Strategic Housing Developments: Discussion

We are dealing with item No. 6, which is a discussion on strategic housing developments, SHDs. From An Bord Pleanála we are joined in person by Mr. Paul Hyde, deputy chair, and Ms Rachel Kenny, director of planning. From the Department of Housing, Local Government and Heritage we are joined through video link by Mr. Terry Sheridan and Mr. Paul Hogan, of the planning division. Members have been circulated with the witnesses' opening statements as well as a more detailed briefing note. I will first ask An Bord Pleanála to make its opening statement and then ask the Department for its contribution. Members will then be invited to ask their questions. I ask them to please remember to confine their contributions to five minutes, if possible, and we will then come back around for a second round of questioning.

Witnesses attending in the committee room are protected by an absolute privilege in respect of the presentation they make to the committee. This means they have an absolute defence against any defamation action for anything they say at this meeting. However, they are expected not to abuse this privilege and it is my duty as Chairman to ensure this privilege is not abused. Therefore, if witnesses' statements are potentially defamatory in relation to an identifiable person, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. For witnesses attending the meeting remotely, there are some limitations to parliamentary privilege and as such they may not benefit from the same level of immunity from legal proceedings as a witness who is legally present.

Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable. The opening statements submitted to the committee will be published on the committee website after this meeting.

I invite Mr. Hyde or Ms Kenny to make an opening statement on behalf of An Bord Pleanála.

Mr. Paul Hyde

I wish a good morning to the Chairman, committee members and colleagues from the Department of Housing, Local Government and Heritage. I thank the joint committee for the opportunity to appear before it to discuss the operations of the board in the context of strategic housing developments, SHDs, and to respond to any questions the committee may have in respect of such developments.

I will take this opportunity to introduce myself. I am the deputy chair of An Bord Pleanála and also serve as chairperson of the board's strategic housing division. I am joined this morning by Ms Rachel Kenny, director of planning operations at the board. With the Chairman's indulgence, I may ask her to address some of the issues raised, as she may be more familiar with such matters.

The board undertakes a critical role in considering and determining strategic housing development proposals and we remain committed to delivering decisions as quickly and effectively as possible. The strategic housing development legislation has been in operation for just over three years since July 2017. In that time a total of 265 cases have been decided. All cases have been decided within the mandatory timelines provided for, that is, 16 weeks, except for five cases where oral hearings were held, which extends the mandatory timeline to 24 weeks. An Bord Pleanála has also issued opinions on more than 400 pre-application consultations on potential strategic housing proposals.

The role of the board is not merely to deal with cases as expeditiously as possible but to promote the principles of proper planning and sustainable development. The national planning framework and the recently adopted regional spatial and economic strategies, as well as the various section 28 ministerial guidelines published over the last decade, set a clear roadmap for appropriate development in the appropriate locations to facilitate the sustainable and compact growth of our cities, towns and rural hinterlands beyond. The board has a clear role in implementing such policies through the processing of case decisions received.

In a constantly evolving and more complex legislative and legal context, where environmental issues and public participation are to the fore, it is also crucial that the board has all the information it needs to make sound decisions and gives citizens and all interested groups the appropriate time to input their views on proposals during the deliberative process, reflecting our core principles of integrity, independence, impartiality and fair-mindedness.

To give members some background on the strategic housing developments division, on commencement of the legislation the board was provided with ten additional staff across planning inspectorate and administrative teams, although during 2019 this was increased to 17 staff. Furthermore, there are four board members assigned to the division of the board, which is chaired by me, and the members of this division are required to prioritise these cases, as with all large-scale housing appeals under section 34 that come before the division.

The board’s performance regarding strategic housing developments has been very strong. As I mentioned, the board has decided 265 cases to date with 183 of these being a decision to grant and 79 a decision to refuse with three having been withdrawn. As of 30 September, approximately 40,000 residential units have been permitted under strategic housing development provisions. Some 29,000 of these were apartments and 11,000 are houses, with approximately 4,000 social houses incorporated and a further 10,100 student bed-spaces permitted. Pre-application and consultation requests considered to date account for some 63,000 residential units and approximately 12,000 student bed-spaces, so we anticipate significant and ongoing applications in the near future.

To date, approximately 30% of the applications before the board have been refused. The board remains committed to approving the right developments in the right locations and to the highest design standards. Rather than go into any further detail, as I am conscious that I am taking up members’ valuable time to raise specific issues, I will leave it at that. We are happy to answer any questions or specific queries members may have as they arise.

Mr. Sheridan will make the Department's opening statement.

Mr. Terry Sheridan

I thank you, Chairman, and the members of the committee for giving the Department the opportunity to participate in this discussion on the strategic housing development, SHD, planning process, which the programme for Government has committed to ending when it expires in December 2021. I am principal officer in the planning policy and legislation section of the Department and I am accompanied by my colleague, Mr. Paul Hogan, who is the principal planning adviser in the Department. In my statement, I propose to outline some of the background context to the introduction of the strategic housing development process, the main provisions therein as well as some brief commentary on the outcome of the external review that was conducted on the SHD arrangements in 2019.

As the committee is aware, further to a specific action in the previous Government’s Action Plan on Housing and Homelessness – Rebuilding Ireland to fast-track planning decisions with a view to facilitating the speedier delivery of housing supply and help address the housing supply shortage then identified, the Planning and Development (Housing) and Residential Tenancies Act 2016 introduced new streamlined arrangements to enable planning applications for strategic housing developments of 100 housing units or more, or student accommodation or shared accommodation developments of 200 bed spaces or more, to be made directly to An Bord Pleanála for determination. The Act was subsequently supplemented by regulations, entitled the Planning and Development (Strategic Housing Development) Regulations 2017, which came into operation on 3 July 2017. The regulations prescribe the detailed procedural and administrative arrangements relating to proposed SHDs, setting out the procedures and requirements to be followed in respect of SHD proposals by prospective applicants, planning authorities, the board, prescribed authorities and other participants in the planning process, including the public.

Prior to the introduction of the new process, a significant number of planning approvals by planning authorities of large housing developments were subject to subsequent appeal to the board, effectively locking in a protracted two-stage planning consent process for such developments, which could typically take up to two years from initial design concept stage to securing ultimate planning approval. Under the SHD arrangements which were introduced, developers are in the first instance required to hold initial informal consultations with the relevant local planning authority regarding a proposed development. This is then followed by a two-stage process. First, the developer is required to submit a request to the board to enter into mandatory formal pre-application consultations regarding a proposed SHD. This request is accompanied by the submission of detailed documentation by the developer on the SHD proposal, including a site location map, a draft layout of the proposed SHD, details of house types and design, housing density, building heights, vehicular access, open space provision, integration with surrounding land uses and so forth.

This comprehensive documentation requirement is for the purpose of facilitating tripartite discussions and engagement between the board, the local planning authority and the developer on the proposed SHD, with a view to informing the ultimate making of a determination by the board as to whether the SHD proposal constitutes a reasonable basis for moving on to the second stage and the submission of a planning application to the board by the developer. This detailed documentation requirement is also intended to avoid the issuing of further information requests by the board to developers relating to SHD proposals. The second stage of the process - the submission of a formal planning application to the board - includes the opportunity for the public and other interested parties to participate in the process and make submissions and observations on the SHD proposals.

The board is required to make a determination on a strategic housing development, SHD, application within a mandatory period of 16 weeks of receipt of the application, except in exceptional circumstances where an oral hearing is required. It is worth noting that the board has met the statutory timeline requirements specified in the Act in respect of all SHD cases it has received to date.

The primary purpose of the SHD arrangements was to significantly speed up the planning decision-making process in respect of large housing developments, thereby providing greater certainty for developers in terms of the timelines within which proposals for such developments are determined while also fully respecting the statutory requirements for consultation and public participation in the planning process. Crucially, while SHD planning applications can only be submitted to the board, it should be recognised that there is still a key role for the relevant local authority in the SHD process at pre-application consultation stage, involving attendance at consultation meetings with the board and the developer; submitting its report regarding the SHD proposal to the board, including advising whether or not the proposed development is broadly in compliance with the local development plan or local area plan and is serviced by necessary supporting infrastructure such as roads, water, sewerage, etc; and providing other supporting local information or advice which is of relevance to the SHD proposal.

As the committee is aware, the Act provides that the measure is temporary in nature, being initially limited to a three-year period until end December 2019 prior to which a review of the operation and effectiveness of the measure had to be carried out and reported to both Houses of the Oireachtas, combined with a report of the Minister’s conclusions of the review, in order for the Minister to be enabled to extend the arrangements by order to no later than 31 December 2021, coinciding with the end date of the Rebuilding Ireland action plan. This review requirement was a worthwhile exercise as it enabled the Minister to commission an independent expert advisory group to undertake a detailed analysis of the operation of all aspects of the SHD arrangements; conduct consultations with relevant stakeholders including the board, planning authorities, housing developers and professional bodies; undertake a wider public consultation exercise on the arrangements; and make recommendations on whether the arrangements should be extended beyond end 2019 and what possible changes could be made to further streamline and improve the effectiveness of the SHD process.

With regard to the main findings of the review group report, the report noted that while the process imposes significant workload and time pressures on both planning authorities and the board, it has succeeded in its principal objective of achieving significantly faster planning decisions, with all planning applications being determined by an average of 14.5 weeks, thereby – in the view of the review group - justifying the extension of the arrangements to end 2021.

The report further noted that the comprehensive pre-application consultation requirements in particular have resulted in more consistent and higher quality planning applications and higher quality developments than was previously generally the case.

Notwithstanding the extensive effort and resources invested by the State in the establishment and operation of the SHD arrangements, one of the concerns of the Department prior to the undertaking of the external review was the level of activation of SHD permissions which have been granted. In this regard, the review group noted that at the time it was undertaking its report, less than half of all SHD permissions granted in the period to 30 June 2019 had been activated in some way, through enabling works or commencement of housing construction. The review group remarked that this activation rate is less than might reasonably be expected having regard to the benefits of time saving and increased certainty for developers and the efforts and resources invested by the State in establishing and operating the SHD arrangements.

The review group was unanimous in its view that the primary purpose of the SHD arrangements was to expedite the delivery of additional housing supply, rather than to serve to enhance site value. The question it consequently asked is what measures might be taken to increase the activation rate. Arising from this, the review group recommended that if the activation rate does not significantly improve, policy measures such as the introduction of “use it or lose it” provisions should be considered to incentivise development of sites within a specified period of the granting of planning permission.

Subsequent to the review group report, the Department has continued to monitor the activation rate of SHD planning permissions. The latest figures up to the end of September 2020 indicate that 47 of the 163 SHD permissions granted to that date, which is roughly 29%, had been activated at that time. Notwithstanding the commitment in the current programme for Government not to extend the SHD arrangements beyond the end of 2021, the Department is at present engaged in the drafting of the necessary legislation to bring forward the implementation of this "use it or lose it" recommendation which is intended to be applied more generally on housing developments going forward. The Department is also giving consideration to establishing an SHD consultation group to examine what aspects of the SHD process might be incorporated in the planning system, through further legislation if necessary, in the post-2021 scenario, particularly in relation to the time periods for decisions. Any proposed changes to the planning system arising from the SHD consultation group will, of course, be subject to further consultation and Oireachtas engagement as part of the legislative process.

I will conclude my opening statement at this point but both Mr. Hogan and myself will endeavour to answer any further questions that the Chairman or the committee members might have on this matter. I thank them for their attention.

I thank Mr. Sheridan. We will move to the question and answer session now so I remind members to confine their contributions to five minutes. That is five minutes for questions and answers. When we stick to that we can generally fit in a second round. I also remind members not to comment on current planning applications, applications that may be at a pre-application stage or those that may be going through judicial review.

The order of speakers for the opening round, as agreed, is Fianna Fáil, Sinn Féin, Fine Gael, Independents, the Green Party, the Labour Party, and the Social Democrats.

Is there any space to-----

We will rotate. As members ask questions, others can then move in and we can free up a microphone space for the Senator.

What generally happens is that people swap places with members of their own party and if one is not in a party it does not tend to happen. I ask that someone does that for me.

I would be happy to move.

I will keep an eye on that. I call Deputy McAuliffe, who is sharing time with Senator Fitzpatrick.

As a public representative, I have often said that the only thing more unpopular than the housing shortage is the construction of housing. I can understand the motivation behind trying to ensure a speedier delivery but there was no acceptance in the opening statements today that the introduction of SHDs has significantly undermined the construction of housing. Housing often involves leadership by public representatives and community groups to support development and the SHD process has effectively pulled the rug out from under many of those people when developments have come before us. I refer to three areas. The first is the decision to remove the height cap from the city. The second relates to the content of many of those developments and reliance on things like aparthotels and cuckoo funds buying entire complexes. The third issue is the clustering of several SHDs together. All this has led to a belief that an overall picture is not being considered in a way that local area plans, LAPs, or the local authorities might have previously done.

The decision on the Glenhill development on the Finglas Road, which has been dealt with in the courts and is a matter of public record, noted that the height of the development was a significant deviation from the Dublin city development plan but no reason was given for that. That is something we need to consider because people will not support a development if they do not know what the height is going to be. Clustering is a massive issue. In Santry, several SHDs have been brought together. They all have a cumulative impact yet it does not appear that any of that cumulative impact is being considered. In fact, they seem to be considered as stand-alone, separate SHDs. That never would have happened at the local authority level and needs to be considered. Finally, I am concerned that some of the conversation here is about consultation and the elements being considered.

The programme for Government is very clear; there should be no extension of the SHD process. I would be very worried to see any element of it brought back as it may result in many of those mistakes being repeated.

I thank all of the witnesses for their presentations. I thank the representatives of An Bord Pleanála. I have engaged with the board on a number of applications. I will direct my comments largely to the Department. I consider the SHD process to be a massive missed opportunity on the part of the State. It achieved the objective of speeding up the decision-making process but at the cost of quality decisions being made. I absolutely agree with the Government's intention to retire it at the end of 2021. We need to look at the quality of developments it has driven. In my own constituency of Dublin Central, approximately 10,000 purpose-built student accommodation units have been delivered in recent years while no affordable or social homes have been built. That is not sustainable. It does not drive the development of compact sustainable urban communities in our cities.

My questions relate to the next 12 months. I understand that 75,000 units are undergoing pre-planning consultation. What is going to happen to those applications over the next 12 months? How is the Department going to work to ensure we get some sustainable developments out of them that take into account the needs of the communities involved? It should be borne in mind that the rate of home ownership in Dublin Central is less than 10%. We already have a massive transient population. While this is characteristic of an inner-city constituency, I assure the Department that many people would like to live there in a sustainable way over generations. Opportunities to facilitate this are not being delivered.

My other concern somewhat contradicts my other comments. Just 29% of the permissions granted have been activated. More than 71% of what has been approved is lying there. What will happen to that? I fear to argue in favour of activating these permissions because I may then be arguing for poor-quality developments and for smaller apartments and homes which take little account of the broader community needs in the area. What are the Department's intentions as regards giving direction over the next 12 months, while the SHD process is still in place, to ensure we get better quality developments that genuinely contribute to creating an environment in which there can be sustainable compact communities in the inner city?

There is a small window of opportunity to answer that range of questions but I am sure they will be answered over the course of other questions. Does the Senator want to direct that question to the Department?

Mr. Terry Sheridan

I will respond on some aspects of the questions and leave other aspects to my colleague, Mr. Hogan. As I mentioned in my opening statement, there is a clear commitment in the programme for Government to terminate the SHD arrangements with effect from the end of December 2021. The planning system in respect of large housing developments will, at that stage, revert to the arrangements that applied prior to the introduction of the SHD system. This means that initial applications will be made to the local authority and that appeals will be determined by An Bord Pleanála. This was the case with regard to the majority of housing developments proposed prior to 2017. Senator Fitzpatrick referred to the number of permissions that have not been activated and the number of units that remain to be commenced and asked what will happen to them. The fact of the matter is that developers will have that permission to develop those sites for a period of time. Those permissions will remain in place under the post-2021 arrangements. We are trying to ensure the positive elements of the SHD arrangements, such as the timelines and greater certainty for developers, can be retained in an appropriate manner.

I hope they will be initially considered by the planning authorities, hopefully within a specified timeframe, rather than the previous arrangements that applied. Similarly, in the case of An Bord Pleanála, that it would consider appeals within a specified timeframe, because the practice has now been established that applications for large-scale housing developments can be considered in that timeframe. That is what we are proposing to do, namely, to try to bring forward the best elements of SHD, such as the detailed pre-application consultations that have applied, which have brought many benefits in terms of design and higher quality developments.

I will ask my colleague, Mr. Paul Hogan-----

I am sorry but we are just out of time.

Mr. Terry Sheridan

-----to respond to the issue of building heights and other aspects of the questions tabled by Deputy McAuliffe and Senator Fitzpatrick.

We can possibly return to those answers but I have to move on to the next member now.

I am sure Mr. Sheridan had sleepless nights for quite some time after this legislation was originally passed, given its torturous passage through the House. I will make a couple of introductory remarks and then I will pose some very direct questions both to the Department and to the board.

This was a terrible piece of legislation. I mean that with no disrespect to the enormous amount of time people like Mr. Sheridan and others put into its drafting. Senator Boyhan and I, and others on this committee, highlighted all the problems and risks that eventually transpired. We said that it would not lead to a significant increase in the output of much-needed housing. We also said it would result in land-banking and developers using it to increase the value of their developments. We said it would lead to overriding democratic redevelopment plans and local area plans. We further said it would lead to significant mistrust in local communities excluded from the planning process in the way they ordinarily are. We must be honest that all those outcomes were visible when the legislation initially went through this House. That means my criticisms are not of either the board or the Department's officials, but rather the Deputies in this building back in 2016 and 2017 who voted for or abstained on the vote on the legislation, because we knew where it was going to end up.

The specific purpose of the legislation in my view was never about speeding up the process, because when we looked at the list of developments Niall Cussen, the then senior official dealing with the issue, presented to us, in the vast majority of those local authorities they were making decisions within their clear statutory timeframe. In fact, if anything, it was developers and the delay with requests for information and the very heavy workload that through no fault of its own the board had to deal with, and with limited staff, that led to the very big delays. We need to be straightforward about all this. Very good research has been produced by Mick Lennon from University College Dublin, UCD, and Richard Waldron from Queen's University Belfast, QUB, which shows this was a developer-led piece of legislation brought about through very successful lobbying. Killian Woods, who has made a submission to committee members which they should read, shows the chronic failure of developers to implement the plans for which they have been given permission. My view is that we should not wait until the end of 2021, but that this should go now. The Government should just decide that this has to be scrapped and a better plan put in place.

In terms of my specific questions to Mr. Sheridan and Mr. Hogan, could they explain to committee members the difference between section 15 of the Planning and Development Act, which places a duty on local authorities to implement their city and county development plans, and section 143 of the same Act, where the board only has to have regard to those plans? That is at the very centre of why the Government decided to give this function primarily to the board rather than to local authorities.

Could they also comment on whether, as a result of that, there is a blurring of the distinction between local authorities as the primary planning authority to make decisions and the original intention of the Act for the board to review those decisions? Could they confirm that in fact SHDs will not expire at the end of 2021 but, more likely, at the end of February 2022, because of the delays in planning decisions from the initial period of Covid-19? Could they give us more information on what they hope to replace it with?

My next questions are for the board. Could the witnesses tell us how many positive decisions on SHDs have led to an overriding of development plans and local area plans? Could they tell us how many positive decisions have ended up in judicial reviews?

Given that according to the Department's submission the primary purpose of SHD arrangements was to expedite the delivery of additional housing supply, does a 70% rate not indicate that this legislation has abjectly failed?

Are those questions for the Department?

The first four are for Mr. Sheridan and the last three are for An Bord Pleanála.

Those questions need to be answered in the next minute, please.

We will get them in the second round. Mr. Sheridan should not worry.

We can allow a bit of time. Those are good questions. I will keep an eye on the clock. I ask Mr. Sheridan to answer the first few questions.

Mr. Terry Sheridan

I will ask Mr. Hogan to respond to the questions on the differences between sections 15 and 143 of the Planning and Development Act. The figures I have are that 36 judicial reviews have been taken against 27 SHD decisions by the board. I will ask Mr. Hogan to come in on the other elements of the Deputy's questions.

Mr. Paul Hogan

A number of issues were raised. Interpretation of legislation is the central issue regarding the duty of local authorities to implement their own development plan on the one hand and the role of the board as an appellant body on the other. The board is empowered by the Oireachtas to consider a wider range of issues that can arise. The development plan is fixed at a particular point in time. Legislation policy evolves and changes. There are wider considerations of national significance that can go beyond the local. For all these reasons the board has specific powers to address development plans differently after a process on particular occasions. That is what has happened with a number of particular cases, which we cannot go into. Generally, that applies.

On housing supply, this legislation coincides with an overall increase in housing supply nationally, rising by about 3,000 units per annum this year. There is no doubt that it has contributed.

Mr. Paul Hyde

I will ask Ms Kenny to answer Deputy Ó Broin's questions.

Ms Rachel Kenny

As Mr. Hogan mentioned, we cannot comment exactly on the level of activation. I note that the 70% relates to the overall permitted, some of which are currently before the courts for judicial review. Some are within the judicial review period. In fairness, it is still around 50% of those granted in 2018-19 in terms of activation because someone who just got permission yesterday would not be expected necessarily to have a commencement notice in. The 70% is not entirely reflective or fair.

We can come back to the Deputy with an accurate figure for material contraventions. It is probably predominantly since the Heather Hill judgment where the discretion on material contravention was, in effect, taken away. Whether it is the board or the planning authority, they tended not to reference material contravention as heavily as they have done since the Heather Hill judgment. It has only been recorded and related to since the Heather Hill judgment. I can come back to the Deputy with those figures. Because of that judgment, we would presume to have all the minutiae considered as material contravention, notwithstanding that the planning authorities do not actually consider them to materially contravene. Again, we need to be careful because otherwise it would assume that they materially contravene all the time, which they do not.

We noted the figure of judicial review cases as 23 in terms of the applications, the development proposals that are before the board. Sometimes there are multiple judicial reviews. Sometimes it will be a quash and remit, and it gets a new case number. It will come across as two, but it is the same one.

Even within that 23, some of those include judicial reviews against refusals. It is probably 21 against grants.

We are just out of time and will have to wrap up. We will come back to the issue.

Just in terms of the timeline, is it December 2021 or February 2022? That is quite an important question.

I will allow an answer.

Ms Rachel Kenny

I understand it to be February 2022 because Covid extended all appropriate periods.

That applies to all timelines in planning.

Ms Rachel Kenny

Yes.

I will share time with Deputy Higgins. I thank the witnesses for their opening remarks. I am, naturally, very much supportive of the objectives of the strategic housing developments, SHDs, but I have concerns in two areas which I would like the delegations to address. At times, decisions have been made with the opposition of the local authority having been well flagged and signalled as part of the process and deep reservations on the part of the local authority where its development plan appears to have been sidetracked. The particular project I am thinking of is still live in its appeal and before the courts, so I cannot get into it, but there have been instances where a local authority has been very definite that the housing density has been far too great and not appropriate for the site it is on. I would like to hear how that is overcome, how the interplay of the commentary from the local authority and local representatives feeding into that informs the decision-making process.

My second point is with regard to clustering and the view that the decisions appear to be made in a silo. I accept that the board will have a particular application in front of it, but it is a silo where, taking the likes of Cork Street, it now has a proliferation of student accommodation, with the fabric of the community in that area being undermined, and in fact Dublin 8 as a consequence. On the ratio of affordable and social housing to student accommodation, how are those decisions arrived at? How are those evaluated? They do not appear to look at the objectives in an entire community and its sustainability as opposed to something being a project on its own, with the decision being made on the merits of the project on its own and without giving due regard to the requirements of the community and the sustainability of actual community living and community life.

I have two questions for the board and two questions for the Department. The core objective of SHDs was always the speedier delivery of housing in a more streamlined way. I ask the representatives of the board how many of the 40,000 residential units approved have been delivered. The Department has said that 29% of permissions have been activated, but how many physical homes have been delivered through the SHD process? Is An Bord Pleanála's 30% refusal rate in line with the local authority rate? I am just trying to get a sense as to whether it remains the same kind of standard between the local authorities and the board.

My first question for the Department relates to something Deputy McAuliffe has mentioned, which is height. I would like to reference the Vincent Byrne site in Palmerstown where approval was granted for apartment blocks of eight storeys in a village where the residential character of the village is really two-storey housing. This comes back to the point already made, and I know Mr. Hogan has taken it up already, around the board needing to have regard to the development plan rather than a requirement of being consistent with it. I know Mr. Hogan has already addressed some of the rationale behind this, but really I am trying to get a sense of whether the Department is happy that this works or whether it has recommendations in respect of that element.

In terms of the Department's "use it or lose it" recommendation, I would like to clarify if the Department is recommending "use it or lose it" from 2022 onwards if SHDs have not been ended by then. I would be a bit more comfortable if it was possible, and I do not know if it is, for us to introduce a measure like that sooner rather than later, perhaps not retrospectively for applications that are already granted but for applicants in the process and moving forward.

Could technical legislation be brought forward to allow for this? We could all be in a much better position in a couple of months or in a year to decide whether to look at a potential extension of this or retire the scheme based on the new clause. With at least a year out, we have identified that this is something that could definitely enhance the scheme. Could we do that now? Why should we wait when we are already considering abandoning SHDs?

Mr. Paul Hyde

I will answer some of the questions relating to the various cases and how we make our decisions. We take each case on its merits and we try, as much as possible, to take into account all the various views. That is catalogued in inspector reports and the board's decisions. We take into account the views of planning authorities, local resident prescribed bodies and the applicants. Ultimately, we are bound by section 28 guidelines, legislation and regulations. We try to synthesise everything, making a decision on the basis of applying the law as best we can.

Senator Seery Kearney mentioned clustering and siloes in talking about particular parts of Dublin 8. In some respects, planning is a negative rather than positive power. There is no opportunity to encourage people to come with particular types of applications, such as social housing supports, and we can only judge what comes before us against the development plan, legislation and the zoning provisions for the area. If there is an oversupply of a particular type, we will take into account cumulative effect. If an application meets zoning and the code, we must consider it on its merits.

There was a question on the percentage of applications relating to the 40,000 units that have been delivered. It is not a matter for the board to track that and it is not our role to look at how many units are completed. We simply consent or refuse decisions and it is a matter for the applicants to deliver the product that we have permitted.

There was a question on the refusal rate and how many times we overturn the decision of a local authority. It was also asked if the rate is similar to the local authority refusal rate. I am not entirely sure of that but we can come back to the committee with those figures. It is important to say that in some cases planning authorities may grant permission that we subsequently refuse. It does not all go in one direction. It can go in either direction.

I thank the witnesses from the Department and An Bord Pleanála for coming before the committee. I am glad this is coming to an end, to be frank. It did not help when local councillors, planners, citizens and community groups felt alienated by the process.

I took the time yesterday to look at the review. I made my own submission to the review and the reoccurring theme I mentioned was subsidiarity and making local decisions within planning authorities. City and county councillors pride themselves as guardians of their city and county development plans and local plans. They are right to defend them and I welcome decisions by local authorities, whether it is the executive or members, to defend the plans. It is honourable and the correct course of action. That is really important.

We can look at what was the intention. The intention of the process was to roll out more homes and have a faster, slicker or more efficient planning system. A reoccurring theme in the review that we never really addressed was how we would better equip planning authorities by giving them more planners or resources. We lost that in the debate and we did not support planning departments.

There are cases to be made for synergy and joined-up thinking, perhaps regionally or in grouped councils like those in Dublin. There are imaginative ways to be slicker and to work better, which must be acknowledged.

I welcome the idea that we take the good bits out of this and see if we can replicate them at local authority level.

The witnesses have proven that they can make decisions but who is gaining from these decisions? In most cases, it is the developers. My understanding of the information is that 142 planning applications have been granted amounting effectively to 12,000 houses, 31,000 apartments, 12,000 student places and 208 shared-living spaces, which is a phenomenal amount of accommodation. What are the issues that arise? One core issue is the fact that there was no third-party appeal process. We talk about the Aarhus Convention, subsidiarity and empowering our citizens and communities to engage in a meaningful planning process and that is where the Department and the board lost the goodwill of the public and the planners. We need to go back to that.

I acknowledge that the staff in the Department and An Bord Pleanála went into this in good faith and we have learned lessons on this journey. I am more interested now in the orderly wind-down of this process. I predict that we will have hundreds, possibly thousands of these applications. We will see a substantial increase in December and January and I know this because people have told me so and that is a matter of concern. The lack of a third-party appeal process is the real anomaly here. I would also like to hear the views of An Bord Pleanála on options for speeding up housing development on sites that have been granted stage-D planning permission. Does the board have any suggestions or ideas for speeding up developments? We have a certain amount of sites and we need to speed up their development.

Is that question directed to An Bord Pleanála or the Department?

It is directed at both but particularly at An Bord Pleanála.

I will ask the board to answer first.

Ms Rachel Kenny

In terms of subsidiarity, we have followed the legislation as applied. In terms of its constitutionality or otherwise, it has gone through the Oireachtas and the Attorney General's office. It is a matter for the Department to comment further as to how that works but it is not different from strategic infrastructure development, the legislation for which came into force in 2006. That was based on the concept of strategic elements coming into the board directly because they all ended up there in any event. When we looked at the developments between 2006 and 2016, over 95% of all 100+ residential development projects under section 34 were decided by the board. Even today normal planning appeals on projects below 100 units make up 70% of the board's appeals. Opposition to housing at every single scale remains, whether it is strategic housing development, SHD, applications or normal planning appeals. As Deputy McAuliffe said, for some reason Irish society has concerns, worries and opposition to housing, no matter who decides on it. The board is deciding on quite a lot and we try to do so with fairness and impartiality. We record all of the submissions received in order to make sure that third parties are heard. We are happy to continue to improve that as we go forward, whether in appeals, strategic housing or strategic infrastructure.

Mr. Paul Hyde

On the last question asked by Senator Boyhan about speeding up development on sites, that is not really a matter for us but we have demonstrated that planning can be sped up. This is important because it has often been argued that developments were not proceeding because the planning process was too slow.

It is a very complex issue and we are talking about very large-scale projects. Areas such as Irish Water, finance and so forth are areas that would have an impact. It is not simply just about getting planning. There are many other complexities.

I thank the representatives of the board and the Department for coming in today. Their attendance is much appreciated.

Before I ask my questions, I would like to note that the SHD scheme established in 2017 is a Government policy of that term, and intended an 80% build rate from successful decisions. However, as everyone knows, the rate is currently below 40%. This is in the context that the scheme was created to build housing quickly considering the housing crisis. I would like to acknowledge that the board is implementing this policy and, therefore, is not its creator but its implementer. I have three questions based on process and cost. Some of them have been slightly covered already but I will go through them anyway.

Has the board strategically evaluated its actions in materially contravening, in a systematic way, the core strategies of democratically mandated development plans prepared in accordance with national and regional policy and ministerial guidelines via our national planning framework, the regional spatial and economic strategies and sustainable residential development in urban areas? This should be considered against the 2019 planning regulator's report, which highlights housing units in commuter zones that are being granted at higher densities in locations that are not identified for growth in the regional spatial and economic strategies. Does the board have concerns about the SHD process given the limited public consultation and pre-application stages, despite the Aarhus Convention? Is the board perturbed by comparatively high rates of judicial reviews and overturning of decisions to grant compared with the conventional application processes through local planning authorities?

The cases lost have been noted, for which I am thankful. Does the board know what the cost is currently to the State? To summarise, why are planning decisions being granted against sustainable development plan core strategies? Is it just to have limited public consultation? Is judicial review appropriate as a route to appeal?

Mr. Paul Hyde

My colleague will reply to the question on the material contraventions of core strategies.

Ms Rose Kenny

When we look at the material contraventions in terms of process, obviously a core strategy or anything else can only be materially contravened having regard to the legislation - section 37(2)(b) - under which there are four criteria. The board must demonstrate that one or any of them can be met in order to materially contravene. In order to materially contravene, the board must demonstrate that it is acting in accordance with proper planning and sustainable development. Therefore, the board believes that is what it is doing when it looks at that. It is not looking at the overall impact and it is assessing it having regard to those core principles. That is what I would say about that.

Regarding the Aarhus Convention, pre-application consultation and public involvement, regardless of whether the pre-application consultation involves the planning authority under section 247 or is pre-application consultation into the board on strategic infrastructure or strategic housing, at all stages occurs between the proposer of the development and the relevant planning authority. The public is not involved in that. It does not matter whether it is the planning authority or the board - that is the current legislative provision. I cannot comment any further on that but it is no different for the board. We are just one of the planning authorities.

Mr. Paul Hyde

On the question about the board's view of judicial reviews, all of our cases, under Article 50 of the Planning and Development Act, can be judicially reviewed and many cases are reviewed, ranging from wind farms to normal appeals, so it is not confined to strategic housing. In terms of the cost, we will have to get back to the Deputy on the exact amount that has been outlaid to date.

The legislation provides for judicial review and we welcome that as a mechanism; however, the consultation process that is in place is as enshrined in the legislation, and as Deputy Duffy said at the outset, we merely implement it.

Does that answer the questions?

On the issue of material contraventions, I have received information from planners who are really concerned about decisions being granted to developments where they are effectively not feasible, in that they go against the development plan that a residential set-up should not be in a village. For example, putting 200 units into a small village just does not work. I am not saying they are all wrong but some decisions have been granted about which planners are really upset. Whatever the witnesses may be saying, it does not seem to be happening in the context of the process.

I am going to move on to Senator Moynihan.

I thank the witnesses for their presentations. Like Deputy Ó Broin, I will provide some of my own views and then ask some specific questions.

I am quite disappointed by both presentations, in that the tone of both the Department of Housing, Local Government and Heritage and An Bord Pleanála seems to be more concerned with the implementation of the SHDs and helping developers than with delivering proper and sustainable planning in both our towns and cities. First, I want to ask about cases in which An Bord Pleanála decisions go against the findings of inspectors' reports. I have a list of them before me, as well as a list of some that have been overturned by judicial review. On the advice of the Chair, I am not going to refer to particular cases. There was one very recent case in my own area in which An Bord Pleanála went directly against the advice of its inspectors. On what grounds does that happen? Mr. Justice O'Donnell of the Supreme Court, in the Balz v. An Bord Pleanála judgment of 2019, stated:

It is a basic element of any decision-making affecting the public that the relevant submission should be addressed and an explanation given as to why they are not accepted, if indeed that is the case. This is fundamental not just to the law, but also to the trust which members of the public are required to have in decision making institutions ...

As someone who has been involved in making submissions to An Bord Pleanála, particularly in respect of the number of student accommodation units within a small area in Dublin 8, and who has read decisions by An Bord Pleanála and by planners in this regard, I do not accept that the reasons and the rationale that are given by both members of the public and also sometimes by An Bord Pleanála's own planners are adequately considered in the reports that are given.

An Bord Pleanála also referenced opposition to housing. I do not necessarily accept that engagement in the planning process always concerns opposition to housing; rather, as An Bord Pleanála referenced, it is actually a case of seeking to get the balance of the right type of housing within the right areas. Anybody who has been involved in development plans knows the amount of work that goes into them and the stages of the process. When a considered development plan is produced, it is as a result of months of compromise and engagement with developers and within the planning framework as set down. I want to ask about cases in which development plans are contravened and the reasons and the rationale for this.

I also want to ask about the strategic housing process. Applications for 9,746 student accommodation units and 55% of commencements are granted, which is a lot more commencements granted than in the case of houses. Of these, 5,371 have commenced. From what I can see, this is always in a small area of the inner city, including Dublin 8, Dublin 7 and Dublin 1. The only large third level institution within those areas is DIT, which is moving to Grangegorman. I wonder how that tallies with the aim to deliver the right developments in the right locations, because I do not particularly think that it does. I wish to ask the Department's representatives about what they said on the issue of SHDs, namely, on continuing the benefits of the SHDs, which is to provide certainty and timelines for developers. As far as I can see, the Department is planning to go against the political will of the Government, as decided within the programme for Government. I do not necessarily consider a commencement rate of 27% to be of great benefit in terms of what it was set out to do.

Will the witnesses elaborate further on that in terms of the SHD beyond 2021? Is the Department planning on going against the programme for Government? Is it planning to continue strategic housing development, albeit with a "use it or lose it" approach?

Which of the witnesses wishes to go first?

Mr. Paul Hyde

I will take two of the questions and pass one to my colleague. On the question regarding the number of cases in which the board overturns its own inspector's recommendation, in SHD the rate is less than 10%. In the wider course of our work in terms of normal section 34 appeals, the rate is higher, possibly between 12% and 15%. It is not something that is done very often. The board is a tribunal made up of three people who deliberate on each case. They will look at the legislation, the guidelines and everything else. On occasion, they disagree with their own inspector. The Senator referenced the 2019 Supreme Court judgment in Balz & Ancor v. An Bord Pleanála. The board, like all decision makers these days, always endeavours to give as concise and clear a set of stated reasons and considerations as possible for its decision. Many decision makers have been challenged in the courts in respect of the conciseness or accuracy of the stated reasons and considerations in the interests of public participation and transparency, as the Senator stated. The board always endeavours to give its reasons and considerations to the best of its ability.

On the issue of student accommodation, as I stated earlier, we can only address our minds to cases that come before us on their own merits. If they are appropriately zoned within the zoning matrix of the development plan, then we must consider them against all of the guidelines that are there. Obviously, in specific parts of the city there have been many types of uses coming in. As I stated, we must take them on their own merits.

Ms Kenny may wish to deal with section 37 and material contraventions of the development plan.

Ms Rachel Kenny

In terms of section 37 and material contravention, we can come back to the Senator with the numbers. As I stated, the rationale as to why we do it and when we do it is stipulated and clearly set out in the various reports both in terms of the inspector's report and the decision of the board. When a developer or an application contravenes or is understood to materially contravene the development plan, it is advertised as such in order to flag that to the public at large in order that it is clear when something is going before the board that may materially contravene the development plan. That is done to ensure public involvement.

There was also a question for the Department but we are almost out of time. We might be able to return to that question.

I thank the representatives of An Bord Pleanála and the Department for coming before the committee. Their attendance is appreciated. From the conversations I have had with planners in particular, I know they can be among the most critical voices on this issue. It is worth noting that many planners working in the system are not able to have a public voice on the matter. That comes across from a range of planners who have varying views in terms of development. The strategic housing development legislation is significantly flawed. The lack of an appeals process is highly problematic. Only communities with sufficient resources are able to mount judicial reviews. The expense involved is a significant burden on communities that have the resources to pursue a judicial review, but it is deeply unfair on communities that do not have the capacity to so do. It undermines county and city development plans and local democracy, as well as undermining the delivery of community infrastructure alongside large-scale developments. There is an element in this whereby the usage of strategic housing developments increases the value of sites for people who are speculating on land to achieve planning permissions with higher densities and then flip the sites.

It is failing in its key objective, which is stated in terms of delivering housing on scale. We heard from An Bord Pleanála that 40,000 residential units have been permitted under SHD provisions and, significantly, we have heard from the Department that only 29% of these have been activated. This compares unfavourably with the review from last year, which showed that 37% of permissions had been activated. At that stage, the then Minister said that this level was completely unacceptable and that the level should be at about 80%. I note the comment from An Bord Pleanála saying that this will level out at about 50%. This is far below the 80% figure anticipated or accepted by the Department and Minister. Does the Department agree that the SHD process is failing in its key objective of meeting that figure of 80%? Does the Department accept that some developers are using the SHD process to increase the value of their land before flipping it and selling it on?

The excellent submission we received from Killian Woods from the Business Post references the paper by Mick Lennon from UCD and Richard Waldron from Queen's University on de-democratising the Irish planning system. This paper was based on a series of off-the-record interviews with developers, planning consultants, civil servants, planners and politicians. One planning consultant told the authors that the fact that the public had the same right as the developer in the planning process was democracy gone way too far. Could the Department comment on that, the paper and the view expressed in the paper that developers had given recommendations to Government that had been taken on board lock, stock and barrel and put into the new housing Bill, which concerned the SHD? Indeed one politician told the authors that the Construction Industry Federation and others had captured the State in terms of policy. I would like to hear the Department's view on that.

I am not sure the Department has received the submission from Killian Woods so the witnesses from the Department may not be able to comment on it. We can make sure the submission goes to them and they can write back with answers to the first two questions. I do not know if the Department has seen that submission.

As it is in front of us, it is valid to raise it. I was quoting from it.

The Deputy can ask but I do not know if the witnesses from the Department will be able to answer because they may not have seen it.

I have given some details that they might comment on. My specific question concerns the claim in the submission that there has been policy capture of the State by developers. What is the Department's view on that with respect to the SHD process?

Mr. Paul Hogan

I will address a few points. The first thing to do is put this in context. The SHD legislation arises out of the Rebuilding Ireland strategy to increase housing supply in response to an ongoing and consistent criticism of the planning system as having inherent and in-built delays. If the SHD has two objectives, they are efficiencies and outcomes. During pretty much all of my career as a planner, the first thing I have heard levelled at planning and the planning system is delay, delay, delay. What this has achieved for planning outcomes or the planning process is a degree of consistency and certainty that builds in upfront a lot of the considerations that were played out through the system and did not get addressed until it was too late. We are lucky to already have had a review by an independent expert group that included representations from broadly based local government representatives as much as anyone else. That review concluded that the SHD system is working in terms of efficiencies and better outcomes. The reason the outcomes are better is because a more formalised upfront system is in place. Members will have heard in the presentations how both Mr. Sheridan and Mr. Hyde talked about a three-stage system upfront.

There is a pre-application meeting, which involves all parties, with An Bord Pleanála and then there is the application. That level of formalisation did not exist, or had not existed to the same extent, for housing development proposals prior to the SHD process. That meant that applications granted through the process are determined to be better, and that was one of the conclusions of the expert advisory group.

Moving on to address the question of whether we are going against the programme for Government, that is absolutely not the case. The last recommendation, No. 22, of the expert advisory group, however, was that the Department should consider what aspects of the SHD process were successful and could be considered for translation into the general planning system. That is where we are at now. Several things could be used to benefit the normal planning system, if we can call it that, and that would include more formalised upfront consideration even before a planning application is submitted to ensure that we get better outcomes.

More broadly, the idea that activation could be better was a part of the terms of reference of the expert advisory group and was part of its considerations and recommendations to the Minister, and his subsequent decision in that regard. I acknowledge that activation could be better and it is something we are continuing to work on. The "use it or lose it" proposals are a direct response to that and we are also considering other means.

We are just out of time in that slot. I call Deputy Murnane O'Connor. Is she sharing time?

I ask that she stick to the five minutes. If we can get straight to questions, then we can get straight to answers and that would be very helpful.

I thank the witnesses from the Department and An Bord Pleanála. Like other speakers, I also have major concerns with the SHD process. When this was originally brought in, it was for the delivery of additional housing supply. I do not think it has worked the way it should have. We now need to know that the public has a voice.

Regarding An Bord Pleanála, I have concerns in general about timescales. I refer to my own local authority and what is happening. In his opening statement, Mr. Hyde stated that "economic strategies, as well as the various section 28 ministerial guidelines published over the last decade, set a clear roadmap for appropriate development". I accept that, but do we need to change them?

We are now living in a different era. The SHD process was originally established to develop and deliver. I refer to the concerns that have emerged in this regard. It was a trial and a learning process for everybody, including the Department, An Bord Pleanála and the local authorities. It needs to be wound down now, however. It is important, though, that we focus on the roadmap and what we can do in working with the local authorities and An Bord Pleanála to look at guidelines. Does Mr. Hyde have any concerns in this regard? Does he feel the guidelines need to be changed? I refer in general to the SHD process but also to once-off developments, businesses, etc. The issue of timescale is my biggest issue with An Bord Pleanála. I noticed that 17 extra staff and four board members have been assigned to the SHD division, which is welcome. I believe, however, that An Bord Pleanála needs an overall review and I would like to know the witnesses' opinion.

Turning to the representatives from the Department, it was stated that "the Department is also giving consideration to establishing a SHD consultation group to examine what aspects of the SHD process might be incorporated in the planning system, through further legislation". Will the witnesses explain that? I also have concerns about that aspect. I do not know if we have all been affected by Covid-19. Perhaps the witnesses from the Department and An Bord Pleanála might comment on that aspect regarding delays in planning. I know people are being delayed and there was a hold on planning, so I presume An Bord Pleanála was on hold as well. Will the witnesses confirm how Covid-19 has affected them? What do they think about the Department establishing an SHD consultation group? I also seek the views of the witnesses on an overall review of An Bord Pleanála, in a general perspective, and on the roadmap and what we can do to change the guidelines.

My questions are on the clustering of SHD applications and the comparison with local area plans, LAPs, or strategic development and regeneration areas, SDRAs. Do the witnesses accept that when there are clustered SHDs, they effectively bypass or undermine existing LAPs or the potential to have new LAPs?

The witnesses have talked about relying on the zoning and on each application standing on its own merits. The difficulty is there is no planning tool available to local authorities to differentiate between a ten-storey privately managed 90% use of the housing assistance payment, HAP, and a ten-storey mixed-tenure and mixed-income development. Therefore, it is difficult to give permission to one rather than the other but they are different prospects and they need different community supports. Do the witnesses accept that the judicial review is not an effective appeal mechanism in areas that do not have access to barristers?

There are positive elements to the SHDs. The statutory involvement of local authority members at a recorded meeting that is submitted is positive and the formalised pre-consultation is also positive but I worry about the effective eradication of LAPs and SDRAs, which are effectively the settled will or a bargaining between local authority members, communities and elected representatives.

Mr. Paul Hyde

I refer to the points Deputy Murnane O'Connor made around the policy and the road map and so forth. An Bord Pleanála implements policy rather than making it. It is the Oireachtas and so forth.

Mr. Paul Hyde

Policy is an iterative process and it is ongoing and evolving to respond to the conditions of the day. That is welcome. It is a democratic process in how the legislation and the policies around that evolve. That is a matter for the Oireachtas rather than An Bord Pleanála.

As someone who is in An Bord Pleanála, what does Mr. Hyde see? He is dealing with planning in An Bord Pleanála and he would deal with this daily. Does Mr. Hyde have concerns and is he happy with the policies that An Bord Pleanála is dealing with?

Mr. Paul Hyde

It is not for me to question the policies. We are guided by the legislative policy and we will respond to it. That is the way we have to apply it as public servants and that is what we do.

On the Deputy's point about the timescales, we endeavour to meet our statutory requirements on all our timescales. We have been affected by Covid-19 and there was a planning freeze during the first lockdown so we have had to rearrange things internally, like every other public agency, to manage the workload.

On Deputy McAuliffe's points, the judicial review process is not an appeal mechanism per se. It is a process whereby somebody can take a review at the judicial level of the process. It is not about the merits of the case.

So there is no impact from an appeal.

Mr. Paul Hyde

Strategic housing is similar to strategic infrastructure. This was introduced in 2007 and that is the process that has been in place since then.

Ms Rachel Kenny

I will make a comment about the clustering of SHDs because it has been mentioned a couple of times. We can take a look at that but the clustering of SHDs alone does not automatically presume material contravention or the bypassing of a local area plan or of SDRA policy. We can take a look at where those material contraventions have occurred and where those particular policies have been materially contravened and the reasons for those are clearly set out in the various decisions and inspectors reports. I know the Deputy has talked about the clustering of SHDs but one could equally talk about the clustering of planning applications in a local authority plan area as well. The fact that a number of applications arise, whether it is under section 34(1) of the Planning and Development Act 2000 or whether it is under SHD, does not by its nature undermine a plan or a policy. I wanted to reiterate that.

It is fair to say that at local authority level there is a far greater track record of those things being considered in a holistic way rather than on a stand-alone basis for each application.

Ms Rachel Kenny

Without going into specifics, there are numerous local area plans and strategic regeneration areas where the planning authority was in favour of the strategic housing developments, SHDs, and where the board went along with the planning authority's recommendation to grant on those. I can flag that too. Sometimes where we materially contravene a local area plan or a policy in the development plan, it does not automatically follow that it is against the planning authority or the chief executive's report. In numerous SHD decisions, the chief executive is supportive of the proposal, notwithstanding the constraints within the development plan, probably by reason of the fact that some of the development plans need to be reviewed.

We have run out of time but I would ask for a written response on the question on tenure.

We are well over time in that slot so we now move to Deputy Gould.

I thank the officials for coming in. There is a lot involved. My colleague, Deputy Ó Broin, highlighted problems with this legislation from the word go, prior to it coming into being. My big issue as a public representative has always been the provision of housing as quickly as possible in a sustainable way. I come from an area in Cork which has seen massive regeneration. One thing we have known from the boom and bust cycle we have experienced is that, as Roy Keane says, "fail to prepare - prepare to fail". When infrastructure and services are not put in, the result is communities that are not sustainable and experience huge problems down the line. We are spending hundreds of millions of euro trying to rectify problems that should have been dealt with at the start. The problem with this legislation is that it was developer-led and developer-designed. It was built for developers and not for people. I have significant concerns about density. Density depends on the communities. There are areas where, because there is an effort to fit in as many units as possible, we will have problems down the road. Take the St. Kevin's hospital site in my constituency of Cork North-Central. It has gone to the SHD and there is supposed to be a decision before the end of the year.

We will not be having live planning applications here.

Okay. The whole thing about the legislation is that it was to deliver housing as quickly as possible and I do not believe it has accomplished that.

What will replace this when time runs out? It will run out in February 2022, not December 2021. Earlier Deputy Ó Broin asked about this. Is it possible to stop this now and stop future SHDs? No one seems happy with it, unless maybe I am at a different meeting, but I am listening to the contributions here. That is not a criticism of the officials because they are answering questions and feeding into the committee. I am not being personal; it is just that there are considerable issues around the policy. I would like the committee to help build houses, solve the housing and homelessness crisis and make communities sustainable.

Mr. Terry Sheridan

Deputy Gould asked what would replace the SHD arrangements after February 2022. As I outlined, we are in the process of establishing a consultation group to try to devise speedier decisions at local level and subsequently at appeal in the board.

What we are talking about is trying to incorporate the more positive elements of the SHD arrangements into the traditional local authority-An Bord Pleanála two-stage process, which would encompass mandatory multi-party pre-application consultation procedures and mandatory statutory timelines to be adhered to, including at appeal level. It is reverting to the system that existed prior to the introduction of SHD, but trying to transfer across the good parts that have been positive.

The Deputy also asked if the SHD process can be stopped now. The Minister has signed an order extending the process to the end of December 2021, which has been further extended to February 2022 because of Covid. I do not believe there is any possibility of overturning that because there is no legislative basis for doing so at present. There were also concerns about the delivery of supply under the SHD process. As outlined in the opening statement, the Department has had concerns about this. That is why, on foot of the review group recommendations, we are coming forward with "use it or lose it" provisions aimed at ensuring that supply is delivered on site rather than having situations where permissions are allowed to continue unactivated.

I have some fairly straightforward questions and the witnesses can answer them briefly, if possible. It has always been my understanding that An Bord Pleanála has to have regard to a county development plan and, therefore, can make a decision that the local authority might be more confined on, as the board has scope to make decisions outside of that, and not just regarding SHDs. Is that true?

Mr. Paul Hyde

Yes.

With regard to "use it or lose it", I do not consider that to be a strong enough deterrent. If planning has been granted on a site and we introduce legislation whereby one can lose that planning permission, a subsequent planning permission will often look at the planning history. There has been a planning application for it that has been granted, so the planning history will be considered. In order to lose it, and I understand there is legislation planned for this, the planning authority can revoke planning if it no longer complies with the objectives of the county development plan. Where a strategic housing development no longer complies with Government policy, can the board revoke SHD permissions that have already been granted? I am aware that it is not in legislation yet, but it is Government policy.

Ms Rachel Kenny

It is not within legislation so the board does not have power to revoke a permission. However, the committee should be aware that if a planning authority revokes a permission, it is under very stringent criteria and compensation is payable to the applicant or the owner of the land or the beneficiary of the permission if it is revoked.

Would Ms Kenny consider "use it or lose it" to be a strong deterrent to get somebody to commence a planning application?

Ms Rachel Kenny

That is not for the board to say. However, as my colleague mentioned, it is not just about the land banking. In a number of instances we know that the viability of the schemes permitted is at issue and that, perhaps, a carrot-and-stick approach may be necessary because the cost of infrastructure and so forth must be taken into consideration. There is compliance to be considered as well.

If a planning permission is granted up to February 2022 for an SHD, I understand the applicant would have five years to commence it. There is generally a five-year window for it.

Mr. Paul Hyde

Yes.

In fact, SHDs could commence at any time within five years after February 2022 once they have been granted permission.

In terms of transport planning, we often see high-density applications cite access to public transport.

Often that public transport might be a quite irregular bus service or a meandering bus service that does not serve the site well at all. How much scope is there for the board in making decisions about where a developer cites access to public transport? Does the board actually judge the frequency of the service and the likelihood of people using that public transport?

Ms Rachel Kenny

We can only assess the frequency and typical usage based on the CSO statistics. We do look at the frequency of the service provided or if there is a planned increase in that frequency. We do consider it. If a bus route goes by and is not a frequent service, that fact will be considered. There have been decisions of the board made, as in refusals, based on the fact that the site is not well served by public transport, notwithstanding that there may be a bus stop close by, which is based on frequency.

A lot of the applications I have seen for SHDs have often gone in with a much higher density than would be zoned in the development plan. There is nothing wrong with higher densities, and we are aware that we have to move to higher densities to provide services, but with higher densities one has to ensure provision of services and the provision of good, open public space that is well managed, as well as private space provision. Would the board have a concern that where there is a cluster of SHDs, as cited earlier on, the development plan objectives for the provision of services may not measure up because the density that was already in the development plan has been exceeded? Is this a concern where there is a cluster of SHDs?

Ms Rachel Kenny

It would not necessarily be a concern but it would be a consideration. Where there are multiple applications we will look at the services that exist within an area and the level of open space and so on. A higher density does not necessarily mean that there is inadequate open space or that the open space necessarily fails to comply with the county development plan. The two things are not mutually exclusive. As has been mentioned on numerous occasions, the board takes into consideration the chief executive's report, which is the submission and comments of the planning authority, which would raise and flag those issues so they are fully considered within the planning inspector's report and within the board decision. Those issues would be before the board when making a decision.

In the 29% of permissions that are activated, this means they commenced construction. It does not necessarily mean they are populated and that people are living in them.

Ms Rachel Kenny

No, it would not necessarily mean that.

Is 29% a low figure, say if we were to take ordinary section 34 applications that go in under other planning applications?

Ms Rachel Kenny

Again, it has to be remembered that the permissions only started in 2018. It is only a relatively short period. We are only talking about 2018 and 2019 permissions that could be realised, bearing in mind that 2020 has predominantly been a Covid year. In terms of how many permissions have been granted during that period, it is probably around that 50% mark. It is not particularly out of kilter with the norm. Again, the Department may have more accurate figures.

We might get that figure from the Department. The figure of 29% is the activation figure for most planning permissions over that time. I am out of time now and will move on now, to be fair to other members, for further second round questions. I apologise to Deputy Higgins, who should have been before me.

I thank the Chairman. I would like to ask the Department representatives the question that I had previously put to the board. How many of the 40,000 residential units approved for planning have been delivered? I appreciate what the board has said about the short time span. I am aware the Department has said 29% of permissions have been activated, but I am looking for the number of physical homes that have been delivered through the SHD process. The objective of the scheme was the faster delivery of houses. I hope one of the representatives can answer that. It would seem to be a primary key performance indicator.

We ran out of time in the previous round and the representatives from the Department did not get an opportunity to answer some of my questions so I will hand the rest of my time over to them. I would like to hear their views on the point I made earlier regarding the "use it or lose it" recommendation. Would bringing that in before the date the scheme is due to expire, rather than as part of a proposed extended version of the scheme, be practical from a technical, legislative and administrative perspective?

Mr. Terry Sheridan

Deputy Higgins asked how many units have been delivered. I do not have that information to hand. However, I do have the number of units that have been commenced after being granted permission, which is 11,335 housing units, and 45,000 student bed spaces have been commenced. Many of those are on stream at present but we will come back to the Deputy as soon as we can on the actual number that have been delivered to date after being granted SHD permissions.

The Deputy's other question was on whether the "use it or lose it" provisions could be introduced prior to the termination of the SHD arrangements. That is something we can definitely consider. It would not necessarily be the case that it would have to await the termination of the SHD arrangements. If that were the case it would only apply to permissions granted subsequent to the enactment of the provision. We will have a look at whether that is possible.

I thank Mr. Sheridan. Will he be able to come back to either me or the Chairman with a written response?

Mr. Terry Sheridan

Yes.

We move now to Senator Boyhan in the Independent slot. If we stick tightly to the time we will get around to everyone again.

I will be brief. I personally thank Killian Woods, who I failed to acknowledge earlier. He made an excellent submission and we should send it on to the Department and An Bord Pleanála because I think they would be interested in what he has to say. He supports it with a lot of documentation so I commend him on that.

I have a question for Mr. Sheridan. The orderly wind-down is now of concern. I said earlier that the focus now must be on improving, supporting and resourcing the local planning system in terms of its staff, planners, administrators and even its city and county councillors. That is now critical. They feel under enormous pressure and they have been involved in much of this work but are not quite sure how they are going to prepare for this orderly wind-down. It is a challenge. The representatives from the Department might convey this to their officials. There must be a focus on the upskilling, training and resources these departments need. They are creaking at the seams. They are under enormous pressure and that must be acknowledged and addressed.

I thank An Bord Pleanála because I like to think I learn from every experience and one thing I have taken away from today is that it comes in for a lot of backlash. The Legislature and politicians make the law and somehow it is always hung back on An Bord Pleánala. That is something I am going to take away from this meeting because we can resolve many of these issues within the Houses of the Oireachtas.

The final thing I am taking away from today is that specific local objectives, SLOs, or zoning provisions are critical to all of the councils and the 31 local authorities that are now engaging in county development plans. I will be writing to each of them today to tell them to wise up and look at their zoning objectives because if they focus on strong zoning objectives they can have a strong say in the outcomes for planning and development within their areas. I thank everyone who has participated today and thank them for attending.

Mr. Terry Sheridan

As regards the resources, we have set the precedent.

In the establishment of the SHD arrangements, additional resources were allocated to the board to ensure additional responsibilities imposed could be met. If we are to introduce new procedures and processes relating to housing developments in the form of mandatory formal pre-application consultations, etc., between local authorities and developers, the reality is that the resourcing of local authorities would have to be looked at to ensure they are able to fulfil their responsibilities. The Department has not been found wanting in the resourcing of the board and we will have to take the resourcing of local authorities into account under any new arrangements. This can be discussed further during the SHD consultative review process, when we will engage with local authorities.

The next speaker is Deputy Cian O'Callaghan. We will get the speakers in if we limit contributions to approximately four minutes apiece.

It is significant that the board has indicated a view on the review as not being a form of appeals process. It is the view I take as well. It means the SHD process is in contravention of the Aarhus Convention as people do not have an appeals process. When an SHD application goes to the board and decisions are made, how many people on the board are involved? Is it always three?

Mr. Paul Hyde

It is a minimum of three.

That is in all circumstances.

Mr. Paul Hyde

It is for an SHD process.

Mr. Killian Woods of the Business Post indicates this came about from developers lobbying, with the implication that developers saying they would have housing delivery from it. We now know we are not getting housing delivery at the levels that were expected or anticipated. Is there a comment from the Department about that as it relates to the legislative process and the lobbying of developers in that regard? Is that being sufficiently balanced?

Mr. Terry Sheridan

There was a comment that judicial review does not satisfy the Aarhus Convention requirements but I disagree. It is a specific matter on which we took legal advice from the Office of the Attorney General when these arrangements were being devised. Once there is an appeal mechanism, whether it is an appeal to An Bord Pleanála or a subsequent alternative appeal to a court of law, it satisfies the Aarhus requirements. I wanted to correct the Deputy in that regard.

There is the suggestion of the SHD arrangements being progressed on foot of lobbying by developers but that is not a fair comment either. Various stakeholders were involved in trying to address the housing supply shortage in 2015 and 2016, including developer lobby groups. There were also local authorities and numerous other stakeholders in the process.

The arrangements were not new or innovative. They were based on the outline given by Mr. Hyde, amounting to pre-existing arrangements that have applied since 2007 for strategic infrastructure developments. They provide for direct application to the board. That is from where we modelled it. It is not necessarily the case that this was totally down to developer lobbying. I just wanted to correct that because it is something we looked at in any event.

I am quite taken aback by the statement that access to the courts and the judicial review are considered to be an appeal mechanism in the area of planning. The courts are extremely expensive and this means that lower income areas do not really have access to appeals. The Department's contention that this is an appeal mechanism that satisfies the Aarhus Convention is quite shocking. It is indicative of a mindset that considers fast-tracking for developers as a good thing and considers anybody having access to planning appeals as a bad thing.

With regard to the Department and incorporating what are considered to be the good parts of strategic housing developments, and I do not necessarily agree that these are the good parts because, as we can see from the commencement notices, the developments are not satisfying what they were meant to do, how is it envisaged to be incorporated into the overall planning system? Does it include, for example, taking out the right to appeal to An Bord Pleanála, and saying that it goes to judicial review? Does it include the lead-in period being shortened for the rights of people and the planning departments of local authorities to be able to put together submissions? I would like this to be fleshed out because potentially it could become really important post 2021.

As with Deputy Higgins' point, can I have some clarification on the delivery and the commencement? Can we clarify that we will get these numbers? We are talking about 11,334 houses commenced. Did I mishear? Did someone say 45,000 student units? Can we get those updated figures in writing and sent on? I am not sure whether I heard that figure properly or not.

I have a query for the Bord Pleanála representatives on clustering and zoning. I have been involved in two development plans. The zoning we adopted put residential areas into the zoning. It is very difficult to say that one whole big area cannot be residential but there are also parts put into the development plan such as clustering and overintensification. I represented the Dublin 8 area for 11 years. If I am to go back to councillors on Dublin City Council to say to them that we do not want any more student accommodation units within this area, are the witnesses saying to take out residential entirely from that zoning? Is An Bord Pleanála saying there is no other way to ensure this and there is no other way of doing these developments within our current planning system, with regard to intensification of the clustering of those types of developments? I am really interested in hearing that. I have a real concern that 4,000 short-term units have been given permission in a very small area in Dublin 8. I need to check out the housing units but it was definitely under 500 for a very long time before one large application on the Bailey Gibson site. I want advice on how balanced development is done in an area. How is it done so that it satisfies the requirements of An Bord Pleanála?

I thank Senator Moynihan. Unfortunately-----

Could we take more questions, very briefly, and allow the members to come in, in the five minutes we have if we promise to be very brief?

We are just out of time on Senator Moynihan's slot, so there is no time to answer those questions but-----

The witnesses could come back to me with a written response.

Yes. I must then bring in the third slot. I ask Senator Fitzpatrick to keep it to three minutes. If we can do question-answer and question-answer, we will not end up with a load of questions and no time for answers. It might be the handiest thing to do.

If our questions are brief, the board may be able to reply to all three of us.

It will be tight. We have six minutes so members can decide to-----

I will be as brief as I possibly can. I thank all of the witnesses for their presentations. It appears really perverse that we are sitting here as a housing committee with the officials in the midst of a housing crisis and we all want to see more homes delivered, and yet we are being highly critical of a process that was put in place to fast-track the approval of housing.

We must use our time collectively to try to identify how to improve the situation. The Department officials talk about taking the good parts of the SHD process, but they appear to be few and far between. The efficiency element of making a decision on planning applications for the large delivery of homes is a good element, but it falls apart because of the quality of what is being delivered. The committee should identify a way to address the issues regarding the quality of the applications that are being made, the fact that these are not sustainable homes and do not accommodate sustainable, compact, family living in urban settings and they do not allow for the necessary social infrastructure.

A judicial review is simply not an accessible mechanism for laypeople. We must accept that it is not a form of appeal for the ordinary person. Bear in mind that these are ordinary people who are living their lives and are invested in their communities, like their councillors. They are not looking for an argument or to go to court. They are not even looking to engage in this type of process. They probably have children they want to live in their area. They want to see development and homes being built, but they find themselves massively frustrated by the poor quality of the applications that are being made and the adversarial way in which they have to try to engage in the process.

I believe the committee must work with the Department. An Bord Pleanála has a job to do, which is basically to operate with whatever legislation and guidance it is given. It is doing its part. It is between us and the Department. There are still another 12 or 15 months to go with this and there will be many more applications. We need to get better quality applications that genuinely deliver sustainable, compact communities.

I will be brief. I am a strong advocate of compact growth and increased density. I have never objected to a residential housing development anywhere. I have made submissions to try to improve them, but I make a point of not objecting. I had much sympathy with comments Ms Kenny made in a personal capacity last year which got her into a lot of trouble. However, we must be honest with ourselves. Not a single residential development I have been involved with, be it Part 8 or private, has not been subject to objection. Some objections are vexatious, as are some of the political campaigns. However, there is also a real concern. Those of us who are strong advocates of increased delivery, including in our constituencies, come up against the challenge of the lack of infrastructure investment, which is not the fault of the planning system. There are many good politicians and members of the public who would have no objection to a residential development or high-density development, in principle. Their problem is the strain it would put on already meagre resources. I emphasise that point.

There is a central problem with the SHD legislation. I know the intention of the officials and I would never question Mr. Sheridan's intention to speed up the process. When I hear Mr. Hyde talk about consistency and when I heard officials talk previously off the record about overcoming the eccentricities of the city and county development plans, it shows there was a second objective, which was to try to have a single set of standards across all local authorities for the ease of developers. That is the one thing developers advocated.

I would like to have legislation to end this process earlier, but I would like the more robust pre-planning process that has emerged in this to be put into statute, albeit led by the local authorities. There should also be a legal timeframe within which the additional information that is requested would have to be returned, because that was one of the main delays in the previous system. The board needs to have very rigid timelines for taking decisions, as do local authorities. If that means more resources, they should be provided. If we did that, we would have the best of both worlds. There would be robust pre-planning, robust initial decisions by the local authorities, speedy additional information and fair reviews. I say that because we may not have another opportunity.

The initiation of this, and Paul Hogan got it right, was people saying the planning process was the problem. The planning process was never the problem in my view in this respect. However, we must ensure that whatever emerges from this does not repeat the mistakes of this or the previous system so we can get a better outcome for everybody. That is my final comment.

We are out of time. I thank the members of An Bord Pleanála and the officials from the Department for attending the meeting today, for answering the questions and for their submissions.

The joint committee adjourned at 1 p.m. until 9.00 a.m. on Thursday, 12 November 2020.