanations, which has been enormously helpful to us. I want to thank them for that.
I want to thank Finglas, which deserves a special mention. When the audio is off, and when we are in the business of voting, Finglas has provided an enormous amount of discussion. It would be remiss of us not to mention that important part of the city.
It is quite appropriate that we are finishing Committee Stage on the same day that the Irish Planning Institute, IPI, had its conference. I share the view that the president of the IPI expressed today, which is that the Bill, as it stands, is still not fit for purpose, notwithstanding the very significant amount of work people have put into it. Report Stage will be crucial. I look forward to seeing what amendments the Minister brings forward. The discussion of sections of the Bill has thrown up many other areas where many of us want to submit new amendments. I hope if new amendments are submitted - not repeat amendments that we have already discussed - both by Opposition and the Government, that the Government will give us the time to consider those new amendments to the Bill in an appropriate manner on Report Stage. However, as it stands, unfortunately, I do not share the Minister’s view of the legislation and will continue this debate when it gets to Report and Final Stages and when it goes before the Seanad. It has a very long way to go before it meets the objectives the Minister set at the outset of this process.
I thank everybody.
