Joint Committee on Housing, Local Government and Heritage debate -
Thursday, 10 Nov 2022

General Scheme of the Planning and Development and Foreshore (Amendment Bill) 2022: Discussion

Chairman

I welcome everyone to the meeting. We commence pre-legislative scrutiny of the general scheme of the planning and development and foreshore (amendment Bill) 2022. We have two sessions this morning and this one is between 9.30 a.m. and 10.30 a.m. We are joined by officials from the Department of Housing, Local Government and Heritage, namely, Ms Maria Graham, assistant secretary, Mr. Frank Gallagher and Ms Nina Murray, principal officers, and Mr. Colin Ryan, senior planning advisor. The opening statements have been circulated to members.

Before we commence I must give a note on privilege. I remind members of the constitutional requirement that they must be physically present within the confines of the place where Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. For witnesses attending in the committee room, they are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy. It is my duty as Chair to ensure this privilege is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction. Members and witnesses 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.

I invite Ms Graham to make her opening statement.

Ms Maria Graham

I thank the Chair and members for offering us the opportunity to talk to them about the general scheme of the planning and development and foreshore (amendment Bill) 2022. The Bill was approved by Government for priority drafting on 4 October. As the Chair mentioned, I am joined by Mr. Gallagher and Ms Murray, who are principal officers with responsibility in the Department for An Bord Pleanála and the foreshore regime, respectively, as well as Mr. Ryan who is senior planning advisor in the planning division. We will be happy to answer any questions members have.

I will set out some of the principles around the Bill. Its primary purpose is to replace the existing system of nominating bodies for appointments to the board of An Bord Pleanála along with certain other matters. It should be noted, as outlined in the October 2022 action plan for An Bord Pleanála, that it is intended to make further statutory changes to the structure and operation of the board as part of the ongoing review of the Planning and Development Act being led by the Attorney General and managed by the Department.

The marine planning legislative regime has undergone significant reform, as members will be aware, with the passage of the Maritime Planning Act in 2021. Work is advancing well in establishing the maritime area regulatory authority, MARA, and the preparation for An Bord Pleanála and coastal local authorities to assume their functions under the Act. In the interim, the foreshore regime continues to be in place for developments and activities within the 12 nautical miles. A number of technical issues have been identified, especially with site investigation applications, which have increased exponentially in recent years, and these are being addressed in Part 3 of this Bill pending the full operation of the new maritime regime.

I move to the main provisions of the Bill, which contains ten heads. Heads 1 to 3, inclusive, and 8 deal with normal introductory elements for the Bill relating to interpretation and regulations.

Head 4 amends section 104 of the Planning and Development Act 2000, as amended, which relates to the size of the An Bord Pleanála, which is currently limited to a chairperson and nine ordinary members. The Minister proposes in the light of the scale of increased activity of the board, the need to increase the quorum for decision-making, and having regard to some of the recommendations of the Office of the Planning Regulator, that the board be increased to at least 15 members, with potential for further increases to be effected by order in the light of the board's workload.

Head 5 amends section 106 of the Planning and Development Act 2000. This section currently sets out a process for the recruitment of ordinary members that is largely based on nomination from a series of panels.

The new head proposes that this should be replaced by the establishment of a committee of experts to make recommendations to the Minister. The committee would be made up of current or retired experts from the public service at senior level, including those with a background in planning, law or local government, with the potential to include persons from an academic background in the planning and environmental field. The committee can be supported by the Public Appointments Service, PAS, if so requested by the Minister. The general scheme sets out the range of skills and backgrounds from which ordinary members will be drawn. It is intended that board members collectively will have satisfactory experience and a mix of experience or knowledge of infrastructure delivery, housing, physical planning, sustainable development, architecture, heritage, community and social affairs and corporate governance.

Head 6 amends section 108 of the Planning and Development Act 2000, as amended, by removing the facility to have two member divisions of the board. This process was ceased by the chairperson of An Bord Pleanála in August 2022 and the board recently passed a resolution to cease the process. Its revocation is also recommended in recommendation 3 of the Office of the Planning Regulator, OPR, phase 1 report.

Head 7 amends section 110 of the Planning and Development Act 2000 by removing the requirement for the chairperson of An Bord Pleanála to form an opinion in relation to a complaint received ahead of investigation, instead providing clear instructions on the actions to be taken on receipt of a complaint or where the chairperson considers there may be issues to be investigated. Provision is also made for such an investigation to be instigated by the Minister.

In addition to the amendments related to An Bord Pleanála, Part 3 of the general scheme proposes amendments to the Foreshore Act 1933, as amended. Head 9 amends section 1 of the Act. The head amends the definition of foreshore to ensure that the body of water above the seabed is included and therefore provides the Minister with the appropriate vires to require marine users to apply for a lease under section 2 of the Act or a licence under section 3 of the Act in circumstances where they wish to occupy or use the foreshore in that way.

Head 10 amends section 3 of the Foreshore Act 1933, as amended. This head provides that applications made under sections 2 and 3 of the Act, which have already been made by the Minister under the Act in circumstances where the definition of "foreshore" was understood to include the subsoil below and the water column and airspace above the bed and shore, can continue to be assessed and regulated in accordance with amended definition of foreshore. The intention is that the Minister’s vires continue to accept, assess and decide, grant or refuse leases and applications in respect of the amended definition of foreshore is put beyond doubt.

It is the Minister’s intention that the general scheme be advanced in drafting to a published Bill as a priority, with a view to enactment as speedily as possible this year to allow board appointments to be made to An Bord Pleanála under this new system. In the interim, the Minister is initiating the process of appointing a new chairperson of An Bord Pleanála to replace the retiring chair and will also shortly appoint a deputy chairperson, as provided for under the Planning and Development Act 2000. The chairperson’s functions under section 110(1) of the Act may be performed by the deputy chairperson where the chairperson is not available or the office of chairperson is vacant. As members will be aware, the Office of the Director of Public Prosecutions has confirmed that proceedings have been instituted in relation to certain matters concerning An Bord Pleanála’s former deputy chairperson. In view of this, it would be inappropriate for me to comment further on these aspects or any related matters today.

In addition, a number of temporary appointments will shortly be made to the board in line with provisions of the current Act, which facilitates the appointment of established civil servants to serve on the board in a temporary capacity for up to a year. It is intended that these arrangements will be in place until new board members are recruited under the proposed statutory arrangements on the general scheme before the committee today. The Minister is also advancing the recruitment of a board member with environmental expertise under section 106(1)(e) of the Act, which does not involve nominating bodies.

Phase 2 of the Office of the Planning Regulator’s review of An Bord Pleanála’s systems and procedures is ongoing and is due to be published on 30 November 2022. The Minister has already published an action plan for An Bord Pleanála arising from the phase 1 recommendations. This action plan includes measures to address conflicts of interests, changes to the board's appointments system, strengthening the senior management team and the provision of further resources to the board. It also proposes a new structure for the board to clearly delineate decision-making and corporate governance functions. We are working to include these changes in the new planning and development Bill resulting from the planning legislative review being led by the Attorney General. Many aspects of the reforms of this legislative code have been the subject of previous engagement with the committee and there will be opportunities to discuss the details of these changes in the future.

I thank the Chair and members for offering us the opportunity to update the committee on the general scheme of the Bill. We are happy to clarify any of the issues involved.

Chairman

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Deputy Eoin Ó Broin

I thank Ms Graham for her opening statement. I do not know what Mr. Gallagher or Ms Murray did wrong in a previous life to warrant having responsibility for An Bord Pleanála but I share their pain, if that is any consolation.

I will make some opening comments before asking some specific questions on the heads. One of the crucial things about any change to the operation of the board is to ensure, protect and maintain its independence. That is historically one of its great strengths and one of the problems we will be dealing with elsewhere in the wider reform of the board. Any legislative changes we are currently dealing with must be put in the context of the desperate need to restore public confidence and the confidence of the wider planning and environmental community in the operations of the board. This is important; it is not just some technical change.

I have concerns with the heads. It is not clear why this specific set of changes to the board has been brought to us separately from the further changes to the operations of the board and the wider planning review. I am interested in hearing the rationale for this being brought forward in its current form.

Specifically, with respect to head 4, I would like to know the rationale for having 14 ordinary board members. On what basis was that decision taken? I am not against it per se but I would like to understand the reason. I would also like to know why any changes to that number would be by way of ministerial order. This seems to give the Minister undue power over the size and operations of the board, which conflicts with its independence.

On head 5, particularly section 106(2), the skill set is too limited. It does not take into account, for example, the increasing importance of domestic, European and international environmental law or climate change policy. Also, there is no mention of the public interest. It is important to remember that originally An Bord Pleanála was not primarily a technocratic and professional body but a kind of jury of one's peers. While I do not believe that model would work in today's planning and environmental world, some element of it should be in place.

My biggest concern with the general scheme is the committee proposition. I do not understand it at all. It is probably the single biggest interference with the independence of the board. The panel system is not perfect, particularly when organisations that do not exist are making nominations, but that is not a reason to get rid of the panel system per se. Keeping, reforming and improving the panel system and combining it with a public process of interviews and appointments before ministerial selection from shortlists would be a better way of doing it. Not only would I like to see panels be retained and updated annually, there should be a panel of environmental and climate organisations and some kind of panel for the public interest. I am interested to know why there will be a committee, what kind of committee it will be and if there a precedent for this. Why does the mechanism for appointing the chair of the board seem to be unchanged as per the original Act and not here?

On head 7, I would have thought if either the chair of the board or the Minister believed that actions of any board member may bring the board into disrepute, they should be obliged to act rather than providing that they "may" act, which is the language used.

On head 9, the general scheme explanatory note uses the words, "It has come to light". What has come to light and how did it come to light? It is always useful to know why issues emerge so we can get to the reason behind them. We have received submissions from industry, which is concerned that this could delay existing applications that have not been processed or future applications. The more information the witnesses can give on that, the better.

If there is time in this round or the next will Ms Graham give the committee an update on the temporary appointments to the board that the Minister had announced and an update on the timeline for the review of the Planning and Development Act? We are all keen to get that into pre-legislative scrutiny so any information on that would be helpful.

Ms Maria Graham

I thank the Deputy. As he said, the critical underpinning of An Bord Pleanála is its independence. That is a principle that underpins all these issues. The Deputy asked a few questions about the rationale for the size of the board. The board has an increasing workload. Some 70% of the applications are normal appeals but there are many first instance applications between strategic infrastructure and the marine functions. The concept of having at least 15 members is to scale up the board and that allows for the quorum to be increased to three on smaller ones. The quorums are higher on others. If we have 15 members there is more potential to have a flow of people and a random selection of board members. The legislation already provides for an order to be made when the workload increases. In this instance we felt it was more appropriate for the Oireachtas to consider what the size and scale should be and to put that into legislation. The order piece is more reflective of an issue where there is a bulge of applications or something of that nature. That is why the order is already a feature of the legislative code.

In respect of the process for the recruitment of board members, we discussed the scope of the people involved at the last session. A particularly important role of the committee is to ensure the collective mix the Deputy referred to is on the board and to advise the Minister accordingly. At the moment the Public Appointments Service is running the competition for the environmental post end-to-end on our behalf and that closes next week. The head reflects that the Public Appointments Service can be involved. There are different parts, including the process. Potentially, certainly at the early stage, we are looking at a sizable increase in the board. Therefore having a committee of experts that looks at what the scale would be is useful. For example in State bodies, that can be looked at. We need to have people with financial skills, the different skills, to ensure all people do not come from the same component. The intention is to make the process far more open. Under the current process, through the panel system, we receive nominations of people but we have no sight of what happens behind the nomination process, whereas the idea here is that the committee sets the terms of what is required but there is complete openness on who may apply.

Chairman

We are quite tight for time but I expect similar questions from other members. We can come back to Deputy Ó Broin's questions about heads 7 and 9 at the end if that is okay. I will move on to Deputy Higgins, who is joining us online.

Deputy Emer Higgins

I agree with many of the comments made earlier about the need to restore public trust in our planning system. We have always prided ourselves on having a transparent planning system with integrity at its heart and we must ensure public confidence is restored as soon as possible. I like the new recruitment process. It will be more open and I quite like the idea of having a good mix of people with different skills and backgrounds. I would be interested in hearing more about it.

Regarding current or retired experts from the planning service at senior level, including those with a background in planning law or local government, will Ms Graham provide a little more information about how these people will be identified or come forward or how it would work? I note head 4 relates to the size and scale of the board. It is important that this legislation looks at that. We are considering other legislation coming down the tracks, for example in higher education, where the numbers on boards are being reduced. Will Ms Graham provide a little more information as to why she believes the larger quorum for decision making and the increase in numbers around that table are important at this time? They are my questions.

Ms Maria Graham

An important distinction between board members of An Bord Pleanála and other boards is that An Bord Pleanála offers full-time positions. While other members of State boards tend to be part-time these are full-time positions. People are in the offices in Marlborough Street five days a week so it is full-time employment. They go through almost 3,000 cases a year which is approximately 10% of all cases. Approximately 30,000 cases go through the planning system each year. It is a serious job and requires all the qualities the Deputy mentioned. It is a job that has seen increasing complexity with the nexus between planning and environmental law. That is why increasing the scale is important to ensure people have the capacity to deal with that increase.

In respect of the process, we expect the skills on the committee to be defined by regulation. As Deputy Ó Broin mentioned, there is a committee for the appointment of the chair which lists out specific people who would be involved. It is broadly the same principle. In choosing the potential skills mix we hope to have a holistic set of different views.

If I have a few minutes I will answer the question about the temporary staff which is related. We were asked why we were bringing this Bill forward now. It is important that we increase the numbers, not only to reach 15, but to get to the nine ordinary members that are there at the moment. That is why we are moving forward with this in advance of the main planning Bill which we have had engagement on. We expect to see that Bill before the end of the year, but it will have to go through its own process. That is why we are looking at this. In the interim, the process is under way for temporary people to be appointed by the Minister so we hope that will be concluded quite quickly.

Chairman

Deputy Higgins has approximately one minute left if she has any further follow up. Can I move on?

Deputy Emer Higgins

I am happy with that. I thank Ms Graham for addressing Deputy Ó Broin's question about the temporary roles because I was also interested in that.

Chairman

I thank Deputy Higgins for staying within her time.

The Green Party slot is next. I thank the Department of Housing, Local Government and Heritage for bringing this Bill. I understand the timely requirement of it. I will go straight to my questions about the heads.

On head 5, relating to section 106 - the skills base is set out in section 106(2). In a similar way to Deputy Ó Broin, I ask the Department to take on board that a skills base should be added on climate ecology, marine ecology and water resource management. On the same head, in respect of the proposed section 106(5)(iv), which is about the panel, it is sensible to have a panel of people in place because we do not know when members may retire or move on. However the same stipulations that apply to members should apply to people who are on the panel. If people who are selected to be on the panel as being suitable to be ordinary members have a change of circumstances and a conflict of interest arises for them, they should be removed from the panel and the panel should be reviewed on an ongoing basis to ensure the people who sit on the panel are still suitable.

They may have been suitable to go on the panel at the time but there may have been a change in circumstances. One has to allow for when somebody on the panel has a temporary appointment to a position. For instance, someone with ecology experience on that panel could become an ordinary member if they were to be contracted by a developer to work. I do not think that should be an exclusionary reason. Reasonable allowances would have to be made for that.

It says that the "Minister may continue to make appointments from this panel until it has expired". What triggers the expiration of the panel? Is it when it goes below a threshold of members or is it after a certain number of years?

On the same head 5, the proposed section (106) (7), provides for the disqualification of people from being an ordinary member. I suggest that should apply to the panel as well. Subsection (9) provides that "an ordinary member shall hold office for such term (not exceeding 5 years)". Because the board is down to such a small number of members at present, we know there will be temporary appointments to the board. I am not sure when current members' terms come to an end but were we to appoint an all-new board or a significant number of new members to the board, they should not all finish their terms at the same time. Maybe we could have mid-term reappointments or something of that nature so there is not a cliff edge at the end of it.

Section 106(10) provides that a "person shall cease to be an ordinary member of the Board "for reasons such as bankruptcy or being convicted of indictable offences and again, that should apply to panel members. Section 106(12), which deals with the removal of members, states "An ordinary member may be removed from office by the Minister if he or she has become incapable through ill-health". I presume that is when a member declares their ill-health or medical certification and it is not up to the Minister to decide if someone is well enough to do it. It also provides for removals where a member has "committed stated misbehaviour". I seek clarification on what "stated misbehaviour" is. Is there a list in the previous section? I think that is it on planning and An Bord Pleanála.

(Interruptions).

Chairman

We will come back to the foreshore if the witness could just take those on.

Ms Maria Graham

There are a couple of-----

Chairman

Senator Boyhan is next and he has six minutes. If Ms. Graham could take those comments on board I do not need a response to them.

Ms Maria Graham

That is okay.

Chairman

They are just my observations.

Senator Victor Boyhan

Apologies, I thought the Chair was seeking a response to his comments. I thank all the witnesses for coming. At the outset, I must say I am extremely disappointed that we only received the papers this morning. We have a protocol and procedure on how we do business in this committee and it is set down clearly. The Department needs to be reminded and while I do not want a row, it is a public meeting, I respectfully suggest that we take our business seriously in this House and I know that the witnesses take their business seriously in this House. I have requested this and every time an agency attends the committee and does not present their papers, I will say the same. I ask that it be taken back to the Department. We require time to consider our documents and our papers and I think that is reasonable and fair. I accept the witnesses are busy but we are also busy and I want to make that point.

I welcome that there will be a reform of the board; as it is clearly not fit for purpose. Many of the concerns that have surfaced in the board are issues we have raised time after time. We have had two chairpersons of the board before the committee during my time and we have always asked them if they had sufficient resources. I will not go back to the strategic infrastructure, we are moving on, but they always assured us that everything was happy in Marlborough Street and that they were able to do everything. It is simply not delivering and frankly is not fit for purpose. One has to ask how is has taken so long to arrive at some of the decisions we have heard in the past few days. I will not comment any further because we will have lots of opportunities in both Houses of the Oireachtas to discuss this legislation in great depth.

I am fully supportive of retaining the panel system. Clearly there is a serious weakness in corporate governance in the board and that is obvious for everyone to see so I would like to see a panel that would deal with corporate governance reflected in the appointment of a new board. I sit on an audit committee of the Oireachtas, so we are familiar with how corporate governance works and clearly the board had difficulty with its corporate governance. There is a weakness there that needs to be strengthened in how someone is appointed to the board.

I want to draw the witnesses' attention to section 105(2)(b) and section (106)(1)(d) of the Act. Both relate to local government and one refers to the president of the Association of Irish Local Government being part of a panel to select a new chair for An Bord Pleanála. As I do not know if witnesses intend to keep that or not, they might comment on that.

I also think it is important that there is a local government panel, as well as a panel representing agriculture and farming. There are serious challenges around farming and agriculture in terms of planning and we see how EU environmental law is being interpreted and the challenges in the courts. One of the big problems with the planning system is that it is clogged up, in many cases legitimately, with legal challenges. We see the board does not defend many of its own cases and we see why. So I want to make a strong case for agriculture, the food sector and farming being represented. They are represented on a panel in Seanad Éireann and on a committee in the Oireachtas so they are an important group, as are the environmental panel. There is the importance of the prescribed bodies who make a significant contribution despite being much maligned by certain people. They have a role and it is important that we instill confidence in this board and we need to have representative groups who have different interests, sometimes conflicting. At the end of the day it is important we have a robust, independent process. I will leave it at that, if Ms Graham could touch on the issue of local government, and the environmental and farming sectors being represented. I believe there is a case to re-strengthen the panel system, rather than abolish it.

Ms Maria Graham

I thank Senator Boyhan. First, I apologise that the documentation was late. I think it was the first time I missed a committee deadline-----

Senator Victor Boyhan

Point taken.

Ms Maria Graham

-----so I apologise for that, as the committee needs to have the papers.

First, on the appointment of chair and those listed there, we will proceed on that basis and that is our intention. The Senator referenced the local authority representation there. On the panel system, we need to distinguish between those who have an interest in ensuring there is a collective mix of people on the board and how we get that, and how people apply and come to the fore. I accept the Seanad has a panel system but also has an electoral system with it. One of the issues is that under the current panel system for the board, names come to the Department from the nominating bodies. We have no idea what process is behind that, how open it is, who can apply, how they apply and how they are assessed by the nominating body. That is not to cause any question over the nominating bodies but it seems reasonable to us that there should be a far more open process that allows anyone who meets the criteria that members have mentioned to apply to be an ordinary member of the board. We are very open to hearing how we can get that mix and there has been a common view around both the mix on the board and the mix on the committee, or whoever may be judging how we get that mix. Our central feeling at this stage is that the panel system is not as open as would be appropriate and there also needs to be a process to give recommendations to the Minister deriving from that. That is what we try to achieve in those systems. The Senator has mentioned a number of areas and we are open to looking at all of this, if he feels there are gaps in skills we can look at in terms of the committee and the board itself.

Chairman

I thank Senator Boyhan and will now move to Deputy Cian O'Callaghan.

Deputy Cian O'Callaghan

I thank the witnesses for attending and fully support the comments of the importance of the independence of the board.

The panel system is a mechanism to try to ensure some collective mix of skills and expertise and some balance. It that is going to be abolished, what is going to be in the legislation to ensure those elements? What mechanisms are going to be in the legislation? What protection is there against a lopsided board being appointed by a particular Minister?

Ms Maria Graham

There are two elements to it. The first is a requirement on setting out what the board should contain in terms of the level of expertise and having sufficient expertise in the different categories. The second is to have a committee that judges how that process goes in order to meet that first requirement. The discussion is around the regulations and how that committee is constituted to assure that. There is a piece at the beginning, as it were, and then there is a statutory element at the end.

Deputy Cian O'Callaghan

Is the Minister not given huge power in terms of that committee and how it is set up and regulated? If the Minster has a lot of power in terms of that committee, how is that a safeguard against a lopsided Minister having too much-----

Ms Maria Graham

The head, as written, talks about a regulatory power around the committee. The committee for the chair lists out the various bodies. However, the idea is that there will be a regulation that would determine what committee membership would be.

Deputy Cian O'Callaghan

Regulation by the Minister?

Ms Maria Graham

Yes

Deputy Cian O'Callaghan

It seems to be a huge concentration of power to the Minister when, as I believe we all agree, it is really important that the board is as independent as possible and is seen to be such. In terms of the list of experience and knowledge that is drawn up, was there consultation on that? How was the list arrived at? Why does it not include areas like ecology, marine environment, climate change or water resource management? How was it drawn up and who was consulted?

Ms Maria Graham

The list was drawn up by reference to the panel system that exists. The intention was that sustainable development and other aspects incorporate those pieces. If we need to be more explicit, we are quite open to doing that. We were acting by reference to that. We had a previous conversation here on bodies where issues such as the community and social perspectives were raised by members of the committee when we talked more generally on that, so that would be the issue. As I mentioned, we interpret sustainable development as incorporating all of those aspects but we are quite happy to make them more explicit during the drafting stage.

Deputy Cian O'Callaghan

Great. Head 9 uses the phrase, "It has come to light". Can the witnesses explain more about that and the rationale for the change? What came to light and what is the issue the Department is trying to solve? Is there not a risk of unintended consequences? Certainly we have had submissions from wide-ranging groups on this proposal. They are very concerned how this could have huge unintended consequences. It could be hugely disruptive in terms of renewable energy.

Ms Maria Graham

I might ask Ms Murray to come in to explain the circumstances. We have had a system in place. We all understood how it worked, ourselves, industry and the public. We are simply trying to revert to that so that it puts it beyond doubt. Ms Murray might come in on this point.

Ms Nina Murray

This is essentially the same question as that of Deputy Ó Broin. The purpose of the amendment is to put beyond doubt the authority and powers under the Foreshore Act that the Minister and the development sector had understood existed. As to why are we doing this now, I believe the Deputy is asking why has a doubt arisen. There was one particular applicant during the summer who raised a query in terms of the interpretation of the definition. Where there is any doubt, particularly when we have such a vast number of applications that would be calling on the Minister's authority in that respect. it was really important that we understood what that risk was and if there was a doubt, the intention here is to put it beyond doubt.

The Foreshore Act has been operating on the basis that the water column, subsoil and the airspace above have always been interpreted within the meaning of the word "foreshore" in the 1933 Act. Applicants have been applying for leases and licences on that basis and the Minister has been operating in a regulatory context on that basis.

To be clear, we are not introducing any further requirements on the development sector, on foreshore maritime users, that have not already existed in the past. A huge proportion of my day is spent looking at opportunities to streamline and expedite applications that are in hand under the Act. It is certainly not the intention of the Department or the Minister at this point to introduce any new requirements. That would include for example, any new licensing requirements around using the airspace or anything like that. We can be certain that, as Ms Graham described it, it is a technical amendment to put something beyond doubt in the interests of creating certainty for the applicants and the development sector. Its aim is to ensure that the Minister's decisions under the Act are robust and that applicants who come out with a consent will have the confidence that they can undertake their licensed activities subject to the various different conditions.

Deputy Paul McAuliffe

I have similar questions in regard to heads 9 and 10. While we do not want in any way to delay the much-needed development of offshore wind, there seems to be some disquiet from those people who are promoting projects. My understanding of Ms Murray's answer is that she effectively is saying that from the sea bed, the column and the air above it, which is all the territorial area of the State, there is one regulatory environment for all of it. While I hear her, we need to do a lot more to communicate that idea. There was some surprise that there was additionality being added here.

Regarding the pre-legislative scrutiny of this Bill, there are really two Bills here. There is the foreshore element and then there is the planning element. I do not in any way want to delay legislation for offshore wind but I do not know if these two heads need to be taken right now. It might be possible to have more dialogue with that sector. That is something we perhaps should leave in our back pocket, in that if we cannot iron out the concerns here, perhaps we should take the foreshore element of this Bill at a future but not indefinite date. I say this as a matter of concern but I acknowledge the witnesses' clarifications have been really useful.

On Saturday last, I held a public consultation regarding MetroLink and BusConnects, which are two huge transport projects. A huge number of people attended, eager to find out more information. Many people echoed the same sentiment, which was that as the NTA had not listened to them previously, they asked why would this time be different. To instil confidence in the system, I told them that there is an entirely independent body called An Bord Pleanála which is going to evaluate this project. As I used the name of the board, one man rolled his eyes and another man said ''you mean half of An Bord Pleanála''. The difficulty is we are in a situation where there has been reputational damage to that body. I understand the Minister has put in place robust mechanisms to try to ensure that we get there. Can Ms Graham take us through the action plan from the Minster in order that we can at least point to the improvements that will be made? I note there is additional legislation outside of the action plan as well.

Ms Maria Graham

On the foreshore topic, if there is any clarification the committee requires, we will be happy to do so. I understand it is quite a technical area but it is just to give the committee the assurance that this is important. At the moment, we are running a duality of systems because of that issue, so we will be happy to take any follow-up question on board.

On the action plan, there are a couple of important points. It takes on board many of the OPR recommendations as had come out in its phase 1 report and obviously, there also will be a phase 2 report.

First, it deals with conflict of interest and the update of the code, which the OPR talks about. There are a lot of elements about systems and processes that need to be improved to give that surety around conflict of interest. There are also issues around some of the changes to the decision-making process, which would be actions 6 and 7. They relate to some of the things that will be coming in the big planning Bill such as material contraventions and people having surety that when the relevant plan is passed, they will know what it is in it and the board will be working within that. At the moment, there is a slight disconnect between the national planning framework, NPF, being there and not all development plans are aligned with it. In the future, there should be fewer grounds for material contravention and I believe that will lead to less controversy in the external environment. The other area coming in the main Bill is certainty of timelines and we mentioned the offshore sector and renewable energy. In all these sectors, we are hearing that people want certainty of timelines. It is not the length of the timeline but that if you make an application, you know what the likely time is. That will have resourcing and phasing implications. There is a mix of things that have legislative underpinning and a mix of things for the board to do, including recommendations from the OPR on the transparency of the decision-making process. A lot of what we are talking about is refreshing the board, the new regime for recruitment, the recruitment of interim and temporary people and then obviously we are doing the panel. In terms of the planning review, we have outlined in the action plan that in our view, we need to separate the decision-making of board members from the corporate governance role. We need a separate governing body looking at issues of systems, procedures, corporate governance; not into the actual decisions being made by the board but that everything around that is working appropriately. That is one of the main planks coming in the next Bill. Things in this Bill include the increase in members that allows for quorums to be set at a level and to allow for that throughput of people. There are a range of things around strengthening corporate governance. The OPR had talked in particular about having an ethics and corporate unit within what you might call the corporate spine. We are also looking at strengthening the senior management structure. That means there will be a new director of planning for marine and climate, a new post of director of legal affairs, a new role in relation to corporate governance and a new director of transformation. They will be looking after ICT and all of the transformation that will come from the OPR review. As the team at the moment is comprised of the chief officer, the head of corporate affairs and a director of planning, that will be quite an expansion in terms of that senior management structure.

The other piece is organisational resourcing, which Senator Boylan mentioned. We are talking about up to 30 more people coming in. That is before we make an assessment of what the timelines require and it is important that the finances have been provided as part of budget 2023. There is also funding coming from the Department of the Environment, Climate and Communications in terms of the establishment of the marine and climate division within the board. We also see the need for them to consider an organisation capacity review to ensure that they are taking up efficiencies, business re-engineering and the digital agenda. The digital agenda is really important in terms of underpinning these processes, as is learning and development, and the OPR has been working on that. I think they are the main points from the action plan.

Chairman

Those were important clarifications, which is why I let that run over. There are three members left and six minutes. I am going to Senator Seery Kearney, and Senator Moynihan. If they could just keep it very direct and as short as possible because I am out of time.

Senator Mary Seery Kearney

I will pass.

Senator Rebecca Moynihan

I have just come onto the meeting, as I was doing something for the radio. I apologise if anyone has asked this question, so please go over me if it has already been asked. I thank Ms. Graham and I read her submission with interest. One of the difficult things is to get an assessment on whether An Bord Pleanála is fit for purpose in a 21st-century planning system. To do that, we need to have an idea of the number of applications coming in, how long they take to assess, how many people are assessing them and whether they have the basic capacity to make those large-scale decisions. While most of us would agree that is not the case at the moment, how do we get to a situation where that is the case? I welcome the fact we are going to decouple the decisions and the processes and the planning aspect and the organisational aspect of An Bord Pleanála, which is really important. However, has any assessment been done in terms of the potential human resources capacity needed in An Bord Pleanála in order to clear it at both inspectorate and decision-making levels? We are seeing things like An Bord Pleanála having to pay out to developers because they are simply not meeting the statutory timelines. In terms of scaling up, what is needed and if it is the case it has been done, who has managed to do it? I was looking recently at a really small planning application for three homes. The city council made an assessment. I read the planners' report. It was thorough and really well done. I then read the An Bord Pleanála report and it just seemed to have been a copy-and-paste job. That tells me that whoever is looking at it is really bus, and has a line of about ten or 20 applications. In terms of processes, are there set criteria against which applications are assessed, because we have a really complicated planning system? There are a number of layers in terms of policy documents and standards that have to be assessed, and then an overall decision that is made. Have moves been made to put in place simplified policy procedures for that?

Ms Maria Graham

In terms of the current position, we receive workforce plans from the board. We approved one last year for 24 people. This year, we got a further workforce plan and that is the basis of the 30 extra staff talked about in the action plan. There is also a separate one on marine resourcing. That is what the board determined it needs in the current frame. We have looked at other things such as strengthening its executive management team and in this Bill, we are talking about going up to 15. In terms of the wider Bill, we are going to have to do an assessment aligned with that organisational capacity, around what the new legislative structure looks like. We are in an interim piece at the moment. The purpose of the new Bill is to streamline and make things clearer. I think the OPR mentioned in its report that the board is mentioned throughout the legislation and part of what we are doing in the Bill is to keep all of the consents piece together in order that people can clearly see the signposting of what is involved. The combination of that with some of the stuff the OPR has recommended about the clarity of the decision-making process will aid in the point that the Senator has made.

Chairman

For the final couple of minutes I will bring in Deputy Ó Broin and Deputy O'Callaghan if they could share the time. We have about three or four minutes.

Deputy Eoin Ó Broin

It would be helpful if any questions that are not answered can be submitted to the Chair in order that we can get formal responses.

Chairman

Yes.

Deputy Eoin Ó Broin

To go back to the committee, the original legislation actually stipulates the individuals or organisations to be on the committee for the appointment of the chair. Was consideration given to a similar mechanism so that while one might get rid of the panels, the organisations that nominate the panels might have been on the committee. Was there consideration of that?

Second, has there been any consideration of stipulating the percentage breakdown on the board of the distribution of skills to ensure there is an appropriate mix at any one time?

On the issue of "may" or "shall" in head 7, was an obligation to act considered?

On head 9, the submissions we received from industry - and I am not advocating on its behalf - they dispute Ms Murray's position that there is no change. For example, they state that non-invasive, solar surveys were not covered under the original definition in the licensing application process, but now will be. I would be interested in hearing the Department's response to that. I have other questions, but I will submit them in writing.

Deputy Cian O'Callaghan

On head 7 and head 9 is the Department saying that this will not result in any practical changes for people who use or have an interest in the marine environment?

Ms Maria Graham

I will let Ms Murray answer that given the interest.

Ms Nina Murray

Yes. As regards the geo-physical surveying, a large number of applications is on-hand for licences for that activity on the basis that the Minister had been regulating that activity in the water. There is a tension in the position, but to put it beyond doubt, the licensing arrangement will continue as it always has in respect of geo-physical and geo-technical surveying. It is a way of maintaining the regulatory system in one place for decision making and meeting Ireland's obligations under the various directives, etc. Applicants and developers alike have been part of that licensing system for many decades and that will continue.

Ms Maria Graham

On the final point, legislation at the moment tends to look at what should be in primary legislation and what should be in secondary legislation. An important point about the regulatory piece, which is drummed into us by the Office of the Parliamentary Counsel, is that the policies and principles around the regulation need to be clear. As we enter the drafting stage, those policies and principles will have to be clear on the Minister's regulatory power. If we look at older legislation, it sometimes says the Minister may make a regulation.

Deputy Eoin Ó Broin

The Construction Industry Register Ireland, CIRI, legislation stipulated some organisations. We have had recent legislation where specific organisations are named as having positions on committees or boards, etc.

Ms Maria Graham

I am not sure whether that will come in the drafting stage, but these are matters we can consider.

Deputy Eoin Ó Broin

Will Ms Graham comment on "may" or "shall"?

Ms Maria Graham

"May" and "shall" give me nightmares.

Deputy Eoin Ó Broin

The real question is, if the chair of the board or the Minister is of the view that the actions of a member of the board may be bringing the board into disrepute, surely they should have an obligation rather than an option to act.

Ms Maria Graham

We will certainly have a look. There is quite a lot around "mays" and "shalls" in legislation, but we will certainly consider that during the drafting process so we can be clear about it when we reach the legislative stage.

Deputy Eoin Ó Broin

I will make a point to the Chair. Given the wider interest in the reform process, the two reports of the Office of the Planning Regulator, OPR, etc., it would be good for the committee to have a dedicated meeting on the more general range of issues with the Department, the OPR and others when we can fit it in.

Chairman

I thank Deputy Ó Broin. We can discuss that.

I thank Ms Graham, Mr. Gallagher, Ms Murray and Mr. Ryan for their attendance. We will hold a second session now with organisations to continue this process.

Sitting suspended at 10.34 a.m. and resumed at 10.40 a.m.

Chairman

This is the second session on the pre-legislative scrutiny of general scheme of the planning and development and foreshore (amendment Bill) 2022. We are joined by the Ms Attracta Uí Bhroin of the Irish Environmental Network, IEN, Mr. Gavin Lawlor of the Irish Planning Institute and Ms Karin Dubsky of Coastwatch. They are all very welcome this morning to assist us as we go through the general scheme.

I remind members of the constitutional requirement that they must be physically present within the confines of the place where the Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. Those attending remotely from within the Leinster House complex are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy. It is my duty as Chair to ensure this privilege is not abused. Therefore, if individuals' statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction. Members and witnesses 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.

I invite Ms Uí Bhroin to make her opening statement. We have the room until 12.30 p.m., so we have a little more time for this session than the previous one.

Ms Attracta Uí Bhroin

We sincerely appreciate the invitation to engage with the members on this important general scheme. We see this invitation as a very welcome acknowledgement that IEN, the coalition of national environmental NGOs in Ireland, represents a key constituency of stakeholders, with an interest in, experience of and expertise on these matters. I am joined by Ms Dubsky from Coastwatch, one of our member organisations. I very much appreciate her presence, particularly in light of the very complicated provisions in the general scheme in respect of foreshore issues.

As IEN's environmental law officer and representative for the environmental pillar on the planning advisory forum for the Attorney General's review, and having engaged in the review of the Office of the Planning Regulator, OPR, into An Bord Pleanála, albeit after the delivery of the phase 1 report, I was asked to prepare our submission and deliver this statement.

To inform our evaluation of the very significant changes to the appointments process for the board in these heads, we considered what would be desirable outcomes arising from any such legislation in terms of the appointments process and the nature of the boards to be realised from that process. First, with regard to a process for the appointment of ordinary members of the board, the legislation needs to be demonstrably capable of consistently facilitating a robust, transparent process with accountability, safeguards and appropriate Oireachtas oversight. Second, that process needs to be demonstrably capable of ensuring the establishment and maintenance of an independent board of impeccable integrity and with the requisite skills, experience, knowledge and diversity in representation, capable of discharging its functions in compliance with a significant set of legal requirements. Moreover, because the board is one that is entrusted with such a powerful and pivotal role at the apex of our planning system, with a profound capacity to influence our economy, society and environment, it and the process for establishing and maintaining it need to be capable of engendering the essential trust of the public and the various public authorities and applicants it engages with.

Central also to our considerations were the important legislative departure to establish An Bord Pleanála in the first instance in 1976 and the question of how the current system of appointments for the board came about. Important changes were made through the Local Government (Planning and Development) Act 1983, which removed the extraordinary discretion afforded to the Government in respect of board appointments under the original 1976 Act. The 1983 Act curtailed that discretion somewhat and established instead the basis for the current panel system, which we see in the Planning and Development Act 2000, with panels representative of civic society central to the process. Clearly, there is room for improvement in the context of the current panel system. Nonetheless, it reflects an important political commitment to society and to a principle of a board effectively comprising an independent jury of our society capable of and entrusted with making the ultimate decisions required of it. This engenders public support, particularly because of the involvement of civic society.

With this general scheme, however, there is a significant and unexplained reversion to extraordinary ministerial discretion. There is an example on the process side concerning the appointment of board members under head 5. The scheme proposes that the Minister should have total discretion to establish a "selection committee" - which does not, unlike in current legislation, represent civic society because the makeup of it is entirely at his or her discretion - or to devise some "other suitable independent, objective and transparent procedure". The Minister then has discretion to draw from that panel of candidates, chosen by whichever procedure he or she has decided upon, until again, at his or her discretion, the panel is refreshed, either by a committee or some other process. That discretion is further compounded by the discretion of the committee in its decisions and approach, including multiple layers of discretion in respect of whether the Minister "may require that the Committee … may engage with the Public Appointments Service to assist in any aspects of the process". The Minister would also have extraordinary discretion regarding what to prescribe and to supplement the primary legislation through regulation. Entirely unexplained discretion is proposed in the context of when these and all provisions relating to the eventual Bill will be commenced and come into effect.

Further serious concerns arise regarding considerations and criteria for such board members and the balance of the board. For example, why is there no reference to legal understanding, and why is there no unambiguous provision regarding environmental sustainability, societal balance and departmental remove? This new process also arises in the context of further provisions which provide for further extensive discretion for the Minister to make an order to increase the number of ordinary members and to make other decisions on the size of the board, while also proposing the removal of Oireachtas oversight on such orders.

Particularly in the context of the need to quickly provide for a robust appointment process and of the outstanding conclusion of the OPR's report, and debate and cross-party consensus-building that ideally will follow from this, the committee is also urged to consider the merit in preserving, while improving, the existing panel system provided for in section 106 of the Planning and Development Act and-or make recommendations to provide for very significant safeguards in the primary legislation concerning the significantly different and new system proposed, and the public consultation which should accompany that. The committee is further urged to leverage this as an important opportunity to raise with the Minister and the Department the compromise, apparent or otherwise, to the independence and efficacy of the board if the Minister moves to leverage powers under section 104(4) to make temporary nominations to the board from the Department or the staff of An Bord Pleanála. The Department's representatives indicated that intention this morning in their opening remarks.

The committee has been urged to consider complementary legislative measures to provide for the integrity of the appointed board. I has also been asked to consider the potential benefit of revisiting the appointments process for the chairperson of the board, including to ensure that it is truly independent of the Department.

The changes to the foreshore legislation are very significant and concerning in terms of their potential unintended consequences and the absence of detail on what is prompting such changes to the definition of "foreshore" and the analysis undertaken thereon. Having delivered our opening submission before the deadline last Tuesday, we would welcome an opportunity to elaborate on our concerns in the context of members' questions following on from the hearing with the Department's representatives earlier this morning.

I thank committee members for this opportunity, and we will endeavour to answer any questions to the best of our ability and revert promptly with any details or clarifications sought.

Chairman

Ms Dubsky submitted an opening statement but it arrived quite late. As part of the Irish Environmental Network, IEN, submission, does she wish to briefly give an opening statement?

Ms Karin Dubsky

I will highlight some things very briefly. The foreshore Act is unbelievably unfit for this century because the Minister has far too much power to decide whether to publish something, where to publish something and whether to put up the submissions. Every part of this is the Minister's prerogative under article 19. I asked several lawyers what their understanding was of the land defined in the foreshore Act at the moment and they said it was the seabed and the water column. This was their understanding from the cases they have been involved with. None of them thought it also included the airspace. At least from the point of view of this small group of lawyers who work in that area of foreshore, this appears to be a new departure. Therefore, I thought the questions earlier today on what prompted it were quite valid.

We are concerned about the implications of some of the extra powers being added to the Minister in the airspace. At the same time, it is an Act which we have been told will be repealed in sections and will soon be gone but when I looked, there are deadlines for various parts of the Act but not for others. Particularly on aquaculture, we believe the Act will be kept alive for a long time and therefore we need section 19 also to be addressed.

Chairman

I thank Ms Dubsky and invite Mr. Lawlor to make his opening statement.

Mr. Gavin Lawlor

I am the Vice President of the Irish Planning Institute, IPI. The IPI was founded in 1975, and is the all-island professional body representing professional planners engaged in physical and environmental planning in Ireland. The institute’s mission is to advance planning by serving, improving and promoting the planning profession for the benefit of the community and the common good. The IPI represents approximately 700 planners from across the public, private, semi-State and academic sectors. Our members work in central Government, private practice, agencies, third level institutes, planning authorities in both the Republic and Northern Ireland, and also in An Bord Pleanála and elsewhere.

The IPI is affiliated to the umbrella body which is the European Council of Spatial Planners, ECTP-CEU; has international links with the Planning Institute of Australia, PIA and the New Zealand Planning Institute, NZPI; and is a member of the Global Planners Network, GPN.

We welcome the opportunity provided by the Joint Committee on Housing, Local Government and Heritage to comment on the planning and development and foreshore (amendment) Bill 2022. The IPI represents inspectors, a number of board members and we have former board members among our ranks and can therefore offer an insight on the Bill from that perspective. Our remarks address the sections where we see some improvements can be made.

I will begin with head 4, the amendment of section 104 of the principal Act. While the IPI welcomes the increase in the total number of board members, which brings the board up to 14 in total, we have concerns about the number of board members if this is explicitly linked to the number of cases. We see this as a difficulty and if the board member has particular expertise, such as ecology, it would be contrary to best practice to lose that specialist expertise in the event of the number of cases dropping.

I turn now to head 5 which deals with the amendment of section 106 of the principal Act. Ten areas of expertise of the board members are suggested in section 106(2)(a). The IPI recommends that (2)(a) be amended to include additional expertise in the areas of the law, ecology, built heritage, the marine environment, climate change and the Irish language. We note that the term “heritage”, as set out, is not particular enough to ensure both natural and built heritage are addressed. These elements require completely different skill sets. We welcome the intention to provide for an equitable balance between men and women. The need for transparency in the selection of the committee or other procedure, referred to in section 106(3), is another concern of the IPI. This committee to advise the Minister on appointments to the board, and the transparency in relation to it, will be critical to restoring confidence in board membership. The IPI recommends that the regulations on this committee are published quickly so that the appointment of the board members is not delayed. It is critical once the skills necessary for the board to operate successfully are identified, that there is some staggering of the timing of appointments, so that the corporate knowledge is not lost when ordinary members have completed their terms. We recommend an additional subsection is added to section 106 (9) to ensure no more than one third of the board members are replaced at any one time. This is an issue that the board is having to deal with at the moment because there has been a number of members who have come to the end of their term. There has been resignations as well, both forced and unforced, meaning that the board currently has essentially four operational members. It has no Chair or deputy Chair and effectively cannot currently legislatively make decisions. As a result, no decisions are currently being made by An Bord Pleanála.

In terms of head 6, section 108 of the principal Act, the end of the two-person quorum for specified cases is welcomed by the IPI. The three-person board allows for at least a minority position to be maintained and reduces the potential for "group think".

Regarding head 9, amendment of section 1 of the Foreshore Act 1933, the Irish Planning Institute generally welcomes the clarification of the definition of the foreshore and tidal lands in the Bill, which brings certainty to all interested parties as to the meaning and extent of these terms. We were aware there is a lot of uncertainty particularly around the airspace.

In conclusion then, I note that a diverse and skilled board is needed given the complexity of the cases received by An Bord Pleanála today. The restoration of public confidence in the appointment of members to the board, is critical to subsequent acceptance that the decisions made by the board are done on the basis of public policy, the common good and sustainable development. The more transparent the process of appointment, particularly in the make-up of the committee to advise the Minister on these matters, the more this will contribute to ensuring the integrity of the process. Replenishing the board should be done on a staggered basis, so that new members have a supportive framework when making decisions.

Chairman

I will move now to the members and we have time for seven minutes slots. For the information of the witnesses, seven minutes is the entire time given to members to ask the question and for the witnesses to try to respond. It would be helpful if members were to direct a question to a particular witness. Taking the first slot is Deputy Ó Broin.

Deputy Eoin Ó Broin

I thank the guests for their presentations. I thank them in particular for the written submissions because I know they are all very busy. The submissions are genuinely very helpful to us. We read them and they form our understanding of the Bill. I acknowledge the written submissions received from An Taisce, the Office of the Planning Regulator, Wind Energy Ireland and the Marine Renewables Industry Association. They will all help us to consider this issue.

On the foreshore, we now have a dilemma because in the space of 40 minutes, we have been told by the Department that there is really no change but just a clarification of what was already there. A submission from Wind Energy Ireland and a legal opinion from Arthur Cox submitted with it, states that neither the water column nor the airspace is currently covered by the provisions of the Act. Therefore, things like non-invasive surveys, sonars and aerial surveys would not currently require a licence. They are arguing that this will now be disruptive both for people who currently have licence applications pending and for new licences coming in. I am sure the people Ms Dubsky spoke to are very experienced, given the background of her own organisation, and they are saying that the water column is included but there is ambiguity around it. That is a pretty complicated picture. It seems to me there is a value in clarifying it legislatively so I take that point. Rather than the legalities of it, I am interested to hear what the concerns could be around Ms Dubsky's point. I would have thought if there was any ambiguity it would be better to have things captured by a licensing regime. The first question I have is why she is concerned or what types of unintended consequences might there be? I will hold that question and ask the others before Ms Dubsky comes in.

I have two questions for Ms Uí Bhroin. First, the argument around the skill set is very well made and there is an indication from officials that might be resolved on foot of her submissions. That will probably get broad support among us. Is there an argument also to say that whatever the number of board members, there should be a provision in the Bill to ensure that at any one time there is a good distribution of those skill sets? How does she think that could be achieved?

I share her concern about the issue around the panel or the committee. Could a solution to that be that the legislation stipulates the organisations that nominate onto the committee and many of those organisations that are currently panels would effectively be committee members? In other words, regularise the panel system into the committee system with, for example, the Irish Environmental Network, the Irish Planning Institute, the Royal Institute of the Architects of Ireland or whomever else listed in the legislation so the Department gets the transparency it wants but we also we get the full involvement of civic society, which I think is what we want. I would be interested in her view on that.

I would be interested in Mr. Lawlor’s view on the same because in his submission, he stated, “The IPI recommends that the regulations on this committee are published quickly so that the appointment of the board members is not delayed." The difficulty is regulations are never published quickly, as he and I both know. Therefore, should we not, as a belt and brace, make sure there is greater clarity in the legislation with respect to that? On his issue around the number of members being limited to cases, I presume that is not an issue in terms of increases in board members, it is more if there is a reduction in board members. Would it solve the problem if the chair of the board, for example, says that the caseload is increasing exponentially, the Minister can then increase the size, but not have a provision to decrease? Does that fix the problem?

Perhaps the questions could be taken in the order they were asked, if possible.

Ms Karin Dubsky

On the Foreshore Act, we are concerned that it is weak on Aarhus principles. We welcome clarity but are wondering whether it has to come under the Foreshore Act or whether, as one of the lawyers suggested, it might come under the Land and Conveyancing Law Reform Act 2009, where there is a more democratic process. It is not that we do not need clarity; we welcome it. Rather, it is how it is being given. The other way of skinning the cat is to say that section 19 will be reformed and make more accountable and then, of course, this is the way forward.

Deputy Eoin Ó Broin

I thank Ms Dubsky for that.

Ms Attracta Uí Bhroin

Might I have the liberty to add to that?

Deputy Eoin Ó Broin

Absolutely. Ms Uí Bhroin raised it in her submission also.

Ms Attracta Uí Bhroin

Basically, foreshore is land that is intermittently covered by the sea. That is why there is that proposal to go to the Act that Ms Dubsky mentioned. However, the other issue is that this actually refers to the airspace above. Classically, when we talk about development on land, it is the land above the development that is necessary to be occupied, but nothing above that. What is actually being proposed here is airspace. The security implications of that are huge. This is something that warrants an awful lot more consideration and much more discussion. Clarity is needed, but there was a lot of merit in Deputy McAuliffe’s remarks. We would like to look at this separately and time to reflect on what the Department said this morning and revert further, if we may. We did not find sufficient clarity in relation to the rationale for what exactly is the express issue that is trying to be solved here.

I thank the Deputy for his remarks. On his specific questions, distribution and balance is absolutely key. This is one of the concerns that we have. The Chairman, Deputy Matthews, referred to it in his question related to the panel that the Minister will draw from under this new scheme. Basically, if there is a panel with X number of members that was originally balanced and there is no control over unforeseen circumstances, for example, resignation of a board member, the same panel is being drawn from. There is not necessarily going to be a balanced set of people in that panel. It is entirely at the Minister’s discretion to basically refresh that panel. Balance across the board is absolutely key and it is not provided for properly in this Act.

On the organisations that are currently in the panel influencing the make up of the committee, it was very welcome this morning that it was acknowledged that there was total discretion on the make-up of the committee, total discretion on the make-up of the regulations but, even more importantly, the Minister has discretion not to go with the committee but actually provide for some entirely different process. I welcomed Ms Graham’s remarks this morning on the need for transparency and consistency and her concerns in respect of the panel system. However, I would see exactly and indeed many more of those issues in respect of what is proposed in relation to the provisions for this new committee. Our recommendation is firmly to improve the panel system rather than to go down this highly discretionary route. Even in terms of the comments that were made on the profile of people making up that committee, that was quite a concern this morning in terms of the independence of it and the remove from the Department and Government.

Chairman

We have time, so Mr. Lawlor can respond.

Mr. Gavin Lawlor

I will be very brief. I agree on the committee system. It is not a bad idea to keep the panel system to contribute towards the committee. The idea in terms of the Department, which the IPI would welcome, is that there is a difficulty for ordinary members outside of the panel to get nominated onto the board because they have to be put forward from one of the representative bodies. There may be people who have a key interest in becoming a board member and who may fit one of the key disciplines that the legislation is looking to recognise but do not have a mechanism to get there. If there is a more open competition-type style process where people can put forward a CV - for example, nominations for the board are advertised and people can put in a CV - the make-up of the committee is influenced then to get that lay and civic broad-brush spectrum that we all want. I think we would echo exactly what Ms Uí Bhroin said. To get that, we use the nomination panels to nominate people onto that committee. That might be a very good way to solve that potential. I think the intention is there to create a transparent system, from what we can read and that is what is expressed. Obviously, everybody has the same concern that it potentially might not end up as transparent and the Minister may have too much power to pick his own team, so to speak.

In terms of reducing the board, it is just that there is a uncertainty in relation to the way that the legislation is framed. If it is the case that the normal board is 14 members, that is fine. If they need the Minister to bring it up and down, so be it. Our concern is in relation to the expertise. In the same way as Ms Uí Bhroin said that they want to see a balance, so does the IPI. We think that there has to be a balance and perhaps the way to do it is at least specify some key expertise that should be there, such as engineering, architecture, planning, ecology, hydrology, law, etc., so that at least one member of the board would have an expertise in that area. If the board has two people who are ecologists, two planners or two architects, so be it. At least there is one of each type of profession there. Our concern is that we would not lose expertise.

Deputy Emer Higgins

I thank everybody for being here today to discuss this with us. It has been a very informative process for me in particular. Some of what has been delved into in the second session has been very interesting and I want to make sure that we get the feedback from the Department and the Minister on some of the concerns raised today.

For all of us – everybody who has spoken on this issue today – the integrity of the planning system is at the heart of the decision-making process. Wanting to get trust and public confidence back into the public planning system is what we all aspire to, want and badly need at this point.

On the IPI’s comments, I believe the committee process will be a better system. However, I am quite interested to hear the idea that the committee system could draw on the panel. Any ways in which to improve the process would be something I would be interested in hearing more about. The list of areas of expertise outlined seem reasonable and practical.

Has the Irish Planning Institute had a level of feedback from the Department and Minister on that?

We heard that independence and transparency are absolutely the key concerns of the Irish Environmental Network. We need to explore those concerns a little bit more. What I have not heard as much about, though, on which I might spend some time if Ms Uí Bhroin does not mind, is what she mentioned in her opening statement about changes to the foreshore legislation and potential unintended consequences. Ms Uí Bhroin might elaborate on that a little more so I can understand those issues. Those are my two questions for the Irish Planning Institute and Irish Environmental Network.

Chairman

Does Mr. Lawlor wish to take the first question?

Mr. Gavin Lawlor

In terms of the Deputy's comments on the committee system, we do not have a difficulty with the system. The issue is the transparency of the appointment of the committee members. It was actually Deputy Ó Broin's idea, in fairness to him, in terms of using the current panels to influence nominations on to that committee. We would have no difficulty with anything that would improve the transparency of a nomination on to that committee so that it is clear to everybody that a proper representative cross-section of society is there to look at members who will be elected on to the board. That would be our key concern.

Deputy Emer Higgins

Has the Irish Planning Institute had any feedback from the Department or the Minister regarding those additional areas of expertise Mr. Lawlor suggested?

Mr. Gavin Lawlor

No. We have had no comment back in that regard. I listened to the conversation earlier. The Department did say the initial list it put there was simply from the panels and that it was open to other professions being included on the list.

Ms Attracta Uí Bhroin

I thank the Deputy very much for her question and remarks. On her query about feedback, there has been no public consultation on these provisions, which is a concern. There has been some discussion within the planning advisory forum but there has been no indication of the feedback or status of that. We would have to say it is not a particularly transparent process, albeit somewhat welcome.

The Deputy asked a specific question about the unintended consequences of the foreshore legislation. What I partly alluded to earlier refers to airspace. This is material removed from what we currently consider with regard to land, which is the land necessary to be occupied. If something is being built, it has an upward dimension, but airspace is unlimited. There is also reference to subsoil.

There are concerns and considerations that need to be properly examined here with regard to the implications in respect of minerals and disturbance of the sea floor. There is a huge degree of complication with regard to the definitions of seabed, sea, continental shelf etc., some of which was looked at in the recent Maritime Jurisdiction Act, which was revisited in the context of the 2021 Act, but also in looking at the United Nations Convention on the Law of the Sea and the constitutional implications for minerals. There is therefore, a whole degree of issue we need to be very careful we fully understand.

The term "land grab" is well used. We also now need to think about sea grab, sea-floor grab and airspace grab. We are very conscious of the imperatives of moving to decarbonise our energy and we would be supportive of that if it is done in a sustainable way. If there is need and requirement here, however, let us be very clear about what we are doing and what we are effectively asking the State to cede as a foreshore licence. Effectively, this is State ownership. This is currently in the public's ownership. If there is going to be a change to that in terms of a foreshore licence, we need to be very clear about what we are being asked to do as citizens of the State and what is being asked of members as legislators. That should be absolutely explicit, well-documented and analysed. From what I heard this morning, with the greatest respect to the Department, I do not feel we are in a position to say we are comfortable with our understanding of the implications of what is proposed and how it is being assessed, examined and discussed across multiple pieces of legislation to ensure that we have consistency and clarity.

Ms Karin Dubsky

One of the unintended consequences could be further public distrust in what is happening at sea if an added power is given to the Minister. We need to have laws covering airspace but at the same time, something that is terribly important for the public is having information and a time for when decisions are made. If that is not addressed but giving power to the Minister is, then it is dynamite. There is already a growing distrust in what is happening at sea. We ought to make that transparent. I really would love if Deputies would address this other side and tell people they are listening to them.

Deputy Eoin Ó Broin

I will come in on a point of information so there is no confusion. My suggestion was not that you would have the nominating panels nominating names into a committee appointed by the Minister. My question was more to do with the idea that if there is going to be a committee, would it not be better that the legislation would stipulate the organisations that would have the right to nominate a member on to that committee. It would take the current nominating bodies and add to those in the legislation.

The Minister would not, therefore, have the discretion to decide who is or is not on the committee. The Oireachtas would make that decision. In some senses, it would be merging the panel and committee system, which would still involve civic society but would do what Mr. Lawlor said. I just want to be clear that what I was asking about was not having a panel and a committee appointed by the Minister. It is merging the two. I am interested in people's thoughts on that.

Chairman

It is my slot next. We have a panel referred to in the current legislation, which are those nominating bodies. In this proposed amendment, we are talking about a panel that to my understanding consists of a number of people the committee would recommend from which the Minister could select. Therefore, we have "panel" used in two different ways.

Deputy Eoin Ó Broin

Yes, absolutely.

Chairman

I am trying to clarify that in my own mind as much as anybody else's. I will stick with the discussion on the committee. What would Ms Uí Bhroin recommend in terms of how that committee should be formed? First of all, the general scheme of the Bill states "the Minister shall" set up this committee. Ms Uí Bhroin made reference to how the members are selected. She said it is unregulated or unstated. Am I right in saying that?

Ms Attracta Uí Bhroin

Yes, indeed.

Chairman

I would be interested in hearing more about that. These sessions are really helpful because we get to look at this legislation before it becomes a Bill. It is a general scheme at the moment. When we are able to engage with expert witnesses like Ms Uí Bhroin, it really helps us to formulate and say this is how we can actually improve it. That is what I would hope to get out of this session. What would Ms Uí Bhroin recommend in terms of how that committee should be made up? How should members of that committee be selected and by whom?

Ms Attracta Uí Bhroin

In the first instance, to be very clear, our first recommendation was that the panel system should be improved, particularly in the context of the urgency with which we now need to address this and move on. We heard that very clearly this morning and Mr. Lawlor also referred to it. We need to understand that we have a robust system in place and that much could be done in respect of small tweaks to basically improve the panel system. I would be happy to revert further on that if there is time.

The critical thing I would emphasise is that although there has been much discussion at committee, it is imperative to highlight that in head 5, the proposed section 106(3) refers to the Minister establishing a committee "or other suitable independent" procedures. Therefore, there is no guarantee here that the Minister will establish a committee. He can establish any system he wishes and that is absolutely critical to understand.

One of our alternate recommendations is exactly what Deputy Ó Broin referred to, which is that the committee should be prescribed in legislation to reflect something similar to the panel system. I would suggest there is room for improvement in that regard. It should not just reflect what the panel system is. It should very particularly reflect the Ireland we have today in terms of ethnicity, diversity, equality and balance while also seek to address the core set of skills and perspectives. It should be very prescriptive in the Act and much more robustly specified than is set out here.

We have made detailed recommendations in respect of that and would be happy to revert further if that would be of assistance to the committee. That is fundamentally the issue but there is also the output, the panels of nominees, as the Chairman very helpfully clarified in his question and previous remarks. The panel that becomes output can potentially be very problematic because it is a static panel and continually drawing from it depletes what might have been a very balanced composition. If that is what is going into the board, the outgoing from the board may be highly variable. At least with the panel system, different perspectives are exiting and coming in at different times. That allows for the maintenance of that balance whereas with this, people are being pulled from a static panel all the time until the Minister decides he wants to refresh the panel. We have multiple concerns with this.

There is also a further level of discretion in that the Minister may involve the Public Appointments Service in respect of any matter. This could all end up being decided by the Public Appointments Service and the committee seems to have discretion. There are multiple layers of discretion here. With the greatest of respect to the Public Appointments Service, one needs to look at the composition there and question whether that will even create the appearance of independence here given the involvement of the Departments within that. While it has always been important, everybody acknowledges that it has never been more important to clearly maintain the independence of the board. Indeed, the very first paragraph of the Minister's action plan refers to the importance of the independence of the board. I will not quote from it in the interests of time, but it is there. Ms Graham made those comments about it today and it was very much welcomed by everybody here.

There are multiple issues with what is proposed here. We have an urgent requirement to address. I ask the committee to question the Minister as to why he has not fulfilled his duties to move as soon as possible to replace people when they have exited under the system, including under panel A, before recent matters emerged.

Chairman

We will have a 14-member board plus a chair giving 15 in total. I would not expect all 15 members to be single-discipline experts. I take Ms Uí Bhroin's point if the panel were depleted of a certain discipline or expertise, the board would then be left short of that. I would imagine that somebody with experience of architecture would also have knowledge of urban planning, spatial planning and maybe transport planning. It would be good to have multiple expertise. Would it be a risk if, for example, the ecological expert comes off that panel that the other panel members should have some knowledge of that as well?

Ms Attracta Uí Bhroin

Absolutely. That is one of the issues in terms of - I hate using the term - mainstreaming things like sustainable development. People should be able to bring multiple skills and disciplines so that there is not just one pocket of expertise. The Act should clearly stipulate the requirement for multidisciplinary skills particularly with all the issues that arise in respect of the quora and divisions. I note and welcome that some of the issues relating to quora and divisions of the board are being addressed.

Chairman

Deputy Cian O'Callaghan made the point and I think the Department agreed that those other disciplines should be named in it. I do not think sustainable development is enough to encompass that because there are varying definitions or understandings of what sustainable development may be.

My last question is on the foreshore, the airspace. The Foreshore Act states something at the moment. There is an understanding or sort of custom and practice that it includes non-stated parts in previous decisions. That is sort of historically inferred in part of it. It never mentioned airspace. We are bringing airspace into it now.

Ms Attracta Uí Bhroin

Yes.

Chairman

From Ms Uí Bhroin's reading of it, would it be her understanding that if somebody wishes to carry out an aerial survey with this change being made that they would require foreshore licence approval if we bring airspace into it?

Ms Attracta Uí Bhroin

Yes.

Deputy Paul McAuliffe

In my earlier comments, I said this is two pieces of legislation. I will first ask representatives of the Irish Planning Institute about the An Bord Pleanála elements. I am very worried about the volume of workload for whatever entity oversees planning. My question is a simple one. Given the significant infrastructure projects - of principal concern to me is metro but also the BusConnects project - along with the increased activity in the housing market which we have seen over this year and hope to continue to see, is the current structure sufficient to allow for that increase in activity? Unfortunately, delays have been the hallmark of An Bord Pleanála.

Mr. Gavin Lawlor

I think the structure is fine. The issue is with resources and always has been. On multiple occasions the Irish Planning Institute has called for more resources to be provided. That resource difficulty is at the inspectorate level, the administrative level and particularly now at the board level. Whenever there is a depletion of board members whether it is through holidays, through sickness, through resignation or through natural termination of contracts at the end of terms, if there is any delay in appointing new board members, it creates a difficulty for the board because they do not have the same number of bodies to make decisions.

A quorum of three is required to make a decision even in the smallest application, such as a pair of gates or an appeal. There is a difficulty if the board only has five members because it is effectively only possible to have one board sitting at any one time making decisions. Each of those appeals deserves proper consideration because of the people who have raised the issues. It might only be a short issue, but it still deserves proper consideration. There are also much more complex issues such as motorways, railway orders, renewable energy projects, strategic housing or just generally big housing now called large-scale residential development, LRD, which will end up with the board. The issue is there a significant logjam in the board. Any time that the development world picks up in terms of economic increase, the issue arises. Unfortunately, I have been around for three development cycles. This has happened three times during my career where the board-----

Deputy Paul McAuliffe

Does Mr. Lawlor believe the number of board members is sufficient but the issue is with the resources attached to the overall organisation?

Mr. Gavin Lawlor

Currently the number of board members is insufficient. We welcome the move to 14 members.

Deputy Paul McAuliffe

Sorry, I should have said the proposed number.

Mr. Gavin Lawlor

We think that will be sufficient. More resources are needed at inspectorate level still, particularly because of the bigger projects coming, but more particularly the marine side of things. There need to be specialist inspectors and specialist advice for the marine side of things. That will be an enormous body of work when it happens properly. It is also new and so will need time and proper consideration. I know the Minister has said he will resource that side of the board in due course but the sooner the better.

Deputy Paul McAuliffe

My next question is for the Irish Environmental Network. Earlier we raised the issues relating to heads 9 and 10 - the idea of the definition of the foreshore and the idea of airspace, as opposed to aerospace, being included in that. I heard Ms Uí Bhroin's comments earlier. It seems like a logical conclusion to include the seabed, the column and then the area immediately above, wheresoever any location might be, only in one regulatory environment.

I can hear the logic but it would be interesting if Ms Uí Bhroin could expand on concerns.

Ms Attracta Uí Bhroin

I very much appreciate the Deputy's suggestion in the earlier session that this matter should be looked at separately given the complexities therein. I would like to involve Ms Dubsky in my response.

We are very interested in seeing, if possible, the legal advice that was referred to earlier, and sharing that, and being able to revert and consult a little bit further on this matter. There is a really significant case that is very relevant for a common law system, such as ours, which is the Thames Heliport court case in which the requirement for planning, as I understand it, was considered as a ship that operated to allow for planes to take off and land but without planning. The court case all hinged around the definition of land and the considerations around the seabed. The water in between the ship and the seabed was considered to be covered because the ship was supported by the water which, in turn, was supported by the seabed. So there is a lot that can already be drawn on. What we struggle with is understanding why and what additional is being proposed here given that the development, in terms of what is required to be constructed above, has always been covered. For example, if one builds a house the air space that one occupies above is covered but this Bill just refers to airspace untrammelled and talks about subsoil. We need to be very conscious of the implications, particularly in terms of minerals and all those different types of things, and the provisions in the Foreshore Act in terms of that. So one must be conscious of the potential for a whole host of other issues that I mentioned earlier.

Deputy Paul McAuliffe

If I have heard Ms Uí Bhroin right, is she saying that there is a concern that if a licence was granted for an offshore wind turbine, for example, that it would somehow give extended rights into the airspace or a mineral deposit found beneath? Is that the area of concern?

Ms Attracta Uí Bhroin

There has got to be an awful lot more discussion about this and a lot more consideration. To be honest, answering such questions is above my pay grade.

The critical point is that this matter requires detailed expert scrutiny and advice that would assist the committee, and that is our firm recommendation here. Obviously there are constitutional provisions in respect of the State's ownership of minerals, etc. but foreshore licences can be granted in respect of things like this. We need to be very clear about what is being proposed here, why and if the State is being asked to effectively cede a licence interest as that is a very serious matter and we need to understand the implications.

I think that this committee is very aware of the Maritime Area Planning Act. Within that Act one of our very concerns was the extent to which the authority of multiple agencies and Departments is extremely limited by that Act in respect of maritime area consents. There are a whole number of things acting here in the context of what is a really important but very fast moving and complicated area. We just need to make sure that we have a clear handle on what is being proposed and that is our concern. We do not.

Ms Karin Dubsky

Airspace is mentioned, and maybe that is the hook, in the Land and Conveyancing Law Reform Act 2009. One of the lawyers to whom I spoke said that perhaps to overcome this the definition of the Foreshore Act may be that of land, within the meaning of the Land and Conveyancing Law Reform Act. Then, because that Act already covers airspace, one covers oneself if one just makes one little amendment to the Land and Conveyancing Law Reform Act. At the moment section 3(e) of the Act states: "the airspace above the surface of land or above any building or structure on land which is capable of being or was previously occupied by a building or structure and any part of such airspace, whether the division is made horizontally, vertically or in any other way". The provision links the airspace to a structure and we thought that that at least puts a limit on it, and if one now takes that Act and just add two words "or water" so that the legislation reads "the airspace above the surface of land or water or above any building ...". The words "or water" would cover the foreshore but in a more constrained fashion.

Ms Attracta Uí Bhroin

I think that the term "water space" would probably be the appropriate term.

What was interesting and what we would particularly like to revert on is the reference and query concerning surveys so non-tangibles and the invasion of the airspace associated with that. We certainly would welcome very close regulation of seismic and sonar activity because that is a huge concern for us in terms of the impact on cetations. It is quite ironic in terms of the fact that we are pursuing offshore renewable energy on the basis of climate and, obviously, economic interest as well but we, potentially, risk major damage to cetations, which have a huge carbon sequestration potential and have a very significant role in the overall health of our oceans, their biodiversity and, indeed, atmospheric regulation. Certainly we would welcome clarity and regulation in this area but we need to be very clear about what is proposed. The earlier comment by Deputy McAuliffe asking us to look at this separately is very well warranted.

Chairman

Ms Uí Bhroin has made the important point about the role played by a healthy ocean system in carbon sequestration, in addressing climate action as well as the energy requirement that we have. We must ensure that we do not sacrifice one to keep the other.

Ms Attracta Uí Bhroin

Exactly as that would be throwing the baby out with the bathwater.

Deputy Cian O'Callaghan

I agree with the Chairman that there is no need to sacrifice one for the other. So one can have renewable energy and protect the marine environment, and all of the positives that come from that. I agree with the points made that sustainable development is a very broad term and could mean anything to anyone.

On the discussion surrounding the Foreshore Act, the Department gave assurances earlier that the changes proposed will have no impact whatsoever on anyone who uses the marine environment or has an interest in it. Do those assurances address the concerns of the network? No, and those concerns remain. It is a very unsatisfactory situation where the Department says the legislation will have no impact whatsoever. It is not just the delegations who are in now that are concerned and that is in all of the other submissions we have received. The renewable energy sector is heavily concerned about the legislation.

I thank the three participants here for all of the work that they do on issues outside of the committee. I am very conscious of it and the huge amount of effort that they put in is highly valued.

On Bord Pleanála, is the Irish Planning Institute concerned about this Bill, the heads of the Bill and how it could, potentially, concentrate power to appoint in the hands of the Minister? What is the view of the institute?

Mr. Gavin Lawlor

As I have said in our presentation, the issue is about transparency around the appointment. I do not think that there is any intent to focus or concentrate power in a Minister more so than there is or has been in the past. The Minister does have significant discretion currently concerning the appointment of board members from nominating bodies. So there is a list of people and the Minister has significant discretion as to who he picks from that list to go to the board.

Our issue concerns clarity and transparency. One of the biggest challenges is the fact that traditionally the board has been seen as a lay board so representative of society. Planning has become increasingly technical and complex with lots more of a legislative background out of necessity, which I see as a positive. However, planning has become much more complex.

The average layperson who does not have a discipline in the built environment finds it very challenging to get their heads around what is going on and the complexities.

Deputy Cian O'Callaghan

I take that point. Does Mr. Lawlor feel there is enough clarity and transparency evident in the heads of the Bill about how people will be appointed?

Mr. Gavin Lawlor

No. We have said very clearly that we do not think there is enough in there. We believe that there should be more clarity on the appointment of the committee members.

I might just add that there was a reference to the panel system that happens after that. We would not necessarily be a fan of that either. Going onto the board is a huge undertaking, in particular for people who have expertise in the built environment because at the end of one's term, there is a moratorium on one working in one's profession for at least a year - for good reason. People are not paid for that. They used to get a pension but that has stopped.

Deputy Cian O'Callaghan

I am sorry to interrupt but I have other questions to ask. I am sorry but I have limited time.

Chairman

I would like Mr. Lawlor to expand on that point. I will give him more time as he is making an important point.

Mr. Gavin Lawlor

The difficulty with the panel is that if people are appointed to it at an appropriate point in their career and if the panel sits for a defined period of three or four years, it may be naturally depleted in any event. As per the earlier discussion, the key word is "balance", and it is missing from the legislation. All the witnesses agree on that. In order to have a balance of expertise on the board, the insertion of the word "balance" would be appropriate. That is what is missing. It is there by convention at the moment. If somebody comes off the board who is an architect, it is generally accepted in the development world that it is a good idea to replace him or her with another architect. Likewise, if an ecologist or somebody from an NGO such as the Irish Environmental Network comes off, it is good to make sure that a balance is restored on the board. That is the key.

Deputy Cian O'Callaghan

I thank Mr. Lawlor. My next question is for the Irish Environmental Network. Do the witnesses think there is potentially a concentration of power in the Minister in terms of the heads relating to the board and, if so, how could that be addressed in the legislation?

Ms Attracta Uí Bhroin

Absolutely, and it is not just within this head, it is in relation to the commencement provisions, the regulations, the removal of Oireachtas oversight and the making of orders to increase the number of board members, as well as in many other elements right across the heads. I include the preservation of "may" or "shall", which Deputy Ó Broin referred to earlier in regard to making complaints under head 7.

In respect of proposals working on the basis of these heads, much greater prescription is required in relation to the considerations in head 5 and the proposed section 106(2) around the Minister and appointments. The word "expertise" is not even included. It just refers to experience. We referred earlier to the deficiencies in terms of the list of skill sets but there are also some very odd elements in there. In terms of infrastructure delivery, the board is not a commissioning agent. Something like that does not have a place in there. There is a whole pile of things missing such as archaeology, landscape, ecological skills and all of that different type of consideration. That could be very specifically prescribed.

In head 3, the discretion to provide for another system should be expressly deleted. If we are going with a committee, it should be a committee and there should be no alternative there. In relation to the other matters I talked about earlier around drawing from the panel, the Minister should be required to ensure that he or she is obliged to maintain balance in the make-up of the board. There is great room here also to provide for accountability and transparency on decision-making in terms of regular reporting, perhaps to this committee or laying reports before the Oireachtas and facilitating debates, in particular in the context of recent experiences just to engender and provide for open, public understanding of a very proactive approach to the management of the board in the interests of the types of issues Mr. Lawlor has referred to in terms of delays and the length of time involved. An awful lot can be done here but in the interests of time, there is a lot in the recommendations.

Deputy Cian O'Callaghan

I have just two final questions. From my read of infrastructure delivery, it looks quite different to the other headings. It is not even "infrastructure", it is "infrastructure delivery". It is not about housing delivery. What sort of people would have experience or knowledge of infrastructure delivery? What sort of backgrounds would they have or where would they be working?

Ms Attracta Uí Bhroin

We are effectively talking about development and construction. In effect, developer interests are being put on the board.

Mr. Gavin Lawlor

I disagree with Ms Uí Bhroin. I do not think it is meant to be developers but people like those in Transport Infrastructure Ireland, TII. Infrastructure delivery, as it is meant in the development world, is roads, pipes, and that type of stuff. Developers would not generally have that experience; it would be in local government and semi-State bodies like TII and the National Transport Authority, NTA. Those who would have expertise in infrastructure delivery would be people who have built a road or a pipe. Is that necessary or appropriate for the board? I would not think it is anywhere near as important as having a lawyer, ecologist or archaeologist on board. I agree with Ms Uí Bhroin about "expertise". I do not consider the current phrasing is useful.

Deputy Cian O'Callaghan

Infrastructure is quite a specific section of development.

Mr. Gavin Lawlor

We must remember as well that the board has a responsibility in terms of strategic infrastructure. Expertise in dealing with engineering and infrastructural issues like energy, roads and rail, in particular with the metro coming up, would be important.

Deputy Cian O'Callaghan

But it is the component parts that could be more important.

Mr. Gavin Lawlor

Or we could take out the delivery piece and just put in "infrastructure" and that would be appropriate.

Deputy Cian O'Callaghan

This is my final question for the Irish Environmental Network. If we do concentrate the power in the Minister, what risks or dangers would result in the worst-case scenario? I refer to a situation where the Bill goes ahead, as is, and there is a lot of discretion for a Minister. What could that mean if we have a bad Minister with a particular agenda?

Ms Attracta Uí Bhroin

In the worst-case scenario, it could be an absolute nightmare. In head 7, there is no preclusion on departmental appointees, basically civil servants, or somebody who has just recently exited the Civil Service. We could have a system whereby the Minister appoints a team that is entirely departmentally orientated in terms of the system that is being prescribed, the profile of experience that is being considered and the balance of the board could be entirely at his discretion. The ultimate worst-scenario outcome that we could see from this is a total lack of public confidence in the independence of the board. That is the ultimate aim we should be trying to achieve. We should have public confidence in the board and public confidence in the process for the appointments of the board. This particular system lends itself to absolute abuse. With the greatest respect to the current Minister, in the worst-case scenario, we could have the Minister having total authority to choose whatever system he wants, appoint whatever committee he wants, make up whatever regulations he wants in respect of the skills and requirements and then he has total discretion to appoint the board out of that. We could have a very imbalanced, inadequate, compromised board.

Deputy Cian O'Callaghan

Does the Irish Planning Institute feel that a lot of the discretion is already there so this does not necessarily change it? Is Mr. Lawlor saying that it is not necessarily regressive?

Mr. Gavin Lawlor

It is there already, in effect, because the Minister has all of those powers currently.

When a panel is formed and a number of people are put forward, they come from all the disciplines. It is convention. There is nothing in prescribed in law that forces the Minister, for example, where an architect has just left a board, to appoint an architect from the panel of people he or she has been given from all the nominating bodies, or to appoint another ecologist and have three ecologists on a board. It is good practice and good governance to have that balance on the board. It has been convention rather than prescribed. If we are going to prescribe how we do this in legislation, and the institute does not have a difficulty in that regard - we think it is good because it avoids uncertainty - then we would agree with Ms Uí Bhroin that some of that discretion needs to be taken out to ensure that at least the word "balance" sits somewhere in the legislation.

Deputy Cian O'Callaghan

Especially in the current context, the need to do that is stronger than ever. It would be good practice anyway.

Chairman

The number on the panel should be maintained with a diverse range of skills. Ms Dubsky wanted to come in on a point that Ms Uí Bhroin made.

Ms Karin Dubsky

The consequences can also be that we have further biodiversity loss instead of a turnaround restoration because if the expertise or understanding is lacking, particularly now that the local authorities will take over the nearshore zone, and they do not have that in-house expertise at the moment, we could have a serious bulge coming to An Bord Pleanála unless that is prevented from happening by very careful guidelines and giving enough expertise to the local authorities. In the teething days, it is very likely there will be challenges on the necessity of it. Something like blue carbon seagrass is not protected in general except for a few places where it happens to be in a marine protected area, MPA. It can just be lost, literally overnight, if we do not have the right process in place and the right expertise in An Bord Pleanála.

Ms Attracta Uí Bhroin

I respectfully disagree with Mr. Lawlor on the obligation of the Minister. It is express in section 108(3) that, where a vacancy occurs, the Minister is obliged to fill that "as soon as may be". If somebody comes off the board from a panel, there is a requirement to fill that vacancy. I absolutely agree with Mr. Lawlor that there are issues in the panel system, particularly if a Minister chooses not to appoint the person from the names being proposed by a panel. There are significant issues in respect of what happens then under the current section 106. That is quite unsatisfactory. I would return to my earlier point about improving the panel system rather than moving to this committee because, ultimately, the panel system is leaving it to organisations. There is the degree of transparency and accountability within those organisations. If someone is appointed to a committee, it remains to be seen from the operations of the committee how transparent the dealings of that committee will be and the accountability back to those bodies. That is the material difference in respect of the panel system and the committee system.

Deputy Thomas Gould

I thank the witnesses. It is very interesting to listen to them and, to be honest, some of their points are concerning regarding the potentially serious flaws in the legislation. We are all here to try to improve the integrity and public confidence in the planning system and An Bord Pleanála. There is a job of work for us all to get there, and especially on the Minister and the Department to bring forward the necessary changes. A question that came to me when I looked at the submissions was whether the witnesses are satisfied the controversies of recent years would not happen if the changes proposed were in place now.

Mr. Gavin Lawlor

That is a really difficult question to answer. The process here is more about adding more board members in the first instance and then how they are selected. Is there a potential for someone to do something wrong in the future? There absolutely is. That is just human nature and no amount of legislation will prevent that. You have to pick the right person, so to speak. The idea of this legislation is to try to make sure we pick the right people to put on the board.

The issues with the board have been well and truly ventilated at this point. The Office of the Planning Regulator, OPR, has produced a report that made it very clear it is difficulties with governance and with a misunderstanding, at best, or a lack of understanding about what constitutes a conflict of interest. That is the crux of the current issues that have come out of the board. As a result of that and the way confidence has eroded since April when the controversy first arose, we have taken too long to deal with it and taken too long to fill the board positions. It is quite alarming we have a board at the moment that essentially consists of four people. There are five there but one is on long-term sick leave. We have only four active board members, so that is one quorum and it cannot legally make decisions because it has no chair and no deputy chair. We would say this legislation is urgently needed. We need to get on with appointing board members and to do so in an open and transparent fashion. Will it prevent what has happened in the past? The legislation will not but I think that the OPR's action plan will.

Deputy Thomas Gould

Ms Uí Bhroin is laughing anyway.

Ms Attracta Uí Bhroin

As always, Deputy Gould goes right to the heart of the matter. There is no beating around the bush. His question is so pertinent. A golden opportunity is being missed here to really beef up in primary legislation the governance requirements for the board and to ensure there is the separation and that true independence, particularly from the Department and especially when it comes to the sensitivities around specific planning policy requirements, SPPRs, etc. and all those different types of things. That is critical because it has become such an issue within the courts.

There has been, however, a wider failure of governance in the delays in responding to the types of issues we have seen in the initiation of a review by the Office of the Planning Regulator. That is something that could be prescribed on a body at the apex of our planning system. That should be a regular prescribed review that should happen and there should be a requirement for that report to be put before this committee or, indeed, the Oireachtas, given the centrality of the role of An Bord Pleanála. There is an awful lot more that could be done around the remove in terms of absolute proscription for a set-aside period on acting civil servants or civil servants who have been within the Department before they can be appointed to the board, increased governance requirements and prescription around conflict of interest, making clear deterrents, and prescribing in legislation and not leaving it to the discretion of internal processes. In this way there would be very clear signals and assistance to people on what can often be a very complicated issue around declarations of conflict, codes of conduct and all those different types of things.

One of our concerns is that this legislation is coming before we have seen the final OPR review and before there has been any opportunity to have a proper discussion on this. That is why our firm recommendation is to tweak and improve the panel system and then take a step back and move to expedite the appointments to the board. We also need to be very conscious that we have had the resignation of the chair. There was no mention, but perhaps I missed it this morning, of provisions around the appointment of the chair.

That area also definitely needs to be looked at because there are some very serious concerns, particularly about the composition of yet another committee looking to do this, which, bizarrely, has included in its membership a very senior member of the Department - the Secretary General, I think. One has to question how that is appropriate in the context of a committee involved in the consideration of the nomination of candidates for the consideration of the Government for appointment to the chair. There are further issues within that if the Government chooses not to appoint that chair.

There is therefore an awful lot more that could address all the concerns that Deputy Gould, as always, has gone right to the heart of. This legislation is not fit for that purpose at all.

Deputy Thomas Gould

I thank Ms Uí Bhroin for her views. My question is whether we are going to be back here again. If we are bringing in legislation, we are trying to fix a problem. What Ms Uí Bhroin is saying, and I agree with her, is that there is nothing to say we will not be back here again. There are good things in this general scheme such as the increase in the number of members to 14, including the chair.

To go off on another aside, Ms Dubsky talked about expertise. When I look at the number of people and the potential professionals or experts that could be on this panel, my question, which I think the Chair or maybe Deputy Ó Broin touched on earlier, is about the multidisciplinary approach and people having numerous qualifications. That is brilliant, but will we be able to get all the expertise onto the panel when there are 14 members?

The other point about the panel is about the public interest and people who might not be experts in architecture or the environment but who might be community-based. Sometimes the type of person who brings different experiences is needed on a panel.

Sometimes we see a situation that could be positive or negative. Let us say a local authority gives permission for a certain planning application and the Bord Pleanála inspector supports it. It then goes to An Bord Pleanála and is rejected, or vice versa. There might be local engineers working for a local authority and a Bord Pleanála inspector rejects the planning application. It then goes to An Bord Pleanála and is accepted. How is it possible that a group of experts on one side have a completely contradictory point to that of the board? How can that be rectified? How do the witnesses explain that? I have dealt with a few such cases over the years and found it very frustrating.

Mr. Gavin Lawlor

I can help the Deputy with the last question fairly simply. People make mistakes. Inspectors make mistakes. Planning authorities make mistakes. They miss things. Boards make mistakes. The courts have pointed that out. Why is there such a difference? That is why. If, however, the Deputy looks at the statistics of the board and goes back through even this whole controversy, he will find it has been horribly consistent on the grant refusal rate and the overturn rate. There are situations in which an inspector will form a view on an issue on balance. That view may be in full agreement with what the planning authority might have done on balance, but the board may have formed the view that there are other concerns that are maybe more important than the inspector. The board might weigh up the environment or sustainability argument more than, say, an economic argument or an employment argument in a debate. There is a need for that. The inspectors make recommendations; they do not make decisions. The planning officers make recommendations; they do not make the decisions. The decisions are made by the director of services or the chief executive at local authority level and the board, ultimately. It is the board that makes the decisions. Recommendations are given to it. It can choose to accept or to refuse them. What is important is that there is transparency in the decision-making and that one gets a note from the board stating why it disagrees, if it does disagree; if there is a condition not included, why it is not included; or if the board has added a condition, why it has been added. Transparency is the key.

Ms Attracta Uí Bhroin

In response to Deputy Gould's question as to whether we will be back here again, it feels to me as if we are already in a Groundhog Day situation. Effectively, the situation we were in previously was such that Ministers made the decisions on planning etc. Then we decided that was not good enough and that we needed to move to an independent board. We did that in 1976. The Minister had too much discretion within that, and in 1983 we moved to the panel system. Now where are we going back to? We are going back to a situation in which the Minister has total discretion. If the Deputy follows me, again he has hit the nail on the head. Will we be back here again? We are going back in time with this legislation.

Mr. Lawlor's points about the interaction between the board and the inspector are interesting. The inspectors have a huge amount of expertise and experience, but there is that requirement, especially in the context of what we now have, that is, the notion of the competent authority, whereby the ultimate decision is made by the board and it has the ultimate duty of the assessment. That is where it is critical. There is case law that could fill this room on the issues around the adequacy of reasons and considerations. That is something we could really improve in respect of our Planning and Development Act and all the environmental legislation where there are EU law requirements around assessment and particular requirements in respect of the transparency, the quality and the production of an assessment, and people's ability to look at a decision and understand why it was made or why it was changed. There is now already a reference before the European Court of Justice in the Eco Advocacy case. The hearing was just a week or two ago and related to the format of the reasons and considerations and precisely where the assessment could be found as to whether an environmental impact assessment, EIA, was required and how well it was set out. The problem is our legislation does not really do that. That is why we end up with challenges, issues, delays and things going to preliminary references. There are many complementary things that could happen around all this to address the types of issues the Deputy has raised.

Deputy Thomas Gould

Do the witnesses believe that the current process of judicial reviews is working? What improvements could be made to make it work better?

Chairman

I would like to stick to pre-legislative scrutiny of the Bill before us. There is a significant review of the planning Act which will incorporate judicial review, and the committee will be fully engaged in that. Try another question, Deputy Gould.

Deputy Thomas Gould

Was that a bit controversial? Do the witnesses think the planning regulator has a role in reversing decisions or requesting the Minister to review decisions in certain situations where there may have been improper conduct and-----

Chairman

At the risk of repeating myself, Deputy Gould, we will have the OPR before the committee. The OPR produced a very substantial report, and the phase 2 report is due out in November. The committee would be well served to invite in the planning regulator as well as the Department on its review of An Bord Pleanála.

Deputy Thomas Gould

Okay. My final question is about transparency. Given public confidence in the planning process at An Bord Pleanála, some of the points the witnesses made about their concerns that this Bill will not address that were quite concerning. Listening to the points they were making, if it is not done properly, the Bill, if not will, has the potential actually to make this worse. It is very concerning that the witnesses would make those points. The whole integrity of the planning process is in question. What can we do now in this Bill to help improve the integrity, transparency and independence of the planning process in An Bord Pleanála?

Mr. Gavin Lawlor

From the Irish Planning Institute's perspective, the board is a very respected institute that has been working and operating very well and without controversy or issue until very recently and has had some very respected members of the board and the inspectorate.

It is disheartening, as a professional planner, to see what has happened and for the public trust in that institution to ebb away in the fashion it has done. That is a function of the length of time it has taken us to identify the problems and deal with them, and of the fact the media has largely had to bang us over the head to get us to move along the way.

This proposed legislation will neither help that situation nor make it worse. I do not believe either of those possibilities is the issue. The issue is with the board and how it was being governed. It was a case of self-governance and it drifted away from its core values, which were explicit. It may have operated on the basis of convention but it operated very well up to a point, and it is only recently that it has drifted away from that level of integrity and performance that once obtained. There is a significant danger of throwing the baby out with the bathwater here. We need to fix the problem and the OPR has, usefully, identified those problems in its report. It has put in guidance for us as to what should happen. The board should be given the opportunity to make the changes that are necessary to move forward. The issue we are talking about in the context of legislation relates to how we appoint board members and providing further transparency in that regard. Members are hearing from both sides that we are not happy with the way the proposed legislation is framed. Too much potential discretion is being given to a Minister to pick his or her team, and that is the key concern. There is also the issue of ensuring there is balance on the board.

If we fix those two key issues, will we fix the problems we currently have? As I said, if there is a bad apple in the batch, the answer will be "No". What we have to do is address some of Ms Uí Bhroin's ideas about further oversight and review, which are good ideas to ensure we look more often at the board to see whether it is doing its job. I do not think we are going to end up back here because we are all too aware of the difficulties it has created and the significant delay it has created within the development community, for example. We have a massive housing crisis and in the past week, we have not made a single decision on the board. If we wait a further week, it will have been two weeks, and that is going to have an effect on the number of houses built next year, at the most basic level. On the flip side, the environmental side, there will potentially be projects where there is unauthorised development that need regularisation in some way and that are being allowed to drift along. The current situation serves no purpose. We badly need to appoint board members and to do it in a transparent fashion.

Ms Attracta Uí Bhroin

I would respectfully disagree. I foresee this proposed legislation making things absolutely worse. We are effectively reverting to a pre-1976 position. There is capacity to do things wrong. Without question - I agree with Mr. Lawlor on this - the board was the jewel in the crown of our planning system, but to some degree that was consequential on circumstance and fortune rather than a function of the general scheme as it stands. There is room for improvement within the eventual legislation, but not in this general scheme, not with this approach and not with the extent of discretion the Minister is seeking, which is quite an extraordinary political reaction to what we have seen over the recent period. It is not consistent with the degree of accountability that is appropriate to a democracy of our nature or to the type of Ireland in which I want to live.

Chairman

I have two final questions before I wrap up a couple of points for clarification. In respect of the current panel system, with the named entities and the selection process, are our guests satisfied at the level of oversight, governance, reporting and transparency within those organisations to perform that role?

Mr. Gavin Lawlor

It is difficult to comment on that because I can comment only on the one in which I am involved, namely, the IPI. I can talk about how we do it, which is very open and transparent. When there is a call from the Department to put a nomination forward, we go out to all our members and invite people to put their names forward and ask them what to do. They put their names forward to us and in most cases, there is only one or two. We represent approximately 700 members. It is a significant undertaking to become a board member, particularly for a planner. If that is his or her sole profession at the end of it, he or she will not be paid for a year. Only certain people can do that and they have to be either in a certain family or in a financial circumstance to be able to afford to do that. It used to be the case that board members were compensated when they retired. They got a pension, which was modest but they got it straight away. That does not happen anymore. It now happens at the age of 65 because, in line with Deputies, there was a change. There is a problem and a difficulty, particularly for our industry and for architects, engineers and others who work in the built environment, because it encourages people who might be later in their career to want to get involved. That might not be such a bad idea either, given they will have a lot of experience, but it is a difficulty. Perhaps one way to look at that in the future is to provide some sort of reduced salary for the board member for the year after he or she retires to encourage more younger members.

Deputy Gould talked about the community and I agree. We would advocate for somebody who is a native Irish speaker to be on the board in order that the subtlety in the Irish language will not be lost in some of the oral hearings and hearings that come through. Another cohort is younger people. With the grey brigade, of whom I am now one, there is a danger people of an older generation will miss what is important in the community for people of a younger generation, and there is a stronger emphasis now on the environment, not least among the younger cohorts.

Chairman

I appreciate Mr. Lawlor can answer only on behalf of his nominating organisation. Are the reports, recommendations, selection processes and so on available for examination? Are there minutes of what is discussed?

Mr. Gavin Lawlor

Yes, they are minuted. It comes to a council meeting and the process is minuted. If ten members put their names forward and there has to be a consideration in that regard, we will set up a specialist committee that will review the CVs and make a recommendation to the council, which ultimately has to vote to send that person forward.

Chairman

We might like people who have experience in ecology and the marine environment, for example. Does the institute specify what kinds of disciplines it is looking for? I acknowledge it represents planners.

Mr. Gavin Lawlor

Most planners are dual qualified. I have a social science background and a master's degree in town planning. Most of us have a significant and broad spectrum of experience. Unless the Department gives us a job description and indicates it is very much looking for someone with expertise in a given area, we do not tend to say that to the members. We will simply share with the members the job description provided, such as the paperwork provided by the Department, and it is up to their discretion as to whether they want to put themselves forward.

Chairman

Is Mr. Lawlor aware whether the other nominating organisations have processes such as that, if he can answer that question?

Mr. Gavin Lawlor

Yes. It is purely from hearsay, but I am aware that Engineers Ireland, for example, and the Royal Institute of the Architects of Ireland have something similar to that.

Chairman

That leads me to my next question, on recruitment and why somebody would want to be a member of An Bord Pleanála. When an organisation comes under the spotlight, as it is at the moment, and when there is so much speculation regarding wrongdoing that may have happened, it impacts on everybody who works in the organisation. In my experience of working with planners at local authority level, they come under a lot of scrutiny as well. There is no doubt that there have been issues with the planning system across the board over the years, which we know about through the various tribunals and so on, but it is always important to state that we are aware there are many good people working hard in the board who want to make those proper, open and transparent decisions in the public interest because that is their role. In trying to recruit board members, will the way in which confidence, as others have noted, has been knocked in that agency present difficulties in getting people to take on those roles?

Mr. Gavin Lawlor

Honestly yes, although that is more of a personal opinion than an IPI position.

It is very difficult to represent that opinion through the whole of the Irish Planning Institute, IPI. Personally, I would agree with the Chairman that confidence has been knocked and that there is a challenge in attracting talented people to the board but that is what we need to do. We need to have a diverse, talented board in place with people who have significant expertise and experience, are judicious and have significant integrity. That is ideally what we want to do.

Chairman

These sessions are very helpful when we can get this expertise, where it is available, for the public to view and to know that we are trying to do our best here to reinstate that confidence and to put the best people in place. As an aside, I know a senior planner and when asked out in a social situation what they do, they say that they are an engineer; they do not want to get into that conversation because everybody is an expert on planning.

Mr. Gavin Lawlor

That may have more to do with the fact that they will ask that person’s opinion.

Chairman

Yes, and seek free planning advice. I have one or two clarifications. Ms Uí Bhroin asked about the legal advice which we were presented with. I do not know if that is our legal advice to pass on but I can ask those who presented that legal advice if it is okay to pass it on. I do not want to pass on something that is not mine.

Deputy Eoin Ó Broin

Through the Chair, I imagine if Ms Uí Bhroin contacts them today, they will send it on today.

Ms Attracta Uí Bhroin

I thank the Deputy very much.

Chairman

If Ms Uí Bhroin wishes to do that, that is fine, as that will take me out of the loop. That is a good suggestion from Deputy Ó Broin.

Ms Attracta Uí Bhroin

That will be fine.

Chairman

I had one other question. On the discussion we had on infrastructure delivery, I am not overly concerned about that because it could refer to somebody who is an engineer. The more people one gets into the room, the more diversity of understanding one has of all of the different aspects of planning, development, project management, etc., ecology and environment, and one should not exclude people from that background.

Mr. Gavin Lawlor

I agree.

Chairman

Ms Uí Bhroin asked about the appointment of a chair and deputy chair in that process. The Department stated that the Minister is initiating a process of appointing a new chairperson to the board to replace the retiring chairperson, and will also shortly appoint a deputy chairperson, at the level under that. I am not certain if Ms Uí Bhroin was present for that part of the statement. We have one more question from Deputy Ó Broin.

Deputy Eoin Ó Broin

Can I just make a small point, please? My apologies as I had to pop out to talk to a group of students from the constituency and I was encouraging them to become planners, engineers and architects. I am very serious because they were asking me questions about climate change, renewable energy, energy security and affordable housing. Our future is secure as far as the community college is concerned.

I wish to make the point that we should stop calling the board a board. This confuses people because they think it is a board, as in a board of another organisation which has oversight. It is a planning authority. They are right in that the people who go into it as board members come out of their primary professional activity, but they are professional planning authority adjudicators, and there is a certain level of confusion around it. It is a small point but one that will actually help because if we want to restore public confidence, we should be rebranding to actually call it what it is, whatever one decides to call it, because it is a planning authority. People are on this board full time and on a very significant salary, albeit for a set period. It is a point that somebody from the board wanted to make to me; they thought that even though it sounds superficial, it is actually quite a significant part of this matter.

Chairman

Does Ms Uí Bhroin wish to contribute or does Mr. Lawlor?

Mr. Gavin Lawlor

I do not disagree with the Deputy. There is a great deal of confusion when one uses the term "board" in the community but there is a governance function which sits with the board, the chair and the deputy chair. This is also a problem because with a board of ten members, with two of them having non-planning functions, where they have to look after the budget, staff, management and so on and so forth, there is a very significant opportunity for distraction.

Deputy Eoin Ó Broin

Is that not an argument then to say that the planning authority, with its full-time planning adjudicators, should have a board in the same way as the Land Development Agency has its full-time staff, and also has a board which deals with those oversight and governance issues?

Mr. Gavin Lawlor

I do not know if it is necessary to that extent. Once the board is resourced properly, that is, provides more board members, that will probably solve the problem and allow the chair more discretion to function in a traditional CEO form, for want of a better description.

The other thing to mention is that there is a planning authority and then an appeal function. The thing that confuses people and has caused a great deal of consternation, particularly with strategic housing developments, SHDs, is that the board has two functions. It has an appeal adjudication process, which is almost quasi-judicial, and that is what it was set up for in the first instance. We have added the function of the planning authority for deciding as a court of first instance in planning applications. One is a development assessment authority and the other one is an appeal authority. Perhaps one of the things that might be looked at for the board is to, perhaps, dissociate those two functions a little bit more clearly, so that if one is making an appeal; one knows that is in an appeal, and if one is making a board referral; one knows that it is a board referral. Perhaps, two different boards are not needed but different members could be associated with different groups - I was going to mention panels there to create even more confusion - within the board. That is something that could be looked at as a potential future change.

The existing position creates confusion and that is unhelpful in the community because much information has come out in respect of strategic housing, generating confusion in the community. It has done good things but it has also created a great deal of confusion and there is a great deal of angst over specific planning policy requirements, SPPRs, and how they are being implemented.

The other point I would ask to be noted is that the selection of the chair is key. More traditionally, that has been somebody from the Department. I would call for somebody different, this time around, speaking for the institute. That is, somebody from a different background, be they a semi-State CEO or somebody who may have something more of a business head on the governance side of things.

Chairman

The Office of the Planning Regulator, OPR, has done some very good work in explaining the planning system and those planning leaflets that used to be out there. People probably do not understand why the whole decision-making process takes 18 weeks or 14 weeks. It would be helpful for members of the public to know that this is what goes on in a planning decision application process.

Mr. Gavin Lawlor

A great deal can be learned from looking at other jurisdictions also and how their appeals process works. For example in Australia, it is a great deal more transparent where there is an oral hearing for every application over a certain size. People who have an interest can come in and say their piece in front of the board members. The board leaves the room, goes out to make its deliberation, comes back in and gives its decision, which it then has to explain.

There are other examples from other jurisdictions where we can learn and from which we can take aspects.

Chairman

The OPR report recommended something similar. Ms Uí Bhroin wished to speak on the last comment made.

Ms Attracta Uí Bhroin

Just to touch on the Chairman’s comment about the board being an attractive place to be a member of; that is really key. This is one of the things we need to look at in respect of the outcome of this process. If one is concerned about the process itself and how it has happened, one is going to be concerned about being one of those people who are going to be part of a mix of possibly a compromised process. This may perhaps not involve this iteration but the next one, which may overlap. That is why it is so important for this committee as regards its input and feedback. We have an urgent need to address the board now and we need to do it in a way which is confidence-inspiring, involves the public appropriately, and does not allow for that level of ministerial discretion that is in this Act, which, as we have talked about earlier, is like Groundhog Day, and is bringing us back to pre-1976.

On the planning authority, I could not agree more with Deputy Ó Broin. It has significant implications, particularly in respect of the 2018 Act, with implications for both the Minister and the OPR. I am looking at the clock and I am aware that we do not have time to discuss this here.

On the question of a two-tier type board, I believe the Minister's action plan actually touches on this and the OPR, in respect of a panel of, effectively, planning commissioners as opposed to an executive-type board. That is in the mix. In the context of that, it is all the more important that we very much look at this because the Minister's action plan specifically refers to that governance executive board, with the chair and the deputy chair being chosen by the Minister. We have issues in respect of the current nomination process for the board, with a committee which includes the Department and it does not preclude currently, as it stands, the appointment of somebody who is an acting civil servant or somebody who has just exited the Civil Service.

There is an absolute requirement in terms of independence, transparency, governance and having that degree of remove.

Ms Karin Dubsky

I really like the idea of the planning, making this clear in public, and having maybe one chair, two vice-chairs, the appeals function and the primary decision-making. It sounds good for public consumption as well.

Regarding the Foreshore Act, I reiterate that there is an opportunity to amend the Foreshore Act. We have all of this in the planning Act. It can literally be copied and pasted to provide that the Foreshore Act is not a dinosaur where the Minister can decide everything.

Deputy Eoin Ó Broin

That is really helpful.

Chairman

This meeting has been very helpful for the committee. I thank Ms Dubsky, Ms Uí Bhroin and Mr. Lawlor. They have appeared before us several times and I have no doubt we will see them again in the future. It is incumbent on us to explain the planning process to people and restore confidence in it. Planning is a good thing; it is not a bad thing.

The joint committee adjourned at 12.31 p.m. until 11.45 a.m. on Thursday, 17 November 2022.