Joint Committee on Housing, Local Government and Heritage debate -
Tuesday, 7 Feb 2023

General Scheme of the Planning and Development Bill 2022: Discussion

Chairman

I welcome everybody to the meeting. Today, we commence our pre-legislative scrutiny of the draft planning and development Bill 2022. From the Department of Housing, Local Government and Heritage, we are joined by Mr. Paul Hogan, acting assistant secretary in the planning division, Ms Mary Jones, principal officer, Mr. Colin Ryan, senior planning adviser, and Mr. Eugene Waters, assistant principal officer.

For anybody watching, the committee will have a series of ten meetings on this legislation. It is critically important legislation in the context of that we are going to do in this country over the coming decades. We have ten meetings organised with a broad range of entities that have sectoral expertise across planning-related matters. We commence our proceedings today with the Department and we will conclude them with it on 9 March next. We will then produce our pre-legislative scrutiny report of recommendations and these will feed into the further development of the proposed legislation as it moves towards publication and being debated by the Houses.

Before we begin, 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 in the committee room are protected by absolute privilege in respect of their contributions to today's meeting. This means that 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 and it is my duty as Chairman to ensure that 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 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.

Before I invite Mr. Hogan to make his opening statement, I note that the draft Bill is enormous. It runs to 740 pages. We have a small briefing document. Earlier, we had a briefing with the Department to go through some of the parts of it. The draft Bill is absolutely needed. The Act of 2000 had become impenetrable in places and is difficult for people to understand. We should acknowledge the role the Attorney General and his team played in bringing forward all of the relevant amendments and trying to consolidate everything relating to planning. The committee will play its part now in ensuring that we produce fit-for-purpose planning legislation for the future.

I invite Mr. Hogan to make his opening statement.

Mr. Paul Hogan

I thank the Chairman for inviting the Department to meet the committee to discuss the general scheme of the planning and development Bill 2022, which was approved by Cabinet in December and published in January.

My name is Paul Hogan. I am the acting assistant secretary for the planning division. I am joined by Ms Jones, Mr. Waters and Mr. Ryan.

The planning landscape in Ireland has changed considerably since the current Planning and Development Act was enacted more than two decades ago. The country's population has grown by a third. Towns and cities have grown exponentially, and the way we live and work has been radically altered by the advent of new technologies and, more recently, by major events such as the pandemic. The wider sphere within which planning operates has also altered considerably over time. The advent of the national planning framework and the national development plan, the growth of regional spatial planning, the issuance of important European directives on areas such as habitats and biodiversity, and the rise in prominence of climate and energy-related considerations all play important roles in planning today in a very different way from which they did before the turn of the millennium.

Directives on matters such as habitats and biodiversity and the rise in prominence of climate and energy-related considerations all play important roles in planning in a very different way to which they did before the turn of the millennium.

Planning plays a pivotal role in how citizens interact with their locality, the wider environment and public spaces as well as how we resolve major challenges such as housing and sustainable energy. The 2000 Act enables considerable public participation and provides a framework to deal effectively and efficiently with nearly 30,000 applications every year, but is due an overhaul to build on that in order to ensure that our planning legislation is fit for purpose for the future.

It is within this context that the review and consolidation of the Planning and Development Act 2000 was undertaken. It is one of the actions contained within Housing for All. It was led by the previous Attorney General and commenced in late summer 2021. It has involved extensive engagement with the Department in terms of policy aspects and the feedback from the extensive stakeholder engagement undertaken. The key aim of the review is to put plan-making at the centre of the planning system, by bringing increased clarity, logical sequencing and streamlining to the planning legislation and by improving the functioning of the planning system for practitioners and the general public alike. Public participation, which is a hallmark of the current planning system, will remain a critical part of the system in the updated legislation.

The review sought to address areas of the Act that had become less clear and efficient than they ought to be due to the numerous amendments made over the years. It also afforded the opportunity to ensure that the provisions of the Act better align with up-to-date policy and are more accessible and streamlined from a legal perspective. This had to be achieved while maintaining respect for the role of the public, our adherence to constitutional requirements and to the intent of EU directives.

As the committee will be aware, the review was designed to deliver a draft Bill without a general scheme. It is intended that a final Bill will be published after the pre-legislative scrutiny process has been completed. The draft Bill is a considerable piece of proposed legislation. While much of it reflects an updating of the provisions in the existing Act, I would like to highlight the main proposed policy changes that have potential to improve clarity, consistency and certainty in the planning system.

I shall start with the purposes of the Act. Taking account of the various engagements and the policy considerations set out in Housing for All, it was considered important that the purpose of the Act be clearly outlined at the outset in order to set out the framework for a plan-led system for planning and development, based on an integrated hierarchy of plan-making and reflecting social, economic and environmental circumstances and considerations.

I shall turn now to clarity in plan-making. A key policy aim of the review was to ensure that to a greater extent, major debate is focused on the plan-making rather than the planning application stage. By putting greater emphasis on plan-making, for example on the scale of housing requirements to meet needs, in line with objectives of compact urban growth and environmental sustainability, it is intended that we can improve clarity and long-term visibility in planning outcomes. This then requires a delicate balance of consideration of public policy, public participation and environmental issues at the decision-making stage.

The alignment of strategic planning at national, regional and local level over longer cycles will bring greater certainty as will the streamlining of guidance through the introduction of national planning statements, approved by the Government. The introduction of extended ten-year development plans will provide a clear spatial planning framework for decision-making and will be reviewed and amended after five years, in practical terms, through the preparation of an interim report on implementation, assessing progress against delivery and against any wider changes to the legal and policy landscape.

On the certainty of timelines, users of the planning system will benefit from greater certainty through the introduction of a range of mandatory timelines across the various consenting processes, including for an coimisiún pleanála. As members are aware, An Bord Pleanála will be renamed an coimisiún pleanála and will have a revised organisational structure, and these new timelines are of central importance to this process. Penalties will apply for non-compliance with these timelines and the details for both the penalties and timelines are presently being worked through by the Department. I would expect that we will provide further details to the committee at our later session with in early March.

These timelines will be introduced on a phased basis, starting with strategic infrastructure developments, including energy projects. The ability to make decisions that materially contravene a development plan will be limited for both local authorities and an coimisiún pleanála. These changes will significantly increase certainty for all parties involved in both the application for development and any appeals or objections against such proposals and have been welcomed by stakeholders.

I will now turn to consistency in decision-making. All provisions contained in the draft Bill, including in the context of timelines, have been scrutinised by the Office of the Attorney General to ensure they are aligned with the relevant EU directives, and necessarily reflect the wording and intent of EU environmental directives. The appropriate assessment process, and particularly appropriate assessment in enforcement cases and processes for projects of imperative reasons of overriding public interest, has been reviewed to better reflect the intent of the habitats directive.

It should be noted that the Department is working on a costs protection scheme that will be introduced for those taking judicial review, the details of which will be clarified in the coming months. We will be working closely with colleagues in the Department of the Environment, Climate and Communications on this scheme, which will remove a significant cost barrier to undertaking a judicial review and reflects the recent High Court judgment in the Heather Hill case. An coimisiún pleanála or the local authority will also be able to correct an error of fact or law in its planning decision, and timelines will be introduced, for the various stages in the judicial review process, including for pleadings and submission of documents to the court.

The proposed legislation will also bring clarity as to who can seek a judicial review. In the future, a case can be taken either by an individual, or an environmental NGO or association, where there is sufficient interest in the case and other requirements such as being incorporated as a company are met. Groups such as residents' associations will still be able to seek a judicial review, but must comply with these requirements. If they do not, the members of the association may seek review either individually or collectively, as the provisions in the proposed Bill do not prevent this.

Overall, these changes should be seen in the context of other policy developments including greater consistency of approach with regard to planning policy and more limited grounds for material contravention in planning decisions, and should reduce the instances in which citizens feel that they have no option but to resort to judicial review, while protecting their rights to do so should they consider it necessary.

As noted in my introduction, planning interacts with multiple aspects of people’s daily lives and this review process provided a timely opportunity to ensure that the legislative framework is optimised for the society we live in today and to provide for the challenges faced by future generations. I would like to conclude by thanking the Office of the Attorney General for the significant work undertaken over the past 18 months on this review, and to the various stakeholders for their engaged debate, including the members of this committee. We look forward to hearing members' observations on the draft Bill and answering any questions that arise.

Chairman

I thank Mr. Hogan.

Deputy Paul McAuliffe

With the proposed changes around development plans, what is the justification for those being on a ten-year basis rather than a five-year basis, and what are the benefits or the implications of that change?

Mr. Paul Hogan

I will outline this and then ask my colleagues to come in. The primary reasoning behind this is to reduce the process requirement on planning authorities. As things stand, a development plan is reviewed every six years. It is a fairly significant review process, and it takes two years out of the six years to actually complete the review and write out the development plan. The intention here is to stretch out that process to ten years, enabling the two-year review every ten years and also a one-year review mid cycle. So, instead of two out of every six years being in process, it will be three years out of every ten years.

That allows more time for what we might consider to be real planning work, including engaging with local communities on area plans, seeking funding and putting measures in place for funding schemes that are coming available for vacancy and town centre first, for example.

The second logic behind this is to allow for a longer arc in the pipeline of development to enable strategies to take a longer view ahead to look at more sites and land, but also reflecting the realities of infrastructure delivery to serviced land and to get improvements in place for infrastructure delivery. There is, as I have said, a review opportunity after five years, so if progress is not being made, that can be reflected at that stage. If progress is being made very rapidly, that can also be reflected to take a further look ahead.

Deputy Paul McAuliffe

If I may focus on that, the development plan is one of the key powers that local councillors have. One would like to think that in each mandate or five-year term councillors would have an opportunity to have an impact on the shaping of the development plan. The concern would be that, given the two years of preparation involved and the ten-year life cycle, councillors will set plans in 2024, 2025 and 2026 that will last until 2036. This means there may be some councillors who will have no input into the drafting of development plans. Will Mr. Hogan outline how councillors will have an opportunity to amend, comment on or monitor a development plan over the ten-year period?

Mr. Paul Hogan

The mid-year review process is within five years. As matters stand, it is possible that an elected member with a five-year term may not be able to complete a review process or may come in at the end of one. That can also arise in the current process. With the proposal in the Bill, there is a definite five-year gap between processes so every elected member will have an opportunity in that timeline. With the longer arc of a plan, it needs to be more agile and responsive and needs to have the flexibility to enable variation. For example, we have reduced the threshold for members to request initiation of a variation from a two-thirds majority to a simple resolution by way of a simple majority. This means there will be, presumably, more scope to reflect changes in policy or direction locally.

Deputy Paul McAuliffe

Variations would no longer require two thirds of members but would require a resolution, which would be a majority of those present.

Mr. Paul Hogan

Yes, subject to the local standing orders.

Deputy Paul McAuliffe

There is the additional safeguard of the Planning Regulator in the event that a local authority makes a decision that does not make good planning sense from that perspective or if unusual activity takes place with regard to rezonings and so on.

Mr. Paul Hogan

The regulator is now an established part of the planning process, in particular the development plan process, so we would expect the regulator to have an evaluation role, as the office currently does.

Deputy Paul McAuliffe

Local area plans, LAPs, are in significant demand in Dublin city’s development area. I understand ten or 11 areas have been identified for LAPs. In reality, Dublin City Council does not have the resources to carry out 11 LAPs over the lifetime of the current five-year plan. Will Mr. Hogan outline what will replace an LAP and how it will benefit the process and perhaps meet some of the demands from communities to have an input in planning now, rather than waiting for each development plan to be set through an LAP?

Mr. Paul Hogan

As local area plans stand, their intent, purpose and application vary. An LAP can cover a whole town or part of a settlement, for example, the edge or part of a city, and can be for different things. LAPs can be to refine the detail of how an area may be designed or they can be to effect rezoning. There has been a high degree of variability around local area plans. The purpose of the new designation, if you like, in the Bill is to reflect the priority areas that are most in need of that sort of detailed attention. In a city context, therefore, the priority will be that area plans will be most relevant. The idea of the urban area plan is to cover the whole settlement and the idea of the joint area plan is where one has a settlement that straddles administrative boundaries.

Deputy Paul McAuliffe

I have one final question. Mr. Hogan may disagree with my view that the strategic housing development, SHD, process was not successful. I welcome the restoration of the role of local authorities. Are we ensuring that lessons have been learned from the decision to remove the voices of communities from SHDs and that people are being given an opportunity to contribute, particularly in the area of judicial review but also in setting priority area plans?

Mr. Paul Hogan

The involvement of citizens and the public in participation is enshrined in any of the planned processes in the Bill. Similarly, in respect of judicial review, we are not removing the ability of any individual to take such action as a last resort. It is important, however, as the Deputy said, that the discussion and debate take place at the plan level, people do not feel they have to resort to judicial review and the big questions are settled at an early stage in order that people have a very clear understanding of the broad parameters of what is likely to be permissible in any given area or site, whether one is a developer or a member of the community.

Deputy Paul McAuliffe

I may be out of time but I will engage with Mr. Hogan again in the second round of questions.

Chairman

Certainly.

Deputy Eoin Ó Broin

I thank Mr. Hogan and his team for the presentation and for all of their efforts on this issue. I will make some opening remarks and then ask some questions. In my view, a good planning system is one that makes high-quality planning decisions in a timely manner but with meaningful public participation. That is something for which many of us in this committee have argued for a long time. In that context, the shift towards a plan-led approach, as Mr. Hogan mentioned in response to Deputy McAuliffe, is the right way for us to proceed. What I would ask, however, is for whom and for what is the plan? At the centre of that, it must meet the needs of people and ensure we are able to meet our emissions reductions targets and climate goals.

I have two other general comments. It is important, and I believe it will be the case, that this committee has a fact-based discussion on our planning system because I often see things in the public domain which are very far from facts as to where our planning system is at. I also believe we should not be scapegoating our planning system, good, bad and ugly, for policy failures elsewhere. If this Bill is to work - I am not yet convinced that it will work but I am open to being convinced of that over the next five weeks - we must strengthen the bits of the planning system that already work well and could work better. We also have to reform those bits of the planning system that do not work. Crucially, we also have to resource it because we cannot have a plan-led system unless we have a very significant increase in resources, both for the local authorities and for what will, after the passing of this Bill, be the planning commission.

My first questions are on the area of resourcing. Mr. Hogan outlined the three new plan structures sitting underneath the development plan. We also had some discussion previously around statutory timelines. In the briefing memorandum provided to members in advance of the session, there is a reference to a request, as part of a business case, for resources for the planning function of local authorities. In quarter 2 of last year, local authorities were indicating they needed an additional 541 posts in planning. Can Mr. Hogan confirm, in respect of that memo, that the request was to meet the local authorities’ current requirements under the existing Planning and Development Act, as opposed to the new and very significantly increased requirements under this legislation? Has there been any assessment or analysis of what the workforce requirements would be to achieve the plan-led approach and statutory timelines envisaged in the Bill?

Mr. Paul Hogan

I will answer the question in reverse, if I may. The Bill will bring forward certain efficiencies in that there may be less process and more time for what I have described as real planning work. I am referring to doing area plans and ensuring that when a development has been completed, it is very clear what is permissible and, therefore, there is less scope for interpretation, ambiguity and all of that. The point is that there will be efficiencies and scope for better deployment of existing resources.

When it comes to the resourcing of the system I was very much part of that process with the local government sector.

It is certainly something that I was very keen to initiate. The Department did participate in the piece of work. We were very clear that we needed an honest assessment of where the system has got to, in terms of the tasks that planning must undertake, and also the tasks that we know are coming down the tracks. I refer to the likes of the residential zoned land tax, RZLT, land value sharing and what all that will mean.

Deputy Eoin Ó Broin

I do not want to cut across Mr. Hogan, but our time is limited. Are the 541 posts to meet existing requirements?

Mr. Paul Hogan

It is existing, as of quarter 2 last year, and what we knew at that time, which is largely where we are at now.

Deputy Eoin Ó Broin

I assume to then ensure the full delivery of the aspiration in this very significant Bill, there will need to be a significant increase beyond that, in particular if we are going to have a significant increase in new plans or statutory timelines for decisions. Would that be a reasonable assumption?

Mr. Paul Hogan

I would not necessarily say a significant increase because the first task is to ensure that everything the system is doing and trying to do now can be done well and to offer a good level of service.

Deputy Eoin Ó Broin

There will be need for more than 451 posts.

Mr. Paul Hogan

That is the 451 figure. We have certain efficiencies with regard to things like e-planning. We have a streamlining of the system as part of this process. We will certainly be looking at what the implications of this particular legislation are. As we have mentioned, we will be doing the regulations in parallel. As part of that process, we will also then look at the impact on the system.

Deputy Eoin Ó Broin

The second area of questions relates to the planning statements, which will replace the section 28 mandatory ministerial guidelines, how the planning statement then relates to section 62, which is expedited, and then the development plans where the development plan is no longer consistent with the new planning statement and section 120(2)(c) material contraventions. In the short time available, will Mr. Hogan clarify how those three areas interact and where strategic development zones sit in that? I will come in again in the next round.

Mr. Paul Hogan

I am sorry but could Deputy Ó Broin clarify the first part of the question? I am not quite sure what he means.

Deputy Eoin Ó Broin

It is to do with the national planning statements. The intention is for that power to replace what we currently understand as the section 28 ministerial guidelines. That new planning statement provision also then interacts with sections 62 and 120. When a Minister, for example, introduces a planning statement, there is a procedure for a fast-track to change the development plan and a procedure for permitting material contraventions of decisions by a planning authority or the board. Could Mr. Hogan explain those in plain English?

Mr. Paul Hogan

At the highest level, it is certainly where matters of national policy need to be reflected locally. That is the mandatory element of it – the national planning statement bit. That needs to be reflected through the hierarchy of plans. The cascade, as it were, is from the national to the regional to the development plan. It is intended to influence the plan system as opposed to individual decisions, but it can be taken into consideration when we are within that critical period prior to it having been reflected in plans. The intention is that it will be very quickly brought into the planning hierarchy, as opposed to leaving it hanging there and applied on an ad hoc basis to individual decisions.

Deputy Emer Higgins

I thank all of the witnesses for attending. I am very supportive of the idea of moving to ten-year development plans. It is one I floated in this committee three years ago. It will increase efficiencies and free up planners and planning resources within local authorities, while also creating long-term sustainable visions for counties right across the country. I ask for a little more information on what the review will look like. Will it be a mini development plan done at meetings? How will that work?

In his opening statement, Mr. Hogan spoke about public participation being the hallmark of our planning system. We must keep it like that. There is some level of discourse out there that this new planning Bill might dampen that level of engagement and involvement by local communities and residents' associations. I note that in his statement, Mr. Hogan spoke about the review of the consolidation of the Act and how there was extensive stakeholder engagement. What did that look like from a community perspective and what would he say to local communities and residents' associations to put them at ease about the public participation perspective?

There is a significant focus on plan-making rather than solely on planning permissions. What does that look like in real life? Could Mr. Hogan talk me through that a little more and explain what the difference is and how we move to the longer term vision?

I am also interested in hearing about the certainty of timelines, the introduction of mandatory timelines and the penalties that will apply. At this stage, do we have any visibility of what those penalties will look like? Are they financial? Is there any indication of how timelines will interact with that?

My questions are on the development plan review, the public consultation element with local communities, some further context on plan-making and then the timelines and penalties.

Mr. Paul Hogan

I might bring in my colleagues, Ms Jones and Mr. Ryan, at this point. Very broadly, it is important to say that there has been no diminution in public participation processes or timelines. Large elements of the current Act are carried forward, in particular with regard to public participation. Those processes have been enhanced in recent times as a result of the experience of Covid, with the ability to do more things online and interactively. E-planning means that people can engage with processes remotely. There is a recognition of technological improvement and the strengthening of existing processes.

Likewise, it is very important that we clarify some of the aspects of judicial review. I might ask Ms Jones to respond on that in a moment but, first, I ask Mr. Ryan to respond to the question about the mid-term review.

Mr. Colin Ryan

Section 56, as currently drafted, relates to an interim review of the plan that was made four years previously. At the end of the fourth year, the review begins. The interim report is prepared by the chief executive, and it relates to the strategy that exists in the plan that was made and how it complies with the various elements to do with the national planning framework, the regional spatial and economic strategies, RSES, the delivery of housing, the delivery on the objectives of the plan at the time and whether there is a need for amendment to reflect that change. The report is given to the elected members and they make a decision on that by resolution. That is the way the section is drafted at the moment. The purpose is to take a balanced approach and to examine halfway through the planning period where the plan is from an objective delivery point of view. It is to assess that in an objective and reasonable manner. The members make a decision on that, broadly speaking, on foot of the report by the chief executive. It is a review of the existing plan rather than a new plan.

Ms Mary Jones

In terms of residents' associations and judicial reviews, what the Bill does is it clarifies how a judicial review is taken. It is either taken by an individual or group of individuals or, if the criteria to be established as a company are met, a group has a minimum number of members and has been established for a minimum period of a year, it can be taken as an organisation. Effectively, it is to ensure that the organisation that takes the judicial review has a legal personality. We are not restricting residents' associations; it is just how they take a case. If they meet the criteria, they can take it in the name of the residents' association, but if they do not, someone takes it either on behalf of the residents or a group of named individuals.

Deputy Emer Higgins

What about the initial phase of plan-making, planning permissions and getting stakeholder engagement?

Mr. Colin Ryan

In short, as we said, we are moving to a more plan-led system. As Mr. Hogan outlined previously, there are area plans and priority plans, which will be a more detailed unpacking of that from a practical point of view. That then means when it comes to the planning application, it will be in line with the development plan and the area plans in a more practical sense.

Ms Mary Jones

Deputy Higgins also asked about timelines. There will be mandatory timelines for all consenting processes.

There is already provision for that in the current Act, with eight weeks specified for local authorities. We will bring in timelines for the board for the various consenting processes. We envisage a range of timelines, from the standard appeal to the more complex infrastructure-type cases. We are working with the board on what the appropriate timelines will be. We will be back before the committee in March, when we intend to have an update for members.

Deputy Emer Higgins

I am sure it is not solely my experience that the board, for whatever reason, whether resourcing or otherwise, often cannot make a decision on submissions within the given timeframe. A notification is then sent to say the time has been extended. Will this legislation cover that issue? Will it specify that decisions must be made within particular timeframes and, if so, how will that be monitored and managed? Will there be fines imposed or how will it work?

Ms Mary Jones

We envisage there will be penalties in such cases and, in addition, the board will have to make a public notification where the information is not included in its annual report. When the report is being considered by the Committee of Public Accounts, that information will be included. We are looking at a range of measures and we want to get the right mix.

Deputy Emer Higgins

I thank Ms Jones. That is really helpful.

Chairman

To clarify for anyone who was not here earlier, there will be a document that cross-references the old sections with the new sections, together with some other helpful documentation. That is being put together at the moment by the Department and the officials.

I understand that what is now called section 8 was called section 5 in the existing legislation. I think I am right so far in that. Under the old section 5, anybody could seek a declaration of exemption, that is, a request that a planning authority give a declaration as to whether planning permission is or is not required. Is that correct?

Ms Mary Jones

Yes.

Chairman

Under the new section 8, it appears anybody seeking such a declaration must be a "relevant person", which seems to omit members of the general public. What is the rationale for that? If I am not the owner or the relevant person, may I not seek a section 5 declaration?

Mr. Colin Ryan

In what was known as a section 5 declaration, as is now provided for in the proposed section 8, the simple question under consideration is whether something is a development and, if so, whether it is exempt. The purpose of the provision was to allow owners or people with a relevant interest to ask the planning authority that question and to get an answer in a reasonably quick timeframe. In regard to third parties, it has become more complex in the sense that questions are being asked that do not relate to the ownership of particular issues. That might be more relevant to enforcement action particularly and it is also to do with the efficiencies aspect of things in respect of the questions that are being asked.

Chairman

I take Mr. Ryan's point on that. However, to go down the unauthorised development route, one is going into six weeks of warning letters and possibly follow-up actions and enforcement. It is a good indicator to know whether an unauthorised development would be worth seeking if a section 5 declaration can be obtained.

Mr. Colin Ryan

The purpose of what was known as a section 5 declaration is to ask the simple question: is it or is it not a development? That is the purpose of the action, namely, to allow a person who owns a property or has an interest in a property to ask that question of the planning authority. In regard to enforcement action and non-authorised development, that is a separate wing of the planning section of the existing Act. It is not about cross-streaming; the purpose is to look at it more from an efficiency point of view in terms of what people have been asked and what the planning authority has been asked for, which is the question of whether it is exempt for the purposes of somebody else. At the end of the day, it is about the expressed view of the planning authority based on the information given to it at the present moment in time. It behoves individuals to make of it what they will in the sense of following up on it or not, as the case may be. If they do not follow up, then issues around enforcement action, unauthorised developments and so on come into play. The same applies to a third-party aspect in terms of the information and the question being asked of that party. It is a matter for the planning authority to take a view as to whether a development is or is not unauthorised.

Chairman

Was it taking up a considerable amount of time and resources to deal with the fact third parties could seek a declaration?

Mr. Colin Ryan

It is our understanding that, yes, it was taking up quite a considerable amount of resources and time.

Chairman

Who reported that issue?

Mr. Colin Ryan

I am speaking broadly from our reflections and from working with the Local Government Management Agency, LGMA, and the local authority sector generally.

Chairman

We can put that question to the LGMA when we speak to its representatives. I think it is an omission that there is no provision for third parties and it would be helpful if we were to retain it.

I find some of the wording in section 249, which deals with judicial reviews, very troublesome. Subsection (5) states that "any of the bodies concerned may make an amended decision, correcting any error of law." That is an extremely broad provision to put in any legislation. It gives limitless power to change an error of law. Will Mr. Ryan confirm the rationale for it? The decision cannot be changed but the processes within the decision - how the decision was arrived at - may be changed. However, if the error of law is significant, could that cause the decision to be amended?

Mr. Colin Ryan

The intention is to refer to an error that would not be material to the decision. That is an important clarification.

Chairman

That clarification should be inserted in the text, with the inclusion of something like "any error involved that is not material to the decision".

Mr. Colin Ryan

We certainly will look at that.

Chairman

Subsection (5)(b) provides that the body concerned may:

(i) take any steps remedying –

(I) any alleged failure to perform the function, or

(II) remedying an act done,

Again, there is the question of whether something is material to the decision. Is there anything that needs to be qualified here because, again, the provision seems to give limitless powers? The wording of "any steps remedying" and "remedying any act done" seems to be very broad.

Ms Mary Jones

This refers to an act done to correct an error. The provision is about remedying something in regard to that error. If, for example, a matter was considered when making a decision but it was not recorded, it could be in regard to that. The subsection is not referring to any act in the sense of any type of act. I take the Chairman's point and we may look at the wording. It relates to an act done to correct an error of law or fact.

Chairman

The wording might be changed to "remedying any act done that is not material to the decision".

Ms Mary Jones

Yes, something like that might be useful. We can look at it.

Chairman

That is fine. The Office of the Planning Regulator's second-phase review report lists some 150 different judicial review cases and specifies whether those cases were dismissed, remitted or quashed. Has that list been gone through to see what can be learned from it? Strategic housing developments, SHDs, account for approximately half of the judicial reviews. Given the SHD process is finished, we should, logically, be looking at a lot fewer judicial reviews in the future. Has the list been gone through to identify the parts where things fell down, say, or the parts that need to be rectified? Did such a review inform the provisions of subsection (5) of section 249? Was it drawn up based on looking at all the judicial reviews that have taken place? It probably is possible to pick a hole in any planning application. It would be quite easy to go to the courts and say something was missed. It might be very minor but if it is technically a breach of the process, it could lead to a refusal. Was a really good study done of the 140 or 150 judicial review cases in order to be able to say, "This is where we should be going with this"?

Mr. Paul Hogan

The Attorney General's team that was involved in a lot of the drafting, and the working groups that were involved in the changes to the legislation, would have been very much aware of recent cases. Those cases certainly would have informed the thinking, as appropriate, behind each group of sections as the working groups proceeded. Without saying there is a single comprehensive study, the import of case law in our system clearly is recognised and it obviously influences and informs the work that has emerged here.

Chairman

That is good. To clarify, if any of these mistakes or errors in law that are immaterial to a decision were to be amended, would the decision and the outcome of the decision be unchanged?

Mr. Paul Hogan

It is important to recognise that judicial review is intended to be of the procedures that takes place to ensure matters are correct, fair and transparent, etc. It could be a relatively minor thing, for example, something to do with a traffic study that has no great bearing on the outcome of the decision. There are many reasons. As the Chairman said, planning applications are very complex things. There is much scope for minor error. It is not unreasonable that there would be some mechanism to revert and not throw out months, if not years, of work and investment. That is reasonable.

Chairman

Okay. I get that. Where will the difference lie between the current section 146, which relates to correcting a clerical error, and what we are going to look at by inserting a clarification to mean an error not material to the decision? It is a slightly higher type of clerical or assessing mistake.

Mr. Paul Hogan

Yes. I gave the example of a traffic assessment off the top of my head. I am not saying in all cases a traffic assessment is immaterial-----

Chairman

Okay, I take it that it is just a great example.

Mr. Paul Hogan

It could be a certain aspect of it. What I am getting at here is that it is not a dotting of an "i" or crossing of a "t"; it is more than that.

Chairman

Okay.

Mr. Paul Hogan

I would certainly think that we would look at the question of materiality and how that could be reflected. That is a fair point.

Chairman

I would really appreciate, as I think many people would, clarity on how the decision will not then be affected by this. In other words, we are rectifying the process failure but the decision will remain the same. I understand that once the decision has been made by a planning authority or the board, it cannot go back and make that decision again. Its role is finished. Then it becomes a matter for the courts.

Mr. Paul Hogan

There is a very valid question of proceeding with something that could be simply rectified through some correction as opposed to proceeding through the judicial process and, ultimately, wasting court time and incurring much expense prosecuting or defending a case.

Chairman

Sure. I am sorry; I am out of time. I must be as strict with myself as everyone else. I will move on now to Deputy Cian O'Callaghan.

Deputy Cian O'Callaghan

On a related note, will the Attorney General's report of the judicial review process be published or shared with us?

Mr. Paul Hogan

It was clear that there was not necessarily a single review. As the Deputy can understand, those involved in the courts and the Bar would pay very close attention to case law and decisions as a matter of course. Obviously, the planning profession generally does also. There is no single definitive review of which I am aware that is informing this piece of legislation.

Deputy Cian O'Callaghan

Is there any kind of data or evidence base that is informing this part of the legislation to change this around to judicial review?

Mr. Paul Hogan

Certainly, the second report of the Office of the Planning Regulator, OPR, was referred to as having listed a large number of cases. That is publicly available on the OPR's website.

Deputy Cian O'Callaghan

Following on from the Chairman's questions, head 8 relates to section 5 applications. From what I know, this is a very important measure at the moment. It means that in the case of alleged unauthorised development where the planning authority or council believes it to be an exempted development, members of the public are given the ability to challenge that view. People can get a formal declaration and if they do not agree with the formal declaration from the local authority, they can appeal that to An Bord Pleanála. This is an important measure to be able to hold local authorities to account for their decisions around exempted developments, enforcement action and so forth. By removing it, I do not see anything in the Bill to replace that. This is the question specifically. Does the Department have any data on how many section 5 declarations sought by the public have been overturned by An Bord Pleanála? That would be an important piece of data to see whether this process has been effective.

Mr. Colin Ryan

We do not have that to hand at the moment but we will look to see whether we have data to tell the Deputy about. I will make a broad point around section 5 declarations as they are now. This becomes an issue in that if the planning authority and the board make a decision on the information that is put before it at that time in the event of an appeal, that means that the planning authority may not be able to take enforcement action if new information comes to light. It becomes an issue because the courts have found that a section 5 declaration is material to the making of any further enforcement action. That might preclude the planning authority from also taking enforcement action with regard to other matters.

The purpose of the section 5 declaration with regard to the way it is done, as section 7 is now, is to strip it back to a position, as we see it, in relation to the question of whether it is a development and whether it is exempt. The issue of unauthorised development is very serious and very important. It is a vital element of the system. It is the place of the enforcement side of the house to deal with that aspect of things in an appropriate manner to make a decision on whether it is unauthorised. I just want to clarify that matter.

Deputy Cian O'Callaghan

From Mr. Ryan's earlier comments, these changes may be coming from data supplied by the LGMA. It is important-----

Mr. Colin Ryan

It is more of a general experience from the point of view of working with the section 5 declaration process.

Deputy Cian O'Callaghan

It is important that there is a mechanism for members of the public to be able to hold local authorities to account on this.

Mr. Colin Ryan

Certainly.

Deputy Cian O'Callaghan

Removing public participation from this particular part, or excluding it altogether, is potentially highly problematic.

Mr. Colin Ryan

I will make the point, with regard to enforcement action, that it is still open to people to make representations to the planning authority with regard to unauthorised development.

Deputy Cian O'Callaghan

Yes, but if the planning authority is of the view that it is not unauthorised development and is exempted development, the section 5 declaration is a way for people to be able to get the view of the board on that. It gives a different viewpoint on it. Finding out whether the board has overturned the views of local authorities on this, and to what extent, is important to inform this. If it has done that in several instances and we are removing the ability of people to do this, in my view that is problematic.

Head 335 on the planning process states that planning documents may be made available on a website. Should there not be a requirement to make documents available online for public participation purposes?

Mr. Colin Ryan

There should be, yes.

Deputy Cian O'Callaghan

The Bill states that they may be made available.

Mr. Colin Ryan

We will look at the language. The purpose of the Bill is to make information available. It is available at the moment on websites. It is not intended to change that. If there is language in there, we can look at that.

Chairman

I am sorry; what page is this on?

Deputy Cian O'Callaghan

It is head 335. I do not have the page number on front of me but it is subsection (3)(a).

Mr. Colin Ryan

It should be electronic as well.

Chairman

Somebody is taking a note of it.

Deputy Cian O'Callaghan

Should there also be timelines around that? That is an issue at present. Most of the public get their information about planning applications online.

Mr. Colin Ryan

There are timelines in the process.

Deputy Cian O'Callaghan

On putting information up and making it available online?

Mr. Colin Ryan

Yes, in terms of valid applications. It is five working days, if memory serves me correct.

Deputy Cian O'Callaghan

Okay. Where is that in the process?

Mr. Colin Ryan

It would be in the process section. There is a requirement as it stands with regard to making information available online. We will look to reflect that in the process.

Deputy Cian O'Callaghan

The Department will look to reflect that.

Mr. Colin Ryan

Yes, if it is not already in there.

Deputy Cian O'Callaghan

Mr. Ryan might check that because it is important.

Mr. Colin Ryan

Yes, absolutely.

Deputy Cian O'Callaghan

In terms of head 133 on the request for extension of planning permission, are there any timelines to be set out in that regard? Does that potentially allow for indefinite and continuous extensions?

Mr. Colin Ryan

The short answer is "No". There would be a period of time given to finish the extension or extend it. There is a period of time people have to actually put in an application.

Deputy Cian O'Callaghan

That people have to give.

Mr. Colin Ryan

That is time bound. Obviously, when it is done and completed, it exists for a period of time.

Deputy Cian O'Callaghan

Under head 133, can someone apply for a six-year extension and then another three-year or four-year extension? Are there any parameters?

Mr. Colin Ryan

Again, it becomes an issue for the planning authority to make a decision around that and whether it is appropriate to extend it at that moment. As it stands, under section 42 of the current Act, we are left with the situation whereby once a person complies with it, within one year of the end of the five-year period, he or she has no choice but to extend it. There is a period of time in terms of that extension, however. We would not seek for it to be an unlimited extension of time.

At the end of the day one is looking to enact and develop a planning application and to carry out works and be in the process of carrying out works. We look at the wording to see if there any issue with it but the broad parameter is that "extent and duration" are to do with a development being carried out. Time is needed to finish that development rather than reapplying.

Senator John Cummins

All of us here are acutely aware of the challenges experienced by those who seek planning permission for whatever purpose. We are aware of the challenges that exist at An Bord Pleanála regarding decision-making and some of the stats that have been provided to us. The decision making within the statutory time period has dropped from what I think was an already 57% rate to 45% in 2022. For all of us who have been involved in the local authority sector in particular, there will be broad acknowledgement that the local authority does an exceptionally good job in terms of planning, and only about 10% of applications come before the board. However, the difficulty is that when something comes before the board or ends up in a judicial review, the time period for resolution is indefinite. One of the challenges of this legislation is to acknowledge the deficits and the challenges that exist in An Bord Pleanála, but also to have timelines that if a person goes into the planning process today they will know a decision will be made in a certain period of time. I do not think that is an unreasonable expectation for somebody who is making an application. It is important that every arm of this legislation is framed with that in mind. We have to have certainty. Not having certainty regarding what the decision will be, we cannot give certainty in that respect. Certainty about the timelines that one can expect to get out the other side of the process should be achievable. The witnesses have said that they will engage with and work with the board regarding the timelines, that there will be a range of timelines that will be applied and that it will be done on a phased basis, starting with the energy sector. I would like to see the same focus that has been put on the energy sector applied to the housing sector. Where a decision is being made in respect of a housing development that should be in the first tranche of timelines that we focus on in terms of setting An Bord Pleanála those targets. Has this been given much thought?

Mr. Paul Hogan

It is important to recognise the core decision making role of the local government system. Most planning decisions are made within eight weeks. That sets a very challenging benchmark. Many of the decisions that end up with An Bord Pleanála are very complex ones. They include the larger strategic infrastructure development, large-scale local authority developments, big housing schemes and big energy schemes. We are really keen to get it right regarding what is an appropriate and achievable timeline under normal circumstances. We also need to step aside perhaps, in framing that discussion, from the current deficit that is there. Measures have been put in place to address the backlog. The answer is yes, it is intended to balance the prioritization of national strategic infrastructure, housing and local authority development, with what is achievable and reasonable in the timeline. That is a really important point that we would hope to bring back to the committee.

Senator John Cummins

A priority focus needs to be put on developments that are going to the board in terms of housing. One can put a number on it, one can say housing developments of X number of units must get priority. There are the normal circumstances versus the circumstances that we are in with An Bord Pleanála now. We are addressing the staffing concerns. This legislation is for the next 20 years, so we have to be cognisant of that. We have to put timelines in place that are challenging for the board. We cannot put something in primary legislation here that takes account of the fact that An Bord Pleanála has challenges at the moment, which it should not have, let us say in 12 months time; this legislation will run for another 19 years. Those timelines need to be very ambitious and penalties need to be significant to focus the mind and get the decisions that we need, particularly on housing.

I want to talk about housing density. Section 45 refers to the preparation of housing delivery strategies, and that residential density or a range of densities shall be appropriate to the settlement size. This is a bugbear of mine being from a regional city of Waterford. I am all for density in city centre locations. However, the density that can be applied to a suburb in Galway, Limerick and Waterford in particular, is not the same as the density that can be applied in the centre of Dublin city. There should be flexibility in the process for a local authority, to be able to look at its plan, what is appropriate to the location and to put in the appropriate density while at the same being cognisant of what we are looking to achieve in national and regional planning policy. At times, the density requirements are driving apartment development, in particular, in suburban areas where it does not fit and that is even outside of the argument that people do not want to buy those apartments, which the sector will say itself. What is the thinking in that respect?

Mr. Paul Hogan

We have a set of guidance under preparation. It is at a fairly advanced stage and we have been very clear we need all forms of housing. We do need apartments, but we also need a variety of housing types throughout the country. What we are trying to do is reflect better the local circumstances. Certainly the suburbs of regional cities or within smaller towns throughout Ireland do not necessarily need the same scale of development or intensity of development that one might find in city centres, or the inner suburbs of Dublin. We need to better reflect the different contexts. That is very much within those guidelines. We also need to look at flexibility regarding own-door housing to try to encourage that because it is simply easier to construct on a piece-by-piece basis. This has advantages for phasing and sales. We can still achieve some element of density with that approach. That is partly what this is about.

To broaden it a little bit, because this guidance will come out hopefully fairly soon prior to the enactment of the Bill, it does raise the question of how we then transition new guidance into the legislation. What we would envisage happening is that we would write the guidance in such a way that we would be very clear about what the parameters of the policies and objectives are.

That would carry through into the new form of national planning statement. It would mean that when local authorities are applying standards to sites there would be a broad expectation of the range of development types that would be permissible and communities would understand that. Then the application that comes forward would not be a surprise, nor would those making applications have carte blanche to do whatever they liked.

At the other end of the scale, we are also looking at limiting the upper limit on density in certain circumstances. That is perhaps most relevant to cities. Perhaps there is an element of over ambition that is driving up the land cost.

Senator John Cummins

What is the time on that?

Mr. Paul Hogan

We are committed to having this done by March.

Senator John Cummins

It will be published before the end of March.

Mr. Paul Hogan

A draft will be published by the end of March.

Senator John Cummins

For that to be in force by-----

Mr. Paul Hogan

We are looking to the end of the quarter because we have to engage on the environmental assessment side of things. Even though we have a fairly advanced draft of the preferred direction of travel, it needs a degree of iteration from the environmental perspective. We then intend to publish it for consultation, which would mean it is out there but is not finalised.

Senator John Cummins

When is it expected it will be finalised? I am acutely conscious that a delay may mean people will hold back and not make applications because they are awaiting the results of the Bill and density guidelines. That is something none of us wants to see. There may be a continuous drop in planning applications until that is done. Expediency is very important.

Mr. Paul Hogan

There are significant numbers of extant permissions. Recent data from the Dublin housing supply co-ordination taskforce confirms that right now there now 46,000 units permitted in the four Dublin authorities alone. A lot of those are apartments. Rather than people holding off, there might be an opportunity for some of those units to be redesigned in order to be more viable, in particular at the urban edge. Realistically, people can still come forward with proposals.

Senator John Cummins

When will it be finalised?

Mr. Paul Hogan

Broadly speaking, in the first half of this year. That allows for consultation, environmental assessment, etc.

Senator John Cummins

I will hold them to that.

Chairman

Is Deputy Ó Broin going to take the next Sinn Féin slot?

Deputy Eoin Ó Broin

I have a long list of parliamentary questions going back about five years on the rural planning guidelines. We were constantly told they would be published in the next quarter and we have not yet received them. That is for another day.

Mr. Paul Hogan

If the Chair will let me, I can give the Deputy some good news on that.

Deputy Eoin Ó Broin

We can do that later. I want to go back to section 22 and the Minister's planning statement. A number of years ago, a judicial review of a residential development was pretty much unheard of. The small number of judicial reviews that took place on an annual basis were mainly about strategic infrastructure developments or large commercial units. There is a mistaken perception that the cause of the very significant increase in judicial reviews of large-scale residential developments was the SHD process. The SHD process facilitated it, but it is not actually the nub of the problem.

The nub of the problem with residential developments was a clash between the content of development plans and the content of the special planning policy requirements in the ministerial guideline or the national planning framework. Even though, thankfully, the SHD process is gone, the potential for that conflict is still very significant, perhaps more so in regard to the very general SPPRs in the national planning framework. I am putting that forward as context for my questions.

Section 22 of the Bill gives the Minister the power, with the agreement of Government, to issue planning statements. They are equivalent to the mandatory ministerial guidelines or the SPPRs. As I read the Bill, there is no role whatsoever for the Oireachtas in that process. It is a function of Government and the Minister. There is no public participation in that. The Minister may choose to do that, as his predecessors did, but it is not a requirement.

If that planning policy statement creates a new conflict with existing city or county development plans, section 62 makes provision for an expedited amendment to the development plan with no consent required of elected members, in real terms, and-or section 122C allows for the planning authority and, one would assume, the board, to allow for a material contravention where the new planning policy statement was in conflict with development planning.

In some senses, this seems to be retrospectively looking back at the SPPRs and mandatory ministerial guidelines and asking if they had been better designed the last time whether the rush of judicial reviews would have been stopped. I am not asking the witnesses to confirm or deny that interpretation; it is a political interpretation. Am I correct in saying that section 22 has no role for the Oireachtas or public participation?

Sections 62 and 122C allow for a fast-track amendment of the development plan to bring it into line and-or planning consent to be granted as a material contravention. It basically asserts the hierarchy of the ministerial statement, something which the courts disagreed with with respect to many of the residential DRs There is nothing factually incorrect in how I presented it.

Chairman

Is the Deputy referring to section 122?

Deputy Eoin Ó Broin

No, section 122C, relating to material contraventions. There is no formal role for the Oireachtas or public in the planning statement. Is that correct? I am not saying it is a good or bad thing.

Mr. Paul Hogan

The underlying logic is that any Minister of the Government should have the ability to issue policies and objectives that relate to his or her function in terms of Government. There are certain things that are perhaps best addressed at the national scale when it comes to planning. Other things - in fact most things - are far better left to local consideration.

Deputy Eoin Ó Broin

My point is a different one because I do not disagree with that at all. The issue is that where very significant changes to the planning code are made either through the new section 22 statement or the old mandatory ministerial guidelines, if the Bill does not have a formal role for the Oireachtas, including Oireachtas approval, that creates a problem in terms of democratic legitimacy. Planning is often about public consent. Likewise, if the Government of the day says it is elected, has a mandate and wants to change the rules, if that change conflicts with the development plan that elected members worked hard on and put in place, we are now putting in place a speedier system by which the Government can assert the legal primacy of those planning statements. That is a fair description of it.

Mr. Paul Hogan

Previously, they were ministerial guidelines.

Deputy Eoin Ó Broin

They were mandatory ministerial guidelines after the 2016 change.

Mr. Paul Hogan

Yes, but they were ministerial guidelines. They were a function of the Minister. The change in the Bill will mean they are initiated by the Minister, as any Minister should be able to do that, in terms of his or her policy area. They are brought to ard signed off on by Government.

Deputy Eoin Ó Broin

The issue is that was the case with the removal of building height caps or the introduction of a completely different set of design standards for standards for apartments for build to rent. Those two things were responsible for many of the successful judicial reviews, whether people agreed with them. Sections 22, 62 and 122C are trying to prevent that problem from happening again when a new ministerial statement is issued.

Mr. Paul Hogan

Again, it is a national planning statement rather than a ministerial statement. One of the issues with the ministerial nomenclature is that it could be very much a personalised to a Minister.

Deputy Eoin Ó Broin

It also requires the approval of Government.

Mr. Paul Hogan

They are policies of the Government.

Deputy Eoin Ó Broin

I am not being in any way adversarial but, in respect of legal terms, while they might have different names the process is the same. The Minister and his or her officials design a policy statement which has to have the approval of Government and Cabinet. It then, in effect, becomes a significant change to the planning rules. There is nothing different this time around. It is the enforcement of them that is changing.

Mr. Paul Hogan

There are questions that are best addressed at the national scale. It does not necessarily mean a change, rather that things may need to be decided in order to be consistent, fair and proportionate at that level.

Deputy Eoin Ó Broin

Just to press this point - in terms of the drafting and approvals of the statements, nothing will change. However, sections 62 and 122 will ensure these statements are not only enacted through the planning decisions and development plans but, ultimately, in the courts. This is a significant change, is it not? I am not passing a judgment one way or another.

Mr. Paul Hogan

It is an important clarification within the system that gives status to what is intended to be national policy. The courts have found that current ministerial guidelines have a very low-bar test, that it is a "have regard" test. I know that was the subject of previous information we provided. Given the way things have gone in the system, that has proven to be undermining of the planning process. It means things that should be addressed as a matter of national policy are now less clear and can be picked away at even though the proposal may be acceptable in other respects.

Deputy Eoin Ó Broin

I have a final point on clarification. One instance where the old regime fell foul was in the context of strategic development zones, SDZs. I do not see any language in the sections I have mentioned that pertain to SDZs. I know there is a separate section at the end, but is it envisaged that the same procedure outlined in sections 22, 62 and 120 would be applied with respect to any conflict that may arise between a planning statement and an existing strategic development zone?

Mr. Paul Hogan

That would be addressed in the transition. It is something we would have to give thought to.

Deputy Eoin Ó Broin

But it is not something we have in front of us at the moment.

Mr. Paul Hogan

No.

Deputy Eoin Ó Broin

I will come in again in the next round if that is possible.

Senator Mary Fitzpatrick

I thank the Department officials for this enormous piece of work; it is really impressive. We are 20 years on and the world has changed so rapidly. The 700-odd pages are daunting for a layperson like me and will be daunting for much of the general public as well. The work the Department is doing to improve the consistency, clarity and certainty around our planning is important. What is also important is that the public has confidence in the planning process. I welcome and support the Department's work.

I refer to the issues about the new national planning statements. The general public will identify with ministerial directives on height and density; they are things that resonate with and are tangible to people. What process will a Minister follow when making a proposal on a national planning statement to the democratically elected Government? What will guide the Minister and his or her Department in formulating such statements?

Mr. Paul Hogan

I will use the example of the updated and revised density guidelines as they will likely be the first set of guidelines to transition into this new system. I have described the context of the intended changes with regard to reflecting local circumstances and allowing more flexibility. As part of that, there are certain things that are probably best decided nationally. In other words, they would be based on best practice and on efficiencies to do with land, services and climate transitioning. All those considerations may inform what could be perceived as being appropriate to a locality or what an appropriate degree of flexibility would be.

The new model will see certain parameters being set nationally and the mandatory elements. For example, if local authorities are dealing with a site on the outskirts of a large rural town, this would be an acceptable density range for them to apply as they see fit. If the local authorities do that, people will understand the number of houses that may be built on that site. The local discretionary element is the standards for the format and layout within that range and the type of houses. The big questions need to be addressed with a degree of flexibility at national level and to be applied locally.

Senator Mary Fitzpatrick

Will these national planning statements have to conform with international laws?

Mr. Paul Hogan

Yes, absolutely.

Senator Mary Fitzpatrick

And European laws if they were relevant?

Mr. Paul Hogan

Yes, but it is important to note, in European terms, that town planning is a national competence. It is clearly influenced by European directives on all sorts of things, from water and habitats to environmental assessment, but we can ultimately decide our own planning laws.

Senator Mary Fitzpatrick

The national planning statements would have to conform with national laws, such as our climate action laws.

Mr. Paul Hogan

Yes. There is a high degree of integration across the Government.

Senator Mary Fitzpatrick

The statements would have to be consistent with all of these laws.

Mr. Paul Hogan

Yes.

Senator Mary Fitzpatrick

On public participation, a lot of talk so far has been around judicial reviews. I would have thought that one of the objectives of us streamlining and improving the consistency, certainty and clarity of our planning laws was to ensure we have a reduction in the need for recourse to judicial reviews. Is that a realistic and fair expectation?

Mr. Paul Hogan

Absolutely. It is very unfortunate that it has become embedded as a sort of final stage of the planning process. The way we see it is that the area plans should be the first stage. That is where people get involved to influence and shape what can happen, informed by appropriately tailored national guidance and a national plan. This is the first stage. The planning application stage with the local authority is the next stage. It is an efficient process but there is scope for public participation.

The third stage is with An Bord Pleanála and is an important piece of access to justice. An Bord Pleanála is a quasi-judicial body that is able to make court-like decisions on the interpretation of the law and all of the plans. That is an appeal mechanism that does not necessarily exist in other jurisdictions because it allows for widespread third-party appeals. There are only two other jurisdictions in Europe, in addition to Ireland, that allow third-party appeals. None of the other countries allows this. It is a very open, accessible process. Realistically, a judicial review should only be required in egregious or drastic circumstances. It should be a "check and balance" of the overall system rather than a normal part of the process. People clearly need access to that in accordance with Aarhus rules - we are not taking that away - but it should not be expected as a norm.

Senator Mary Fitzpatrick

Apart from the proposal to extend the period of the development plans, will the public continue to have the same access to participation in the creation of county and city development plans as it has enjoyed up to now? Will the general public continue to enjoy the same access to make an appeal and ability to make observations or objections in local authority planning applications? Similarly, will the general public have full access to participate and make objections or observations, as well as request oral hearings, in respect of the new planning commission?

Mr. Paul Hogan

Absolutely. We are taking none of that away. In fact, the need to cross-circulate information and give people time to respond is one reason the timeline at the An Bord Pleanála-commission stage can take a lot longer.

Senator Mary Fitzpatrick

When can the public expect to get sight of the statutory timelines the Department proposes to introduce?

Ms Mary Jones

It is a piece of work we are doing at the moment. We are talking to the board trying to see what the appropriate timelines would be, notwithstanding the current situation and if they were operating in more normal times. All going well, we hope to have something on that when we come back before the committee on 9 March. Our intention is for the final Bill to have those timelines in it.

Deputy Francis Noel Duffy

I thank Mr. Hogan and his team for their insight today. I listened to the briefing earlier. All of the data provided today have been much appreciated. I believe the ten-year development plan is a better method for planning ahead, in that things can be put in place. I know that two-year processes are seriously burdensome on local authorities due to the amount of work they have to turn around.

I have two questions and I will provide some background on them. The first question relates to climate targets and the transition process we are in to decarbonise transport, agriculture, energy and the construction sector. I have an interest in the construction sector and embodied carbon. As a subject I find it is low on the agenda. Significantly, 14% of Ireland's CO2 emissions come from embodied carbon, effectively in the construction sector. Sweden, Denmark, France, Finland and the Netherlands have pioneering new regulations in place to mandate the consideration of embodied carbon. Even in the United States, embodied carbon has become a factor in national policy. In December 2022, President Biden unveiled an executive order for the US Government to achieve net zero emissions across its operations. I have been pushing this agenda during my three years in the Dáil, but it seems the Department is not moving on this. I know it might not be part of this Act and I will ask those questions. The Department is saying it will begin looking at it in 2027, which is quite alarming to be honest. In that context, last year this committee had a number of sessions on embodied carbon and drew up a report on it. Both Mr. Ciarán O'Connor, the Office of Public Works State architect, and Mr. Pat Barry of the Irish Green Building Council agreed that we would be in a position to begin measurement of embodied carbon in the first quarter of this year, which is now. We are not even getting close to it. Does the Bill include any provisions for reducing embodied carbon? Second, when and where within the planning system do Mr. Hogan and his team see that measurement being introduced? For example, when an applicant applies for permission, where do they see the measurement being submitted?

Mr. Paul Hogan

One of the things we mentioned was that the content of development plans will be streamlined into a number of different strategies. At the moment it is heavily focused on settlement, housing and population. Some of the other aspects do not get the same prominence. We have proposed a number of strategies to address different things. One of those relates to the environment and climate change. Rather than the planning system and development plans trying to do everything for every other area of government and society, it needs the appropriate feed-in to the appropriate set of policies. As a result of the low carbon Act and the preparation of local climate action plans, the idea is that the strategy within the development plan dealing with climate action and transition would take relevant policies and feed-ins from national climate policy. More pertinently, where it overlaps with local objectives and plans, there is an opportunity to make it real and to relate it to the other actions of the local authority. One of the things that has frustrated the planning system and development plans is that people feel they can load a lot of other sectoral objectives into development plans when maybe the right approach is to not carry forward those things. That is where it is. We have been clear about that.

Deputy Francis Noel Duffy

Is Mr. Hogan saying there will be nothing in the Act obligating planning applicants to measure embodied carbon?

Mr. Paul Hogan

Not so specifically. First of all, that sounds more like a building regulations matter, to be honest. However, working through local climate action plans, perhaps that is the sort of thing that could be considered.

Deputy Francis Noel Duffy

I thank the witness.

Deputy Eoin Ó Broin

My next set of questions relates to changes to judicial review and section 249. I will preface the remarks by saying that in a really well-functioning planning system, very little would go to judicial review. In terms of both the detail of the plan-led approach and clarity in terms of the formal decision and appeal, the planning system would be sufficient. I am not an advocate for more judicial reviews, and nor am I advocating for them. I would like to see far less of them. However, it is really important that where we are making significant changes, people understand what those changes are so they can see if they are good, bad or indifferent. Section 249 talks about "sufficient interest" and "directly or indirectly materially affected." It is important that we have maximum clarity on what those things mean. Where are they set out? Unlike other aspects of the Bill where they are matters of policy, this section obviously means that they will ultimately be matters of law. What does the Bill intend when it uses those terms?

My next question relates to standing. When anything is changed, and I hear it is a clarification or a technical change, I always get very suspicious. It is just the nature of my character. There are two changes to standing. The first change is the shift from informally constituted groups, which could be campaign groups or residents' groups, to named individuals either on their own or in groups. I would like a clear explanation of why that is being done. I know the Attorney General has advised it, but I would like to understand the rationale. Likewise, a change is being made with companies. The idea is that this will involve companies with ten members that have been in existence for one year and have relevant aims and objectives. It seems to me that those two changes are materially significant. Today there are groups which may be able to take judicial reviews, but when these changes are made they will not be able to take judicial reviews as they take them now. They might have to reconstitute themselves in order to do so. I am looking for the maximum level of clarity, because this is something that will be a matter of public debate. The clearer we are on it, the better.

My third question is around making amendments to the decision arising from errors of fact and law. How many of the approximately 140 to 150 judicial reviews the Chair mentioned with respect to the planning regulations report would fall into this category? That is an interesting question in respect of what again seems to be a retrospective fix. There were cases where the error of fact or law would not have affected the decision of the planning authority but it could be materially relevant in a judicial review. If it can, therefore, be taken out of the judicial review, the original decision will stand. Was there analysis for that?

Can I also have a little more information on the direction of travel with cost protection? Obviously, it is in as a general head but the more information we can be given about that at this stage, the better.

Ms Mary Jones

The Deputy's first point related to someone having sufficient interest. For an individual, that effectively means they have been involved in the planning application. They may have made an appeal, or they may have made submissions in it. On the individual point, that is what is meant by sufficient interest. Obviously, we have very broad third-party appeal participation. We are not looking to limit that. I know the Deputy does not like the words "clarifying" or "technical."

Deputy Eoin Ó Broin

Go ahead. I do not mind them.

Ms Mary Jones

It is just clarifying that it is basically someone who has been involved in some way-----

Deputy Eoin Ó Broin

At any stage in the planning process up to that.

Ms Mary Jones

Exactly that

Deputy Eoin Ó Broin

First stage, appeals stage, etc.

Ms Mary Jones

Exactly that, yes.

Deputy Eoin Ó Broin

Those are the only grounds for sufficient interest under that section.

Ms Mary Jones

Am I correct on that?

Mr. Colin Ryan

Yes, I think so.

Deputy Eoin Ó Broin

Section 249(10)(c) also has "directly or indirectly materially affected."

Mr. Colin Ryan

That is to do with the fact that you have sufficient interest in the application.

You have made an appeal and a representation and you have been involved in the process for a particular reason.

Deputy Eoin Ó Broin

Does that not create an additional barrier somewhere?

Mr. Colin Ryan

No.

Ms Mary Jones

No. It is the two of them together.

Mr. Colin Ryan

The only thing that could come in is an NGO at the very end.

Deputy Eoin Ó Broin

I am not promoting this but I want to be clear on the point. Does that mean that somebody could put in a third-party opinion, for example, either at the local authority or the board stage, depending on the type of application, and therefore they have sufficient interest? However, in order to submit a judicial review or seek leave for a judicial review would they have to demonstrate that in addition to having sufficient interest they were also directly or indirectly materially affected? Is that the consequence of the second half of that paragraph? Do the witnesses see where I am going?

Mr. Colin Ryan

The answer is "Yes".

Deputy Eoin Ó Broin

Is that not a significant change from the current regime?

Mr. Colin Ryan

No. At the end of the day you are doing a judicial review of a decision. You have shown that you have been involved in the process and that-----

Deputy Eoin Ó Broin

I am not asking if it is a good or bad thing. Let us imagine for a moment that I am neutral on this. I want to know if that double test for initiating a judicial review is a change from the current regime, particularly with the requirement to have been directly or indirectly materially affected.

Mr. Colin Ryan

I do not think so.

Ms Mary Jones

No. It is just a-----

Mr. Colin Ryan

You have to have the opt-out.

Senator Mary Fitzpatrick

You have to have a sufficient interest.

Mr. Colin Ryan

You are either directly or indirectly affected. You have to have shown sufficient interest in the judicial review process to take the judicial review. You are showing that you are indirectly or directly affected and there might be a range of reasons for that. That system exists until the present moment in time and that is the-----

Deputy Eoin Ó Broin

Where is the legal definition of "directly or indirectly" or is that just set out in case law?

Mr. Colin Ryan

It is set out in case law.

Mr. Paul Hogan

The Attorney General would have been directly involved in this section and it would be informed by considerations of granting leave for judicial review. These are the sorts of tests that would be applied in those circumstances.

Deputy Eoin Ó Broin

I am asking if those tests are applicable today.

Mr. Paul Hogan

Yes.

Deputy Eoin Ó Broin

So there is no material change in this thing?

Mr. Paul Hogan

No.

Deputy Eoin Ó Broin

I will come back with a few follow-up questions after the others have come in.

Chairman

I want to clarify a question on the point on where the applicant has a sufficient interest. Where does it say that you had to partake in the planning authority or commission process in order to seek a judicial review?

Ms Mary Jones

This goes back to Mr. Hogan's point about the current test for someone who is seeking a judicial review. They have to show that they have had sufficient interest in it; that is the current test. I take the points about what is written in front of us but the intent is to replicate the current provisions in the test when you go before the courts.

Deputy Eoin Ó Broin

It is set out in section 10(c)(4).

Ms Mary Jones

It states that they shall have sufficient interest.

Deputy Eoin Ó Broin

It gives the definition of "sufficient interest" there. Does it not?

Ms Mary Jones

Yes. It states that it shall be raised by the applicant in submissions before the relevant decision-maker.

Chairman

Is the Deputy done?

Deputy Eoin Ó Broin

My time is up so I will come in after the others if that is okay.

Mr. Paul Hogan

If it is okay with the Chair we are happy to continue.

Chairman

Please do. Deal with that issue because we will probably all have questions on it.

Senator Mary Fitzpatrick

It is an important point to have clarified.

Senator John Cummins

I am next.

Chairman

I am forfeiting my place.

Deputy Eoin Ó Broin

The crucial point is the word "or". You have to have sufficient interest and then there is another option. The three parts of the question I asked relate to the changes to individuals, to groups of individuals and to companies. Nobody changes things for no reason. With those changes, are there groups that would not be able to initiate a judicial review on one of these changes in the same way or that would not be able to constitute in the same way as they can now? On the question of errors of fact or law, was analysis done on what percentage of the judicial reviews fell into that category?

Ms Mary Jones

I will take the point on standing first. We ensure that anyone taking a judicial review has legal personality, which is the legal phrase that is used. You are either an individual, who has legal personality, or it is an organisation that has been established as a company, and therefore, has legal personality. Certain groups may not be established under those categories. For example, there may be more ad hoc categories. There is nothing wrong with the intent of the organisation but that is their legal position. The organisation or individual have legal personality in the event of moving on to costs, and we will be providing a costs scheme. However, where a case is found to be frivolous or vexatious, costs can be awarded against them. Therefore, there has to be an entity - either a person or a company - against whom an order can be made. That is a shorthand version of it.

Deputy Eoin Ó Broin

In some senses it is either to have the benefit of the cost protection regime that is in place or to enable the individuals initiating a judicial review to be held liable for costs in such a case.

Ms Mary Jones

Yes. It works both ways, as the Deputy says.

Deputy Eoin Ó Broin

When we use the phrases "vexatious" or-----

Ms Mary Jones

Frivolous.

Deputy Eoin Ó Broin

In all cases a judge has to give leave for a judicial review so I presume we are not suggesting that when leave is given it could be vexatious or frivolous at that point.

Ms Mary Jones

They would not be granted.

Deputy Eoin Ó Broin

This is my point. The costs only rack up after the judicial review. You get your leave.

Ms Mary Jones

There may be circumstances in which something may arise. I am being cautious in what I say.

Deputy Eoin Ó Broin

We are just talking about the process.

Ms Mary Jones

A situation may arise where it may appear that something happened to make it not work-----

Deputy Eoin Ó Broin

It is not a question of the granting of leave but of sum-up after the leave is granted.

Ms Mary Jones

If we are going to provide a costs scheme, you can only meet individuals' costs where they-----

Deputy Eoin Ó Broin

Who decides? "Vexatious" and "frivolous" are not legal terms.

Mr. Colin Ryan

The court decides.

Ms Mary Jones

The court would decide that. It is a matter for the court and that is why I am being careful in what I am saying. It is for the court to decide if a case, in general, is struck out.

Deputy Eoin Ó Broin

I refer to that facility for correcting errors in fact and law to allow the decision to grant and proceed. Was analysis done on how many such cases there were?

Ms Mary Jones

It is not an analysis per se but it is something that-----

Deputy Eoin Ó Broin

How often does it come up or how regular is it? I presume that the issue is that a judicial review is taken on the basis that when a decision is granted, there clearly is some error of fact or law in the decision and the presence of that error of fact or law in the decision allows the decision to be struck out to the conclusion of the judicial review. On the other hand. when this facility is introduced midway through the judicial review the applicant, or in this case, the board, can amend its decision. The substantive decision does not change but the legal grounds for the judicial review would weaken or collapse. That is what that manoeuvre is for, is it not?

Ms Mary Jones

Part of it is about ensuring efficiency so that we can have a quicker decision. If something arises where it is clear that if a certain fact had been corrected the issue would have been addressed, that issue could be dealt with more efficiently.

Deputy Eoin Ó Broin

I appreciate how Mr. Hogan just threw out the traffic survey and he might regret that. In the cases we know of and without naming any cases, what are the kinds of things that come out as errors of fact or law? The witnesses must have a sense of that.

Mr. Colin Ryan

They are generally issues that were taken into consideration in the making of the planning application but were not expressed in the decision itself. There could be issues about pollution or to do with rivers and tributaries of rivers that were taken into consideration in the broad assessment of the application but that were not referred to directly in the making of the decision, although they were clearly taken into consideration at the time. They are issues like that.

It is not that these issues were not taken into consideration; it is just that it was not clarified. Somebody has taken a case on the basis of very particular issues to do with that. Something was not named or considered. It is not to do with the changing of the overall decision; it has to do with the clarification of issues that were taken into consideration in the making of the decision.

Deputy Eoin Ó Broin

Another way of putting it is that it has to do with removing the legal grounds on which a judicial review is taken. As was said, while the correction of the error of fact or law does not materially change the decision, it materially changes the grounds upon which a judicial review may be taken. Is that the case?

Mr. Colin Ryan

It has issues. However, there is also issue with court time being taken up with this matter.

Deputy Eoin Ó Broin

I am not arguing for or against. I want to understand this.

Mr. Colin Ryan

Absolutely. I will just make the point that the authority, which in this case is the board, will more than likely state that there are issues of clarification which answer that question. It is not to change the decisions or reopen that matter; it is to clarify it.

Deputy Eoin Ó Broin

Sometimes it is to amend the decision, as in the case of O'Devaney Gardens and the Bartra judicial review, JR.

Mr. Colin Ryan

It is to clarify a situation, in effect. I will make the point that it also allows a further JR to take place following that decision.

Deputy Eoin Ó Broin

Mr. Ryan used the word "clarify". That could mean that while the overall decision might not be changed, some of the conditions relating to it could be changed as a result of the correction.

Mr. Colin Ryan

It is one we would have to reflect on to make sure it was the intention that the condition could have a clear, material effect on somebody else, as the changing of a condition could well do. The intention is either a fact or law. It is not interpretation.

Mr. Paul Hogan

To answer without getting into the specifics of cases, off the top of my head, maybe it was not demonstrated that a particular document was not taken into consideration, or someone was not consulted who should have been. That sort of thing can arise. Ultimately, the logic of the judicial review process being about addressing procedural matters is what is important. That is why this is at stake. It is not necessarily about the merits of the case in terms of the principles developed.

Deputy Eoin Ó Broin

I understand that. One of the most significant examples of this - the case is now concluded so we can comment on it - is the decision of Bartra to judicially review the decision of An Bord Pleanála on O'Devaney Gardens, where an attempt was made by the board to apply a condition on the sale of units that was not in line with Government legislation. That was something to be corrected by the board. It is about those kinds of things, some of which could be very small but some could be quite significant.

Mr. Paul Hogan

It is a reasonable clarification for us to seek that sort of materiality test. Given that we are talking about judicial processes, it is not a very difficult thing to incorporate.

Deputy Eoin Ó Broin

What about cost protection?

Ms Mary Jones

The Deputy will see that there is a holding head in the draft Bill in respect of cost protection. It was a matter that we put to one side during the review because we were awaiting the outcome of the ruling in the Heather Hill case. In response to that, the Government has agreed that there will be a cost protection scheme for individuals or groups taking judicial reviews. We have to work with our colleagues in the Department of the Environment, Climate and Communications on how that scheme will run and operate. We will have further clarity and details on that in the final Bill. There will be a cost scheme for anyone taking judicial review, subject to the proviso regarding frivolous or vexatious cases.

Chairman

Senator Cummins is next.

Senator John Cummins

I thought I had another few minutes.

Senator Mary Fitzpatrick

Can I ask a follow-up question?

Chairman

Senator Cummins has lost his place.

Senator Mary Fitzpatrick

I appreciate that the officials do not have the details of cost recovery to share with us now, but what are the general parameters and objectives they will work towards in establishing a cost-recovery scheme?

Ms Mary Jones

It is cost protection. That is where the individual costs will be met. The costs of people who take a judicial review will be met by the State through a scheme. There are similar schemes. The Attorney General's office has a number of similar schemes. The costs will be set out for people taking judicial reviews. Their costs at various stages will be met as long as they comply with whatever the terms of the scheme are for how they will participate in it. We will work on that piece with the Department of the Environment, Climate and Communications to ensure that the scheme is compliant and meets the needs of the individuals taking judicial reviews. We will then work with colleagues in the Department of Public Expenditure and Reform on the funding aspects of it.

Senator Mary Fitzpatrick

It is a very important distinction. The impression is out there that this is a cost-recovery activity as opposed to cost assistance or cost aid. It is essentially cost protection. Members of the public, provided they have standing to participate in the judicial process and their judicial review proves to be vindicated, will receive financial assistance from the State to cover those costs.

Ms Mary Jones

Absolutely, yes.

Mr. Colin Ryan

It is a big positive that is not currently enshrined.

Senator Mary Fitzpatrick

It is a big positive and one that has not been fully appreciated outside those officials who are working so closely with this. That is why I wanted to clarify the position.

Senator John Cummins

I will address the move to a ten-year development plan process with a five-year review. We teased out some of that but that change will require a significant additional land bank to be zoned for various purposes. What is the thinking of the Department in that regard? Has that discussion been had with the regulator? The officials will be aware that some local authority members take the view that the regulator has been overly harsh on their zoning. Some may have a differing view that the regulator is not being harsh enough. What is the thought process regarding the quantum of zoned land for a ten-year development plan process over and above a six-year process?

Mr. Paul Hogan

As already stated, it is important to have that sort of vision and strategy to look ahead. It does not necessarily mean additional land banks in circumstances where land is not being used. The guidance we have given local authorities with regard to making provision for future housing is that as well as new greenfield sites, there is a need to look at existing urban areas and brownfield sites, in addition to accounting for one-off rural housing, especially in rural local authorities, where a significant element of housing supply comes from individual houses. Those are the three principal means of providing housing. It is about accounting for that over the period.

The real issue, however, is to ensure there is a pipeline of sufficient land in order that land can be lined up for servicing in a way that enables development through pipes, sewers and roads, and the facilities for people who will live there, including schools and community facilities. It is about having that sort of line of sight and enabling things to be serviced. I emphasise the fact that this is not necessarily revenue generating because the zoned land tax only applies to serviced land. By and large, serviced land is what we expect to come forward sooner.

The committee will talk to the regulator. We certainly engage with the regulator as part of the various advisory forums we have had. No particular issue has been raised regarding ten-year plans that we are aware of. Clearly, the regulator's office will be able to outline its own views. Overall, stakeholders by and large agree that it is a useful initiative.

Senator John Cummins

I agree with that. I gather from Mr. Hogan's response that he does not envisage extra land being zoned?

Mr. Paul Hogan

No, not at all.

Senator John Cummins

I appreciate the importance of brownfield sites in that context, and I am a big proponent of that. Waterford is a prime example if we look at the north quays, where such a site is being activated. There is also a role for greenfield zoning.

Mr. Paul Hogan

Absolutely. Our national policy is that a significant element of development still comes forward in the form of greenfield sites. If you take a longer timeline, there will be a need for more land. I do not want to encourage a high degree of speculation in respect of land at this point. Over a longer timeline, it is clearly important.

Senator John Cummins

That is the context in which the question is being framed. Mr. Hogan is cognisant of that fact, but the reality is that there will be some speculation in that sphere that additional land will be zoned because of the longer term development plan process.

Mr. Paul Hogan

Again, it has to be lined up with the requirements of a locality. Not every place is developing or running through zoned land as quickly as elsewhere. It varies, depending on where you are in the country.

Senator John Cummins

We touched on this briefly before the public session started in the context of the overview of the draft Bill. If I could move on to section 257, which relates to protected structures and the desire to make it easier to bring such structures back into use for residential purposes. I will again use my area as an example because it is what I know best. We have utilised schemes, such as the repair-and-lease scheme, in Waterford to a great extent. We brought in the changes to exempted developments to allow for former public houses to be transferred into residential units. We also have a high number of protected structures in Waterford so anything to make it easier and simplify the process of bringing properties back into use for residential is something I have a keen interest in. The flaw I see with this section and the existing section 57 process,is that the timelines are not advantageous versus the normal planning process. If I have a protected structure and am looking to make small changes that I think will not materially affect it and I apply to the local authority to be exempt in the context of the existing section 57, it will have to come back to me within a ten-week process and essentially say "Yes" or "No". If it says "No", I have to start the planning process, which kick-starts an eight-week process at that point. What I am trying to say is that there is good value in what we are seeking to achieve but that our aims in this regard are not being met because the timelines are not advantageous in the context of utilising the process.

Mr. Paul Hogan

We are prepared to look at that. We certainly agree that the process has to match the intent. The timelines relating to that section need to be looked at. Otherwise, the normal planning process is preferable. It does not achieve the objective.

Senator John Cummins

There has been some discussion about exempted development. I used the example of buildings that were formerly pubs. The draft legislation provides for the Minister to make regulation, which is what was done previously in this regard. Is it the intention that all of the existing regulations permitting exempted development will remain in place? The Department has a significant body of work on its hands to make regulations in respect of the draft legislation. Is it the intention to continue with it all?

Mr. Paul Hogan

That is absolutely the case. Carrying all that forward is one of the ways this will be achievable. There is no disruptive change proposed there at all.

Chairman

I will take the next slot. On section 120(2), regarding the use of the word "ambiguous", my experience is that sometimes the objectives for a plan are not written that clearly and can be interpreted by the applicant rather than the people who draft the plan, which is the members. We need to take into account that clarity on ambiguity should be sought from the members as well as the interpretation the applicant may have. Can that be taken on board?

Mr. Paul Hogan

Yes, that is something we can look at.

Chairman

It is something I have experienced before. I do not want to go into detail.

Mr. Colin Ryan

The material contravention applies to the local authority, so the members would take that into consideration in making the decision.

Chairman

Is that in respect of a local authority application?

Mr. Colin Ryan

No, those three tests apply to local authority material contravention approaches as well. We will take the ambiguity into consideration.

Chairman

Would the local authority take that into account in making a decision?

Mr. Colin Ryan

Yes.

Mr. Paul Hogan

The current wording is unclear. The word is unclear. We will certainly double-check why it has shifted to the word "ambiguity" as opposed to the phrase "lack of clarity".

Chairman

Many of us would have been through local area development plan processes where councillors are trying to craft the objectives for an area and they may not write it in legalese. It can be open to interpretation. Where that is questioned, councillors should have the opportunity to clarify what might be perceived as an ambiguity. I do not know how that can be done but it is important.

Mr. Paul Hogan

We are coming at it from the perspective of whether there is a legal drafting significance in the context of moving from the word "unclear" to the word "ambiguity". Clearly, that needs to be interrogated.

Deputy Eoin Ó Broin

A change is proposed to clarify the ambiguity.

Mr. Paul Hogan

This could go on for a while.

Chairman

There is a section relating to revoking planning permission on page 305. A particular phrase is used there that. Somebody might know when planning permission is going to be revoked. They might have an inkling that the building no longer complies with the development plan. The section states that planning can only be revoked prior to the commencement of the development. How significant does that commencement need to be? Is there a percentage or is there an element of work that needs to have been commenced before-----

Mr. Colin Ryan

There is an element of work required to be commenced, but that is something we would have to take consideration of. There are issues if somebody has commenced work. We use a range of legal approaches to look at that. There is a purpose that if you have commenced an application, it has implications in terms of compensation.

Chairman

It could define a significant commencement?

Mr. Colin Ryan

Yes, it would.

Mr. Paul Hogan

It could be very difficult because sites, developments and the circumstances involved are quite different. There have been attempts to define "substantially complete" and all of that in previous legislation. It is a tricky area to deal with in primary legislation.

Chairman

I appreciate that. It is tricky. Having read through the draft Bill, these are things which, to my mind, we may need to clarify.

I have a question about urban area plans, priority area plans and joint plans. In my constituency, there are five municipal districts. Are these plans to be made at municipal district level? There are a number of questions in this regard. Can joint area plans be done between two municipal districts or between two planning authorities?

Ms Mary Jones

Two planning authorities.

Mr. Colin Ryan

Two administrations.

Chairman

Let us say, as an example, it might be Bray and Dún Laoghaire but not Bray and Greystones.

Ms Mary Jones

Yes.

Mr. Colin Ryan

Or Athlone for instance, not Carlow. I did not want to bring that up but-----

Chairman

Now is the opportunity for everybody to name their constituency and the townlands in it.

An urban area plan within a municipal district has similarities to a local area plan. Under the Local Government Act, that can be designated to the municipal district to make that decision.

Is it envisaged that the urban area plan would be a municipal district? I am not sure what they have in cities.

Mr. Colin Ryan

Area committees.

Chairman

Is it area committees?

Mr. Colin Ryan

It is a matter for the local authority to make a decision about how it conducts its work on that matter. They can devolve it down to municipal districts or area committee. At the end of the day, it could be that they make it at the full council. It depends on the purposes and the procedures.

Mr. Paul Hogan

We would see the strategy for the intervening period of work in terms of what plans are to be done and the priority areas that need a bit of planning work as being set at the county development plan stage. One of the concerns has been that just because a town has a certain scale of population, a mandatory local area plan is required, even though there may not be significant development to take place or a plan done some years back remains perfectly acceptable. Regarding efficiency and enabling the resources within the system to be deployed where most needed, removing that mandatory aspect of a plan just because a place has a certain population is considered an improvement.

Chairman

Under the Local Government Act, it is unclear that the decision needs to be made by the local authority. It just states it can be made by municipal district or plenary. You end up then with this discussion about which one at council level. Should we try to clarify it here? It is just something to take back and have a think about.

Mr. Paul Hogan

The crossover with the other legislation needs to be double-checked. That is a very important point if we do not want to be at odds with or not have regard to that provision. It is important that when a development plan is done, people, communities and developers know where they stand with regard to what happens next and that a planning application can be considered sufficient information to consider that. However, there might be situations where more is needed, particularly if there will be a lot of development in a particular priority area.

Chairman

Clarity is incredibly important. Site notices come under the regulations. However, we discussed this at a previous session. I ask that we improve the site notice, including the information on it. I think somebody mentioned before the possibility of putting a QR code on it but I do not know how that would work. An improved site notice is helpful. It is to inform the public and at the moment it is quite difficult to navigate. I know we have it set out that where a site notice is up and the application has been refused, granted or whatever may happen, the site notice is meant to come down. There are cases where multiple site notices are left. I would hope this will be addressed. That is probably regulations.

Ms Mary Jones

It is, and we will look at that. It is on our list for the regulations.

Chairman

Perfect. “Exceptional circumstances” is used many times throughout this document. When we were doing the substitute consent Bill, we clarified "exceptional circumstances" in it. Is it confusing if we use that terminology throughout this as well? These exceptional circumstances are not the exceptional circumstances that apply to substitute consent.

Mr. Colin Ryan

No. The substitute consent exceptional circumstances are very specific. There is a range of exceptional circumstances in the broader Bill to do particularly with judicial review, JR, etc.m and things such as that for additional time periods and stuff like that. That is a matter for the courts to make a decision on. We have clarified just the definition of that where that arises as not to confuse matters.

Ms Mary Jones

There is work to be done to tighten up some of the language and so on, so we can pick that up.

Mr. Paul Hogan

For fear of getting into the same sort of discussion we had about ambiguity, it is difficult to define "exceptional circumstances" in every case. It is a drafting-legal saver for things that might arise. The best we can do is perhaps clarify the sort of circumstance in the definition. Ultimately, where there is a dispute, that is something that a court will decide. Not that we want that to be-----

Chairman

We want to keep most of these out of the court, along with this one.

The environmental portal is mentioned. That could be a good asset. It contains summary information on environmental impact assessments, nature impact statements, etc. It states that it will contain summary information. Am I allowed to believe that then will direct to where the full information is, which may be a local authority website? I find some of the local authority websites impossible to navigate. Often, documents that are put up are scanned copies rather than original digital copies and it makes it impossible for the public. The environment portal could be great, but if it is only going to redirect us to stuff that is already difficult, it might not be. What are the witnesses’ comments on it?

Mr. Colin Ryan

As we understand it, it relates to environmental impact assessment report, EIAR, applications in particular. I think nature impact statements, NISs, might be there as well. The EIAR are put up specifically on the website by the Department. As I understand it, the EIAR is on the website. The summary information might be issues to do with the access to the other particularities to do with sites, such the development description, etc. We will look at that and what that means.

Chairman

If the environmental portal was a one-stop place that people could go to, that would be good. An EIS could cover more than one local authority, so you may be in another local authority and not familiar with adjoining local authority website and how to navigate it. It has potential in this regard.

If the environmental portal was a one-stop place that people could go to, that would be good. Our environment impacts cover more than one local authority, so you may be in another local authority and you are not familiar with adjoining local authority website and how to navigate it. It has potential there.

I refer to section 5(f) in Part 7 on housing on page 442. I do not know what it is yet because I have not written it down. I only wrote the section down.

Mr. Colin Ryan

The existing need and likely future need for housing, in particular houses and duplexes for purchase-----

Chairman

I wonder why the word “apartments” is not there. Does “houses” cover the definition of “apartments”?

Mr. Colin Ryan

The definition of "houses" includes apartments.

Chairman

That is right. Okay.

Mr. Paul Hogan

This wording is within the existing Act. It was an amendment that was to avoid the bulk purchasing of what would be considered housing more suitable for the needs of owner-occupiers in certain situations. It is to have that considered in the housing strategy as a form of consideration for owner-occupiers when perhaps there was previously none. It is in the current legislation.

Chairman

Section 5(f), as written, includes apartments.

Mr. Colin Ryan

Yes. We will confirm that to be sure, but I am pretty sure.

Chairman

I think that is my list for the moment. Does anybody else wish to come in? I call Deputy Ó Broin.

Deputy Eoin Ó Broin

I have two final questions on the JR stuff and then wish to move to other areas. My understanding was that in August of last year the barrister group and senior counsel group advising the Attorney General made a submission to the Department on the JR elements of the legislation. Obviously, the witnesses will not share the detail of that with us, so that would be great if it was published. Would it be fair to say that what is in this Bill is or is not consistent with their recommendations?

Ms Mary Jones

I would say it is consistent.

Deputy Eoin Ó Broin

Is it the Department’s intention to publish that documentation if that was something the committee wanted to see for its pre-legislative scrutiny deliberations?

Ms Mary Jones

That was legal advice to the Attorney General.

Deputy Eoin Ó Broin

It is actually legal advice to the Attorney General so it is privileged.

On compliance with the Aarhus Convention and various EU directives, particularly environmental ones, we spent much time when we did substitute consent and all of those things kind of bemoaning the fact that at various stages either our transposition of or compliance with international or EU, particularly environmental, legal obligations was weak. That is why there have been so many EU enforcement actions against the State over the years and fines, etc. When crafting this important legislation, was there any specific exercise to determine its Aarhus Convention compliance and-or its compliance with some of those EU directives, EIA directives and others that we have had difficulty with in the past in terms of legal outworkings and challenges in the planning system?

Ms Mary Jones

The whole review was done in the context of the Aarhus convention and ensuring that we continue to be Aarhus Convention-compliant. That was a guiding principle of the review that was done that led to this legislation and the kind of-----

Deputy Eoin Ó Broin

I apologise for cutting across Ms Jones. The question is probably more specific. In the same way as the Attorney General’s barrister group gave legal advice on the JR stuff, was legal advice or legal opinion on the Bill’s compliance either with the Aarhus Convention or key EU environmental directives sought or secured during the review process?

Ms Mary Jones

On the environmental side, they looked at the environmental provisions for Parts 7 or 8 to ensure they were compliant with the various directives.

Deputy Eoin Ó Broin

"They" being the group of barristers who were providing the legal advice.

Ms Mary Jones

That is exactly the case. Our approach to the Aarhus Convention was more overarching to ensure we respected the principles throughout everything we were doing.

Deputy Eoin Ó Broin

There was no specific legal advice in respect of compliance.

Ms Mary Jones

There was no specific legal advice in respect of the Aarhus Convention, which overarched our approach.

Mr. Eugene Waters

A key principle of the review at the outset was that it would be fully compliant and aligned with the EU directives. That was a guiding principle throughout all parts of the review as it was conducted.

Deputy Eoin Ó Broin

It is such a big Bill that it would be a shame if we did not at least touch on some of the other key aspects of it. I will rattle through a few questions if the officials could give us whatever information they have. I will ask a final questions about the transition from the section 28 special planning policy requirements in the ministerial guidelines to the policy statements. What is the likely direction of travel in respect of those transitional arrangements and what timeline will be involved?

Will they give the committee a list of what else they expect to add to the Bill when the final draft is published? Will there be any amendments brought even at a later stage? Sometimes when we deal with planning legislation, we get amendments on Committee Stage and Report Stage. Is that likely for this Bill?

I do not see much in the Part that deals with enforcement that is new or additional or that will improve the enforcement regime. We could spend three hours talking about the weaknesses of enforcement. I do not mean that as a criticism of anybody in our planning authorities but it is a cumbersome process. Am I correct that there are no substantive changes in that Part? Will the officials outline the changes that are included?

Part 6 deals with environmental assessments. I made the point earlier that there has been a long history of challenges to transposition and enforcement of EU environmental legal requirements. What is new in Part 6 or is it simply a read-across of existing measures?

The expert group on Traveller accommodation reported to the committee in 2019. Its report referred to some changes to the planning code, in particular in respect of Part 8, section 183, etc. It was an issue we raised with Ms Maria Graham and the team when departmental officials were before the committee on a previous occasion. Was any of that considered in the context of ensuring our local authorities meet their Traveller accommodation statutory plan requirements in terms of the changes to planning law?

Senator Mary Fitzpatrick took the Chair.

Ms Mary Jones

I will take some of the Deputy's questions and others can come in if I miss any of them. Timelines are to be added to the Bill. They must be considered for the board and as part of development plans. There are a couple of other areas where timelines will need to be included. Part 16, which relates to events and funfairs, will replicate the equivalent Part in the current Act. It needs to be inserted. Transitional provisions will be included for how we move from the current Act to the new Bill. There will a Part to address that point. As the Deputy will be aware, there is other legislation relating to land value sharing and urban development zone, UDZs. Depending on how that progresses, it may be incorporated into this Bill. We may have one Bill or those other considerations may travel separately. A decision is to be made in that regard. We will have to see how things move on.

Deputy Eoin Ó Broin

Will the officials give the committee a little more information on the transitional mechanisms and what shape that might take?

Mr. Colin Ryan

There are, broadly speaking, three aspects to that issue. There are plans in flight at the moment and we will see where they land in relation to the new planning regime from a plan-making point of view. The key issue in respect of planning applications that are in progress is consent. When the new Bill is enacted, we need to know where those applications sit. Do they sit under the current Act, as it stands at the moment? Will they be dealt with and finalised under the current legislation? The enforcement aspect in respect of current cases also needs to considered. Broadly speaking, those are the key areas that need to be dealt with.

The Deputy asked about the direction of travel. As we have said previously, there was a significant transition when we last did a comprehensive planning Bill, which was in 2000. The new Bill reflects the same broad parameters from a system point of view. It is that aspect of things that will be reflected on as it applies to how we will move through the transitional arrangements.

The Deputy also asked about amendments. We will have to see how the Bill progresses and what is tabled by the Deputy and others. We cannot make a commitment now that we will not bring amendments.

Deputy Eoin Ó Broin

Am I correct that nothing in the Bill significantly changes the current enforcement regimes in operation under the existing Act?

Mr. Colin Ryan

The answer to that question is "Yes". It is the legal aspect of things. Enforcement deals with criminal convictions. It is not a civil matter. Those matters relate to warning letters and enforcement notices. That aspect will, broadly speaking, stay the same. We have introduced the capability for larger enforcement files, particularly in respect of quarries but other cases will also require to be dealt with on a regional basis. We must allow for that specialism to be dealt with. Broadly speaking, however, the system will effectively stay the same from a structural point of view. A defence is available that allows people to claim they have tried to comply as best they can. I am paraphrasing here so I apologise. An individual can claim to have complied with an enforcement notice to the best of his or her ability, and that is a plea a court can take into account to allow the discharge of an enforcement notice. If a person is convicted, it is a criminal conviction, which has ramifications. The system will, broadly speaking, remain as it is.

Deputy Eoin Ó Broin

I appreciate the clarification. The threshold that a local authority has to meet for a successful enforcement in the courts often incentivises local authorities to take pragmatic approaches and try to get the issue resolved to the best of their ability short of going to court. Was any consideration given to reviewing or reconsidering that? I will not name it but a high-profile development in my constituency has attracted much public commentary. Mr. Hogan will know it well. It contains 40 apartments that have been fully occupied for three to four years. It has no planning permission, building control or completion certificates. The council is engaging sensibly and pragmatically to try to resolve the situation. The threshold to secure a successful enforcement conviction in court appears so high that we often end up with messy, pragmatic compromises, which are not necessarily consistent with the aims of the Act.

Mr. Colin Ryan

To answer the Deputy's question, we looked at how the system is operated to a degree. We are looking to step into matters. There is now the capability to have stays on decisions when applications are made for retention, etc. We seek to limit that as best we can.

The issue at hand is basic. To be clear, these matters are either civil or criminal. The bar to prove criminality is high. At the end of the day, the planning authority is seeking to bring development in line to properly plan sustained development in the area as opposed to-----

Deputy Eoin Ó Broin

Was there not an argument to try to have a portion of the process that would be civil and a portion that would be criminal?

Mr. Colin Ryan

It is difficult to make that work. Where does criminal begin and civil end? One does not know at the start of a file that the case might end in a criminal conviction. There are significant issues about the processing of a file. Any file could end up in court. There is that aspect. The threat of conviction is also a high bar to take into account.

Where certain activities have taken place, we are seeking an immediate cessation of works pending the making of a decision rather than the continuation of the process, which has been an issue in recent times. It allows people to extend the process and leads to frustration for all parties.

Deputy Eoin Ó Broin

I also asked about Part 6, Traveller accommodation and the planning-specific elements of the review.

Ms Mary Jones

We looked at the report to which the Deputy referred. Many of the issues raised were more relevant to the Local Government Act than to this Bill.

Deputy Eoin Ó Broin

It is those two, section 183 and Part 8.

Ms Mary Jones

There are provisions in relation to the development plan and Traveller accommodation. That is specifically mentioned.

Deputy Eoin Ó Broin

There was no consideration of the recommendations, for example, on potential changes to the Part 8 planning process.

Mr. Colin Ryan

Part 8 of the planning process is a regulation.

Deputy Eoin Ó Broin

That does not need primary legislation and could be done through regulations.

Ms Mary Jones

Yes.

Mr. Colin Ryan

It is Part 8 of the planning regulations, just to confuse matters.

Deputy Eoin Ó Broin

What is the position with Part 6 of this Bill?

Mr. Colin Ryan

That gives the powers upon which the people make-----

Deputy Eoin Ó Broin

Apologies. The question is, a little bit like the enforcement section of the Bill, is it just literally a transposition of the existing legal codes, such as the environmental assessment section, or are there changes or improvements in there?

Mr. Colin Ryan

It was looked at in terms of compliance with what the directives actually say. It clarifies those matters more clearly. In relation to IROPI, imperative reasons for overriding - my mind is blank-----

Deputy Eoin Ó Broin

Death to acronyms.

Mr. Colin Ryan

Yes, apologies. We have looked at that process internally in the system as regards the capability of the local authority, or mainly the board, to declare IROPI and move into that process in a more streamlined way. Broadly speaking, the purpose of that review was to review it in line with the directives and what they actually require. That was the primary purpose. It was to clarify the matters that are there now around appropriate assessment and environmental impact assessment.

Senator John Cummins

Section 6 relates to short-term lettings, specifically properties within RPZs. Has consideration been given to amending any of these provisions or will the section remain as it stands?

Mr. Paul Hogan

The section simply reflects the existing provisions. There is no intention to further amend it.

Senator John Cummins

There is no intention to further amend it.

Mr. Paul Hogan

Not at this time.

Senator John Cummins

I may have missed it in the 738 pages but while the Bill seems to refer to the public rights of way, I did not see anything about extinguishing public rights of way. This can be contentious, particularly where opening up a public right of way between two estates may be a planning condition. There may be antisocial behaviour attached to that or there may be a petition on both sides on closing the public right of way. A process is associated with that. Is that reflected in what is here?

Ms Mary Jones

I will check and clarify that.

Senator John Cummins

If that is not included, it is obviously an omission. There is a process currently-----

Ms Mary Jones

That is in section 244.

Senator John Cummins

Okay. It is just to make sure an extinguishment process is there because it is a useful tool, where it is required by local authorities. Obviously, it involves residents on both sides.

On protected structures, which are dealt with in section 255, are there any changes here over and above what is in place? I recall from my time as a councillor that to remove some buildings from the record of protected structures a process had to be entered into but it could only be done as part of the development plan process. From my reading of this, it seems that it can be initiated at any point by the local authority, either to add or delete. Is that correct and, if so, is that a change?

Mr. Colin Ryan

It is a broad change in relation to deletion or adding. I think one can add at any time under the current Act but deletion is to rectify that. It is clearly an action that is required under the Act.

Senator John Cummins

Yes, because it seemed that one could add at any point but the ability to remove was restricted. I am not for a moment advocating that we get rid of protected structures but for a local authority to be able to look at that in limited circumstances or, where a directive comes down, to decide not to implement the broad swathe but something more appropriate and specific to the local area. I think that has been captured and I offer my compliments on that.

More generally on planning, one area that I think has, or at least should have, a bearing on this is former holiday-style villages that were granted permission during the Celtic tiger or earlier. Tax incentives were available for these and different regulations attached to them. Tight housing supply means the vast majority of these holiday-style villages, especially in coastal areas, are being lived in permanently. If residents want to rectify the planning and use the accommodation as permanent residences rather than holiday-style lettings, their ability to do so is essentially nil because they cannot meet the current regulations or criteria. This needs some consideration in the context of this Bill, not in future legislation, because it is important right now. If 50 or 60 residents in such a development decided they wanted to make these houses their permanent residences and did not mind that the open space requirement we typically want these days was not being met, they should be able to regularise things under the planning code. That is not captured in the Bill. Could it be captured? What are the witnesses' thoughts on the matter?

Mr. Colin Ryan

We would have to be very careful around commenting on particular applications.

Senator John Cummins

I am not talking about any application.

Mr. Colin Ryan

There is in the current Bill a capability to look at conditions of permission that exist because more than likely there were particular conditions that existed on these applications. That is allowed under this Bill, which clarifies the matter. The issue at hand is whether there is a capability there for the proper planning and sustainable development of an area. That has to be taken into consideration by the planning authority making a decision. There were reasons a particular application was granted at the time and those conditions may well have changed. That is something that can be taken into consideration. We have allowed for more capability around amendments and changes to conditions that would have been far more difficult to do in the past when the whole application had to be opened up.

Senator John Cummins

Where is that reflected?

Mr. Colin Ryan

It is in Part 4.

Ms Mary Jones

It is chapter 4 of the consents.

Mr. Colin Ryan

This is a complex matter.

Senator John Cummins

Yes. At the same time, I appreciate that if we were applying for a development in a location now, we would require it to be X,Y and Z. The reality is that these developments are in existence, which, rightly or wrongly, are occupied as permanent residences. I am not speaking about any particular development. I am sure this is reflected across all coastal communities. If the owners of those properties are happy to make those homes their permanent residences, does the Department not feel that should be captured?

Mr. Paul Hogan

It is probably best addressed through regulation. The quickest way to expedite a solution is simply to exempt a change of use to residential from something that was permitted for holiday purposes in certain circumstances. The reality is that we would need to understand the issue a little better. Generally, holiday locations are more remote and less well serviced. That might be more of a concern for example. By and large, they are fairly generous properties in my experience and have sufficient ground around them to offer play opportunities for children and that kind of thing. The density is generally not the issue. It is more to do with location, whether they are isolated and not near services. In some cases, they may have temporary services or might not be connected to mains. Those are also considerations. There are ways and means to address this and it is fair to say the wider issue we must deal with is being more flexible about accommodation.

Senator John Cummins

I ask the officials to take that away to perhaps ensure it can be captured in the Bill. From Mr. Hogan's response, I appreciate it probably can under exempted developments. I ask that it be taken as a piece of work. I appreciate the services issue but whether different people or the same people are residing in a particular dwelling 52 weeks of the year, it has the same demands on services.

Mr. Paul Hogan

Without getting into all the detail, sometimes these schemes were designed for occupancy 12 or 16 weeks of the year as opposed to 365 days and there could be an implication for the capacity of services.

Deputy Paul McAuliffe

I note the comments made by the Chair regarding the issue of the planning notice being a matter for regulation. I am happy to explore that with the Department offline. Would the Department consider tabling an amendment which, similar to all the other issues we have discussed, is about trying to give people an opportunity to have an input at the earliest possible point? People are often not aware a planning application has been made because the site notice is displayed on a road immediately behind them, which they may have no reason to travel along. Often in a housing development, an extension or change to the house will require planning. The site notice is placed in the front garden and the home immediately behind it does not have easy sight of that notice. A number of different residents' groups have suggested that where a planning application is being made, the applicant should be required to notify the landowners immediately adjoining the site. I am happy to work with the Department, perhaps on an amendment or a change to regulations. It seems reasonable that the applicant would have to notify the landowners immediately adjoining his or her site. It is also a sensible proposal as the only opportunity would be for them to join another party appealing it and these things are better dealt with at an early stage. Would the officials take that away and consider bringing forward a change in regulation or amendment?

Mr. Paul Hogan

We are happy to do that. Notifying neighbours specifically, that is, looking at a map and identifying the properties around, is what happens in the UK, for example, where there are no third party rights of appeal. People need to get in at the initial application stage and be sure they are aware of the application. There is a quid pro quo. It has validity here and we can consider it as part of the regulations. I urge caution on one matter, which comes back to some of the earlier discussion. The failure to notify someone through simple error or omission should not be a ground to invalidate an application or to force a judicial review in all cases. Given there could be complicated boundary arrangements or property ownership patterns, there could be a genuine error where someone is not notified but everyone else is. There must be proportionality in these kinds of measures.

Chairman

That is a good point.

Deputy Paul McAuliffe

I thank Mr. Hogan. He has stumbled across the reason I ran aground in my Private Member's Bill on the issue and perhaps the reason I recommend the Department might take it up. I accept that complicated legal title or boundary issues can cause a problem. However, in the normal course of events, where the site notice might not be visible to a party immediately adjoining the property, it is not fit for purpose. Rather than oblige applicants to display an additional site notice, a simple notification letter included in the application would solve the problem and give people a reasonable opportunity to participate in the planning process. If the Department is willing to look at that, I would certainly appreciate it.

Mr. Paul Hogan

Yes. That is absolutely fine.

Chairman

We should also look at the matter of the 22 m rear window to rear window guidance in the regulations.

Mr. Paul Hogan

The revised urban development guidelines I mentioned earlier will address that issue and inform development plans as a result.

Chairman

I will come back to judicial reviews again as the more I discuss it, the more issues occur to me or the more concerns I have about it. It would be helpful for the committee to be provided with a comparison document around standing and all aspects in the process or framework of JRs as it currently stands and what is proposed in Bill. It would be helpful to have a document that contrasts the two side by side showing the differences. It is changing. It appears we are materially changing it. What happens in the process of the amended decision we discussed earlier as a minor or immaterial decision? In section 249(5)(b)(iv) on page 482 someone defending a-----

Ms Mary Jones

That is where the board seeks to correct the error.

Chairman

It seems people can apply to a court for a stay on the determination.

Ms Mary Jones

Yes, while they are-----

Chairman

While it is being amended.

Ms Mary Jones

Yes.

Chairman

The decision is amended and that satisfies the judicial review. The person who has taken the JR points out the process or part of the law that was not complied with. The minor error is corrected. What happens to that JR? Is it successful and the person who took it has won the case?

Ms Mary Jones

Is the Chair asking whether the plaintiff will have their costs met?

Chairman

For example, I take a JR complaining that this part of the law or process was not complied with.

We go to court, and as we are going through court and the proceedings the planning commission, for example, says, "There is the mistake; we will go back and amend it." It amends it. I am supposed to be satisfied now because that is why I took the court case in the first place. Have I won that judicial review case now? The commission has amended the faulty bit of law. Now what happens?

Mr. Colin Ryan

As we understand it, the judicial review is completed in that it is finished with. That presumes that all other grounds have been dealt with as well, I think it is fair to say.

Chairman

Yes. There could be other grounds.

Ms Mary Jones

Yes, exactly.

Mr. Colin Ryan

There could be.

Chairman

Supposing, though, that there is this one ground or issue-----

Mr. Colin Ryan

And it is clarified.

Chairman

-----and the commission comes back and refers to the traffic report or whatever it might be and corrects the decision. I am satisfied now, as the person who took the case, that that is the bit of law I thought was wrong and now the commission can change it. Prior to that, that decision would have been quashed and put back to the decision-making point. Now what happens?

Mr. Colin Ryan

What you are doing is clarifying a very particular issue.

Mr. Eugene Waters

Someone thought the traffic report, to use that example, was not taken into consideration in the commission's decision, which is why the person took the case, and then the coimisiún can clarify that it did not write about that in its explanation but that it was taken into account. Therefore, that has answered the query the person raised about the perceived fault.

Chairman

There was a failure in the process to notify or to include that we consulted on the traffic report. The board can now amend that error; therefore, there is no outstanding legal issue any more. What happens to the judicial review case? What is that judicial review case now called? A successful one, a quashed one or a-----

Mr. Paul Hogan

I think it just falls. There is no longer a basis, a ground, for review because the remedy has been achieved.

Chairman

The remedy has been applied so it falls. In that situation the person who took the case, I assume, is entitled to the full costs.

Ms Mary Jones

Yes. That would be our understanding as well.

Mr. Colin Ryan

That would be the understanding and the direction of travel.

Chairman

The decision stands.

Ms Mary Jones

The decision as in the-----

Chairman

The original decision now stands.

Ms Mary Jones

It is a new decision-----

Mr. Colin Ryan

Technically, it would be a new decision because the matter that has taken place has been clarified. From a technical point of view, a new decision has been issued. A judicial review could then theoretically be taken on that decision if-----

Chairman

That was my question. Somebody could now seek a judicial review of the new decision, which is-----

Ms Mary Jones

Yes, and the eight weeks would start from the date of the new decision.

Mr. Colin Ryan

We have to-----

Chairman

It would be less likely to succeed because we have gone through it with a fine-tooth comb now.

(Interruptions).

Mr. Colin Ryan

There has to be the capability for judicial review that-----

(Interruptions).

Chairman

I am listening; I am just thinking as we read through this.

Mr. Colin Ryan

There has to be the capability for review of the decision-----

Chairman

We will have all the legal minds in at some point and we can put that question to them. As for the document, perhaps we could have some sort of comparator.

Ms Mary Jones

We will get that for the committee.

Chairman

Thank you, Ms Jones. Deputy Ó Broin, you wish to come in.

Deputy Eoin Ó Broin

We are having a lot of discussion about judicial review, and it is important, but it is important also to remember that less than 3% of planning applications get judicially reviewed. I am not picking Mr. Hogan up on something, but he did mention earlier that judicial reviews should not become a normal part of the planning process. It is important that this committee emphasises that they are not a normal part of the planning process. A very small number of decisions get judicially reviewed. They often have to be very high-profile, which is why they get a lot of attention. People who do not follow the detail of the planning process would possibly think that judicial reviews happen all the time whereas they are a rare occurrence. That is not an argument for or against them; I am just making the point.

One of my concerns, to which I would be interested in Mr. Hogan's or any other witness's response, is about both judicial review and, more generally, the improvement of the planning system that the Bill purports to achieve. We had a similar set of arguments with very different legislation that was brought in by some of the Minister's predecessors, including in 2016, when the Minister, Deputy Simon Coveney, brought in the strategic housing development, SHD, legislation, which we were told would speed things up. At the time, a number of us on the committee were fearful that it would actually have the opposite effect, that it would lead to more conflicts of law and more litigation, and that transpired to be the case. Whatever the intention of the legislation, the effect was that for certain categories of residential developments it actually slowed things down. There is a view - we will probably hear it from people who come before the committee over the next four and a half weeks - that, in fact, if the plan-making inter-relationship between central government planning policy statements and local democracy and the changes to the courts are not got right, we could end up with increased points of conflict between the specific planning policy requirements, SPPRs, national planning policy statements, development plans and planning decisions and that the outworking of some of the judicial review provisions could lead to increased litigation, including satellite litigation or litigation to superior courts - the European Court of Justice, for example. Has any of that been stress-tested, given that measures we were told previously would speed things up or improve the system did not do so? Has there been any attempt to ask the following questions? What if this does not work the way we think it will work? Could we actually end up with more litigation as a result of this? Could we end up with more conflicts between development plans and ministerial statements? Has that been assessed? That is what I am asking.

Mr. Paul Hogan

I think the process of pre-legislative scrutiny is very much the stress test. That is the first point.

Second, this has been through a process of legal scrutiny over 18 months. There were 17 different working groups looking at different aspects. The terms of reference are really clear about streamlining and making sure we apply the principles of the Aarhus Convention, that we ensure that European directives are fully incorporated and that we respect public participation throughout. Those were all overriding concerns.

One of the key objectives was certainly to eliminate and smooth out points of conflict that have arisen through various processes, foremost among them judicial review over the experience of the previous Act. However, I do not think anyone could argue to retain the 2000 Act, good as it was at the time. It has been amended on multiple occasions - annually at this stage. It has become impenetrable, as Ms Jones said. It is really difficult to use even for a practitioner. I have 30 years' experience in the planning system, most of it with the 2000 Act, and it has become really difficult to work with and follow. I would therefore be very surprised if anyone who came before the committee were to suggest that retaining the Act is the way to go.

Clearly, the experience of all the people involved in the review was to identify where the points of conflict are and where we think we can make things clearer. With all the checks and balances we have, we have the regional assemblies, the Office of the Planning Regulator and even different areas within local authorities. The idea is that if all parties have their roles clarified and a clear set of responsibilities within that, it should all work together, respecting, of course, the need for people to ensure they have access to justice and access to address matters they feel are wrong or whatever. There is always a balance within a regulatory system that tries to achieve visionary things for the future. Planning has to do a lot, not only in its legal framework but also in its overall purpose and mission.

Chairman

I do not think there are any further questions. I thank the witnesses for their attendance. We engaged several times in the run-up to this meeting as well, and I acknowledge that. I ask the witnesses to provide us with the extra bits and pieces that were asked for today. That would be helpful. We will stay in contact to see if we need another session or briefing with the witnesses in the middle of our pre-legislative scrutiny. We will try to organise something along those lines. I thank them very much for their time today.

The joint committee adjourned at 5.29 p.m. until 9.30 a.m. on Thursday, 9 February 2023.