Joint Committee on Housing, Local Government and Heritage debate -
Thursday, 9 Sep 2021

General Scheme of the Planning and Development (Amendment) (LSRD) Bill 2021: Discussion (Resumed)

Chairman

Good afternoon. Attendees are very welcome to this meeting of the Joint Oireachtas Committee on Housing, Local Government and Heritage. Today we are going to continue our pre-legislative scrutiny of the general scheme of the planning and development (amendment) (LSRD) Bill 2021. We are joined remotely by the following witnesses: from the County and City Management Association, CCMA, Mr. Kevin Kelly of Mayo County Council, Ms Mary Henchy of Dún Laoghaire-Rathdown County Council, Mr. Michael Rainey of Carlow County Council and Ms Mary Conway of Dublin City Council; from the Construction Industry Federation, CIF, Mr. James Benson and Mr. Tom Parlon; from the Irish Planning Institute, IPI, Dr. Conor Norton; and from the Dublin Democratic Planning Alliance Mr. Robin Mandal, Ms Marion Cashman, Mr. Ray Kenny and Mr. Sebastian Vencken.

Copies of the opening statements and briefing material have been circulated to members. I will first ask witnesses to make their opening statements. We would appreciate it if they would limit their statements to five minutes. Members will then be invited to address the witnesses. We will limit the slots for questions and answers to six minutes. If members to keep their questions to a reasonable level, we will get a second round and members will have another opportunity to ask questions then.

I will read the note on privilege. Members attending remotely from within the Leinster House complex are protected by absolute privilege in respect of the presentations they make to the committee. This means that they have an absolute defence against any defamation action for anything they say at the meeting. However, they are expected not to abuse this privilege. It is my duty as Chair to ensure that this privilege is not abused. Therefore if statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. I remind members of the constitutional requirement that they must be physically present within the confines of Leinster House in order to participate in the public meetings. For witnesses attending remotely, there are some limitations to parliamentary privilege. As such, they may not benefit from the same level of immunity from legal proceedings as a person who is physically present. 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 Houses 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 would also like to advise members and witnesses that we will not be commenting on particular planning applications that may be live at the moment or going through judicial processes. I now invite Mr. Kelly to make his opening statement on behalf of the CCMA.

Mr. Kevin Kelly

I thank the Chairman and members. I am chief executive of Mayo County Council and a member of the CCMA committee on housing, building and land use. As the Chairman outlined, I am accompanied by: Ms Mary Henchy, director of services, Dún Laoghaire-Rathdown County Council; Ms Mary Conway, deputy city planner and head of development management, Dublin City Council; and Mr. Michael Rainey, director of services, Carlow County Council.

On behalf of the CCMA, I would like to thank the committee for its invitation to appear. We look forward to assisting the committee in its discussion on the general scheme of the planning and development (amendment) (LSRD) Bill 2021.

The introduction of strategic housing developments, SHDs, in 2017 was intended to provide a fast-track mechanism for planning permissions for housing schemes of 100 or more units and was based on the strategic development infrastructure legislation. Under the SHD process, the local authority makes a significant input into the overall process through pre-planning with the applicant and An Bord Pleanála. The local authority provides An Bord Pleanála with an assessment and recommendation on the SHD proposal, including third party concerns and a summary of matters raised by the elected members at area meetings.

The sector welcomes the intention, under the planning and development (amendment) Bill, to return decision-making on large-scale housing developments to local authority level and to reinstate the opportunity for appeals of decisions made. As the committee is aware, planning authorities were always required to operate within statutory deadlines and the heads of the Bill now extend this to the pre-planning process. I will set out some comments on the various heads and the explanatory notes provided.

Head 4 of the Bill amends the legal definitions of section 2 of the principal Act. The CCMA welcomes the increase in the gross floor space for other uses but we would have some concerns if those other uses were limited to commercial uses, as referenced in the explanatory note. The CCMA's preference is that this increase in gross floor space for other uses should include both commercial and other non-residential uses.

Head 5 of the legislation makes section 247 meetings at the pre-planning stage for a proposed application mandatory and requires the applicant to request a final pre-planning meeting and the local authority to provide written advice following on from that meeting. The heads of the legislation set out time limits for the local authority in terms of its engagement with the applicant. The sector does not have difficulty with the principle of this but it will have resource implications across several disciplines within a planning authority.

Head 6 provides for a new section 247A. The CCMA has concerns regarding paragraph 4, which makes reference to the knowledge and expertise of officials attending meetings. The placing of such a requirement in primary legislation should be considered carefully. The key issue will be the availability of staff within a tight four-week timeframe rather than a skills issue. The CCMA requests that consideration be given to clarifying head 6, paragraph (8). Pre-planning is without prejudice - while it is appropriate to give advice, the legislation should be clear that the decision is made having assessed the application and made a recommendation to the decision maker, not at pre-planning stage. The CCMA acknowledges the apparent intent that neither section 247 nor the proposed section 247A process shall prejudice the performance of the planning authority of its respective functions under the principal Act, but this should be clearer. The CCMA highlights concerns under head 6, paragraph (10) that advice, in some circumstances, may not be valid for a year where policy changes, development plan changes or other changes occur, such as adjoining sites getting permission which may impact on the advice given. The legislation currently puts no limitations on the validity period. A small but relevant point in paragraph (16)(b) refers to public and private open space provision. It should also include the term "communal" as communal space is used in higher density schemes.

Head 8 and the insertion of a new paragraph into section 33(2) raise significant concerns for the CCMA with the limiting of further information, perhaps even to issues not addressed at pre-planning stage. This would appear to run contrary to pre-planning being without prejudice to the planning application itself. The sector wishes to clarify that further information is only requested where a planning authority considers the proposal has merit and has the potential to be granted permission. The sector has concerns that limiting the further information which may be requested by a planning authority may well lead to more applications being refused.

The sector would welcome a fee being introduced for pre-planning meetings as set out in head 11. The proposed process will require additional technical and administrative resourcing by planning authorities and providing an on-demand service with these statutory timelines will be challenging. While not referred to, it is assumed that the SHD fee structure will be continued but will be amended to take account of the increased workload of local authorities. The timing of the implementation of the amended Bill and its alignment to the new development plans being drafted throughout local authorities is welcome and the CCMA notes the timescales proposed for the transitional arrangements.

The CCMA broadly welcomes the measures in the planning and development (amendment) (large-scale residential development) Bill. With increased clarity and reduced ambiguity in some instances, it will allow local authorities to deliver on the Government's objectives in respect of housing provision.

Chairman

Thank you, Mr. Kelly. I now invite the representatives from the Construction Industry Federation, CIF, to make their opening statement.

Mr. James Benson

I thank the Chairman and committee members. I am accompanied today by the director general of the CIF, Mr. Tom Parlon. The Irish Home Builders Association, IHBA, is a constituent association of the CIF. We represent hundreds of homebuilders of all sizes across Ireland and support Irish homebuilders to deliver quality affordable homes to homebuyers. A priority for the CIF and the IHBA is to deliver much-needed homes for those struggling to access the market and find suitable accommodation.

The past number of years have been particularly difficult for aspiring homebuyers who have struggled against the challenges of a lack of supply and affordability. As members of the committee will be aware, much of this has been the result of well-documented issues with a lack of investment in infrastructure which created viability issues and ultimately placed an unfair onus on first-time buyers and new home purchasers to fund upgrades to the benefit of the wider community. Critically, our planning system has witnessed relatively little change in some 20 years and requires holistic reform. The lack of speed and certainty within the planning system led to the introduction by the then Government of the strategic housing development, SHD, process in 2017 to provide a fast-track mechanism for planning permission for housing schemes of 100-plus homes. Essentially, it was hoped that with mandatory timelines, together with seeking permission directly from An Bord Pleanála, it would lead to a greater number of applications for large-scale developments and a timelier commencement of planning permissions.

Prior to the Covid-19 pandemic, the construction industry was on an upward trajectory with substantial investment planned to result in a steady increase of annual housing numbers across all tenures. IHBA members continue to report strong demand not least due to the fact that we have seen the under-provision of some 80,000 homes over the past five years alone. However, despite pent-up demand, the industry is witnessing a concerning slowdown in planning permissions. The number of planning applications submitted during the first quarter of 2021 in terms of units is down 29%. While some of this significant decline is likely a direct result of the restrictions imposed over the first quarter of 2021 arising from the pandemic, it has also been caused by the uncertainty, risk and cost of planning, which means many homebuilders have had to take the decision to hold back potential applications.

Granted schemes were also down some 26% and commencement notices lodged down 44%. Well-documented factors impacting the planning system, most notably the substantial rise in the number of judicial reviews taken against SHDs, have resulted in many schemes being substantially delayed or quashed entirely in the courts. The processing of applications has also been impacted by recent referrals to the European Court of Justice and has resulted in many of our members being forced to indefinitely shelve large-scale housing projects. It is estimated that somewhere in the region of 75,000 potential family homes could be at risk as a result of these judicial reviews and referrals.

The industry welcomed the review of the SHD process and the Government’s recognition that further change is required. We are glad to see the draft planning and development (amendment) (large-scale residential development) Bill. It must be noted that the draft transition away from SHD and specified timelines do not currently align. The actual time taken by An Bord Pleanála to issue opinions does not allow sufficient time for applicants to review its comments and lodge an application in advance of February 2022.

The proposed new scheme needs to address the impact of appeals, which have hampered the SHD process. While no one would question the right of appeal and the need for a robust process for third parties, it is universally acknowledged that we are in desperate need of housing and the number of delayed or quashed developments speaks for itself. If the new scheme is to be effective, the local authorities and An Bord Pleanála should be fully resourced to meet the mandatory timelines set out within the Bill. Early interaction and mandatory response parameters from the prescribed bodies should be used to determine capacity and any technical issues at any early stage in the process.

Currently, planning permission is no guarantee of viability. While it may not be the ultimate rationale for grant or refusal, a discussion on economics and viability of any development is required at an early stage. It is for this reason that we have a high level of delayed permissions yet to commence on site. The issue of economic viability may be best addressed at the county development plan preparation stage or potentially at pre-application stage.

We welcome the recent publication of the Housing for All plan from the Government and believe it goes a long way towards meeting the challenges we currently face in terms of supply and affordability.

The numbers contained in the plan are ambitious, but we believe they are fully achievable. Many of the actions in the plan will require additional capacity within and outside the sector. The CIF and the Irish Home Builders Association are committed to delivering these much-needed quality and affordable homes across the country and our members will work hard to supply the homes. However, it is critical that issues such as planning and infrastructure, which are impeding delivery, are tackled.

Chairman

I invite Dr. Norton to make his opening statement.

Dr. Conor Norton

I thank the committee for inviting the Irish Planning Institute to be represented at the meeting today. I am president of the institute and I will do everything I can to assist the committee with the views of planning professionals regarding the proposed legislation for large-scale residential development.

To give a brief background, the Irish Planning Institute is an all-island professional body representing planners engaged in physical and environmental planning in Ireland. Our mission is to advance planning in the interests of the common good by serving, improving and promoting planning and the planning profession. The institute has members working across the system - in the private sector, the public sector, for developers and for planning authorities in agencies such as the Office of the Planning Regulator, An Bord Pleanála and so forth. The institute is a broad church of professionals. Collectively, the membership has a great deal of experience not just with dealing with planning applications generally but also dealing with larger scale applications and the process of strategic housing development over the last number of years.

The principle of subsidiarity is central to governance in planning. We have always defended this principle whereby, insofar as practicable, local planning decisions are made in an open and consultative way by competent authorities at local level. In this regard, we welcome the new measures for planning reform outlined in the proposed legislation as an important and necessary step in rebalancing the planning system in Ireland and restoring this important subsidiarity in decision-making. This is a critical issue.

As president of the Irish Planning Institute, I am pleased to have had an input into the initial working group for this legislation with the Department to consider issues that are pertinent for the replacement of the SHD process. The institute notes that many of its key recommendations to the group about incorporating successful elements in the procedural aspects of SHD, which provide greater certainty in terms of timelines and improved pre-application consultation processes, are incorporated in the general scheme. We welcome this. It is important to note that the legislation being discussed today must be considered within a broader context of a general recalibration of the planning system. As with all legislation in planning, it is important that these changes to development management processes ultimately deliver greater efficiency and consistency in development management processes across different local authorities. Along with new proposed legislation, we contend that revised planning guidelines for development management are now urgently needed.

We must also continue our transition to a democratic and collaborative plan-led system. Better and more detailed plans, at local level in particular, will provide greater certainty for development management and reduce the often adversarial nature of the development management process. This will require much greater planning effort in the future. The improved and extended processes required for large-scale residential development planning applications combined with more resourcing for plan-making will have significant resource implications.

While the institute welcomes all new measures to increase efficiency and improve the quality of planning applications and planning decision-making, it is acutely aware of chronic under-resourcing of planning departments at local level in Ireland. Some 28 out of 29 planning authorities that responded to our recent survey on planning resources cite under-resourcing of planning departments as the single biggest challenge facing planning in Ireland. That view is equally shared by the vast majority of planning consultants working in the private sector. We strongly urge the Department of Housing, Local Government and Heritage, the Local Government Management Agency and other relevant bodies to prioritise the resourcing of local authority planning departments as a matter of urgency to ensure the smooth implementation of this new legislation.

In summary, we broadly welcome the legislation as part of a larger process of recalibration of the planning system. We highlight the urgent need for adequate resourcing of the planning system and, in particular, of local authorities. As an institute, we restate our desire to work proactively towards solutions for pressing problems in planning and housing along with colleagues in other built environment professions. We will continue to collaborate at every possible level with all stakeholders and will support every effort at national, regional and local levels to ensure there is a properly functioning and efficient planning system that works for all citizens.

I again thank the Chairman for the opportunity to come before the committee today. I will endeavour to respond to any and all questions members may have. However, if there is additional information we need to provide at a later point, we will be pleased to do so.

Chairman

I thank Dr. Norton. Finally, I invite Mr. Mandal to deliver his opening statement on behalf of the Dublin Democratic Planning Alliance, DDPA.

Mr. Robin Mandal

I thank members for inviting me and my colleagues to appear and I hope we will be of help to the committee.

The DDPA is an alliance of civic groups such as District 7 and the Rathmines Initiative. We are also involved with 60 residents' associations representing more than 200,000 citizens. We have housing and planning specialists, architects, statisticians, academics, social professionals and individual citizens. That is our alliance. We seek to be their voice and the voice of those who need housing and whose voice is not heard in any of the debates. We support development that is sustainable, planning that is democratic and housing that is affordable.

Reportedly at the behest of the property industry, two fundamental legislative changes were made to the planning process since 2015 which have undermined the development plan process and citizens’ trust in the planning system. Large-scale residential development, LSRD, is part of the end of that element and we hope we might be able to address it. The first of these changes was made when the then Government changed the planning system in order to speed up grants of planning permission through the SHD process. This was done on the false premise that it would increase housing supply through the SHD legislation. However, all it has done is increase the cost of housing and land. As of 1 September, 70,866 units had permission and commencement notices had been served on only 10,711 apartments or houses. The number under construction is fewer. Members should remember that this is the situation after five years of this process that was supposed to fast-track delivery.

The second change was the insertion into planning legislation of ministerial directives, rather than guidance, under section 28(1C). These have opened the floodgates for material contraventions through development plans, making those plans redundant. These special planning policy requirements, SPPRs, have facilitated applicants for permission to drive a coach and four through any democratically constructed development plan, thereby alienating the citizen, who is now left without a voice.

Massive damage will be caused to the inhabitants of these SHDs or SPPRs through: the lowering of standards; the monotony of social mix; the extremely high cost of construction, with Part V costs, for example, averaging approximately €500,000 for each of these units; the anti-social nature for families of excessive height; and the damage caused by excessive densities that are far beyond those of the slums and tenements of the 20th century. One scheme of which I am aware has more than 600 units per hectare, which is ten times the average in Copenhagen, for example, and four times more than that in Paris, which is the densest city in the world. It is even beyond the density in Dhaka in Bangladesh. Paris has no high-rise development. Not only is the new construction inadequate, its impact on the receiving environment will destroy the qualities of the places in which we will live, which is contrary to the core values of the national planning framework.

What we now have is a system run by developers and their agents. The independent reports that accompany and justify material contraventions, and which are all supportive of the applications, are exercises in advocacy rather than assessment. In other countries, assessments such as these are carried out by the planning authorities rather than the applicant. We see the solutions to housing need and sustainability, both physical and social, as being through holistic planning based on empiric data and public participation. We support densification and the compact city, neither of which require height, reduced living standards or unaffordable costs for rental or purchase.

I refer to the heads of the Bill that are to hand and the regulatory impact assessment.

It saddens me that, in my opinion, the RIA fails to use any empirical data, analysis or assessment to justify its preferred option of LSRD. The simple option of reverting to the pre-SHD regime is dismissed without due consideration. There is no recognition that there is no connection between fast-track planning and the delivery of housing. There has never been evidence to support that theory and the attempts to prime the market have failed in terms of supply, as well as in the damage inflicted on the receiving environments and trust in the planning system.

The heads of the general scheme are analysed in the document we have. In principle, we welcome the reversion of decision-making to local planning authorities, which will need more resources.

We believe the problems of the planning system are rooted in the centralisation of power through policy and ministerial directives that supersede development plans and alienate the citizen from the planning process. The proposed LSRD process will allow for the continuation of this alienation to the detriment of society, nor will the cost of this alienation result in any affordable housing for our population.

There is no need to have any replacement for SHD. It was brought in as a temporary measure for two years to expire in 2019, and was extended to expire in 2022. It should, at worst, wither or, at best, be guillotined as the failure it is. It will be a huge breach of trust to the citizen to see this failed process replaced as a permanent feature of the planning system.

I thank the Chairman for allowing us to give our perspective on the legislation. We hope to be able to engage with the joint committee again in the future. We believe we have a lot to contribute. Our message is simple: we do not need any fast-track process to supply affordable housing. There is no need for a fast-track process in any part of our planning system. Complying with development plans gives us that; contravening them delays the system. All planning for everybody should be open, transparent, equitable, efficient and suitably resourced. It is important for us to say that, other than the transitional arrangements for SHD, there is no need for the legislation. We should revert to the properly resourced planning system for all with the timelines included in this legislation. I thank members for their time and welcome any questions.

Chairman

I thank Mr. Mandal. I move on to the members' opportunity to comment and put questions to our witnesses. We have many witnesses today with much experience and competencies in various aspects of planning, architecture and development. I ask members to keep to the Bill in front of us. We are carrying out pre-legislative scrutiny on that. It is not necessarily an autopsy of the SHD process. This is the new process. I call Deputy Ó Broin.

Deputy Eoin Ó Broin

That is not the usual running order but I am happy to go first.

Chairman

I am going by meeting 2 running order and the Deputy is the next available on that list.

Deputy Eoin Ó Broin

That is fine. I thank everybody for their presentations. In particular, the broad approach Mr. Mandal outlined from the Dublin Democratic Planning Alliance is one I have advocated for a long time. If we are able to incorporate the concerns and recommendations of the IPI and CCMA into the legislation, we will end up with a better system than that which existed pre-SHDs. Many of us asked for some of the changes that the CCMA and IPI are now asking for back then. We could end up with even better legislation if we take the advice of the planning professionals in the room.

I fully endorse Conor Norton and the IPI's call for greater use of place-making. The best way to reduce the volume of judicial reviews, third-party opinions and appeals is to involve people in the community at the earliest stage and place-making is the way to do that. Mr. Parlon and Mr. Benson would do well to start including that kind of call in their proposals. We all want to make sure good quality planning applications are submitted and approved as early as possible and the shift to place-making is key.

I will single out three of the CCMA's concerns because I share them. It might help if the association came back to us prior to Committee Stage with suggested wordings for those because it has much more experience on the legislative end than some of us.

Specifically on the issue of resourcing for the pre-planning application and head 6, subsection (10), that one-year period after the pre-planning and before the application seems exceptionally long. I cannot see any rationale for it, and the Department did not provide any when asked about it on Tuesday.

I share the concern of the CCMA with respect to head 8, section 33(2), on the restrictions around requests for additional information post the substantive application. I am particularly concerned that this could result in a series of legal challenges, particularly for failure to meet some of our obligations under European environmental or water directives if additional information cannot be requested on those areas.

With respect to the Construction Industry Federation, I share the desire of Mr. Benson and Mr. Parlon to see the maximum possible level of new home building. It is disappointing that Mr. Benson's submission does not deal with the elephant in the room but, thankfully, Mr. Parlon dealt with it, that is, the very low level of commencements on the grants of permission under SHD. The figure for commencements at scheme level is only 34%, but it is actually only 14% on an individual unit level. While we may have different views on why those commencements have not happened, the fact that Mr. Benson's submission is silent on that undermines the willingness of some of us to engage with the other issues that he raises because lack of commencements is a much bigger problem than judicial reviews or third party opinions.

My questions are few because most of the issues have been dealt with in the submissions. If the CCMA has an indication of the kind of additional resourcing its members need to be able to able to cope with this I would like to hear some thoughts on that. If Dr. Norton has any additional detail on the best way to advance place-making - I know the IPI has been looking at models beyond the local area plans - and he can share some of that with us at this stage that would be really helpful. My next question is to Mr. Benson. I share his desire to see the level of judicial reviews reduced but would he agree that the best way to do that is to have greater public participation in place-making and planning at the earliest stage? As a result of that, for example, would it not be good to see in this legislation some level of public participation at the pre-planning stage rather than provisions that try to restrict people's access to appeals, judicial reviews, particularly when they are concerned that plans are not in the interests of our cities or its citizens?

Chairman

I ask the representative of the CCMA to respond to the first question on resource requirements.

Mr. Kevin Kelly

It is difficult to say, there are a number of issues. Resourcing is an issue for local authorities generally. What we can see in terms of the NOAC indicators on resourcing, taking the cost per capita of planning services, it is largely a staff cost. There will be some legal and other costs associated, but largely it is a staff cost. The average cost varies between €30 and €45 per capita. It varies across local authorities. In the context of this discussion on this particular Bill, the impact will be on some local authorities more than others. For example, Mayo County Council is currently considering its first strategic housing development whereas the Dublin authorities may have to consider 30, 40 or 50 in one year. The CCMA does not have a definitive figure on the resource requirement but there is general consensus, as has been heard from the various testimonies, that there is a resource deficit in respect of the planning function in local authorities generally, on which we would be happy to work with the Department to resolve because we all want a better planning system.

Chairman

I thank Mr. Kelly. There are only 40 seconds remaining. I ask Dr. Norton to comment on place-making. I have no doubt we will get to the question to the CIF later.

Dr. Conor Norton

It is the idea of giving more certainty to the development management process. That means that in certain areas and certain instances our plans need to be of better quality, more consultative and more detailed such that the sort of outcomes that we can expect from planning applications are better known.

Some provisions have been included, and that discussion is starting through the Housing for All policy. The urban development zone may be one option there. That is absolutely the case. We need to reduce probably the wide level of judgment that is left to the development management process and try to deal with many of the issues that come up in development management through a plan-based rather than a development-management approach.

Chairman

I thank Dr. Norton. I will move on now to the Fine Gael slot. Is it Deputy Higgins?

Deputy Emer Higgins

Yes. I thank all of the representatives from all four groups who are before us this morning. It is great that there is such broad representation. We have had the construction sector, the planning sector, residents groups and the chief executives of local authorities before us. Each of them has brought a different lens to this legislation, but there is a huge amount of common ground too. It is common ground that they share with most of us politicians as well. The main themes I am hearing are frustration with the SHD process and concerns about resources in local authorities' planning departments and whether the latter are fit for purpose in the context of this new legislation. The committee met on Tuesday last to discuss this topic and those were the big themes that came from that meeting as well, from both guest speakers and members.

I was previously a member of South Dublin County Council. I saw first-hand the resourcing issues that are there when it comes to planning in the context of enforcement and applications. It is such a huge area, and putting additional responsibilities and tighter deadlines on staff without increasing resources will not work for anybody.

I would like to ask the CCMA a hypothetical question. If the local authorities were to get a budget for additional resources - which we all hope they do - be it for certain local authorities or right across the board, how quickly does it think the local authorities could ramp up planning teams. The CCMA representatives also queried the commercial use change. I would like to understand better what they mean when they use the term "non-residential". Are they talking about community use or is it wider than that?

I am please that the IPI had the opportunity to shape this legislation. I note that it also has concerns from a staffing perspective.

I note the CIF's comments on viability, a matter that Mr. Benson mentioned in his opening statement. I would be interested to hear how he feels viability could be incorporated into development plans.

I thank the Dublin Democratic Planning Alliance for sharing its perspective on this. I was delighted to meet its representatives recently and to hear their views on the planning system. I agree that SHDs were a temporary measure that were brought in to help alleviate the housing crisis. It is a crisis we are very much still in the midst of. We need something to replace SHDs. We need to build housing quickly, safely and efficiently. The planning authorities are best placed to make decisions in relation to planning applications. I am pleased that that will be the essence of this proposed Bill.

In summary, my questions for the CCMA are on the resourcing element and the non-commercial or non-residential aspect. Will the representatives from the CIF comment on viability and how that could potentially be incorporated into development plans.

Chairman

I thank Deputy Higgins and call Mr. Kelly.

Mr. Kevin Kelly

I might ask Mary Conway to speak briefly on the additional 30%.

In terms of resourcing, we can move quite quickly. Local authorities across the country will have panels in place. We are fairly flexible in terms of our approach. We are used to moving resources between forward planning enforcement and development management and then we can use the plethora of grades that are there within the planning function. With additional funding in place, I think we could move quickly to deal with that issue.

Ms Mary Conway

In the context of the increase in non-residential uses by 30%, the CCMA obviously welcomes that. It will help to deliver on the concept of the 15-minute city. By other uses, we would mean a range of not only commercial uses but, say, community uses and institutional uses which would help to deliver much more sustainable communities where people will want to live and to work.

Deputy Emer Higgins

Super. I thank the witnesses so much. That sounds great.

Chairman

I thank Ms Conway. We will go to the CIF regarding the point on viability. Deputy Higgins, was that the question?

Deputy Emer Higgins

Yes.

Mr. James Benson

Perhaps I might be able to answer Deputies Higgins and Ó Broin's questions at the same time. Some of our comments are contained within our submission - on pages 4, 5 and 7 - and relate to commencements. We share equal frustration regarding the level of commencements.

That brings me to a point on the economic viability assessments that we do. Everyone will recognise that planning is not a guarantee of viability in our current market. A large number of external factors and unknown costs that are revealed through the planning process become apparent. Unfortunately, we get to a stage where a large number of granted permissions are no longer viable. That is the reason they have not commenced.

It also needs to be recognised that while the scheme has been in place since 2017, there is a five-year span for commencement of a number of activities. A grant of permission, in itself, does not mean one is likely to see a commencement within a six-month period. It can take 12 months, and 18 months in some cases, to meet one’s obligations, ensure the infrastructure is in place and secure the funding that is often critical for the delivery of these projects. That is one key area.

The economic viability assessment, while it should not be the ultimate reason or rationale for granting or refusing any project or application, needs to come in to an earlier part of the conversation, potentially at pre-application stage. It is an inefficient use of resources, time and expertise on the part of both parties and all sides to go through a process at the end of which something is not built or brought forward. In order to ensure that the application deals with the requirements set out in national policy, the development plan, the local area plan, the local development plan, or whatever the case may be, similar to an outline permission, all of the requirements should be out in the open and set out at an early stage. These include the requirements of the prescribed bodies or of the internal departments within the planning authority. It could be seen at that point in time whether a project would be viable and worthwhile bringing forward. That is a key area.

On judicial reviews, which were raised by Deputy Ó Broin, we agree that the process should be very robust and there should be an opportunity for everyone to be consulted. That is only right and proper and we would not have any objection to that. We believe there is an education piece here for the general public. While the early stages of county development plan drafting can be quite abstract, these should be an opportunity for people to get involved in the consultation. Councillors, the elected members, make the development plan, the planning authorities are the policymakers and the making of decisions on the application are delegated by the executive. However, at that very early stage, we need to see public consultation so that members of the public are aware what will happen when a particular area of land is zoned for a particular purpose and have an opportunity to be consulted.

Chairman

I apologise for interrupting. We have reached seven minutes for this slot but we will return to the issue. I will contribute now in the Green Party slot.

It is an indication that members find much common ground on these issues that four or five of the 15 questions I intended to ask have already been asked. There is, therefore, good agreement on what needs to be addressed in this Bill. I thank the witnesses for their submissions, views and experiences which assist us in crafting this legislation.

On economic viability, which Mr. Benson addressed, I will go further on that and speak from experience. The developers and investors would have a good sense of what is viable. Why would they then go through the lengthy and expensive process of drawing up designs and submitting planning applications if they do not believe the project is viable? Does that have anything to do with the value that would accrue to the land if planning permission were secured?

Mr. James Benson

Affordability was mentioned earlier. Zoning, infrastructure and planning, or ZIP, are key. We will unlock greater delivery by tackling all of those key elements.

On the Chairman’s question regarding economic viability assessment and why someone would continue in a process where there is uncertainty, I will give two examples to illustrate my answer. For homebuilders and those within the industry, certainty lies when we get to site. We know from our members that they can deliver a home pretty much in 16 weeks, from putting in foundations, to a key being turned in the door and having a unit conveyanced. Unfortunately, in advance of that, there can be a process of years or decades for zoning and infrastructure to be put in place and to get through the planning process. That all takes time and money, both in monetary and resources terms.

Infrastructure is a well-documented issue. The removal of water and wastewater services from the remit of the local authorities in 2017, together with the lack of funding forthcoming for Irish Water, means a number of significant infrastructural upgrades are required in the public area to allow for connection to private or publicly delivered developments.

In some cases that can cost anything from zero to €25,000 to €30,000 per unit. In a lot of cases that information will not be known until after going through the planning process and after confirmation of feasibility is received, and then a detailed survey, procurement, tendering and bill process follows. Only at that stage will it be known what-----

Chairman

I thank Mr. Benson. That answers my question.

I will turn to the CCMA. It has covered the question about the 30% commercial. It is a reasonable amendment to the Bill to provide that flexibility where we want that concentration of high-density development but with those services that make those units homes and not just houses. That valid point has been made. I refer to point 10 under head 6. Could Mr. Kelly briefly explain to me why certain advice may not be valid for a year? Is it because of other developments or other changes that may happen in the area?

Mr. Kevin Kelly

A variety of things can happen over that timeframe. As just a simple example, there could be a change to the local area plan. The members may exercise their democratic right to make a change to the zoning. The proposal seeks just to allow some degree of flexibility such that rather than the opinion being de facto valid for that period, there is some leeway in that something might change with the best will of all concerned.

Chairman

I thank Mr. Kelly. The committee would appreciate it if he could suggest some wording that would give that flexibility or address, as needed, that proposal relating to the one-year period. At a later stage if he would like to submit that to us in his own words, we will see if that would sit with the legislation.

I have a question for Dr. Norton and Mr. Mandal. We speak about development plans. First, there needs to be surety in the system. If a developer is going in, he or she needs to be relatively sure of what the constraints and the zoning objectives are, what the local authority has deemed to be suitable planning for the area and what the councillors have passed. We all agree with that process. There has been an attempt to try to exceed that in many cases, and that is what has led to a lot of difficulty with SHDs of higher densities and other issues. Do Dr. Norton and Mr. Mandal think we need to go towards much more detailed area action plans or local area plans - master planning - so there is a bit more detail rather than just a colour on a map denoting a residential density and a couple of zoning objectives that may be open to interpretation? It feeds into place-making as well.

Dr. Conor Norton

That is important and was in our submissions on the replacement of SHD. We also made it clear that improving development management is also about providing certainty at the earlier stage in the planning process, which is the plan-making stage. It is quite simple. If there is a vague plan, there is much greater scope for a broad range of interpretations and different approaches to how land might be developed. That might be appropriate in certain circumstances, but in key areas, strategic locations or maybe complex locations, we need to move to a much more detailed level of plan and better quality plans with a lot more place-making, urban design, transport infrastructure and community infrastructure. All those issues need to be considered as a whole and through a local plan-making process that is consultative and collaborative. That means the local community, elected representatives, landowners, planners, etc. There is a great need to do this. As I mentioned earlier, I have noted that among the provisions in Housing for All there is a discussion about urban development zones or something of that nature, and there is certainly big support for that among the planning profession. We would like to see that happen.

Chairman

We have just under a minute. I ask Mr. Mandal to be brief in his response, please.

Mr. Robin Mandal

Of course. I will be as brief as I can. Regarding the development plans, where we are coming from is that the development plan process is crucial to all this, and what has caused all the problems is that it has effectively been torn in half through a lot of this well-intentioned legislation, particularly section 28(1)(c), which basically makes nothing determinate, so, yes, I agree that there has to be a little more detail in development plans.

The resources will be very hard to apply. We have got to be honest about that, but the simple tools, such as plot ratios, site coverage, densities and heights, do not require too much. It just needs some level of certainty for everybody involved, from the developer to the citizen in order that you know what you are dealing with and people can buy into what you are doing. That is as quick an answer as I can give. Yes, we need resources but we should not forget the old things that have dealt with much of the development in our towns, cities and villages, which has been very good over the years.

Deputy Richard O'Donoghue

I thank the witnesses. I was elected to represent County Limerick. I have been involved in construction all my life. I was a councillor for six years before I became a Deputy. What I see from the planning process is that there is very little equality when it comes to planning permission and developments within towns and villages. Under an all-Ireland approach, everyone in this country should have a right to live in the area where they were reared or where they want to live. What is stopping this and many of the planning applications is a lack of infrastructure. There cannot be planning without infrastructure. I have been highlighting the lack of infrastructure for a number of years. I will use County Limerick, which I know best, as an example.

We can look at the example of a place where there is planning permission for 100 houses. That project cannot go ahead because of a lack of infrastructure and the fact that things are not in place. I do not have an issue with either Limerick City and County Council or the planners who work there. They are both very transparent and they want to encourage building. When I carried out a survey of the infrastructure in County Limerick, it showed that 10.7% of towns in Limerick have neglected infrastructure in order to have more development. My analysis showed that the towns in question are located within 25 minutes drive of Limerick city. When you leave the area in question, you will find that infrastructure has not been invested in and that the planning process has come to a stop.

I will give an example of what I am talking about. Adare is located within 12 to 15 minutes of Limerick city. Adare has capacity. A 100-unit development at Croom for which there is planning permission has been held up due to a lack of infrastructure in a certain area, which I will not go into. Kilmallock has infrastructure in place and is located 25 minutes from Limerick city. In Hospital, Kilfinnane and Oola, however, maximum capacity and commitments mean there will be no increase in capacity. The existing system will be upgraded to cater for the capacity that is there but there will be no increase in capacity in the future. That is in east Limerick. In west Limerick, in Dromcolliher, for example, there is no capacity. Newcastle West, which is located 25 minutes from Limerick city, has capacity but out towards Foynes and on to Askeaton - which has been looking for increased capacity from successive Governments for 32 years - and Abbeyfeale, there is no capacity.

Looking at the local development plans and the infrastructure that has been put in place by successive Governments, they have only looked at areas that have capacity and large towns. They have not looked at smaller towns and villages to give people equality and the choice to live in Limerick. Doing so would help to bring down emissions. If there is infrastructure, there is more industry. If there is more industry, there is employment locally and fewer people travelling. Everything seems to be centralised into areas that have capacity.

If that is the case, only one third of towns in Limerick would have capacity, with the rest of the county being left with the exorbitant cost of trying to get good employment in place with no infrastructure. The planning has to start with infrastructure, as well as equality in providing that infrastructure, within our counties. Planning needs to look at the issues with a holistic view, not just focusing on cities and large towns that have capacity but also outside of them, in order that we can give people in other areas within counties their choice to live in a town or village, to seek employment within those areas and to increase industry there.

I have listened to what other members have had to say today and they are all coming from a city approach. I want to ask the witnesses where their county approach is and their plan for people like me, who live in rural areas. I live eight minutes from a bypass and can be in Limerick city within 20 minutes. However, when I look around me, I see no forward planning for growing towns and villages. None of them has infrastructure and there is no plan for infrastructure, which means there is no plan going forward for equality for everyone in Ireland. I would like one of the witnesses to address that question.

Chairman

There is approximately one minute left in this speaking slot. Does Deputy O'Donoghue wish to indicate which witness he would like to answer his question?

Deputy Richard O'Donoghue

I will put it to Dr. Norton and see what he can do. He spoke about an all-Ireland approach but I did not hear counties being mentioned. My question is about infrastructure for towns and villages.

Dr. Conor Norton

I will try to answer. It is a fairly big question, if the Deputy does not mind my saying so. He is right that, insofar as possible, we should be able to accommodate communities and allow them to grow and flourish. However, there is no absolute right to that. I would say that our biggest responsibility, of course, is to sustainable development. We have a responsibility now to make sure we are living sustainably and contributing to that large effort.

One of the key issues at the moment is the national planning framework, which sets out a plan for balanced regional development and identifies the important role of cities in developing and driving the development of the regions, as well as a certain counterbalance to the city, and the importance of that in terms of viability of the regions etc. That is elaborated in the regional spatial strategies as well, where the regional assemblies identify a series of larger towns and county towns that have a key role in that regard. As the Deputy knows, it is up to the democratic county or city development plan to look then at how that settlement strategy and other core strategies are applied across the counties.

Chairman

I am sorry to interrupt Dr. Norton but we are over seven minutes. I must move on to the next speaker, who is Deputy Cian O'Callaghan for the Social Democrats.

Deputy Cian O'Callaghan

I thank the witnesses for attending the committee. The Chairman asked an excellent question at our meeting on Tuesday about why we need fast-track planning and what the evidence base is for it. The representatives from the Dublin Democratic Planning Alliance have also raised the issue that this evidence has not been produced as part of the regulatory assessment. Indeed, the reply the Chairman got on Tuesday from the departmental witnesses indicated that one of the reasons is to answer claims that planning is leading to delays or is part of the problem and that it was not necessary that the evidence be in place.

I reread this morning the research done by Waldron and Lennon on the regulatory capture that led to the disastrous strategic housing development process coming into place. One of the interesting points I noticed in that research is that it refers, near the start, to the development industry identifying the very real problem of getting forward finance and early-stage finance and the risks around buying land, planning and all of that. I have a question for the witnesses from the CIF. Clearly, the solution that was put forward by some of the industry representatives, namely, fast-track planning, absolutely did not work and was disastrous. In the context of identifying planning and fast-track planning as the answer to the problems, has the CIF looked at alternatives such as much more active land management by the State to de-risk that aspect, infrastructure being put in place more quickly and other ways that the early stages of the building process - apart from planning - can be de-risked for the industry, which would bring down financing costs, make finance more available and make homes more affordable?

Mr. James Benson

I thank the Deputy for the question. This ties into what Deputy O'Donoghue has already raised. We need to see available land. As well as available land, there needs to be proper assessment of whether those lands are ultimately capable of delivering homes, as well as the provision of services. Can we activate those lands? Is the critical infrastructure in place to activate those lands? We equally agree that that has been an impediment for a number of years. Unfortunately, as previously mentioned, the separation of water services from the local authorities has meant that the policy, due to lack of funding into Irish Water, now places an unfair onus on the purchaser of a new home or a first-time buyer to pay for that infrastructural upgrade. While that may benefit the wider community, and that is to be welcomed, it puts an unfair onus on the first people into a development in a new area, or an existing area with a new development, to pay for those upgrades. We feel that that should be looked at. We need to see critical investment into infrastructure.

Deputy Cian O'Callaghan

I thank Mr. Benson. I have a couple more questions. This question is to Dr. Norton and Mr. Mandal. Dr. Norton is saying that a plan-based, rather than a development management process, is the way to go. I think we would all agree with that. However, I see a couple of key problems with this. First is the ministerial directives in section 28(1C), to which the Dublin Democratic Planning Alliance has referred. As long as that is in place, are we not left in a situation whereby, rather than getting plan-based certainty, local area plans and development plans will be undermined through the planning process? That encourages increased challenges, conflicts, speculation, and looks to get more and more units in. Is that not a fundamental part of the problem? I will leave it there for both witnesses to answer.

Dr. Conor Norton

As I have mentioned before, the balance in the planning system is a fairly delicate one. We see it swinging a bit like a pendulum. The change to the provisions in planning guidelines has swung the pendulum towards the centre. We have been very keen to make sure that a rebalance between the local, the regional and the national is in play. Certainly, there is scope to look at the provisions in section 28. There is a need to review the provisions, particularly around specific planning policy requirements, SPPRs; the uses of those going forward; and, whether they are necessary in the context of planning guidelines in section 28.

Mr. Robin Mandal

This comes to the core of what is wrong with planning. Until section 28(1C) is revoked, development plans mean nothing. Of the current strategy housing development, SHD, process - which will become the large scale residential development, LSRD - 126 are material contraventions. Many members have been councillors and know how hard it is to get a material contravention through. This can be done by the stroke of a pen. That is what is causing the alienation. Until that goes, we will still have numerous objections. Again, to put the judicial review in context, the number of apartments and homes under the SHD process that are under judicial review, as of yesterday, was 7,535. That number is marginally less than what is actually on-site. It is a small proportion and it is blown out of proportion. We need plan-led development to build communities. We cannot do it until the section 28(1C) goes. Then we get back to getting proper, decent guidance and not directives.

Deputy Cian O'Callaghan

Chair, if I have time, I have one final question for Mr. Kelly-----

Chairman

You will have time to ask the question, but we can probably get an answer towards the end.

Deputy Cian O'Callaghan

I want to draw attention to one of the points Mr. Kelly made, which needs a lot of consideration. He said that limiting the further information that may be requested by planning authority may lead to more applications being refused. I would have huge concerns around that potential part of the legislation. The additional information process can be an important part of it, especially in relation to large, complex, detailed applications. It is often where issues are teased out and corrected, so that a planning application gets permission. I want to draw attention to that.

Chairman

I also have that question written down so I think we will get to it towards the end. Moving on now to the Labour Party slot, I call Senator Moynihan.

Senator Rebecca Moynihan

I thank the Chairman. I thank the presenters for coming in to give a really good overview of this legislation. I also want to ask about head 8 in terms of further information not being allowed or addressed if it has not been brought up at pre-planning stage as I have great concerns about that.

I wish to address the issue as to why the SHD legislation came in to begin with. It was on foot of the construction industry stating that planning was the element that was delaying the industry and adding to costs. To a certain extent, when I saw the Construction Industry Federation complaining in its submission about the judicial reviews and using the same language in respect of 75,000 potential family homes being at risk as a result, I believe it is very concerning that it has not moved on from that. The fact that it undermined planning and the normal planning process through the SHD legislation has been what has led to the huge rise in judicial reviews. The commencement figures speak for themselves in that regard.

I am delighted to note the presence of Mary Conway from Dublin City Council, who is an exemplary planner and has been involved in a number of development plans at a city council level. Therefore, I take very seriously what the CCMA has put forward. While Ms Conway has addressed the increase by 15% to 30%, can the CCMA representatives flesh out whether they believe that should be specified? Should it be only commercial use or non-commercial uses, in terms of getting mixed use development?

I wish to put the following question to Ms Conway and Dr. Norton. One big concern is that by the time something reaches planning stage, communities are often excluded. They are often going through the planning process. If, however, we are to move to a development plan-based system rather than a development management system, how do the witnesses think the development plan process should be overhauled? As they know, the statutory timelines are very strict when it comes to development planning. If one does not include something at an early stage, one cannot then include motions at later stages of the plans. I have been involved in development plans where we had things such as master planning of sites that were thrown out afterwards once a landowner or a developer came in and it was changed at that stage. How do the witnesses think it should be overhauled? What would they like to see changed and updated about the development plan process?

Second, I want to touch on the issue of resources. Dr. Norton and Mr. Kelly and I think Ms Conway talked about the need for additional resources that are available and the need for local area plans, LAP. I certainly know that from a Dublin city perspective, there is a long list of areas that have to have local area plans and very short timeframes and resources are available to them. Can the witnesses see other alternatives being put into the development plans, which have a statutory and a legislative basis and perhaps are not as complicated as local area plans, that we could use?

Lastly, can the witnesses give some indication of what they would like to see included in the plans and guidelines for development management?

Ms Mary Conway

I might start answering Senator Moynihan's questions. Her first question was in relation to the new 30% threshold for non-residential uses or what are defined in the heads of the Bill as commercial. We have not suggested a particular cap or whether it should be, say, 15% commercial and 15% community. It is something that is worth considering and to which we can give greater consideration but I believe that if we are serious about our commitment to delivering the 15-minute city, we have to give active consideration to what that mix should be. It is important that we get both a mix of commercial and an element of community use involved, and obviously, some necessary institutional use if we want to make really sustainable communities.

That will vary from site to site. There are some sites in this city - I use the example of Dublin because I am most familiar with it - including major transportation hubs such as Connolly and Heuston stations, where we would be looking primarily at commercial and residential development. That is because of the need to capitalise on the investment already placed in major infrastructural projects, such as the Luas lines, train and bus services, etc. There is not one figure that we can come to but it is definitely something we can look at and consider in more detail before coming back with a response.

The Senator's second question concerned plan-making, which is very difficult. We find from our own experience that once the official stage of planning, such as a local area plan or a development plan, is started, the system is inclined to get bogged down in meeting deadlines rather than in doing the real job we should be doing, which is to carry out extensive consultation and engagement. There is a two-way process not just with local communities but other stakeholders in a particular area, which could be quite a broad range. We need to explore ways of having a more proactive engagement with those stakeholders and the communities to ensure there is genuine, proper and full buy-in from those people into a plan.

This is a very complex question and I have no easy answers now. It is something we must look at. There must be a loosening of the timeframe and there should be more time spent on the initiation of the formal structure, into the consultation process and working with local communities and stakeholders. I might leave the question of resources to Mr. Kelly.

Chairman

The resources question has come up a number of times and we might get to it in the final round, particularly the common questions relating to further information.

Senator John Cummins

I have a question for Mr. Parlon and Mr. Benson and it follows the Chairman's question. Excluding the strategic housing developments that have received planning permission in 2020 and 2021, which would allow for the 12 months to 18 months lead-in to commencement that Mr. Benson mentioned in his first contribution, we would still only have 47% commencement on SHDs, which is disappointing when we consider the housing supply issues we have. Is the federation in discussion with the owners of the other 53% of properties where permission has been granted to ascertain what their issues are? If not, could it carry out the exercise and perhaps liaise with the Department to see if there are common trends or themes?

There was mention of water and waste infrastructure issues, which are raised with me in my area in Waterford, particularly in the county area. What other viability issues have the witnesses and the federation members experienced?

Outside of Dublin, Cork and the Dublin commuter belt, have federation members gone the local authority planning route as opposed to going through the SHD process, keeping the level of units below 100, because they do not want the density requirements imposed by An Bord Pleanála if they go directly through the SHD route? That density equates to apartments, duplexes and terraces and there may not be a market for them in regional Ireland. Is that an issue and what is the opinion of the witnesses in that regard?

I want to tease out head 8 and the element of further information, although in a slightly different way from that of Deputy Cian O'Callaghan and Senator Rebecca Moynihan. Is it not the case that if the pre-consultation is as comprehensive as it is intended to be, further information should not be an issue? All those matters should be addressed in the pre-consultation phase so there should not be new issues raised at the further information stage. I wanted to add some balance to the question.

Mr. James Benson

I am happy to take that and I welcome the Senator's question. We have outlined the site servicing and activation of land as being key impediments, as it currently stands. We have previously sought an extension of initiatives, such as the site services fund which purely concentrated on roads and critical infrastructure such as water and waste water. There are other elements in terms of treatment of our lands, such as when we saw the move for a national development plan for brownfield sites which creates its own problems from contamination and soil stabilisation that is needed within those developments. It is not just about the critical infrastructure. We see from some of the assessments we have done on lands that are available and will be available in forthcoming plans that in some cases, only 25% of those future lands are currently serviced. That will bring its challenge as the new plan unveils and we look forward to what will be contained within the national development plan review for funding on that critical infrastructure.

There are other areas. I will invite my colleague, Mr. Parlon, to talk about one of the other constraints around labour and efficiencies that we could probably see. It is an important issue in the context of the constraints on the industry with regard to labour. It is recognised that a number of our own members and those within the industry have sought to go for 90 or 60 units because - I think everyone would agree - strategic development is not just 100 units. Strategic developments, in parts of our regions and rural areas, could be only 20 or 30 units. They have had to go down that route. In many cases, that is all that is viable or economic. That is what the need and demand in certain cases is. It is very important we see what the local interests and needs are. The expertise is with the planning authorities in those locations in terms of what should happen in those areas. I invite my colleague, Mr. Parlon, to speak on the labour issues.

Mr. Tom Parlon

There are labour constraints all over the place - not just in construction, but right across the board. When our industry was closed down earlier this year for almost three months, labour in construction, which is inclined to be quite transient, took off across Europe and the UK. The certainty in terms of future work that the new housing policy has brought, along with the imminent announcement of the national development plan and the climate change action plan, will attract back much of our diaspora that has gone working elsewhere. We will begin to attract some other players as well that were a very big part of the industry here, but there are constraints. We are competing with other sectors. The industry generally pays quite well. We will also be looking at making the best use of innovation, off-site construction and new technology to speed up the delivery of housing.

Mr. Kevin Kelly

There is an assumption that the further information process and the pre-planning system work on the basis that there is a meeting, advice is given and taken and all the documentation is submitted correctly, as you would intend. That is not the way it works in reality. There is a series of meetings. There is significant back and forth. With the best will in the world, planning has become very complex over the past ten or 15 years; much more complex than it used to be. We need that element of being able to ask those questions, to the benefit of the developer as well. Sometimes, the delay around further information is in the developer getting the information back to the planning authority because the planning authority is working within very strict timelines in dealing with it, in terms of four weeks or eight weeks, depending on whether there is an environmental impact statement, EIS. It can take the developer a long time to come back with the information.

Deputy Thomas Gould

In his statement, Mr. Mandal said he believes that the SHDs are a failure in delivering housing supply and he fears that the new legislation will also fail to deliver affordable housing. Can he expand on that?

Mr. Robin Mandal

Of course. I thank the Deputy for asking the question. With regard to the SHDs, of the 334 applications that are current up to a few days ago, there were 70 refusals; 30 are pending; five were withdrawn; 22 have already been quashed and 29 judicial reviews are pending.

In addition, there are 126 material contraventions. Out of all of those, excluding student accommodation, which got off the ground quite early, there are in excess of 10,700 units in respect of which commencement notices have been served. Prior to opening up again, we looked at all the construction sites in Dublin in respect of which there were commencement notices. The start of construction is not the same as a commencement notice. Also, quite a few of the commencement notices are just for site works. We reckon at this stage where there are more than 70,000 units granted - there are no judicial reviews, they are ready to go - and only 10,000 units are actually under construction, or at least have commencement notices, it is patently a failure. All those that have been granted should be being built. If one looks at the 10,000 units that commencement notices have been served for and divides that number over four years - we can take out one year because of Covid - that comes to 2,500 units a year. We are supposed to be building, which we are, between 20,000 and 22,000 units. That is a tiny proportion. The cost of it in terms of what we are getting is astronomical.

Deputy Thomas Gould

I appreciate Mr. Mandal's comments. I wish to ask the representatives from CIF, Mr. Parlon or Mr. Benson, whether they can comment on the figures Mr. Mandal has just given. Can they explain why those 70,000 houses have not been built or are not being delivered?

Mr. James Benson

In one way, it probably does come down to the point Deputy Gould just made. Of that number of houses, a high percentage of the applications would have been for schemes within Dublin and a large proportion of those would have been for apartments. The viability issues that come with apartment delivery have been well documented. As a result, we have seen many mechanisms included in the Housing for All plan to bring forward that type of development. That begs the question as to whether we are building the types of homes that people and families want. Apartments make up a high proportion of the applications that have been made and the viability issues cause issues regarding the commencement of those units. They are, therefore, to be looked at within that context.

On the point made earlier, the national policy does push towards high-density compact growth in our urban centres. It is not necessarily high-rise development that is required to meet this. We should be looking at the type, make-up, size, location and scale of our units in order to ensure there is potential own-door access or potential to deliver high-density developments with the more traditional types of homes that people might favour, particularly given what we have seen-----

Deputy Thomas Gould

I am sorry to interrupt Mr. Benson. I appreciate his answers and thank him for them, but my time is limited.

My final question is directed to the CCMA and is on the issue of resources and funding. Have local authorities been requesting additional funding for staff since 2017? Has this been denied to them or has it been the case that they have cut their cloth and tried to get on with it and move things forward? The dogs in the street know that the vast majority of local authorities do not have the funding or staffing necessary to deal with planning and to drive it on. Is this a failure of Government? I know it is a failure of Government, but it should be stated on the record here that this is what gave rise to the housing crisis.

Mr. Kevin Kelly

I cannot correlate the housing crisis with levels of staffing in local authorities. The issue of resourcing generally in local authorities is the subject of an ongoing discussion with the Department. We all know how local authorities have been financed back and forth. There has been significant change in planning. This is one area. There are other areas in local government, but planning has become more complex and developments have become bigger. The resources that were lost to the planning authorities following the downturn have not been replaced because the funding has not been there to put them back in place. It is something which is quite clear.

Deputy Thomas Gould

Do I have time remaining, Chair?

Chairman

You have about 30 seconds.

Deputy Thomas Gould

Perhaps the representatives from the IPI or CCMA, or whoever, might respond. In their opinion, what can be done to prevent the hoarding of land and, specifically, planning permissions?

What role would local authorities and the planning services play in this?

Chairman

That is more than a 30-second question and answer.

Dr. Conor Norton

It goes down to directing increased attention on active land management and being aware of where land is, how accessible it is and its activation. We are looking at addressing that in certain areas but in the future, in particular, local authorities should play a very big role in actively managing land, whether it is in public or private ownership, within their jurisdictions.

Chairman

Housing for All covers that in some detail and it recognises that issue. Government policy is strong on those activation, taxation and incentivisation measures that are needed to reactivate land for much-needed housing. I thank Deputy Gould for raising that.

Senator Victor Boyhan

I welcome all the guests. We have had a good meeting. I cannot let the opportunity go without wishing Kevin Kelly well in his new job. More importantly, with that emblem of Mayo at the back of him, I wish him every success for the weekend. I look forward to that and I think everybody will be looking forward to that bit of light relief in sport. I would also like to particularly welcome Mary Henchy, who is the director of planning in Dún Laoghaire-Rathdown County Council, which is the county council that I was formerly a representative of.

It has been an engaging meeting. One of the key and recurring themes of today and of the meeting the other day is the commonality and sense of purpose and commitment the members of this committee have. We are all very close in what we want to see and achieve. There is no point in looking back. Mistakes were made and the SHD process was flawed. Many of us said that at the time but that is where we are and we are moving on. We have a housing crisis and a resource crisis within the councils.

At the outset, I want to thank Robin Mandal. In the short time available I will not be able to ask him much about it but he has made a very detailed, comprehensive and impressive submission. It is something the committee will be drawing on and trying to incorporate into our deliberations going forward. I want to acknowledge that to him.

More importantly, I want to acknowledge the brave and courageous citizens who put their money where their mouths were and who took judicial reviews. They were forced into a situation where there was no appeal process. There was a great insult and flaw in the process as far as citizens were concerned, including the people Mary Conway talked about earlier on. I am impressed with all the contributions from the CCMA, here and through our ongoing discussions in recent weeks. I mention the constant and recurring theme of public participation and the feeling, as Mr. Mandal talked about, of alienation. Sitting county councillors felt alienated from the planning process, as did Oireachtas Members. We saw their names appearing on various appeals and litigation. That is the reality of it; people were frustrated. We all want to go forward.

Our guests from the CCMA mentioned the significance of the additional information. I share their concern so I will not ask them a question about that. They are on the money and spot on in what they say. We need to revisit this and we cannot allow it to be closed down. It is an important process. I used an expression that I did not mean in a derogatory way. I suggested that in some way it could put manners on people, send them back to the drawing board and outline that more information and clarification are needed to determine applications, rather than refusing them. I was particularly interested in the CCMA's suggestion and recommendation of introducing a fee. That shocked me slightly and I want to hear from the construction industry on this. I want the CCMA to explain and justify the rationale for that request. I also want it to confirm the levels of discussion it has had with the Department about the introduction of this fee because that is really important.

There is another question I want to ask the CCMA. I am particularly close to elected sitting county councillors and the following is an issue they are raising with me.

I refer to the statutory council meeting on an application submitted under the old SHD process. As it is important that we have the local knowledge and input of our elected representatives, I ask the witnesses to talk about that. Does the CCMA support the retention of the statutory meetings and engagement with the elected members? I hope it does and I would like to hear its representatives say so today. It is an open and transparent process and is one that is recorded.

Lastly, I would like to hear the views of the Mr. Parlon and the Construction Industry Federation on the suggestion made by the CCMA to charge a fee for pre-planning meetings.

Mr. Kevin Kelly

In terms of pre-planning meetings, currently there is no fee at local authority level but there is a fee at An Bord Pleanála level, so there is a fee in respect of strategic housing developments. What we are simply saying is that if there is a fee at the level of An Bord Pleanála, that should now be replicated at local authority level to ensure that that structure is resourced.

There has not been any discussion, to my knowledge, with the Department in respect of the proposal. Basically, there is a pre-application fee at board level and a fee structure for strategic housing developments. We simply suggest that those should be continued in a local authority context, once the decision-making moves back to local authorities.

On the role of elected members, and having worked in several local authorities, I am acutely conscious of the role of democracy and the involvement of members. What we have to be clear about is that in a scenario where we move back to the traditional planning system, that will bring with it a change. The SHDs followed from the methodology that was set out in the strategic infrastructure development Act and the role of the elected members. I think that once we move back to a scenario where the planning authority becomes the decision maker, then the involvement of the members in that decision-making process will be different. We have the reserve executive function framework in place. It is quite clear from that issue being raised by members across local authority chambers and from the responses from the Department and the Minister that the Minister is certainly of the view that it would be inappropriate for a role to be played by the elected members in planning applications that are going to be determined by the planning authority, other than the normal representational role and their opportunity to make submissions.

Senator Victor Boyhan

Can I hear from the Construction Industry Federation?

Chairman

Mr. Benson has 20 seconds.

Mr. James Benson

Our understanding is that the structure and level of the fee would be produced with the Bill and once we have the detail of that, we will be happy to comment. We assume it is to have a greater level of efficiency. We agree that having greater efficiency and understanding of the information required at the outset would provide for a more economic, efficient and greater level of certainty within the applications made at a very early stage. We will comment more on the structure when the details are forthcoming.

Chairman

We might come back to this item that was raised by Senator Boyhan and I call Deputy Duffy from the Green Party.

Deputy Francis Noel Duffy

I thank all of the witnesses for sharing their positions and insights. Their contributions have been great and are very important in assisting us with this proposed legislation.

I broadly agree with the comments made by Mr. Robin Mandal on how the SHD scheme, while having good intentions, did not deliver in fast-tracking housing and instead created a new form of housing, namely, build-to-rent, which, to my mind locked people out of purchasing property in their own communities and effectively created transient communities. Since 2017, I have spoken on the record against the SHD system due to the fact that, as mentioned already, it bypasses the democratically mandated development plans, contravenes same and, as people have already said, gets seriously limited public scrutiny.

Regarding the new legislation, the planning process was, as far as I know, designed with specific timelines to allow time to consider and analyse applications. I have been making applications for 30 years and I believe the system works, considering the five-week submission time that allows the public to consider an application and make observations, the four-week period for the local authority to assess the application and make a decision and then the further four-week period to allow all parties to appeal those decisions, if they wish. Introducing shortcuts into the system and reducing the further information process is, therefore, concerning. It is a complex process to make a planning application and fast-tracking applications of this scale might, I fear, cause the types of problems that are realised through rushing procedures.

I have one simple question and one supplementary. This question is for the representatives of the CCMA and it has been touched on quite a bit. Has an analysis been conducted of the staff resourcing required to deliver the new processes? If so, how many staff will be required in each local authority to mitigate this potential issue? I ask that question in the context of the regular planning process being very slow now and, from what I understand, some applications are being pushed out to six months in the context of the further information process. I asked the officials from the Department this next query on Tuesday. It concerns the 2018 circular that prohibited councillors being briefed on planning applications. We were told that is not the case and that councillors are allowed to be briefed on a planning application if they request it. Notes would not be taken, but the public representatives could be briefed on an application. Will the representatives from the CCMA clarify if that is the case? Mr. Paul Hogan stated that the Department might have to send out another circular to inform local authorities that councillors can request applications and be briefed on them. I thank the witnesses.

Chairman

I thank Deputy Duffy. I call Mr. Kelly.

Mr. Kevin Kelly

I will answer that last question first and then I will bring in Ms Henchy on the resourcing issue and practice. I will have to look back at the circulars again and what the Minister and the Department have stated regarding the involvement of elected members. My understanding was that it was suggested that it was not possible to have any scenario where there was a briefing of the members on individual planning applications that were going to be determined by the planning authority. However, if there is a suggestion that an opportunity exists for something different, then I certainly will review the correspondence I have received to date. I am not aware of any exercise that has been carried out regarding the resourcing requirements and changes in that regard, but I ask Ms Henchy to comment on this matter based on her direct experience of dealing with the SHD process.

Deputy Francis Noel Duffy

I thank Mr. Kelly.

Ms Mary Henchy

Concerning resources, while we do not have a detailed breakdown regarding the additional resources that may be required, from a review of the heads and a knowledge of the working of the SHD process to date, it is clear that there are going to be additional requirements in local authorities in respect of administration and the administration of the process itself. Significant aspects of that process will now be the responsibility of the local authorities rather than the applicant or the board. In addition, other departments, and not just planners, will now need to have an input into applications, because of the breadth of knowledge required in respect of informing considerations at the pre-planning and application stages. That is in addition to the demands themselves. I state that because this is an on-demand service. The timelines are set out clearly and we have no control over when these demands will be made of us. In itself, that will bring about requirements. It is, therefore, a difficult aspect to quantify, but it is certainly one which we will work on with the Department. Turning to the numbers, that is one issue. The second issue is resourcing the requirements accompanying those numbers and that is open for discussion.

Deputy Francis Noel Duffy

On that issue, and this question has come up a few times, does Ms Henchy believe that once there is an understanding of what will be coming at the local authorities - because it will not be possible to know that until it happens - that the Department will be able to provide required resources to the local authorities, even if it will not have an open chequebook? If that is not going to be the case, however, there will be massive problems with this process in the context of the short time that people will have to process information with a lack of resources. I am not going to say that the result will be bad decisions, but there will be rushed decisions and further information will be required. It seems like someone should be ensuring that the local authorities are resourced in this regard, because this change is coming quickly.

Mr. Kevin Kelly

The issue of resourcing and dealing with constituencies is something that local authorities are well used to. In any scenario, what we do is that we prioritise the issues and we prioritise the resources.

If we have an SHD in the statutory timeline we will have to make sure we pull the resources from somewhere to deal with it.

In a broader context, we need to ensure we have sufficient resources to support the entire planning system so that all aspects of forward planning, development management and enforcement work together hand in hand. The phraseology used in respect of the role of the elected members recognises that they may be informed by planning staff of factual matters relating to particular planning applications. This information is intended to facilitate councillors who wish to make substantive comments on the planning applications themselves. It is limited to clarification of factual matters in respect of planning applications.

Chairman

I thank Mr. Kelly for the clarification. The next slot is Fine Gael's.

Senator John Cummins

Other members, including Senator Boyhan, are looking to get in so I will cede my time.

Chairman

We have gone through all of the members and we are into the open session. Nineteen minutes remain and we have Deputy Ó Broin, myself and Senator Boyhan indicating. If anybody else wants to come in I ask them to use the "raise hand" function. I will first go to Deputy Ó Broin and ask him to stick to five minutes.

Deputy Eoin Ó Broin

Absolutely and I may take less time. I want to come back to Mr. Benson of the CIF. Nowhere in his detailed submission did he mention the specific issue I raised on the particularly low level of commencements of SHDs. He spoke about an overall increase of commencement of all residential stock. This is surprising because the submission rightly spends considerable time on the impact of judicial reviews. This is entirely legitimate but, in fact, far more units are delayed in the process because of delays in commencements. I spend a fair amount of time on construction sites with many CIF members. There is a series of reasons for this. They are assembling finance and doing site servicing work. It is not credible to suggest 90% or 86% of units and 64% of schemes cannot commence because of viability issues. This suggests the sector is even more likely to take risks than we thought it was.

Some of these permissions, by the way, date back to the early stages. I am looking at a recent report from Dublin City Council to its elected members. There are SHD grants from 2018 and early 2019 that have not commenced. I accept viability, finance and site servicing are issues. Is Mr. Benson seriously telling the committee there is nobody out there who has an SHD permission who is not also slowing down the delivery as part of a market strategy to constrain supply and keep prices high? I am strongly of the view this is an element in the mix, which is one of the reasons such developments have been so slow to commence. In the same way Mr. Benson said, correctly, that there should be clear statutory guidelines for pre-planning, post-planning and the board, perhaps we need to introduce strict planning timelines as to when commencement should take place. Applicants who get grants should have to justify if they cannot comply with these. This might also help.

My next question is for the CCMA. Will Mr. Kelly or one of its other representatives tease out a little more its concerns about head 8 and the new paragraph in section 33(2)? It seems to be an attempt to restrict requests for additional information in the general scheme. I share the concern of the CCMA. I ask the witnesses to tease through in a little bit more detail what their concerns are.

Mr. James Benson

This is a huge area and we welcome the discussion on it. We would not lead anyone to believe that we believe judicial reviews are the only reason a number of units and developments have not been commenced. We would all favour an holistic reform of the planning process. We are looking at large-scale residential developments but other areas also need significant reform to bring certainty and clarity to the process. With regard to the level of commencement, it is well documented and we have spoken about infrastructure and economic viability assessment and what can be done to bring forward developments.

We represent the homebuilders. Like members, I meet many members of our organisation on the ground who are builders and their interest lies in building homes. When they do get the permissions they want to get on site as soon as possible and to build out on that. They try to do that. I have no doubt that there are some individuals who would look to avail of opportunities on that issue but the current vacant site tax is in place for that very reason, that is, in order that we would not have any aspect of land hoarding, which is equally contained within the Housing for All plan. Other initiatives and schemes being proposed would help to increase the supply of land in a timely fashion.

With regard to the referrals, we all need to be cognisant that it is not just about judicial reviews. A high level of applications currently going through the process - some 67,000 - have the potential to not commence because of referrals to the European Court of Justice. They are fully legitimate and there are reasons why the applications have been referred but the reality is that the impact will be the uncertainty that will follow because we will be waiting up to 18 months for a decision to be made on the back of those. Unfortunately, it does not just lie with the 67,000 applications currently going through the various streams of the process; it also lies with those projects that will now not be submitted and potentially cannot go forward until greater certainty is known around those potential projects.

Chairman

I thank Mr. Benson. I am going to take the next slot and am going back to fees again. Is it a fee for pre-planning per meeting or per process? It is my view that planning fees come nowhere near meeting the level of time and professionalism of local authority planners up and down the country. Perhaps the CCMA will come in on that?

Mr. Kevin Kelly

We are open to discussion on that. It could be either. Even to have a fee for a pre-planning service would be something that is not there at the moment. As the planning authority, the council must ensure that the developers are using this effectively and coming in with the information. I believe the figures are quite clear that the current fee structure for planning only covers a small percentage of the actual cost of delivering the service.

Chairman

I believe that the entire fee system for planning needs to be looked at.

The area members' meeting with local councillors was one of the positive things about SHDs. This is when the local authority planners would come to the county council or municipal district meetings to present the plan. This was very helpful for councillors and would also feed into the submission made by the chief executive or the planners to An Bord Pleanála. That was one of the positives. Another positive with the SHD applications was that the websites that often accompanied many of these applications were of quite good quality and often much easier to navigate than the local authority planning websites under normal section 34 applications. Does Mr. Kelly believe those websites are something that should continue under the LSRD?

Mr. Kevin Kelly

There is merit in people understanding where the application is going to be and rather than having a separate website for some developments, my view is that at least there is a certainty there. I am aware that websites have improved quite a bit, and this should improve further with e-planning and so on. There is certainty, however, for people to know where to go when they want to see what developments are taking place in their locality and I would advocate for using the standard website for normal section 34 applications.

Chairman

We will take that on board.

We asked the Department to clarify, by circular, the area meetings and planning files. I have one last question on the further information requests, which I believe is covered in head 6 or head 8. Mr. Kelly's opening submission referred to the limiting of the number of further information requests and that it may increase refusals. Surely it is in the developer's interest to bring all the information to all of the pre-planning meetings, to have the highest quality of documentation and plans and to oversupply information of the highest quality in order that we do not have those further information requests. The onus should not be on the local authority to be concerned with looking for further information, although planners are quite within their rights to do so when judging an application. It is not the local authorities, however, that should be concerned about using up their one go to request further information. Surely it is in the developer's interest to make sure that all information is made available that could possibly be anticipated and required, including environmental impacts and anything to do with the proposed development.

The developers are not new to the planning system either.

Mr. Kevin Kelly

That is very true but I can only speak on the basis of my experience. I have had direct involvement with five different authorities. The first issue was about limiting what can be asked for. That would pose significant difficulties. The question then arises of whether, if someone had the wherewithal to ask for further information on any issue, he or she can then get further clarification. The experience is that you sometimes end up with good applications which have merit but which are missing something. The general thrust of our approach in planning authorities generally is to see if good applications can be got over the line. We, therefore, ask for clarification and further information. From the perspective of a planning authority, it is way easier to just say that an application has not met the mark, to refuse it and to tell the applicant to go back to the drawing board but the approach we in planning authorities generally take is to try to work with people on good developments to ensure a positive outcome for the benefit of all.

Chairman

I thank Mr. Kelly. Senator Boyhan wants to come in again. He can go ahead.

Senator Victor Boyhan

I want to focus on just one question directed to the members of the CCMA. The AILG has been in touch with us and has written to the Minister. It has made an exceptionally strong case for mandatory consultation channels for elected members similar to those provided for in the current sections 8(4) and 8(5). It has worked well. Everybody has said it has. We talk about subsidiarity in planning and about engagement but this is particularly important. These are elected members. It is their development plan. They are guardians of their own development plan, as are the planners and the executive. Having told members of the AILG, who may be listening in to the webcast, that I would raise this matter, their expectation is that they would have support. Despite what Mr. Kelly has said about what the Minister or the Department has said, we will ultimately produce a report. This is a pre-legislative scrutiny process in respect of legislation which is to come before the Houses of the Oireachtas. I would like to hear from the CCMA members as to whether they are supportive. Do they recognise and acknowledge the benefits of this engagement and these meetings? Will they actively support their retention in the large-scale LSRD process? I would like a positive response. I believe that is what the elected members in the cities and counties are expecting to hear.

Mr. Kevin Kelly

I thank the Senator for his good wishes earlier. He is certainly putting it up to me. We fully acknowledge the role of elected members. As a practitioner, I must be clear as to how the role of the elected member intertwines with the reserved executive function framework. What we have had under the SHD and SID processes is a different kettle of fish. Once these go back into an almost normal planning regime, they will be the same as every other planning application. The most I can say is that, if the Department or the committee is willing to make a change in that regard, we would be happy to discuss that further with the AILG.

Senator Victor Boyhan

Do the representatives of Dún Laoghaire-Rathdown County Council or Dublin City Council have a view?

Ms Mary Henchy

In respect of what Mr. Kelly described, the difference between an SHD application and a standard section 34 application is that, in the case of an SHD application, all we are doing is taking the comments of the members and sending them to the board, whose members are the decision makers. We are not actually assessing, reviewing or considering those comments. In the case of this new type of application, we would be asked to both gather and consider views. A very different bar is being set for us. In the interests of full transparency, the ability of the members to put their concerns in writing to the local authority and for the local authority to have regard to those issues is not being taken away.

Deputy Francis Noel Duffy

To go back to that issue, when I was a councillor, there was a process whereby the planners would go through a planning application and answer any questions we had.

Nothing was noted but that process informed me and the other councillors of what the planning application was. We could then discuss it with our constituents based on proper information. Planners understand applications better. After 2018, there was a void because the planners no longer briefly described applications to us, including what they were about or why they were doing particular things. Unless we knew what we were looking for, it was very difficult to understand applications. I was concerned about that. Mr. Paul Hogan stated this process was still available and I hope he will confirm that.

Chairman

The Deputy makes an important point because it is not the board that will adjudge the LSRDs, although it may do so eventually in the case of an appeal, but the local authority in the first instance. It is the executive planner who would normally give that presentation to councillors. We need to seek clarity and a circular from the Department on this to ensure there is full standardisation across local authorities and no legacy ways of doing things in order to have complete fairness across the entire system.

We have reached the end of our time. I thank Mr. Mandel, Ms Cashman, Mr. Kenny and Mr. Venckens from the Dublin Democratic Planning Alliance for their attendance. I also thank Dr. Norton from the Irish Planning Institute, Mr. Benson and Mr. Parlon from the Construction Industry Federation and Ms Conway, Mr. Rainey, Ms Henchy and Mr. Kelly from the County and City Management Association. I think we would all join Senator Boyhan in wishing everyone in Mayo the best of luck on Saturday. They have been a long time waiting.

The committee will now write our pre-legislative scrutiny report. We will take on board some of the recommendations witnesses made in their submissions and some of what we learned from them during the question and answer session and from our meeting on Tuesday with Department officials. We will submit that report to the Department and it will consider it in publishing the Bill. The witnesses will be sent a copy of the report when the committee has agreed it and the amendments that are to go into it.

The joint committee adjourned at 2.28 p.m. until 11 a.m. on Tuesday, 14 September 2021.