Joint Committee on Housing, Local Government and Heritage debate -
Thursday, 9 Feb 2023

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

Chairman

We are joined from the Office of the Planning Regulator, OPR, by Mr. Niall Cussen, planning regulator and chief executive; Ms Anne Marie O'Connor, deputy planning regulator and director of plans and evaluations; and Mr. Gary Ryan, director of reviews and examinations. From An Bord Pleanála, we are joined by Ms Oonagh Buckley, interim chairperson; Ms Brid Hill, chief officer; and Mr. Gerard Egan, director of corporate affairs. We received their opening statements, for which we thank them. They have been circulated to members.

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 they have an absolute defence against any defamation action for anything they say at the meeting. Members and witnesses are expected not to abuse the privilege they enjoy and it is my duty as Chair to ensure this privilege is not abused. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative they comply with any such direction. Members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

On behalf of the committee, I thank our guests for attending the meeting. Both organisations have a critical role in the oversight and consenting process for planning. We hope this new planning Bill will be fit for purpose to see us through at least the next decade of planning needs and all the challenges they will present to us in the context of housing, energy and transport infrastructure and so on.

I invite Mr. Cussen to make his opening statement.

Mr. Niall Cussen

We strongly welcome the comprehensive review of the planning legislation. It has been 23 years since the passing of the Planning and Development Act 2000 and, as the Minister for Housing, Local Government and Heritage and his Department have flagged, the review is focused on specific parts of the legislative framework for planning, recognising that many parts of the system work reasonably effectively while others reflect the fact the worlds of 2000 and 2023 are very different. A particular focus for our office concerns the provisions of the Bill relating to plans, policies and related matters in Chapter 3. This is because in the case of the current legislation, many of the difficulties we encounter have to do with the interpretation and implementation of planning policies from national to regional and local levels.

For the planning process to perform smoothly for all its users, there needs to be a general coherence of approach, throughout the different levels on the key policy areas including housing supply, climate action, the protection of natural and public resources and public safety matters such as flood risk, that, while taking account of local issues, consistently applies clear rules. From an OPR point of view, we cannot function as an effective overseer of the planning process without this. We need to move forward from the current situation where the Minister produces guidelines, and due to court decisions, there are now difficulties in respect of how they are to be implemented.

We welcome, therefore, the strengthened legal status for ministerial guidelines, which will be upgraded to national planning policy statements and associated national planning policy guidance. These will be approved by the Government, subject to all the necessary assessments such as environmental and so on, and the Bill makes clear that alignment of other plans with them will be mandatory. This will make our role, as something of a referee in the planning process, much more straightforward. We also welcome the more strategic focus of development plans and their extended lifespan with good opportunities for mid-term review, which should both ease the burden of their production and give the public a stronger strong sense of what is being planned for particular areas before any planning applications emerge. We also welcome the evolution of local area plans towards specific types of area-based plans to meet specific needs, such as urban area plans, priority area plans, joint area plan and the existing strategic development zones and urban development zones, as well as being much more focused on implementation.

We agree with statutory mandatory timelines for all consent processes, including An Bord Pleanála decisions, to bring certainty to the planning consent process, subject to the proviso that long-running and structural resourcing issues in the planning process must be addressed if this is to work. Such timelines have not yet been fully finalised but in doing so, they must take proper account of the time needed to make proper and robust decisions that will withstand any legal scrutiny. The key is to provide certainty around the planning process rather than to set unrealistic deadlines, which could lead to rushed rather than correct decisions. As the Department's own analysis, in conjunction with the local authorities, has shown, the planning service is under-resourced, perhaps by up to one third in headcount terms, and with fee income not having been revised since 2001, our planning service is chronically underfunded. The historical and structural underfunding of our planning processes is all the more remarkable when we consider how central it is to delivering much of what we need in this country, such as homes, schools, flood defences and renewable energy infrastructure.

We disagree, however, with the concept of issuing fines for failures to meet statutory deadlines. A better way needs to be found than the prospect of An Bord Pleanála as it is now, or the planning commission in time, handing over fee income it needs to function to applicants. Resourcing of the planning service is the key, allied to wider measures including a new digital strategy for all planning functions. The challenges facing the provision of certainty in respect of planning outcomes will benefit from the Bill's changes to judicial reviews of planning decisions, with the timelines for various steps in the judicial review process and the scope for An Bord Pleanála to correct any errors of fact or law in a planning decision. The Bill will also bring clarity to the role of different parties in accessing justice.

We are struck by the degree to which the general scheme of the Bill acts on every one of the relevant recommendations of our two reports into An Bord Pleanála, which will enable a deep restructuring addressing our central recommendation of the separation of its decision-making and governance structures.

The new structure and brand of the organisation respond to our call for an organisational reset with planning commissioners replacing the current chairperson and board member roles and a new governing executive responsible for the organisation’s governance and organisation. There will be increased clarity regarding environmental assessments in the planning process, which will be a hugely important area to get right and there will be greater integration of the scope and role of environmental assessments into plan-making functions and consenting processes. There are areas that will probably need some more work. We are understanding that as we read the Bill, on an ongoing basis. We also strongly welcome the increased capacity for local authorities to utilise compulsory purchase orders, CPOs, in pursuance of their functions, for example, to acquire vacant or derelict properties for onward sale and to play a stronger role in land activation.

In short, while some parts of the 2000 code have become challenging to understand and operate after years of amendments, much of the wider code is not broken so the Bill commendably focuses on what needs streamlining while blending in more familiar provisions in a new comprehensive piece of proposed legislation. We are happy to engage with committee and assist in any way possible.

Ms Oonagh Buckley

I thank the Chair and members of the committee for inviting An Bord Pleanála this morning to speak on this important piece of draft legislation. As members of the committee will be aware, I was recently appointed interim chairperson of An Bord Pleanála. I am accompanied by Ms Brid Hill, chief officer, and Mr. Gerard Egan, director of corporate affairs.

The draft planning and development Bill 2022 which the committee is considering today will bring fundamental changes to the structures, systems and processes of An Bord Pleanála. However, An Bord Pleanála’s core function as the independent appellate body in relation to planning applications and the decisionmaking body for major public and private infrastructure proposals, both onshore and in our marine environment, will be maintained through the changes being proposed. This is in line with one of the key underpinning themes of the legislation, to ensure that the principal elements of the planning system, as set out in legislation in 2000, are kept while ensuring that those parts of the law that need updating to modern times are improved.

The board welcomes this review and streamlining of legislation which, we would probably all agree, had become unwieldy over the years. While the new legislation will be easier to access and understand, the planning process by its very nature is extremely complex, involving the careful balancing of competing rights. The volume of issues and policies that need to be considered in the context of an appeal or application to the board has increased and will not reduce. The legislation proposes significant changes to the internal governance of the organisation and its leadership, as well as renaming it An Comisiún Pleanála. It will adapt the internal structure of the organisation to a modern governance and operational model and bring greater clarity as to the roles of those working across the organisation and the procedures for making decisions on planning files. When associated with the increased resourcing the Government has indicated will be necessary, this will strengthen the commission in delivering its key mandate.

Separating the roles of chief executive officer and chief commissioner should assist both in delivering what I have already discovered is a very challenging mandate when assigned to one person. I might even say a very, very challenging mandate. We have already and will continue to engage with policymakers in the Department to ensure, in particular, that there is clarity about management authority in the future organisation and that the future commission can be run efficiently and thoroughly while delivering well-reasoned decisions in a timely manner. It is the case that many of the proposed changes in the Bill have already been flagged as necessary within the board in the two reports of the Office of the Planning Regulator and in the Minister’s action plan. I and my colleagues within the board are actively working to implement those changes within the board’s remit, which will in part help to prepare the organisation for the more extensive changes the Bill will introduce, one of which is the introduction of a revised code of conduct under section 150 of the 2000 Act. Just as for the board, the Bill ensures that the future commission will need to adopt a code of conduct which will include careful attention to avoiding conflicts of interest among the staff and those making critical decisions on planning appeals and applications.

The Bill will introduce mandatory timelines across the range of decisions taken by the future commission. We have begun engagement with the Department on how to shape those timelines, seeking to use evidence from within the board on how much time has been needed over the years to take decisions on the range of projects that come to the board for consideration. As a public service, the future commission must operate as efficiently as possible. As a general principle, the board feels that 18-week period, which has been a board target for many years, is generally suitable for normal or less complex cases. Equally, the reality is that appeals and applications related to more complex and larger developments need longer timeframes. Some developments, for example, because they involve more complex effects, will require further information to be submitted or an oral hearing to draw out the full range of outcomes of a proposed project. Such cases will by their very nature take longer than the mandated timeframes. In previous years, when operating without a backlog, the board did not meet the standard operating timeline in 100% of cases. There are other simpler changes like reviewing the extent to which the board must set out all reasons for making a decision, as opposed to the key reasons, and aligning the process when further information is sought by the board to that of planning authorities, stopping the clock, which will also help the board take robust decisions while meeting the mandated timelines. That will also require the commission to be adequately resourced by Government by ensuring adequate staffing and timely appointment of commissioners.

That raises the question of whether an approach whereby fines from the public purse are paid to developers is the best way to deal with delays or if there are other effective measures that could be taken to ensure that the future commission works to its mandated timelines in the majority of cases and its management is accountable for delivering that. How to deliver that accountability will be the subject of ongoing engagement with the Department and is ultimately a policy decision for the Minister and will have to be passed by the Oireachtas. The Bill proposes various changes to judicial review, which, because the board is the final arbiter in planning decisions, has been a particular area of increased activity for the board over the past number of years. While not commenting on the detail of those proposals, we welcome the intention of the draft legislation to bring a firmer alignment of policy and guidance from national to local level, as well as the possibility to address minor procedural or technical matters in lieu of judicial review being necessary.

I emphasise that in any case the board intends to strengthen its capacity to manage and respond to court rulings with a focused approach to learning from past rulings along with increased support from new internal and external appointments. Our core response to the challenge of judicial reviews will be to ensure that decisions made by the commission are robust, well-reasoned and as comprehensive as necessary. That takes time but it will be time well spent if it results in fewer cases having to be taken to the courts. There are also a number of detailed processing issues within the draft Bill where the board will engage with the Department, having regard to its experience of operating the 2000 Act, as amended. In particular it will be important to ensure that the commission has the range of powers it needs to ensure timely, robust decisions. In an organisation with a long history from its establishment in the 1970s, its own strong identity and culture and ongoing challenges around workloads, adapting to the new system will be challenging for those working in the board. It is a task that all of us working in the board are looking forward to meeting in the coming months. I thank the members for their attention and look forward to discussing these matters with the committee.

Deputy Eoin Ó Broin

I thank the witnesses for their presentations and comments. There is much I agree with, particularly on the under-resourcing of both organisations, not just historically but contemporaneously and the need for significant increases in resourcing to manage the new plan-led approach of this legislation and the other tasks they have been given, particularly maritime area planning.

I have questions for both organisations. If we do not get through them in this time I will come back in the second and third rounds. Regarding resourcing, assuming that the Bill broadly as outlined passes, whatever the deliberations of our committee, there is a report from the Department which indicates that on foot of a business case for resources for the planning and functioning of local authorities prepared by the Local Government Management Agency, LGMA, in Q2 last year, it needed an extra 541 posts at that stage to fulfil the functions it currently has. I am not going to ask the witnesses to name a figure for what their organisations need. From both organisations' perspectives, what level of engagement has there been to try to at least estimate what additional level of resources would be required to meet the kind of challenges we are talking about?

I am glad Ms Buckley raised the issue of fines because some of us are uncomfortable with the idea of the applicant receiving the benefit of the fine. Some of those applicants are on record publicly saying they do not want or need the money and it is not a significant factor for them. However, I note that neither of the presentations suggests what alternatives could be put in place. In addition to resources, are there other systems in other jurisdictions or other considerations to suggest what would be an appropriate sanction?

I have a question specifically for An Bord Pleanála. I am glad the witnesses mentioned that it is not just recently that the missing of the 18-week deadline had been an issue. We all know that. My question is not a criticism of the board. The witnesses told us that they have not had 100%. Has there been an internal analysis in the board to give us an indication, both for complex and non-complex cases, what percentage of applications do not meet that deadline and other patterns? I am aware of often minor applications or appeals that do not get decided for long periods. It is not because they are complex, so I assume it is because they are not being prioritised, but that is just an assumption. Can the witnesses give us visibility of the track record on decisions? That is important for us. I have other questions but will deal with them in subsequent rounds.

Mr. Niall Cussen

I thank the Deputy for the questions. We constantly engage with local authorities on resourcing, as the Deputy is aware. We undertake reviews of the general discharge of planning functions, so we are building up a clear picture. We have completed four reviews and have another series in train. It is the number one issue that comes up again and again. We have developed a learning and development strategy for the sector which highlights the importance of training and upskilling in the context of the wall of policy and legislation that is coming at a hard-pressed service. One cannot have training if one has to focus on the day job, so there has to be a certain amount of floating capacity in the sector to even undertake learning and development. That is as valid and true for the board as it is for us. There is much engagement and a picture building up about what the ask is. I am aware of the collaboration between the Local Government Management Agency, LGMA, and the Department. It is a sister document to the learning and development strategy.

Deputy Eoin Ó Broin

Mr. Cussen is well accustomed from his previous role, to the constraints between what is required and what is available. Does he think there is a need for independent assessments and publication of estimates of the staffing levels that are required to meet these kinds of functions? Is that something that his body could or should do? There is a political process and a budgetary process, but objectively, somebody needs to say that if this kind of stuff is to be done, this is the kind of resourcing that would be involved.

Mr. Niall Cussen

We have a general competency regarding undertaking research and analysis into the overall performance of the planning process. The provision of resources to the service is a matter for Ministers and Departments through the various Estimates, budgetary processes and so on. We have completed much work in our initial set-up. As the resourcing issue becomes clearer, we are ready to do more work in that space and we can. In my statement, I highlighted that planning fees have not changed since 2001. The planning application for a domestic dwelling requires a €65 fee to a local authority. The drawings from an architect will cost many times that, going into the thousands, yet the local authority is expected to take the file, handle it in its own systems, undertake inspections, send people out, check public notices and do the whole process for €65. It means it is, in effect, constantly trying to balance its books and effectively subsidising the delivery of planning services from ratepayers and other sources of income. In other administrations that I have studied, planning tends to be more of a self-financing service. Indeed, a degree of that is already recognised in the legislative code because the board itself can set fees and revise fees every three years, taking account of the consumer price index, CPI, and so on without necessarily going back to the Minister. There are provisions in the Bill which largely replicate this.

We need to have a conversation about how the planning process is resourced and funds itself. It is a matter for the Legislature and policymakers as to whether we take on any additional roles in that regard. I think regular fitness reviews of resources-----

Deputy Eoin Ó Broin

There would be nothing stopping the Office of the Planning Regulator, given its independent role, from publishing such independent reviews on resourcing, irrespective of whether the Government asks it to do that or not. That could be an important function for the regulator.

Mr. Niall Cussen

Looking at planning fees, resourcing and so on is not expressly stated but we have a general competency in looking at the overall operation of the planning service and advising the Minister, from time to time, as we see fit, as part of our independent functions. We have not focused on that initially because we had the development plan reviews, looked at An Bord Pleanála and at other functions. We provided training to elected members and had to create public awareness. We only started three years ago. Since there has been increasing clarity of how critical funding and resourcing is, we stand ready to assist with it or to undertake a review, taking account of the emerging priorities.

Deputy Emer Higgins

I thank our speakers and our witnesses for being here with us today, sharing their expertise and inputting that level of expertise into the Bill. We want this Bill to be very well-rounded. It needs to make sure that, if we are implementing statutory timelines, the resources are in place to equip these decisions to be made within those timelines. For me, it boils down to trust in the decision-making process, in the consistency of the approach to decision-making, in the timelines and in the bodies making these decisions. The witnesses described An Bord Pleanála as having its own strong identity and culture but said they face the ongoing challenge with their workload, which they do, but there is also a challenge with their reputation. We would like for this Bill to help to resolve that issue.

It is interesting to note that when there were no backlogs in An Bord Pleanála, as Ms Buckley said in her opening statement, statutory timelines were still not being met. It is clear that there is an inherent resourcing issue in the system. The Office of the Planning Regulator has said that part of that could be rectified through an increase in the application fees for planning permissions. Mr. Cussen is absolutely right in what he says about the €65 for a local authority for planning permission for one house. That €65 seems wrong to me. I would be cautious, when we are dealing with larger projects, that we do not put anybody off making these planning applications, because we need planning applications which are turned into homes for people.

Ms Buckley made a good comment on whether a public body being fined and having to pay that fine to a developer is the right way forward. I agree and do not see much logic in that. It reminds me of the system with Dublin Bus and Go-Ahead Ireland. When they do not meet their commitments to their customers, they are fined, but the money does not go to their customers but to the NTA, which is a State body that can then assign those resources. How can we try to get something akin to that so that the money stays in the State system and within planning? It would not necessarily be reinvested in resourcing, because that is not a sustainable funding model and we do not want the board to have delays so that it can get more people. Do any witnesses have a suggestion about how we can make sure that those fines, if they happen, are reinvested into the planning system in short-term ways?

I would be interested to hear the witnesses' recommendations about statutory timelines. As they say, where there are detailed masterplans or larger developments, it may take longer and there may be wider effects. How will the witnesses categorise those? How would that work? I am looking for a recommendation about how that example could be fed into the Bill.

Ms Oonagh Buckley

I thank the Deputy. Some part of my answer will cover Deputy Ó Broin's questions too. An Bord Pleanála set a target for itself in early 2020. I believe it reflected practice. The target was that it would meet its standard operating procedures between 65% and 75% of the time. Roughly speaking, when the board was properly resourced, it met its normal planning appeal timeframes 70% of the time. Bear in mind that that included the fact that, when it had to make a further information request, that time counted against An Bord Pleanála.

It was time that was actually with the developers, if I could put it that way, but it was because there was no stop-the-clock function. We are asking for a stop-the-clock function as part of this.

It seems that it was a fully resourced board, and based on the level of intake at the time, this was an appropriate timeline for normal planning appeals. I want to emphasise that this includes everything from householder applications up to pretty large housing developments and commercial developments.

We have engaged with the Department and we have said that broadly speaking - and putting aside the fines issue - that it is a reasonable enough timeline for normal planning appeals, bearing in mind that some will take longer. It is not, however, a reasonable timeline for anything involving larger developments, especially those requiring environmental impact assessments or a Natura impact assessment. It is also not a reasonable timeline for a strategic infrastructure development. By inference, it is probably not a reasonable timeline for the large housing developments. Members may be aware I worked in this area many years ago, and perhaps this is why I was asked to come back. One feature that surprised me when I returned was that instead of giving longer timelines to the larger developments, the approach has been to give shorter timelines. This is a policy decision, but in our discussions with the Department we are saying that logically more time must be given to bigger developments.

We are looking through our data as to how long those larger developments can take. We are about to make recommendations to the Department as to what we believe will come into that space. We are still working on those. I hope it will not cause great upset to people but I believe the general view should be, and I hope it is shared by the development community, that the timeline should be one that can be relied upon to give a well-reasoned and robust decision. There must be a trade-off between quality and time. As it stands, in some respects, that trade-off has skewed too much towards time. People were focused too much on achieving the timelines. That is my concern about the fines approach. If we end up with a fines approach, what gets measured gets managed and we end up with people being focused on avoiding the fines and not on delivering quality decisions. When we consider that the longest cases involved those major infrastructure projects that are so necessary for the country as a whole, we can see that a future commission could, quite correctly in my view, decide its best approach was to focus on normal planning appeals and those smaller planning cases because that is where the majority of cases are, and if it is to avoid a large fines bill, it would be better off focusing on the householder cases leaving the strategic infrastructure developments to one side. That would be wrong for the country. This is why we are trying to work on whether there is a more measured, calibrated and thoughtful way to approach the timelines in this space.

Perhaps the Chairman will allow me to come to the fine versus other options. I hear what the Deputy is saying. There is the possibility, for example, that the board could offer up some of its grant aid or appropriations in aid back to the Department but that just involves circular money within the public system. Fundamentally, it does nothing to assist the board. If the board needed investment in IT, or anything like that, this is what will be sacrificed in that space, because we must keep salaries and so on. This is something we have raised, and we have not settled on anything, but we will talk to the Department about it. Again, I emphasise that this is a policy decision and not one for the board. We believe there may be more subtle and thoughtful ways to address the issue of accountability for the leadership of the organisation in the future. These could include: fixed term contracts for the senior management team so they know that they must meet their obligations and what they have to do to keep the job into a second term; much more impactful governance from the Department; perhaps much more impactful governance from the Oireachtas, including from this committee; and the necessity to report and come into the Oireachtas to answer for failures to achieve targets, which could be part of what the Office of the Planning Regulator, OPR, has recommended as greater engagement between the board and this committee, and which I would welcome. We believe there are other ways that do not involve an element of windfall gain for appellants or developers, or indeed that circular flow of money within the system. As to what will ultimately be decided upon, the point we make to the Department is that ultimately the Department, the Minister and the Houses will have to decide what is the appropriate approach.

Deputy Emer Higgins

Ms Buckley referred to the fixed-term contracts in that proposal. What impact would that have on the board's ability to attract talent in this space?

Ms Oonagh Buckley

Secretaries General get fixed-term contracts but it does not appear to restrict the talent pool. I was on a fixed-term contract when I was with Workplace Relations Commission and it did not stop me. I am on a fixed-term contract at the moment as interim chairperson - assuming the members think I am talented. It is becoming the norm in the Civil Service and in the public service in particular. I would assume that it is something we could really strongly build into the system. It will involve a measure of external and open competitions for the board, but so be it.

Deputy Emer Higgins

I thank Ms Buckley.

Chairman

I will take the next slot. My question goes back to resources and timelines again. The more resources there are, the more likely it is that timelines will be met. When an organisation is stressed and its staff are overloaded, and when they are dealing with matters of a highly complex nature with legacy outcomes on the decisions, it puts people under pressure. If strict timelines are applied in those conditions, my guess is that they end up making mistakes and making poor decisions. There is a link between meeting timelines and having proper resources and proper experience. It is not just the experience of trained people but also of competent people and people with long-term experience in these roles. If a company has ten graduate planners come in, the organisation could say that it has ten planners in that department, but we all know that lifetime experience is required to become competent and experienced, and to have been mentored and tutored those who have gone before.

There is something that we also miss. There is an onus on the applicant in the planning application. We set out plans and guidelines in local area plans, county development plans and national guidelines. If applicants applies for consent for a development that stays within those guidelines - or sticks to them - they have a reasonable expectation that they will be granted consent because they has stayed within the development guidelines. If they put in something that pushes the boundaries, and further information is required and the application is refused because of that, there is an onus of responsibility on them as well. That needs to be clarified.

The OPR's second report has listed in the appendix at the back 146 judicial reviews, with a breakdown of the decisions and the outcomes of those. In the first report there was a recommendation to have a legal advisory team within the board. With regard to the process of putting that legal advisory team together, or increasing the legal advice available to the board, has recruitment started?

Has anyone examined the 146 judicial reviews in-depth, although I am sure somebody has, and considered whether, had these proposed changes to judicial reviews in Part 9 been in place prior to the 146 reviews, the outcomes have been different? What are we trying to fix with Part 9?

Ms Oonagh Buckley

It is interesting. I do not want to go into too much detail on the proposals in Part 9. Going back over the years there have been a number of attempts to review the procedural aspects of judicial review in planning. I did some of them myself back in the day. We are advertising for a director of legal affairs to come into the board. I am hopeful that we will get a decent application field for that. It will be a challenging role for whoever chooses to come in and join us, but one with a great deal of interest. It could perhaps be a stepping stone to greater things down the line.

The difficulty with the surge in judicial reviews that has taken place within the board is to do with the effort of handling them from within the board. We have two external legal firms that are very good and very supportive of the board, but the number of judicial reviews has been such that it has, to a certain extent overwhelmed the capacity of those legal firms and of the internal teams that have been trying to deal with them while dealing with their day jobs.

It is, therefore, a welcome development that we are looking to further resources in that space, because having an in-house legally-trained team would help us in managing and having a litigation strategy around all those cases.

It has struck me since I joined the board that the chairperson, by virtue of an internal policy, must sign off on every concession and we are conceding cases on basic grounds. In part this is because the High Court, and in particular the judges who sit on the planning list, are getting ever more detailed in the requirements they are making of the board. The requirements being sought today, if we are to win a case, were not in place even two years ago and. therefore, there is a certain element of moving goalposts in this as well, perhaps correctly.

Something I have spoken to the Department about, though we have not go into much detail, is if we are to manage the judicial review load on An Bord Pleanála as well as resource the board, we have to look to the quality and reasons given in the board's decisions but also to whether the language in the rest of the Bill is such that it is applying too high a hindsight view on the decisions the board needs to take, bearing in mind the complexity and range of issues that must be balanced in coming to any individual planning decision. It is, as the Chair will be aware, a balance of interests. It always is because of the appeal and the first part and all that. Regardless of what is done on the specific section dealing with judicial review standing and all those other issues, there are changes we perhaps need to look at throughout the Bill that will help the board deliver decent-quality decisions that explain why it made its decision to the parties involved but that perhaps are not held up to a microscopic standard, which has tended to be the case when we end up in front of the High Court.

Chairman

I get that and have heard that point made.

Ms Oonagh Buckley

May I make one more point?

Chairman

Yes.

Ms Oonagh Buckley

In my previous role I was involved in helping to resource the planning and environmental law court. That element of the process will also be important to ensuring a proper running through of this system because the courts themselves need resources in this space.

Chairman

I thank Ms Buckley. I direct a similar question to the planning regulator as well, as the organisation has oversight of the planning system. I am aware we are going from the planning system into the judicial system in this regard as well, but of those 146 cases, it would be very helpful for all of us if an analysis was done to explore whether there would have been different outcomes in them had the proposed Part 9 been in place. Could such a study be carried out?

Mr. Niall Cussen

It could be carried out.

Deputy Eoin Ó Broin

Just do not ask Mr. Cussen to do it.

Mr. Niall Cussen

There is certainly a lot of work there. To echo what Ms Buckley said, there will understandably be much focus on Part 9 in respect of the reform of judicial review. The Cathaoirleach should not underestimate the other provisions of the Bill, especially on plans, guidelines and so on and the criticality of getting a much better interlocking sense of national, regional and local documents. Due to the underinvestment in the planning process, the lack of clarity and cohesion, in a broad sense, of the plans, guidelines and so on at different levels, it is very often the board, and indeed the planning authorities, that end up in this balancing process. They end up trying to figure out what is the way through this, between what the Government has said in the national planning framework, what Ministers have said with specific planning policy requirements, other section 28 guidelines and the development plans and local area plans.

Of course, we are now overseeing those plans and trying to achieve that greater coherence, although with not very effective legislation in the current construction, which the Bill is addressing to a significant degree. Accordingly, it is important not to underestimate that front end of the process for creating a clearer context and a clear path through which planning authorities can navigate in making their decisions, and so the public can get a better sense of what is envisaged in their areas. That goes back to the resourcing piece and also back to the training piece.

We are still at the early stages as we are only three and a bit years in existence. We have focused a lot on the elected members, initially because we had the local elections in 2019, and we never had a national training programme in planning for the 949 elected members in the country. We have done that, we have delivered that and it is ongoing, with more programmes this year. The next piece of that is to do with the training programme for staff. Again, the key message there is we must have the space in their diaries to do the training and so on. I do not want to labour the point covered earlier.

We are navigating much more complex legislation, including EU law, reasoned conclusions and Natura impact this, that and the other. A clear message we undertook as part of the learning and development strategy was staff have not had sufficient time and exposure. That may be there to a degree in An Bord Pleanála but I do not know. We did not do a survey on the board because of course, under the current legislation, the board is not within our training remit, whereas it will be under the provisions of this Bill.

The Cathaoirleach should not underestimate the importance of the plans piece and the resourcing and training elements as well. My sense of it would be that if we look across those judicial reviews, whatever about doing huge lengthy analysis, we will find a mix of factors. I have read the annexe and am familiar with some of the cases from tracking them. I have a sense there is probably a modicum of basis errors, which the Bill will help a lot with. There is certainly a healthy chunk of areas of procedural tightness, timelines and giving of reasons and so on that will help. As I said, there is a big chunk in there around understanding what we are at in the first place.

Chairman

Yes. I bring it up because there is significant public narrative and discussion on the entire planning system about it being down to judicial reviews. I do not share that view entirely. It is an element but there are many other elements to go with it as well. I like the points Mr. Cussen brought up around real clarity in the system from the local right up to the national, clear guidelines the developments and applications must be within and tightening up those procedural issues. Anybody can make a minor or insignificant procedural mistake in such a complex system and that should not be the reason for a decision to be quashed.

I must move on as I am out of time. I call Senator Boyhan.

Senator Victor Boyhan

I welcome Mr. Cussen and his team and Ms Buckley and hers. We have crossed paths in a positive way many times in the past and I am delighted to see her in the job. She is in the right place and we are very lucky to have her on the board. I say that very sincerely. It is important that we are having a conversation rather than an interrogation.

I will touch on the OPR first. I acknowledge the significant work it does with the Association of Irish Local Government, AILG, and the Local Authority Members Association, LAMA, in the form of training. Mr. Cussen talked about the need for training. Local authority staff are in huge demand and have many demands on their time. The staffs are also ever-changing. I am not that long out of my own local authority and I hardly know anyone in it. Staff are moving on, people are retiring earlier, they are looking for other options or they are simply feeling the pressure. That is the reality.

When I looked at The Irish Times website this morning the headline was "An Bord Pleanála and planning regulator caution against fines ...". This is in instances where planning decisions are made after deadlines, as proposed under the Government's new planning laws. That is what The Irish Times covered, as did the Irish Examiner and a number of other papers. The two bodies before us are at odds with the Government policy or the Government's roll-out of it. I just thought it was an interesting observation. Communication is everything and that is what the public are reading. It appears Mr. Cussen's and Ms Buckley's organisations are not in support of this small element of the Government proposals in the Bill before us, which it says it has engaged extensively with stakeholders on. That raises the question of why. It is important we have a speedy, rapid, efficient and comprehensive response from the board.

I would never buy into the idea of changing the name of An Bord Pleanála. I support An Bord Pleanála. While it does need reform, I will say here in front of Ms Buckley, because of her new position, that I made some freedom of information requests to the board and got a very quick response. I already shared this with the committee some time back. From those letters, it was clear An Bord Pleanála was desperately crying out for staff and resources. Despite this, there was also correspondence on the need for the Department to approve every appointment individually. We have people roaring down the Custom House, so to speak, saying the board is not doing its job while knowing, as I now know, that there have been endless requests in writing for resources for the board. It is important to point that out. I would like to think that, if anyone who worked for the board or who is still there is listening to this meeting, they will know some of us in the Houses understand the difficulties and constraints they were under which they might not have been able to talk about publicly but that we now know about. That is important. I have always found the board to be decent. You do not always get the decisions you want, but there is confidence in the independence of the board and that must always remain.

The question I am asking relates to resources. The board will need resources. The common tenor of both of the papers before us today is that it is about resources, underfunding and underinvestment. That is what both organisations are saying. That is what is captured in today's headline in The Irish Times. Where do we get the funding to do it? I would like to hear the witnesses' views but I do not believe we can continue to pass increased fees on to the public. I believe that is what is coming. I have heard indications there is an idea that fees should be increased. I do not believe in that. I believe we should allow citizens to engage in the process. We have great stakeholder engagement with the board and in the planning process. At one stage, the Government wanted to introduce a fee for our democratically elected city and county councillors to make a submission to the planning authority. As the political regime was tight at the time, we blocked that but I do not think we would succeed today in light of the current numbers in Leinster House. I would like to hear what the witnesses have to say about resources. Where do they see them coming from? Is it from central government? Does either body support the concept of increasing planning fees generally or within board proceedings?

Ms Oonagh Buckley

I will speak on resources first because Mr. Cussen has had his shout on the matter already. Whatever the headline in The Irish Times might be, I fully acknowledge the role of the Department, the Minister and these Houses in making policy. I am here engaging in a discussion about what that policy might ultimately look like, but I fully acknowledge it is a decision for the Minister. I want to still have my job when I walk out of this meeting, so I wish to make that clear.

Senator Victor Boyhan

We all do.

Ms Oonagh Buckley

The question is, first of all, one of resources. Deputy Ó Broin, who has just stepped out, also asked this question. The Department has sanctioned an additional 33 posts for the board to deal with its new marine functions, but we have a larger claim in for 59 posts, on which we will be engaging with the Department. I expect we will be seeking still more resources on foot of that. As the Senator will know, we are currently down on actual board members. That is a matter I am pressing the Department to deal with very urgently because it fundamentally does not matter how many planners or administrators I have working in the board because, if I do not have the people to take the decisions, I cannot issue them. The quorum is now three but I am down to five ordinary members, including the deputy chairperson, as of Friday. Up to now I have worked only as the CEO of the organisation but I will now have to start working as the chairperson or chief commissioner to maintain two quorums, with effect from next week. That will be challenging. I just wanted to make that point.

With regard to the question of fees, I will be honest with the Senator and say that I do not have a particular view and have not expressed a view to the Department. To go back in time, there is a European court judgment that says any fees, particularly for third party involvement, have to be set at such a level as to maintain public involvement. Fees for making appeals to the board have never been sufficient to recover costs. They have always been lower than would allow for recovery of the cost. I do not expect that to change. The board has always been substantially grant-aided by the State and I expect and hope that will continue.

Mr. Niall Cussen

I have already covered this to some extent. Like Ms Buckley, I absolutely understand this is a policy matter for the Minister, the Department and the Government. It is important to understand. I believe the Senator may be getting slightly confused about the importance of fees in respect of public participation in the planning process being set at such a level as to support such participation and the broader question of the fees applicants pay to local authorities for undertaking the extensive analysis and work that is required to go through all planning application documentation properly. While respecting that it is a policy matter and understanding the wider challenges in local government funding, do we consider it reasonable for planning services to have to compete with libraries, street lighting or other essential public functions when they essentially benefit the individuals who make planning applications for developments from which they can derive very significant benefits? Whatever about the forward planning process and there possibly being a very important role for the public purse or the State in funding that as a general service of common interest, when dealing with a development management process that benefits a very small cohort of individuals, very often the development community, there is a good reason for fees to cover the day-to-day costs of the service.

Senator Victor Boyhan

That is a point well made.

Mr. Niall Cussen

There are different strata in the planning process. There is the forward planning process, development management, enforcement and so on. Public participation is at the very core of our planning process. It is my view that there should be very few barriers. Indeed, I believe quite the opposite and that there should be every encouragement for the public to participate fully in the planning process, especially at the plan-making stages, an area that has been neglected in the past.

Ms Oonagh Buckley

I will correct myself slightly. There is a cost-recovery principle for strategic infrastructure. This relates to the charges on those applying for such strategic infrastructure.

Deputy Cian O'Callaghan

I thank everyone who has come in. I have some questions for the board and some for the Office of the Planning Regulator. I will probably only get to the Office of the Planning Regulator in this slot so I will come back in again. I will be out for a little while at 11 a.m. as per usual but I will be back afterwards.

On the proposed section 326, which is about the review of planning functions by the Office of the Planning Regulator, should there be a mechanism through which people could challenge or appeal a decision by the office not to carry out a review? To give a real world example, in recent times, on 28 November 2021, Frank McDonald wrote to the Office of the Planning Regulator with a specific complaint and asked for an investigation into the maladministration of An Bord Pleanála. As I understand it, a decision was taken not to investigate. In such scenarios, there is no possibility for people to appeal decisions not to review. Should people have an ability to appeal or challenge decisions not to carry out a review? I am just using that case as a real world example because it relates to a very credible retired journalist who has a lot of expertise in planning. There were external issues around An Bord Pleanála, including the increased number of judicial reviews the Chair referenced, the number of these that were being upheld and the increased legal costs arising from these reviews. Where people make a complaint and a decision is made not to follow up on it or not to carry out a review, should such people not be allowed to challenge or appeal that decision under the Bill?

Mr. Niall Cussen

I thank the Deputy for the question. My colleague Mr. Ryan, who is director on the review side, may provide some supplementary material on this. There are a couple of points to bear in mind. The Deputy has covered this in the past himself.

Under the current planning Act, the Office of the Planning Regulator is precluded from undertaking reviews or examinations of An Bord Pleanála in relation to complaints made by members of the public. There is a specific exclusion of the board which may have had to do with protecting the independence of the board and the office not getting involved. I was not privy to the rationale for that in the past. The Bill changes that and we are very clearly in that space. We can entertain complaints. I do not want to get into the circumstances around the correspondence and so on. I do not disagree with anything the Deputy says in relation to the credibility or reputation of the person who contacted us but we were very conscious of working within the legal framework that was in force at the time - and is in force - and at the same time signalling very clearly that the matters were extremely serious. We were approaching a point at which we believed the conditions existed where a more general examination of certain matters which had arisen in the board was appropriate.

Mr. Gary Ryan

If we are just considering the issue of an appeal mechanism more formally, a very small team is involved with complaint handling within the organisation. It is primarily delivered on a kind of customer service basis. As regards most correspondences we get around a complaint, many generate second and third correspondences to us, with perhaps more information even being brought forward. I do not think there would be any instance where a significant matter of complaint would not come to my or Mr. Cussen's attention. I do not believe there would be a need for a statutory appeal mechanism in that regard because, as I say, any matter of significance, in terms of a complaint, will go to the top of the organisation. Unless a scenario is being imagined where a further body would look at the performance of the OPR, I think-----

Deputy Cian O'Callaghan

Mr. Ryan feels that on the basis of the team being quite small, it would not make sense to have a statutory or formal appeal mechanism.

Mr. Gary Ryan

No, it is on the basis that every significant matter of complaint would already get attention from the highest level in the organisation.

Deputy Cian O'Callaghan

Appeal is good practice in terms of accountability in any organisation. Sometimes, for whatever reason, an organisation can get useful feedback from that process as well and so the issue is the absence of that.

In my reading of head 328, there is no obligation to publish a report once a review of planning functions has been undertaken by the office. In terms of transparency and accountability, should there not be an obligation to publish a report?

I have a more general question on the Bill and the points Mr. Ryan made about the importance of making sure there is a cohesion between local, regional and national policy. There is a general consensus that having clarity and certainly in terms of what development can take place is good for developers, communities and planners. Everyone wants to see it and it good for achieving housing affordability because it cuts out a level of speculation and all the delays that go with that. I think we are all agreed on that. The concern I have is whether this Bill will achieve that. There are potential conflicts that can arise from the place national policy has in the hierarchy. For example, national policy can be about the need for compact growth and increased density which makes perfect sense. If there is to be certainty on sites, there will be a need for local plans in some circumstances to give certainty around heights and densities. Will that not create an issue with certainty and clarity, for example, where a local plan imposes a height restriction of four storeys? The national policy is saying compact growth is needed, so someone may feel four storeys does not align with their view that compact growth should be six or seven storeys. Does this not open up the potential for litigation? What in the Bill will ensure we achieve this certainty and not just a continuation of potential conflicts between detailed local plans and national policy and the interpretation around that?

Mr. Niall Cussen

On the publication of the reviews, I am pretty certain the Bill would require that the outcome of those reviews be published. We certainly publish everything we do but if there is any ambiguity or lack of clarity around that, we will certainly look at that more closely. There is a provision that we would not be involved in publishing certain aspects of reviews relating to confidential matters or those prejudicial to prosecutions or further examinations. Obviously, we would not publish those. We will come back on that point.

Deputy Cian O'Callaghan

The use of the phrase "may publish" is significant because it also means the office may not publish something. That is where I see the question.

Mr. Niall Cussen

There are other clauses there that put caveats around that in certain circumstances but generally we publish the reviews.

Deputy Cian O'Callaghan

My read and interpretation of that are that, regardless of the caveats, "may" continues to pertain. Is Mr. Cussen's interpretation that reviews "shall" be published subject to those caveats?

Mr. Niall Cussen

Certainly, the reviews we have undertaken have always been undertaken as a public demonstration of our oversight role so the public can see we are looking over the books of the local authorities in the discharge of their planning functions. Everything we have done in relation to An Bord Pleanála with the finalisation of the reports has been published as well.

Deputy Cian O'Callaghan

Would Mr. Cussen be in favour of this provision being clearer to provide that reviews "shall" be published, subject to the caveats that are listed?

Mr. Niall Cussen

That is obviously a policy matter for the Department and the drafting team and so on but, generally speaking, we have no difficulty with being very open and transparent. Everything we do is published and put on our website, so that is the basic approach we adopt in our day-to-day operations.

To respond to the Deputy's point about the coherence of plans, one area of the Bill where there is a very useful reform, when we compare it with what we had previously, is the whole business around "having regard to" and what that means, as well as the different interpretation of that. The courts have now made important decisions in that regard. That phrasing has created many practical difficulties in the day-to-day operation of the planning system. We see that and my colleague Ms O’Connor may come in on this point. There is a much more carefully choreographed and co-ordinated approach in the Bill and we have a very important oversight role in relation to that. To some extent when the OPR finalises its assessment of a development plan, and effectively deems that plan to be broadly compliant, obviously the scope of the board to materially contravene development plans is somewhat delimited, apart from in particular unique or very significant situations. There is an awful lot in this Bill to ensure there is a better layering and integration of the different plans. In relation to the building height issue referred to by the Deputy, we have navigated that area quite successfully in relation to the Dublin City development plan and the application of the building height guidelines and the consideration of all the specific planning policy requirements and so on.

It is extremely hard for national plans and strategies to have a laser-like view of exactly what should happen in every part of the country. They need to be appropriately applied and reflected, taking account of the particular circumstances and characteristics of different parts of the country. That is our role in relation to seeing how that works through engagement with the local authority, both in this Bill right at the very beginning of the development plan review process and throughout the process. Obviously if there are very significant breaches and manifest inconsistencies between those plans and the clearly enunciated national planning framework, policy and guidance, we have a safeguard role to step in. I believe all of that will create a much clearer set of interlocking policies and plans as a result. That then creates a clearer run for the public to know where they stand vis-à-vis what is happening in their areas and the important adjudicating roles of the planning authorities and board in determining particular planning applications in that context.

Ms O'Connor may wish to add something on that.

Ms Anne Marie O'Connor

I am conscious of the clock. I do not have anything further to add what Mr. Cussen said unless there are any more specific questions around the plan process. That is one of the biggest changes in the Bill. Some areas of the Bill are only minor amendments to what is there already, but there is the whole plan-making process, the hierarchy of plans and the philosophical change to a more plan-led system so that the issue raised around conflicts when it comes to the board or planning authorities making decisions and conflicts with national policy does not arise. I do not know if there are any specific questions. It is a very large area.

Chairman

Plan-making and the replacement of the local area plan with those three different types of plans is something that needs to be looked at.

Deputy Cian O'Callaghan

The OPR will be able to intervene in clear breaches of national policy but in terms of potential ambiguity between detailed local plans and general national policy, I cannot see how the Bill resolves that.

Chairman

We can come back to that.

Ms Anne Marie O'Connor

There are provisions around the national planning statements and the requirement for local authorities to vary their development plan where they are inconsistent with those, specifically with the policies and measures. Those planning statements will be broken down into areas that require consistency, policies and measures and other areas that may provide more general guidance. We welcome that clarity because at the moment it is difficult for local authorities. We acknowledge that. It is difficult for us in doing our job as well around where that line lies between what is a fundamental part of any guidelines and what is perhaps more advisory and good practice.

Chairman

For anybody listening and in relation to the point on section 328 about "shall" or "may", this is a first draft of a Bill. We will produce a report of recommendations and there will be a second first draft or a final first draft produced taking those into account.

Deputy Eoin Ó Broin

Unfortunately, my short experience in this House is that these kinds of technical Bills do not change an awful lot between now and their final passage. I hope I will proved wrong on this occasion.

Chairman

The Department were very open when we spoke to them on Tuesday and took into account-----

Deputy Eoin Ó Broin

It is never the Department that is the problem, Chair, but we will deal with that another day. I agree with Ms Buckley's point on timelines. I am a strong advocate of timelines but they have to make sense and be appropriate to the decision that is made. They also have to be properly resourced. I appreciate that An Bord Pleanála is engaging with the Department, but ultimately it is the Oireachtas that is going to make the decision. If there is information which her organisation has provided to the Department regarding discussions with it that we do not have access to, it is much more difficult for us to judge whether the timelines that will be in the final Bill introduced are appropriate. If she is in a position to give us more information either at this stage or by way of correspondence to the committee, it would helpful. Some timelines could be shorter than 18 weeks but I agree with Ms Buckley that there are very complex decisions that need more a appropriate amount of time. I am interested in that.

The following is not a criticism of the board. I understand its representatives will be before the committee at a later stage and we can deal with criticisms and queries at that point. Regarding the 30% mark that was mentioned, what is important about that is twofold. It should not be our aspiration with the Bill. If we take on board the comments around resourcing, a 30% miss rate would not be great. It is not just the 30% but also how long decisions take within that 30%. For us to have a better sense of that either here or in correspondence, will Ms Buckley share more information? Of that 30%, how many slightly miss the target? How many are much longer?

I welcome the comment Ms Buckley made in the opening remarks around learning from court decisions. Will she tell us more about that? Her organisation, because it is subject to judicial reviews, will have views about the rightness or wrongness of the case and decision. When the court decides, whether one likes it or not, it is important that we do not continue to repeat the types of decisions that fell afoul of the court or the individual judge. That is an important part of avoiding some of the difficulties the board has had in recent times. I think Ms Buckley moves into some difficult territory when she talks about moving the goalposts because, in some senses, particularly with residential development, there was virtually no history of judicial review until recently for very specific reasons. Everybody was therefore trying to grapple with a significant change in terms of the strategic housing development, SHD, process and, more importantly, the mandatory ministerial guidelines and specific planning policy requirements, SPPRs, etc. and how they interacted with strategic development zones, SDZs, and development plans. Ms Buckley commented about changes that need to be made throughout the Bill. Will she provide more information about that if possible?

Mr. Cussen keeps saying it is a policy matter for the Department but I am going to try to drag him back to his independent role as the regulator. He is no longer in the Department and he has wider scope to go beyond what may or may not be. I agree with him that Part 3 and Part 6 are probably the two most important parts of the Bill. That is not to say I do not have significant concerns about the changes to judicial review, but if we get Part 3 and Part 6 right, the rest works itself out. I often think in our debate about judicial reviews that there is public confusion. Judicial reviews arise when there are conflicts in law. There have been two sets of conflicts in law, the more traditional one between strategic infrastructure developments, SIDs, and large developments and EU environmental directives, our climate action plan and our climate action obligations. That is going to continue. If we do not get Part 6 right and the related elements, we will still be in trouble. With respect to residential developments, it was the conflict between the section 28 matters, ministerial guidelines, SPPRs and developments plans. I appreciate the process has changed with the role of the OPR.

My worry is that while the development plans on approval will be more consistent, given the development plan timelines are now a decade after this round of development plans, that, for example, section 62 provides for a procedure for expedited retrospective amendments, and that section 120(2)(c) allows the board to make material contravention decisions on the basis of alignment with the national policy statements, as they are called, that is going to increase a new level of litigation. Mr. Cussen will be aware of, and I am not asking him to comment on them, the difficulties in his home county regarding some of these things. The question is not whether there should be an alignment; there should. If we do not get that alignment correct and if the central government imposition of its will on local government is too heavy-handed, which is my fear, especially with these sections, we could end up with another set of problems. I read those elements of Part 3, chapter 3 and the others, as an attempt to clean up issues Mr. Cussen and I dealt with when he was in a previous role and we went through previous legislation. They may clean that up. Is the regulator looking adequately at whether it creates another series of problems and potential litigation with respect to residential developments and strategic infrastructure developments vis-à-vis their environmental requirements and climate obligations? We could be getting ourselves into a new area of trouble.

Mr. Niall Cussen

Those were good questions and good thinking by the Deputy.

Deputy Eoin Ó Broin

Flattery will get you nowhere.

Ms Anne Marie O'Connor

It is a good place to start.

Mr. Niall Cussen

It is always a good place to start. There are commendable provisions in the Bill to ensure, as the Minister prepares new national planning policy statements, guidance and so on, and as the national planning framework, NPF, and the renewable energy support schemes, RESSs, and so on change, there is an appropriate process of reflection and upgrading or updating of statutory plans that might be out of step with those.

The broader issue, and I am drawing on my past here to some extent, but we are into a much more sophisticated era of policy development and enunciation in respect of how the different plans interrelate. The Deputy is correct in that it is very important that as a Government, trying to grapple with its policy priorities and issues of national level, it lands its boots gently in ensuring that the rest of the system can catch up.

That is not forget that when the national planning framework was published back in 2018, we were facing into a very significant housing crisis, there were climate issues and so on. There was a serious degree of urgency around addressing those and, effectively, washing that through the rest of the planning process. What was probably not counted enough was the importance of enabling the rest of the system to catch up with that.

There is, therefore, a much more nuanced relationship in this Bill between the national, the centre and the local, in ensuring ongoing calibration between the different plans. Our role is very important in that, given that we are an independent office and are in a position to adjudicate on whether plans at local level etc. have appropriately reflected national policies.

A certain amount of just practical experience will be involved in the implementation of this. One cannot legislate for every eventuality and scenario but there is a good set of interlocking checks and controls there at present.

Chairman

It was a good and very long question and deserved to find an answer but I am happy to have let it run on for the Deputy to finish.

Ms Oonagh Buckley

Does the Chairman wish me to come in here?

Chairman

Certainly, Ms Buckley if she wishes to.

Ms Oonagh Buckley

I thank the Deputy who asked a number of questions there. First, on the timelines, we are currently working up a written proposal to put to the Department and I would be very happy to share that with the committee once that has gone over to the Department.

In general terms, I have said that we believe that 18 weeks should be a standard, plus a further information timeline, which should be longer but not excessive, whether that is in an environmental impact assessment, EIA, or a Natura statement. There should then be a quite a long period of time for infrastructure developments because those, by their very nature, can take months to read, not to mind to write a report on, at which time then the board has to make a proper decision.

I will not in any way suggest that we will be looking for this much time but we have noted that in the United Kingdom, for example, it can be as long as 75 weeks as a timeline. I am not saying that Ireland will go down that route but we will certainly need to have enough time to take decent decisions. Bear in mind also that for those one-stop-shop-type applications, there is not a period of going through the local authorities. The board is the only decision consent authority, so that has to be taken on board also.

I will come back to the Deputy with information in respect of how long decisions are currently taking within the board, bearing in mind, as the OPR has pointed out, that we have a year-long backlog.

Deputy Eoin Ó Broin

I apologise for cutting across Ms Buckley but I am more interested in any data she may have of that earlier period when the board was adequately resourced-----

Ms Oonagh Buckley

Sure, and how long decisions-----

Deputy Eoin Ó Broin

-----because that gives us a better picture of what we want to move towards.

Ms Oonagh Buckley

It is also worth pointing out as well that there are some decisions, even within the strategic infrastructure space that by their nature are relatively straightforward. Electricity connection would be a classic example, for instance. There are some planning appeals in the wind farm space, for example, that may be very complex.

Deputy Eoin Ó Broin

There are also a very small number of decisions which are due now for almost five years. They are very complex cases----

Ms Oonagh Buckley

There is one imperative reasons of overriding public interest, IROPI, case, which is a series of box files sitting in my office. They could not find anywhere else to put it as it is a very large file.

I will just make one slightly nerdy point, if I may, but hopefully one that any behavioural economist who may have the misfortune to be happening to be listening to us will understand. As the Deputy may know, in the way that the fines are currently structured, one pays a once-off fine. Effectively, therefore, a party buys time, and in fact an endless amount of time, and there is no actual obligation on the board to do anything further in respect of reporting how long it is taking on those. There can be strange behavioural effects to do with the fine system which, I believe, is worth thinking about also.

Deputy Eoin Ó Broin

I wish to say again that I fully support many of the proposals Ms Buckley has made in respect of alternative mechanisms to ensure compliance and will fully support-----

Ms Oonagh Buckley

And accountability, which I believe is important.

Deputy Eoin Ó Broin

-----many of those. Yes. I agree absolutely.

Ms Oonagh Buckley

On learning from court decisions, I do not disagree at all. I say with absolute regard, including for the two witnesses sitting beside me, that the board has been quite overwhelmed with the level of decisions, concessions, and judicial reviews that have been taken in recent times.

One of the unfortunate learnings that has derived from that is that both inspectors' reports and board decisions have got longer and longer, and not just for SHDs and strategic infrastructures, but for everything. Things are taking longer by definition because people are now trying to cover off absolutely everything. As a consequence, we are giving more material for judicial review. One of the key things, even before we recruit a director of legal affairs, is that I am bringing in our external legal counsel to assist us in looking at how we draft inspectors' reports and board decisions and to ask are there neater, tighter and more economical ways we can do and manage this very large overhead of decisions.

When I refer to moving goalposts, I am suggesting that we are getting decisions now that apply a high standard to the reasoning and detailed decision-making in respect of board decisions which were taken 18 months or two years ago. It is a mismatch in terms of what was known then and what is known now. That is something that we are trying to cope with. To that extent, and I do not want in any way to criticise the Judiciary, but the impression internally is the goalposts are constantly moving and that we are constantly having to reach a greater level of detail.

As to the changes throughout the Bill, if I can take a classic example, since the board was created, and certainly since the 2000 Act, it has been required of the board that it sets out the main reasons for its decision. That has now morphed into every issue having to be covered, because whether it is main or not main, if it is raised in an objection it must be dealt with. This has become an almost oppressive requirement in trying to ensure that things are covered in their excessive detail, particularly, as I say, when one is talking about an organisation that is a demand-led one. What comes through the door to us is what we have to deal with.

One of the things I certainly would like to have a conversation with the Department about is to ask if is there a way of clarifying what “main” means, so that we go back to what was originally intended and to what I believed, as one of the co-authors as of the 2000 Act, was intended in 2000. This was that the core decision, so that people understood the core reasons why something was acceptable or not acceptable.

Deputy Eoin Ó Broin

Since that framework was originally approved, all sorts of things have changed, which includes climate action plans, legally binding emissions reduction targets, changes to EU law, the Aarhus Convention, not to mention the complexity of planning and building control, etc. How reasonable is it, given the increasing level of complexity of planning and environmental decision-making, to go back to the good old days of simplified decisions? Would it not be more sensible to strengthen the argument that Ms Buckley made at the start, which is that in a world of increasing complexity, decision-making will need to be adequately resourced and to be given the appropriate amount of time to make good-quality, detailed decisions.

Ultimately, again, and this is without prejudice to any individual decisions of the courts, judicial reviews are won and lost not just on small technical changes - I am aware there is often a discourse around that - but often on some fundamental conflicts between the legal obligations of the State or actors within the State on environmental grounds or planning grounds, and Government policy. We must admit and resolve that and the best way to do that is to support Ms Buckley’s original comments, which is in regard to proper resourcing of bodies, and that includes the Judiciary. While I acknowledge Ms Buckley does not suggest that, I am not so sure we can go back to an era of those shorter headline determinations because I do not believe the environment allows us to do that any more.

Chairman

I am going to move this discussion on now because we can go back to that.

Deputy Eoin Ó Broin

I can pick up on that, if I may, in the next round.

Chairman

It is an important point. I call on Senator Boyhan.

Senator Victor Boyhan

I thank the Chair. I will return to An Bord Pleanála and Ms Buckley in respect of the timelines. We hear what she is saying. What is interesting, and if I may say from the outset, these were concise and tight submissions here. There was not a great deal of detail in them and I refer to Ms Buckley’s submission in particular. There were more questions to be asked.

Twice, I see where the board in its submission states: "We have begun engagement with the Department on how to shape those timelines, seeking to use the evidence from within the Board" etc. Then, it goes on to state "There are also a number of detailed processing issues within the draft Bill where the Board will engage with the Department". I accept all that but we are the committee engaged in pre-legislative scrutiny, PLS, on this and we are in the dark. Clearly the board is doing a great deal and I am highly impressed by even just listening to Ms Buckley and seeing how she operates here today.

I accept Ms Buckley's ongoing engagements with the Department and the close relationship the board has with the Department. However, we must also remember that a distance must be kept. I keep reminding people that when we talk about strategic housing developments and all the disasters of that, the architects of all that were in the Custom House. They went out to different places. One was Ms Buckley's predecessor in her Department. My colleagues here will know and, if we play back some of the debates we had in this House some years ago, it can be seen that we warned this would happen. We are where we are, however, although I do not like using the expression. We did highlight the concerns and ask about resources and expertise. We questioned the merit of taking many planning decisions away from a planning authority and were told this was the way to go. Most of those who came up with that policy got rewarded for it. They were not sacked. Some may have chosen to leave. That is an important point to make. I am not scoring political points here but that is the reality of it. I looked back at the minutes and played back some of the recordings where we cautioned about the issues. However, we have to park that because we have to move forward and we want a proper, robust planning system. That said, it is important and to listen to the relevance of what others have to say and not always defend the status quo.

I accept that the witness may not be at liberty to discuss all the detail, and that is a pity, a disappointment and, quite frankly, not good enough, but I respect it. It would be helpful if Ms Buckley can share it with us, and I hope it is before we are debating this in the Chambers in these Houses, because we really need to hear that. I say that against a background of different opinions. I have an appeal myself with the board which I do not intend to go into but is of a strategic development nature involving more than 100 units. We have a housing crisis in this country. We have entrepreneurs and risk takers who want to develop within our country who are waiting a year or two years possibly. I spoke to someone the other day who asked me when they could expect to have a decision from An Bord Pleanála for a development of more than 100 housing units in the centre of Dublin. The person wanted to know if they would be in a position to keep on the finance package they had from the corporate bankers to do this development that was being held up by the board. What do we say to them? Developers are not all bad people. I accept the point Mr. Cussen made that anyone who gets to proceed with a development is going to benefit from it and has to pay up. That said, we need to talk about this emergency, the need for this legislation, and the context of a massive housing crisis with no homes for people and being told this development of these homes is with the board. I call the board regularly to be told it cannot be done for various reasons. These are homes in a district with major town centre zoning and we have a problem with the board. It may need to shape the outcome of the decision but surely it is obvious, and I can nearly tell, what is going to happen, which is a few modifications and it is going to get through. Whatever needs to be done should be done. I do not want to get into detail. It would not be appropriate for me to do that.

It might be helpful if Ms Buckley could share with us, when she can, the sort of discussions being had because we are talking about an open and transparent planning process. We also want to talk about an open and transparent process in how we develop this new legislation. I want to say that; it is not really a question. We have agreed as a committee that we will have another opportunity to meet with the witnesses and discuss other issues about the board. I would like to give one take-home, so to speak. Can we look at whether there is going to be a hierarchy or tiering system so major applications that involve in excess of 100 properties get some sort of priority versus someone who has something more moderate? We cannot be isolated. We are within the context of a housing and planning issue.

Ms Oonagh Buckley

We have linked it to the resources. As of tomorrow, I will have six operational members of An Bord Pleanála out of 15 to take decisions. That is fewer than the eight I have today. We have between 700 and 800 planning files on which inspectors have signed off reports. They are sitting with the board because I just do not have enough board members to take decisions. I have already explained that. We have put a notice up on our website so your developer interlocutors will know that.

Second, and it an interesting link back to the incentives put forward, we now have the new large housing development processes under way. Those are associated with strict timelines and come with fines. As the Senator will appreciate, our focus is now on meeting the requirements of the new legislation. We have already paid the fines on the strategic housing developments, SHDs, so we will do them as our resources allow because that is the logical priority given the incentives that are being imposed on the board.

I appreciate the Senator's interlocutors may have financing packages, but they will also appreciate that in many cases the local development plans have changed and changed the ground rules on which those applications were made. We will have to determine those applications based on the enforced development plan. In many cases, as the Senator knows, we are not allowed seek further information. The only way to fix them if they are in material contravention of those plans would be to hold oral hearings, as far as I can make out from a recent High Court judicial review, Crofton Buildings Management CLG & Anor v. An Bord Pleanála. It would be a gross misuse of board resources to hold oral hearings on each of those plans. The likely effect of the change in the law, without in any way specifying anything to do with any particular application, will be that we will have to refuse them because the development plan has changed. That is a consequence of that. We will still have to get a planner to spend weeks or even months writing a planning report on that file, it will have to come up to the board, and a board member will have to take time to read through the paperwork and take the decision, even though the developers know and we know that, because of the law and the development plan having changed, the inevitable consequence of that is a refusal. Perhaps the Senator might go back to his interlocutors and ask them if it would not be a more logical use of the board's resources for them to make an application under the new process. That is a major challenge and a consequence, and it is not wrong in any way. We think it is entirely right and correct. It has always been the law, as far as we understood it, that decisions were taken on the basis of the development plan in force on the day the development plan is there. It is important to remind ourselves that is the case.

In the context of the Bill, that is the way the system will work. Regarding incentives and driving the board towards particular prioritisation of decisions, it is important the committee understands that, logically, that the people running the planning commission will be driven to take those decisions and those prioritisation decisions. It is important this committee understand that in terms of its recommendations back to the Department.

Senator Victor Boyhan

I have one more quick question because I have to leave to go up to the Seanad and I will not be back. The following is for the OPR. On the ten-year county development plan process, it is only my view, and having talked to many sitting county councillors, I believe it is the view of some of them, that five or six years may be too short, and while seven is more moderate, I can understand that for proper long-term strategic planning and sustainable development, ten years is not a long time. The problem, as the witnesses will know and I would like to hear their comments on it, is that the midterm thing is a bit of a joke. I was a member of a county council for many years myself. It was a tick-box exercise that we were going to do this, this and this and we would look at the strategic local objectives or specific local objectives. Everyone just threw everything in as an SLO because it kept the old councillors happy, which is what the establishment thought. They had a bit of paper saying there was going to be a strategic piece of work done. What is the view regarding the midterm? I believe there is real scope for a strong statutory midterm review of a county development plan but it has to be much more structured. There is very little on the ground regarding buy-in and input into the midterm review. If we had a really strong midterm review of a county development plan, there is a case for ten years. I would be interested in feedback on that

Chairman

The Senator said it was going to be a small question.

Senator Victor Boyhan

The response can be narrowed down to quite a short one.

Chairman

Perhaps the witnesses would like to comment on that.

I did say that chapter 3, plans, is a critically important part of the Bill but if Mr. Cussen wishes to comment on that, he can do so.

Mr. Niall Cussen

I do not disagree with the Senator's point about the weakness of the current mid-term monitoring arrangements. We have seen in our reviews of local authorities that sometimes this is done very comprehensively but at other times it is not done or it is done in a very light-touch manner. The reports are not publicly accessible and to some extent we get the sense of it being a box-ticking exercise.

In terms of the ten-year plans, there is a balancing act, in particular in weighing up the enormous work that goes into preparing, for example, the Dublin city development plan. The fact is that the fabric of the city is constantly changing. It does not change significantly over a five-year period but perhaps over a ten-year period. One could ask if a better balance would be to have a plan that has a strategic perspective. There is a very clear provision in the Bill in regard to the interim implementation report, which is a much more involved process than the current monitoring report. It may trigger a variation of the development plan, going back to Deputy Ó Broin’s point, to bring it up to speed with the evolving policy context and other considerations. It may require some more work but there is a much more solid, strategic approach to doing the development plan and then doing a very good NCT on it at the five-year mark. That could have a statutory variation process with engagement from the public and the members. There is a reasonable balance between the competing and conflicting demands.

Senator Victor Boyhan

It might be helpful if Mr. Cussen were to send in any ideas he has on taking a mid-term NCT approach. That would be very positive as we could work on something then.

Chairman

There are delays with the NCT as well but that is the responsibility of a different committee.

Mr. Niall Cussen

Perhaps it is a bad example.

Chairman

I will take the second slot for the Green Party. I want to talk about plans and follow on from what Senator Boyhan said. One of the points that came up in our engagement with the Department was that we want to get much more public involvement and engagement in the making of a local area plan, county plan, priority area plan or whatever it might be, so that conflict does not arise when the site notice goes up or the planning application goes in. People have a fair idea of what to expect for their area. I know the section 28 guidelines disrupt that a little. What do the witnesses see in this first draft that would make the public engagement more engaging? People do engage with the planning process when the application goes in. When it is directly in their face, behind their house or down the road, people start talking about it but there is not the same engagement when the local authority says it is making a blueprint for the area for the next five to ten years. What in the plan is better in that regard and what could improve that?

Ms Anne Marie O'Connor

We very much share the Chair's sentiments on the importance of public participation in the plan-making process. It is something that we too have been thinking about in terms of how we could improve it. The structures in the legislation are probably strong enough. It is more about the implementation, how we would do it and how we would actively engage people to be motivated to understand that this is something that they should give their time to. We are working with the EPA on a research project to do with public participation, in particular, strategic environmental assessment, SEA. That goes to the heart of much of the plan-making process when we think about the decisions that need to be made in that regard. Out of that will come a piece of research that will present a number of recommendations and a framework for how we can engage with local communities on the plan-making process and strategic environmental assessment. We will then be able to turn that into one of our case study papers, which we will be able to disseminate to local authorities to provide some guidance and advice. As the Chair correctly said, the planning system in general has struggled with this over the years. That is an initiative we are undertaking but it is difficult to legislate for it.

Mr. Niall Cussen

I will amplify my colleague's points. The legislation can only go so far. This is really about training and public awareness. There is a strengthened role for the office in regard to driving public awareness of the planning process. It is much more overtly brought out in regard to our corporate provisions, purpose and so on.

Through the development plan process, we have seen particular exemplars of local authorities using all sorts of new engagement devices such as virtual portals and so on. The old model was to put the development plan on display in a local library and hope people would turn up after tea to have a look at it. We are in a different era now. Some local authorities are really innovating in that area. It goes back to my point about resources and training. Some local authorities are excellent in this regard and are getting traction in terms of public engagement. We have work to do in getting that sort of approach more pervasive right across the system. We need to move on from two-dimensional plans with all sorts of colours that speak a language ordinary people may struggle with to a much more three-dimensional and visualisation-based approach that can connect people to what the planning authority envisages for their areas. That takes a little bit of time. It certainly takes skill sets, ICT capabilities and so on. That is the area on which the focus must be because it is all about bringing people into the plan-making process. There is nothing in the Bill that prevents that and there is much in it that supports that approach, but the Bill of itself will not be able to deliver that on the ground. That comes down to people, resources, systems and so on. We are only three years in existence. We are doing our best to try to drive better awareness. There is the learning and development strategy, training for local authorities and various processes to which Ms O'Connor referred, as well as our various media engagements, sponsorship of TV programmes and pieces we do in the media and on social media. That is a space we would like to go into, hell for leather, in particular, for the next round of development plans and local area plans, which are upon us.

Chairman

We would all support that. Mr. Cussen is right about people looking at a map that shows, say, a purple patch that refers to employment. What does 20 or 60 units to the hectare look like? It would help if people could visualise what 65 units or 120 units would look like. We are not saying that is what is going in but it would provide a visual representation.

There is not a lack of information; i fact, there is loads of information. What is needed is for this information to be accessible and available to people. People must be able to understand what happens in the entire planning process. I refer to all the different processes an application goes through from when it is put in an envelope and it arrives in the planning section of the county council to when a decision is made, and the same for An Bord Pleanála. Mr. Cussen talks about the complexity of that. Some planning files can be extremely thick. I have seen them delivered in a shopping trolley. It is impossible for the public to engage.

Mr. Niall Cussen

I want to give a shout-out to our explainer videos. There is a lot of stuff on our website, which does exactly what the Chairman describes. It shows what happens when a planning file goes in. The videos are narrated and are very practical. We have planning leaflets and lots of other material on the website explaining the process to people. That is starting to have an impact. Local authorities now recognise that the whole business of explaining how the process works is being done by a national body that has provided substantial resources. It is up to the communications channels, through the communications officers in local authorities, to use those mechanisms that we have made available. We will do a lot more of them as and when we get the space and time. That is a major priority for us.

Chairman

We have heard a great deal about resources as well. I do not know how many planners come out of the third level system every year. It could be 1,800. Does Mr. Cussen visit the universities? Does he talk to students and explain the nature of the work and what it entails? It is not all about planners. Ecologists, architects, engineers and other professionals are required.

Mr. Niall Cussen

We have a national planning knowledge group. We have brought together the five relevant higher education institutions - the five universities on the island, two in the North and three in the South. We meet quarterly in the context of a broad-ranging research and knowledge agenda.

The Chair made a good point about the capacity of planning colleges. We need administrative and legal staff as well as staff for all the different disciplines. In the planning area specifically, there was a significant enhancement of the capacity of output of graduates going back to the 2000 Act when the Minister at the time engaged with the universities to ramp up their output significantly. We have a sense that while the physical capacity is there, perhaps the lecturing and production capacity has tapered off a little because of a lack of other internal resources. We are engaging with the Department and the sector to look at the five universities, what their trends have been on output and where they are in capacity and in trying to enhance it so we can be assured we will have that pipeline of expertise coming into the service. There is also scope for recruitment abroad. It has worked in the past to some extent. We have people in our office who returned from the UK. Irish people who worked in the UK system have come back. That might be an area to consider. The Chair's point about the capacity of the universities and a variety of training areas to get the expertise we need, such as ecologists, marine planners and so on, into the service is important. We can engage further with the committee about some ideas around that but it will not be in the Bill.

Chairman

I will ask Ms Buckley to comment as well. The Irish Planning Institute was before the committee recently. The level of spotlight and scrutiny on planners and the planning system might lead some people to ask why they would go into that line of work. There is a level of criticism and public spotlight on the area and the entire planning system is cast in a bad light when we know the vast majority of people working in the planning system are good. It is something that occurred to me.

Ms Oonagh Buckley

I echo Mr. Cussen's comments. One of the first issues that was flagged to me after I agreed to take on this role was the pending shortage of planning capacity as regards human beings to carry out the role of planner as well as those with other skill sets such as archeologists, ecologists and marine planners. I am concerned about recruitment and the limited number of people available to do the work for the new marine functions because there will also be conflicted people across the country. We will almost certainly have to supplement our resources by drawing from resources abroad to get people who do not have conflicts and do have the necessary experience. That will involve hiring people on a fee-per-case basis. We will need to manage the conflicts.

The other issue I am conscious of is that local authorities are suffering. An Bord Pleanála does not tend to recruit straight out of university. We tend to recruit from the local authorities or the private sector where people already have five, seven or ten years' experience. We take them, assuming people come and join us. Given recent events they might decide to hold off for a while and see how things play out, although I hope An Bord Pleanála will continue to be able to recruit people who are experienced and want to come to An Bord Pleanála as part of their career path. That is a critical part. I do not want to underplay the resource issue that faces An Bord Pleanála and the local authorities, not least because The Office of the Planning Regulator, OPR, has been poaching some talent from us. I will not name any names. The committee must be mindful of that. An Bord Pleanála will need to play a role over the next few years in trying to enhance the attractiveness of this career path for both recent graduates and those entering university for the first time. When we have got through our current firefighting we will come back to that and work with the OPR and local authorities.

Chairman

The funding for resourcing is not necessarily the problem. The supply chain into the organisation is also an issue.

Ms Oonagh Buckley

The Department has not shown me any issue about funding. We have to go through the process of getting approvals, sanctions and all that good stuff. That is part and parcel of what we have to do, but I am concerned as to whether people are available with the skills we are looking for. In the short time I have been on An Bord Pleanála we have had to go to the UK to recruit a noise expert to help with the application around Dublin Airport. That is part and parcel of what we have had to do and will continue to have to do. Ireland is a small economy. It has a limited number of such developments, so we will have to go outside the country on occasion to get the necessary skills.

Deputy Thomas Gould

I thank the witnesses. I have been watching online. It is great to have the witnesses here to pick their brains and get their thoughts.

I will first ask the OPR about a comment in its submission that it strongly welcomes the increased capacity of local authorities to utilise compulsory purchase orders, CPOs, to acquire derelict or vacant properties for onward sale and to play a stronger part in activation. Numerous local authorities have appeared before the committee last year and this year. The one excuse we heard was that CPOs are complicated. I accept that is so, but when I look at the amount of dereliction and number of vacant properties - estimates are between 96,000 and 166,000 vacant properties - CPOs will have to play a much greater part for local authorities to be able to deliver these derelict and vacant sites for housing. Local authorities should be using the sites for housing themselves, but either way we must tackle the issue much more assertively or aggressively with CPOs. Will the witnesses comment on that?

Mr. Niall Cussen

I agree fully with the Deputy. To some extent it goes beyond the Bill. Local authorities are now powering up their capacity in hiring vacant homes officers and taking action on vacant properties. The Minister issued a number of recent helpful initiatives in that space. The Deputy is spot on. We have something approaching an epidemic of vacancy, dereliction and underutilisation of buildings in our existing cities, towns, villages and right out into the countryside. As others, such as the Irish Green Building Council, have correctly set out well in recent years, the greenest buildings for meeting our climate targets and housing needs, are the ones we already have. We have a huge number of empty buildings or buildings that are very lightly utilised which could be sensitively adapted, repurposed and so on. There are costs and complexities in doing that. It seems clear the Government is setting out an agenda for local authorities to get much more active in that space. We have covered this in some of our media activities. In our recent overview report of the planning service, we highlighted the contrast between the numbers the Deputy quoted of what is being counted as vacant or underutilised and the numbers on the local authorities' statutory derelict sites and vacant sites registers, which are much smaller than the estimates. There is a big job to do and central government is sending a clear signal that it wants local government to be active in that space to ensure we deliver the homes we need in the right places and at the right time. It is a much bigger issue than this Bill but we support everything and anything being done for better management and use of the building stock we have.

Deputy Thomas Gould

What positives are in this Bill that will help local authorities deliver these vacant properties and make CPOs easier? Mr. Cussen called it an epidemic. We know that the derelict sites and vacant sites registers only reflect a fraction of the number of properties that are actually derelict and vacant. Everyone understands that. Housing is the number one issue for me. It is absolutely heartbreaking that people are living in communities where there are vacant and derelict houses and they are asking me as a Member of the Oireachtas, or asked me when I was a councillor, what we were doing. What is in this Bill and what should be in this Bill to go further?

I am aware that Mr. Cussen made the point that local authorities are now starting to recruit full-time vacancy and derelict sites officers. However, based on our conversations with local authorities this year, I am not confident that they will deliver in a timely fashion. We need houses now. When I look out the door of my office, I note three vacant, derelict buildings straight in front of me, at Shandon Street and Gurranabraher. They have been there for years. I want to have them turned into houses or apartments. Is there anything we can do in the Bill to make that happen?

Mr. Niall Cussen

In short, with the Bill at 738 or 743 pages – I cannot remember how the printer disgorged it – we need to bear in mind that there is so much that it is trying to address. There are many parallel initiatives. Indeed, in the CPO space, there is long-promised reform of CPO legislation. There is obviously land-value sharing, and there is the residential zoned land tax. There is a series of interlocking land-activation measures that are travelling with this Bill or that come after it. I caution on the overloading of this Bill, which would make it unmanageable. These are issues that are probably best addressed in complementary legislation, but that is a matter for the Legislature, etc.

Deputy Thomas Gould

I am conscious of my time. I thank Mr. Cussen for that.

Listening to the comments of the representatives of An Bord Pleanála, you would feel like going home. Let us be honest. It has 700 or 800 decisions pending and eight members.

Ms Oonagh Buckley

My take-home is Cork; so, yes, I do.

Deputy Thomas Gould

Like myself. The number of members is going from eight to six, whereas it should be 15. There is a year-long backlog. This just seems catastrophic. We are in the middle of a housing crisis and An Bord Pleanála does not have the tools it needs to do the work it has to do. How frustrating and demoralising it must be for the staff. If something is not done through this Bill, what can be done by the Minister and Department in the short term to help deliver on what needs to be done?

Ms Oonagh Buckley

That is an excellent question. The second I was asked to do this job, I said that I would of course do it because An Bord Pleanála is too important to be allowed to fail. I believe it to be in an eminently fixable situation. Part of my job over the past seven weeks has been to say frequently and thoroughly to the team and staff of the board that they are not on their own and that the cavalry is coming over the hill.

With me came three civil servants, who, in fairness to them, stuck up their hands to volunteer to come to the board. But for their arrival, it would be down to me and two functioning members of the board as of Friday. That would be catastrophic altogether. I am working very strongly with the Department and pushing it to do another round seeking volunteers. As it is discovering, I have not lost any of my forcefulness over the intervening decades. We will be targeting, in the first instance, the Civil Service and local authority service. From the latter, I will be getting people with planning expertise and other forms of expertise. I need a mixture of skills on the board. The interim appointments, while controversial in their own right, will allow us to populate the board and have key decision makers in place as quickly as possible.

The Department, which in fairness to it has a lot on its plate, is working on starting the process of appointing permanent members, including a permanent chairperson, because my appointment is for only a year. We will need to bring in interim members and replace them over time with permanent members who will come through what I presume will be the new State board-led or Public Appointments Service-led process, which will be critical to ensuring people have confidence in the integrity of the system.

I have a newly appointed deputy chairperson, Mr. Chris McGarry, who is working very hard with me to manage the workload of the board. We are seeking to prioritise in a way that meets the requirements while also upskilling the three brand-new board members, who joined us in January. They need to learn their trade as well. They are already starting to work on planning decisions. They have taken to it like ducks to water but, in fairness, it is only month one.

As I have mentioned, I will start to take part in making board decisions shortly. I have not done so up to now because I have been focusing on the CEO side of my job.

Deputy Thomas Gould

I suppose Ms Buckley has had nothing to do all along, so she has loads of spare time.

Ms Oonagh Buckley

Indeed.

We have been discussing the fact that it is critical, as board members come on stream and we clear the backlog, to have a pipeline of suitably prioritised planning reports and such material coming through to the board. There are ways and means of doing it.

This has happened to the board before. There have been backlogs and dips in performance before and the board always sorted them out when it got the right balance of resources at board level and among staff. As with all backlogs in all public services, it is a matter of prioritisation, resourcing and making the system as efficient as possible. Those three elements will ultimately sort this. That is no consolation if one is waiting on one’s planning appeal or kitchen extension – I absolutely get that – but we will have to try to manage as best we can with the resources we have. There is not a single member of staff who is not absolutely committed to doing this. At this point, I have met almost all of the 200 members of staff and noted they are very committed to delivering what the board needs to deliver. However, it will take us a little time. Unfortunately, we will have to ask the public, developers, applicants and appellants for some patience because we have a backlog that we have to work our way through.

Deputy Thomas Gould

Ms Buckley stated a process is ongoing to appoint a permanent chairperson and permanent members and that this could take up to a year. She mentioned she is bringing in new members to fill the gap. My worry is the time it takes. I realise Ms Buckley has asked people to be understanding but there are those who have now been waiting for a substantial amount of time and who say they are losing faith in the whole system and are frustrated. I am aware that Ms Buckley is turning over every stone she can to try to address the backlog but I hope she is getting all the resources possible. If not, it needs to be communicated. Planning is vital considering the housing crisis we are in the middle of. Sometimes An Bord Pleanála has been subject to some really nasty criticism. When people see what is happening now, they say it must be true, but it might not be. There are other issues that we will discuss at another time – do not get me wrong – but everything has to be done to speed up the process and clear up the backlog.

Chairman

It is incredible that we expect An Bord Pleanála to perform its duties with so few staff, given the workload and its complexity.

I agree with the Deputy’s point on dereliction and vacancy, which he has raised consistently. We are going to have a series of meetings with the dereliction and vacancy unit in the Department, probably in April or May, which will probably allow time for amendments to be submitted for Committee Stage, if relevant. I hope that is helpful.

Senator Mary Fitzpatrick

I thank Ms Buckley, Mr. Cussen and their teams for giving of their time today. It is precious. We really appreciate and value the work they all do daily. The objective here is to ensure that we have a planning process that is consistent and clear and in which people can have confidence. I apologise for not having been physically present for the opening statements and discussion so far today, but I was watching online and also co-locating in the Seanad Chamber.

On the question of funding and resourcing for the representatives’ organisations, has either organisation been refused funding for resources?

Mr. Niall Cussen

We completed a strategic workforce plan last year. We are a national body trying to keep an overview of 31 local authority development plans and approximately 200 other statutory plans. We are reviewing the planning functions of all of the planning authorities and the board. We also undertake research. We formed the view that our current approved complement of 31 full-time equivalents would be very challenged in discharging these functions on an ongoing basis and that a significant increase in this number would be required to make the organisation sustainable, particularly bearing in mind the normal turnover of staff and sick leave. In an organisation of 31 people, if three people do not turn up on any given day, that is 10%. If six people are not available it is 20% and one really starts to feel the pain. We are in the process of recruiting an additional nine roles out of the approximately 30 that we sought in total. We are in a process of engagement with the Department.

I have to say I have found the Department quite responsive and good on ensuring our staffing and resourcing needs are met. Obviously the Department has to engage in the context of wider public sector numbers. While there are many demands and we recognise this, we see the implementation in full of our workforce plan as being a de minimis position to discharge our function as the overseer of the Irish planning system.

Ms Oonagh Buckley

This predates me to a certain degree. We submitted a strategic workforce plan last year. The total number sought was 59. As always there is a very stringent approach as to whether the business case is met. We received initial sanction that allowed us to start a process, which is about to be completed, for a director of marine planning. On 18 December we received sanction for 33 people, which allowed us to start the process of recruiting in January. We do our own recruitment, which is useful but there is always a time lag. We will go back for the remaining 59 but my view, having been on the board for some weeks so it is a very preliminary view, is that we will have to go further. I expect that over the course of the next year to 18 months, the numbers in the board will have to be 50% more than they are at present. We have a workforce of approximately 200 at present. This will bring its own challenges. The walls of the building are not made of rubber. There will be issues in this regard. As has been mentioned, the key area of the decision-makers and those who will become the commissioners but are ordinary board members at present need to be recruited. I spoke to Deputy Gould about this. Something we need to discuss with the Department is whether 15 would be sufficient to deal with the backlog or do we need to go a little bit further and then pull it back naturally over time. These are the types of discussion that have not yet taken place. We will go back very shortly with a fresh business case for the remaining numbers that we have indicated we need.

Senator Mary Fitzpatrick

There was a lot of discussion about fines and penalties for the board not meeting timelines, accepting the statement that even with no backlog, the board does not always achieve 100% of the deadlines. Ms Buckley mentioned that other effective measures could be taken to ensure adherence to timelines and I ask her to elaborate on this.

Ms Oonagh Buckley

I have not fully worked this through, and certainly we have not made any proposals to the Department. What needs to be achieved is accountability for the management cadre of the organisation in order that it is focused on delivery within timelines. The question is what will achieve that accountability. I am not entirely clear that the organisation paying fines achieves this accountability. There may be other ways of holding people to account for efficiencies in the organisation and helping to drive it. Part of this is transparency, and needing to report to the Department, the Oireachtas, the committee could well form a very important part of this. It is about being publicly accountable in effect for the delivery of the timelines. This could make more of an impact in some respects, within the legal constraints. We cannot have a system of default permission, which used to be the old way in the planning system. In an era of environmental impact assessment it is not possible and it is certainly not possible for the board. The question is what will bring it home to the leadership of the planning commission that it needs to stick to those guidelines. This exists within the local authorities because they have been doing it for donkeys' years. The question is how we bring this culture and system into the board. I do not have it fully elaborated in my head but this is the way I am thinking about it. I am not sure the organisation paying fines or returning part of its grant would achieve it.

Senator Mary Fitzpatrick

What we want to achieve is consistent and timely decisions that are objectively arrived at and can be objectively defended.

Ms Oonagh Buckley

Correct.

Senator Mary Fitzpatrick

With regard to the timings, and appreciating that it is not something that has yet been defined, the idea of an 18-week timeline is out there. One expectation the public will have, despite the approximately 730 pages of the Bill, is that it will streamline the process. It will standardise and streamline it and lead to efficiencies of process and practice. Is the public incorrect to expect there would be shorter and more efficient timelines? Is there any expectation of reducing the timelines? Should the public be expecting that the timeline of 18 weeks is already unrealistic and that it will be proposed to extend it?

Mr. Niall Cussen

I will leave Ms Buckley to deal with the consideration of timelines, particularly in the context of the board. The planning service has proved itself in the past when the resources are available and the systems are clear. There has been much very helpful streamlining of the planning system, particularly with regard to judicial review. Timelines are laid out. Judicial review was an area where there were not very strict timelines. The planning authorities at local authority level and the board have to work within very tight timeframes. Then there may be a judicial review, which is subject to the courts and their mechanisms, which we respect. Now this will be much more clear. This is one big gain the public will get. We will know where the various stages will unfold if planning issues go that far.

If we can get clarity on the resources and how they are implemented at various authority and agency levels perhaps we can have clearer performance regimes. Ms Buckley has spoken a little bit about this and the options that might be there in the context of the board. Where we have clear plans and a clear legal process on making planning decisions, and we back up these systems with people and arrangements on the ground, then the public can expect good performance.

Every year 30,000 decisions are made by planning authorities. The vast majority of these are by local authorities within statutory timeframes. We highlighted this in the planning overview report we published recently. It is a story that very often is not told to the public. The vast majority of applications handled by planning authorities are approved. In some cases in local authorities this is to the tune of 80% to 90%. Insofar as there have been very well-flagged challenges and issues in the planning process, they are very small part of the wider day-to-day operation of the planning process that is discharged without a great degree of drama.

Senator Mary Fitzpatrick

Absolutely.

Mr. Niall Cussen

With regard to Mr. Ryan and his team on the review side, and the very hard-pressed cohort of planning authority staff and elected members in the various local authorities, there is probably only so much more time we can call on this extraordinary effort before we have burn-out issues, which are manifesting.

Ms Oonagh Buckley

There is a limit to how short we can make the system if we want to get quality decisions. I have run big operational areas outside of the planning system.

A bad "No" is really quick whereas a decent "Yes" takes time and there is an actual physical limit on how quickly people can process these increasingly complex files. The Senator should see the size of the files-----

Senator Mary Fitzpatrick

Yes, I have.

Ms Oonagh Buckley

-----that trundle past my door every day; it is extraordinary. What people want is certainty about timeframes. They do not necessarily want bad "Nos". The trade-off is between quality and a certain timeframe that might be a bit longer. People might like to have their decision yesterday but if they know they are going to get their decision in 18 or 26 weeks' time or in a year, so be it as long as it is a decent decision which they know will not be challenged in judicial review or if it is, will be upheld. That is the important thing we need to aim for. We cannot go shorter than 18 weeks on anything really, to be honest. We have to remember that is the limit and not the target. For example, of that 18 weeks in normal planning appeals at the moment, five weeks is processing. We are processing paper files, taking in and sending letters to local authorities and getting replies. Eplanning is on its way. Local authorities are in that space and An Bord Pleanála will have to come in. That will shave time off automatically because there will be much more automation around the process. That might mean we then need to take a little bit more time. We currently have nine weeks in rural planning for planners - this is with no backlog and when fully resourced and all that other good stuff. Maybe that means the planners get to take 11 weeks and have a slightly longer go. Maybe that means the board itself, or the commission as it will be, gets five weeks. I know from running other systems that you can have drive-by decisions, as I call them, but they will not last. They are no good, and nobody wants them. If we want decent decisions, what we need is to have the time to take proper decisions

Chairman

We have just over half an hour and we have three more speakers. I am going to take Deputy Ó Broin, myself and then Deputy O'Callaghan. Can we stick to eight minutes to leave us room if anybody else comes in?

Deputy Eoin Ó Broin

I will pick up on Ms Buckley's point because there is something worse than a bad "No" and that is a bad "Yes". That leads to all sorts of problems. I have very rarely, if ever, heard a member of the public wanting this process to be fast-tracked. The only people who have ever talked about speeding the process up are some politicians and some lobbyists. What most people want, including members of this committee, is good decisions in a timely manner with meaningful participation. If our planning system does that - and the point about certainty is really important - then we are in a much better place.

I have another few quick things to ask Mr. Cussen and then Ms Buckley. If we do not get to those answers, Ms Buckley should feel free to drop a note to the committee; not that I want to give her more paperwork to do before she gets busy making those planning decisions.

Mr. Cussen mentioned in his opening submission that other areas of the Bill need more work. Will he rattle through some of those areas quickly? On the national policy statements, in some respects there are areas of our plans that are very clear. They are called strategic development zones, SDZs. I have been through one in Clonburris which is one of the best of the SDZs. Despite their clarity, they have not fallen foul to some of the problems this Bill is trying to identify. Again, I am not asking anybody to talk about the docklands but that is the case in point where notwithstanding that clarity, there were huge problems. The Department talked to us about transitional arrangements for when the policy statements are there and how that relates to all of the existing plans, including an SDZ, which can be a ten to 20-year plan in real terms. How do we make sure we get that right?

I am going to ask Mr. Cussen a political question and given his independence, I would really like him to exercise it. In terms of the policy statements, would it not be better to have Oireachtas approval? For the democratic legitimacy of those statements, given how significant they are going to be, and the fact that, through some of those procedures I mentioned earlier, there could be retrospective changes to various plans that have been democratically agreed, if we are going to retrospectively alter SDZs or development plans that require a democratic vote, surely the policy statement upon which that is based, should be democratically agreed. I ask him to consider that and comment if he can.

On the resources point, I welcome the fact that Ms Buckley brought it beyond the board. I think it would be much better if the board had in-house fire safety expertise instead of relying on external professionals. With no disrespect to them, it is a small country as Ms Buckley said and when those people are not working for the board, they are working elsewhere. As regards the figures mentioned, if there is more information that could be shared with the committee, not just in terms of what Ms Buckley has looked for so far but what may be looked for, that would really help us understand. The better the in-house expertise, the easier the decision-making is for the board members. We would appreciate any information on that. I did not get a chance to say it earlier but I fundamentally agree with the point that is being made by both organisations that there is a difference between fees for a consent - because you are asking somebody to give you something valuable - versus fees or any charges at all for public participation. That is an important point.

I fully support the accountability, particular in terms of the Oireachtas. It is interesting that an assistant secretary general of a Department is willingly offering to come in to be held to account to a Department. It is actually a probably far greater pressure on public officials to have to come in and explain in the public forum whether they have or have not met those targets, than a fine would be, which might get a bad headline one day but disappears after that. That is useful for us.

I want to pick up on that issue of the adequacy of the reasons and the complexity of the decisions. Ms Buckley was about to make a point the last time. Will she finish that?

Mr. Niall Cussen

In relation to my comment about other parts of the Bill maybe needing a bit more work, I am still trying to work some of those transitional arrangements through in my mind. I saw the Deputy's questions to the Department yesterday, or the day before yesterday, on the continuance of section 28 guidelines. We are quite worried about their continuance and implementation in practical terms. For example, in practical terms, we have very important policy guidelines that were put in place in 2008 and 2009, in relation to flood risk. Local authorities have to have regard to those guidelines, which is something the courts now have decided. There is nothing worse than developments - and I have seen them while combing back through those which were approved in the past - where maybe no proper regard was taken of flood risk issues and then there is the devastation and indeed the huge draw on the public purse to fix the issues through flood relief measures and so on. These developments should probably not have been there in the first place. The maintenance of a proper planning policy and a regime that deals with really pressing issues around public safety, habitats - there are 30 or so guidelines out there - and their conversion into national planning strategies or guidelines is going to be a big job. We will have a lot of work to do to ensure guidelines that are increasingly out of date now, are properly reflected, as well as those operating in a somewhat less than clear legal framework. That is something I would like to look at in a little more detail and engage with our departmental colleagues on.

Something that was not actually mentioned earlier was the digital agenda in terms of services. One thing that is remarkable about the planning service, despite all of the changes in legislation and policy and so on, is that it is still a hugely paper-based process. Ms Buckley spoke about shopping trolley-sized planning files trundling around the offices of An Bord Pleanála. Indeed, it is the same with local authorities as well. Eplanning is coming but the possibility of digital services transforming the efficacy and the performance of the system is an area that could be looked at as well.

Deputy Eoin Ó Broin

Will Mr. Cussen not dodge my political question?

Mr. Niall Cussen

No, I am not one to dodge a question in any shape or form. The Office of the Planning Regulator is independent so we look at this in an overall sense. My off-the-cuff reaction to the Deputy would actually be to ask him has he not got enough to do in terms of the Oireachtas crawling through the minutiae of, say, flood risk guidance.

There are 30 topics involved. It is an incredible body of stuff to go through and the Oireachtas is at a particular level in the context of legislation and so on.

Deputy Eoin Ó Broin

Maybe if more Oireachtas Members knew the detail of that, the Office of the Planning Regulator would get less of a hard time.

Mr. Niall Cussen

It is important to recognise that there is a national planning framework clearly embedded in the planning policy hierarchy and in legislation. There is a clear role for the Oireachtas in this. That is the mother, father or parent document of all the planning policy.

Deputy Eoin Ó Broin

That also was not approved by the Oireachtas.

Mr. Niall Cussen

We will not go over old ground.

Chairman

I have to move it on because I have to be strict on the eight minutes for everyone.

Mr. Niall Cussen

On the planning policy statements, etc., it is also clear that these cannot just be put out willy-nilly by Ministers. They go to the Government, and they are subject to detailed scrutiny, assessment and so on. There is public engagement and consultation In that regard.

Deputy Eoin Ó Broin

Although that is a practice, it is not required from a legislative point of view.

Mr. Niall Cussen

The assessments and so on come in through that provision. There are extremely well-balanced arrangements in place. There is a role for the Oireachtas in setting the big picture and the picture for the long term. There is also a role for the Government and Ministers in getting on with the day-to-day framing of policy for the planning system and so forth. It is important to ensure that there is not miscibility between those two. We cannot bring too much complication into the system.

Chairman

I have to move it on. Mr. Cussen will have to respond in another format.

Ms Oonagh Buckley

How many times has the Deputy asked a planner if he or she would prefer more political interference in the planning process? I will just make that point.

Deputy Eoin Ó Broin

Setting laws and political interference are two separate things, but I take the point.

Chairman

I want to go to the other end of the spectrum of the planning system and deal with local government plans. Mr. Cussen referred to the role of the Planning Regulator as a referee in the planning system. It is my experience that the regulator catches many of the non-compliant objectives that councillors can, from time to time, put into their local area and county plans. Sometimes the Minister issues a direction on that. There is a cumulative impact of many small and insignificant decisions being made in local area and county plans. We have all been councillors and gone through that process. I have found it sometimes to be one of the most frustrating processes ever when you look at the rationale applied in the context of objectives being put into plans. Maybe that is sometimes done with the view of kicking it up the line to the regulator or the chief executive in order not to be the bad guy. We get advice from Transport Infrastructure Ireland, the NTA, prescribed bodies, the senior planners and the chief executive not to do something but then it is done and goes into the plan. Is the Office of the Planning Regulator sufficiently staffed to catch the many small issues that can have a cumulative effect? In the context of planning, sometimes it is decided to stretch the boundaries of a settlement because a few more houses will not have a great impact in the context of, for example, transport. Local politicians are involved in the democratic process. They have an obligation to future generations and to the legacy of what they put in place. It is not just a case of making decisions that are popular now.

Mr. Niall Cussen

I have covered resourcing in terms of our strategic workforce plan. There are some issues. When my team is presented with, as happened recently, the accumulation of all the different parts of a county development plan that ran to 1,000 pages, there is a not inconsiderable task to understand and go through that in some detail. We are thorough in our assessments. I remember, for example, one particular county development plan where, at face value everything was fine. It was only when we went through the appendix to the appendix to the appendix that we found something that could have been a real problem due to evolving court judgments and so on. It was probably a benign enough approach from the local authority, which thought it was covering the point by not covering the point, but, nonetheless, it was something we spotted, albeit at the last minute and with people working late into the night. It is also important to recognise that the role of the office is to undertake a strategic assessment of development plans. It is not our role to be the planning authority or to second-guess everything. There has to be a certain amount of local discretion and local circumstances have to be taken into account.

I am confident that we are going through plans in a thorough and balanced way, correctly judging strategic objectives and so on. Sometimes in smaller cases - and Ms O’Connor might come in on this because she manages this stream for us on a day-to-day basis - there will be egregious examples, such as the flood risk I mentioned or the leapfrogging situation. In other words, there might be a village or town you have left and then lo and-behold there is another new thing that suddenly pops up at the edges and there are questions as to whether we have water services in place or how people are going to walk to where a zone of employment is going to be located. We zone in on those points in our methodology for the assessment of plans rather than trying to second-guess every aspect of the development plan. Ms O’Connor might want to come in on a point or two there.

Ms Anne Marie O'Connor

We would hope to catch those things. If the Chair looks at the submissions we make, he will see that they are pretty detailed and that they are based on in-depth analysis. We do a report at each stage of the process as well; it is not just on the plan. At each stage of the process, we carry out a detailed assessment and prepare a report that then informs the submission we make. Our submissions are detailed. We sometimes get criticised for them being too detailed, but, at the end of the day, there is a process and then there is the decision on whether something is a clear breach that requires a recommendation to the Minister on a direction. When we are looking at that, we are not looking at making a perfect plan; we are looking to see if there are issues at a strategic level that will make the plan inconsistent with national policy. When we are looking at that stage we are also looking at patterns, so it is not just about an extension of one boundary, as the Chair says. It might be that at the smaller settlement tiers they are pushing the boundaries out over a number of different settlements. We are looking for those patterns and that is what elevates it beyond a local issue to a strategic evaluation that we are carrying out.

Chairman

We spoke earlier about education in the context of the public and the planning system. It is for the public to make the link back when they come to us, as Deputies or councillors, and ask why there are no footpaths, lights, bus services or school places, and why certain things are happening. We have to go back and say that it is because their local councillors zoned this land for this type of development and that is why there is residential growth. We must point out all the reasons why it should not have been done but still went ahead. There is accountability but the problem does not arise until five, six or ten years later, and that is the missing link.

Ms Anne Marie O'Connor

That also goes back to the Chair’s point on public participation. People must realise that there is a benefit to becoming involved in the planning process. We will have this new legislation, and it will be a transitional phase for all of us, but we are moving to a more plan-led system. As the public realises that the decisions that are being made on individual planning applications are much more informed by plans, there will be an understanding of the necessity of becoming involved at the plan-making stage.

Chairman

I want to move to the board and ask a question on architectural heritage. My sense is that there is a move towards taking the emphasis off important architectural heritage. I refer to section 257(4), which is on page 497. My sense is that there is a move towards taking the emphasis off protecting architectural heritage because section 257(4), in the context of proposals, contains the phrase "reasonably necessary and proportionate and appropriate". It is up to the planning authority or the commission to make that decision. Is that suggesting that in the absence of a qualified or certified conservation officer or architect, that alteration would be proportionate and appropriate? I have just picked out a particular point there.

Ms Anne Marie O'Connor

I will confess that, a bit like Mr. Cussen, I focused on the points I thought were most germane to this discussion, but it is a long draft Bill.

Chairman

I put it on the record that architecture and the conservation of buildings have been thoroughly neglected over the years for many reasons and I sense that this is a move towards further possible degradation.

Ms Oonagh Buckley

I personally cannot recall if that provision was in the original protected structures legislation, which I confess I wrote so I should remember. We do need that mixture of skills within An Bord Pleanála, and one of the mixture of skills we need is architectural, archaeology and conservation architecture. I hope that over time we will achieve a balance of those skills within it. As members will know, the protection of protected structures was central in a recent High Court decision so it is central to the way the board needs to make its decisions. We need the resources to be able to take those decisions correctly. I cannot recall whether this is an evolution and the Department is probably better placed to brief the committee.

Chairman

I want to raise it now because although we want to bring protected structures, some of which are not in any use at all, back into proper use as residential properties we need to protect the architectural fabric that makes them so special. I am out of time and there are two more speakers. I call Deputy O'Callaghan.

Deputy Cian O'Callaghan

I wish to follow on from an issue we raised with the Department a couple of days ago that concerned head 8 of this Bill and section 5 declarations. Does the board or the Office of the Planning Regulator have data on how many section 5 declarations, which have been appealed to An Bord Pleanála, are overturned? Is there a breakdown of who seeks the section 5 declarations that go to An Bord Pleanála and are overturned? My queries are quite specific and I do not know if the witnesses can get that information for us.

Ms Oonagh Buckley

We do not have the detail in front of us. I have to write to the committee on a number of items so we will include that information when we write to the committee.

Deputy Cian O'Callaghan

That would be useful.

Head 420 concerns the annual reports by An Bord Pleanála and gives a timeline of "not later than the 30th day of June in each year." Is there current legislative requirements around that? There is. What is the situation with the 2021 report? Has it been published and, if not, when will it be published?

Ms Oonagh Buckley

I have a draft of the 2021 report with me. The report was delayed while we engaged with the Comptroller and Auditor General on certain matters to be contained within it and then, as the Deputy will know, the former chairperson left and there was nobody to sign the report. We expect to publish the report imminently. We will probably appear in front of the Committee of Public Accounts to discuss the report quite soon so it will have to be published well in advance. I think the report has reached proof reading stage and it will be published in the coming weeks.

Deputy Cian O'Callaghan

Head 402 concerns the declaration of interests and provides for the small part-ownership of a site through shares. It refers to one hundredth part of a site or less, or €13,000 or less, whichever is the lesser. I understand the logic whereby if I own shares in some company I am not going to know what sites the company owns and so forth. Are those provisions robust enough not necessarily in terms of material interest but in terms of public perception? Does Ms Buckley have a view on that?

Ms Oonagh Buckley

I am a good old-fashioned civil servant and tend not to own shares. Without commenting specifically on that provision, we are having a look at the code of conduct more generally and we will publish a revised code of conduct. I hope to take it to the board in February. We will then have to engage with staff and obviously the Minister and the OPR on it. Essentially, it is incumbent upon members of the board and staff to be really highly vigilant as to their responsibilities under declarations. Those would be the minimum standards but perhaps everybody needs to be hyper vigilant when working in An Bord Pleanála as to whether there could be any possible charge of objective bias or conflict of interest. That is something we would need to move towards and that needs to be a firm culture within the organisation.

Deputy Cian O'Callaghan

Yes, absolutely. I wonder in terms of this Bill if we are trying to create a culture of absolute avoidance of any doubt whatsoever or any questions. Technically, under that Bill, you could have shares in one of the large publicly listed developers in Ireland and as long as it is worth less than €13,000 or less than one hundredth of that company then one is fine. Does that mean it creates a material conflict of interest? Maybe not but it does not seem great to me in terms of public perception.

Ms Oonagh Buckley

There are other issues. One of them that we have flagged with the Department is the need, for example, to ensure that they capture the rezoning of lands, which was not specifically mentioned in the 2000 Act. That is something that I think the Department is moving to capture in this new Bill. I do not have a view on the aspect raised but I want great clarity in the board and in the commission's code of conduct on individual responsibility on board members and staff to ensure that the board cannot be held up by having potential conflicts of interest damage their reputation in the future.

Deputy Cian O'Callaghan

Recently there has been an issue, and it has been documented, of a problem of informal requests to inspectors to amend their reports by members of the board. Is that something that should or should not be covered by this legislation? Is that the detail that this Bill should get into or not?

Ms Oonagh Buckley

I suspect not, Deputy, because you can more effectively deal with it through things like codes of conduct and disciplinary codes, which can deal with the detail of what is a request about a performance or a request about an improvement of quality as opposed to a request to say, we do not like your opinion so change your opinion. There is a tension between making sure that planners have good performance standards and work to them with what could be interpreted as something that is in breach of the code. My personal view is that those things are better dealt with in codes and disciplinary codes. Obviously, once again depending on the way things play out, it may be something that the Department and the Minister will choose to cover in the Bill or that the committee could choose to recommend.

Deputy Cian O'Callaghan

A counter view could be that it was not covered under legislation, there was ambiguity and the codes failed to capture it. Given the need for public confidence and the level of detail in the Bill, should these be captured?

Ms Oonagh Buckley

Can I put in one counter please? A planner does not work in a vacuum. The planner does not make a decision on a planning appeal or application at either local authority level or the board. The system is set up so somebody else makes the decision and that is the board. In parts of the UK, for example, the planner makes the decision but that is not the way it has always been in Ireland. We could move to that but it would be a very big change in the Irish system. I would caution that there is a tension within the system between what is getting the expertise and advice of a planner and what is the final decision on that. In no way do I suggest that I condone, in any way, any planner being asked to change his or her opinion on a file. That is certainly not the case.

Deputy Cian O'Callaghan

Earlier we talked about the growing complexity of decisions and appeals. Obviously there are staffing issues and the issues that were mentioned about getting enough expertise inhouse. My question relates somewhat to head 318. Is there a significant issue with the board being able to get enough technical expertise to assist with analysing submissions on complex planning or technical areas where the board or the staff on the board may not have that expertise themselves? How much of an issue is that?

Ms Oonagh Buckley

It is significant because we are a small country. Often times you might have only one of this type of application a decade. I gave the instance of a big development at Dublin Airport where we needed a noise expert. That expertise is either conflicted in Ireland or just does not exist in Ireland so we have had to go wider than Ireland to get in that expertise. Generally speaking, we can find it but it may well be that we have to go outside Ireland to get it. In cases of marine functions, what expertise there is within Ireland may well be working for the applicant and that is going to be something that we are going to have to manage very carefully over the course of the coming year.

Deputy Cian O'Callaghan

Does that lead to delays in the decision-making process when trying to source expertise?

Ms Oonagh Buckley

Obviously, in the sense that we have to cover all bases in a decision and give reasoned opinions and decisions, if we cannot source expertise then that could cause a delay. In my short time working for the board, I have not experienced that. It is an issue so we have to have flexibility in the system where we can go outside the board and recruit that expertise to encompass conflicts and to deal with the fact it may not be worth the board's time to devote a post to the 94 valid fire safety appeals which we got over five years for example.

It may not be worth the board's time to have in-house expertise to deal with fire safety matters.

Senator Mary Fitzpatrick

I have several questions.

Chairman

You may rattle through them because we are almost out of time.

Senator Mary Fitzpatrick

I promise I will be as efficient as humanly possible. There has been a lot of discussion around resources and how every sector is struggling to get human resources, be it bus drivers or restaurant workers. There is not one sector that is not struggling with resources. How are both organisations engaging and working with the Departments of Education and Further and Higher Education, Research, Innovation and Science to get them to scale up to meet future demand?

Is there scope in legislation to compel activations? Most of this morning's debate has been about the backlog in making planning decisions. There is huge frustration that tens of thousands of granted planning permissions are going unactivated. Is there any scope for us to compel activations through legislation?

Mr. Cussen is right that the fee of €65 is an incredibly good deal for the amount of effort that goes in. That fee is for the actual planning application and does not include the pre-planning discussions or any of the consultations. It is a huge underestimation of the actual costs. Will the witnesses come back to us with guidance on that? The OPR was asked whether it had considered doing a study on it and providing recommendations. It is really important. It does not necessarily have to be catered for under legislation, and it is something that will change over time, but we need to put a proper value on it, although not necessarily cost recovery. While we have to ensure public participation is not discouraged, we must also accurately reflect the work involved and the value of what is being done.

E-planning is coming, which is great. How soon will that be a reality for the general public and how integrated will it be? There are 31 local authorities and An Bord Pleanála. Will there be a seamless interface between local authorities in Dublin or Cork or elsewhere? From the general public's perspective, will the plan progress seamlessly on one platform from? I appreciate I have asked a lot of questions. The witnesses do not necessarily have to answer them all now.

Chairman

There are five minutes left.

Mr. Niall Cussen

I will take the last question first. A local authority planning portal initiative is being rolled out, quite quickly, in nine or 11 local authorities. The important point to remember about this is that it is effectively a technological top hat that fits over-----

Senator Mary Fitzpatrick

It is an interface.

Mr. Niall Cussen

Yes. It will fit over the three different planning administration systems we have in this country. For whatever reason, the authorities in counties Dublin and Wexford have one system, the two local authorities in County Cork have another and the rest have a third system. None of those systems talk to one another, nor do they talk to the building control management system. The Senator mentioned activation. We do not have a live register, if you like, of whether stuff is turning on or not, as the case may be, although work is ongoing in the Department trying to overcome the technological barriers there. The building control management system was built for a completely different purpose, such as for building control, commencement notices and so on. The planning administration systems were built for a different purpose. The issue is not really covered in the Bill but maybe it could be looked at. The whole area of digital planning has tremendous potential to deliver efficiencies. It will probably require a significant investment because we are talking about 30,000 decisions made by 31 local authorities, as well as all the interfaces and so on.

E-planning is a great initiative. Plan-IT in the board has been coming along. It is good that we have this and that it is being moved forward. However, we need to move to a totally new paradigm in relation to digital services. Look at how many other aspects of public services have evolved, such as in regard to passports and what-not. On the idea of a standard electronic system by which we interact with planning authorities and how all the data capture and data analytics happens behind that, we are just not there and that requires investment, which is the resourcing piece.

We are happy to engage further with the committee on fees. I know the Department has done some background work on different regimes and what may be looked at in that area. It is a function of the Minister to set those fees. Considering the independent role of this office, regulators in many areas provide independent oversight of fees and charges. That is not currently within our statutory remit. That is all I will say.

On the scope to compel activation of planning applications, there is a raft of parallel policy initiatives under way in that regard. The residential zoned land tax is a very important one. It will place a significant workload on the board, particularly Ms O'Connor's team, as many of those plans are looked at afresh in the context of whether the designations are appropriate.

On the engagement with the Department, as I signalled earlier, we are just starting to get our heads around engaging with the five planning schools. I refer to a piece of work around looking at their graduate output. We raised this during the last meeting of the national planning knowledge group as recently as last week. We hope to come to that at our next meeting in late spring or early summer. We are happy to come back to the committee on that. It is about engaging with the Department as it is a cross-over between the Office of the Planning Regulator and the Minister.

Ms Oonagh Buckley

Under a provision of the Bill, it will be permissible for An Bord Pleanála to accept appeals electronically, which has not been possible heretofore. This will be a great help. We are working with the Local Government Management Agency, LGMA, on the e-planning systems. An Bord Pleanála needs better IT. We hope, over the course of the coming years, there will be a signal improvement from the public's perspective as to how citizens interface with the planning system and, in our case, the planning appeals system.

Chairman

Deputy Gould only has a couple of minutes. I ask him to be as brief as possible.

Deputy Thomas Gould

I will ask my questions and the witnesses can get back to me afterwards. I support the work both organisations are doing in encouraging the public to get involved in the planning process. When I was a councillor, there were times when there were no submissions on very important planning projects. That is a job of work that needs to be done.

I have been asked to raise the issue of disability-proofing submissions to local authorities and An Bord Pleanála. Is that specifically covered in the Bill?

In its opening statement, the OPR welcomed the measures to reform the EIA process and provide clarity when EIAs will be required. Is there sufficient protection to prevent projects splitting to avoid EIAs? What is the best way to deal with this?

As regards An Bord Pleanála, there are some concerns about the removal of the requirements to outline all reasons for a decision. This was touched on earlier. Is this a step away from transparency and accountability? It was said earlier that the more reasons one gives, the more they can be used against the decision. Is giving a comprehensive outline of all the reasons for a decision such a great burden?

The Labour Party in England is proposing to introduce a tax, a use-it-or-lose-it measure. It is estimated there are between 70,000 and 80,000 uncommenced planning permissions in Ireland. We are in the middle of a crisis and we need to drive that.

I am not sure whether the witnesses can answer any of my questions now. They can always revert to the committee with a note.

Chairman

The witnesses may briefly respond to the Deputy's questions now or subsequently in writing.

Ms Oonagh Buckley

The disability question is one I can easily answer. We have a disability officer whose job it is to ensure that people can engage with the process. In fact, I was talking to him in the past week about ensuring we had a Braille machine in order that something could be translated from Braille into written language. We also do a lot of work around spoken programmes and so on. We therefore have, as is our requirement under law, a person who is there to enable people to engage with our processes. I am sure we can continue to improve that, but it exists as it stands.

With regard to the reasons, which are key, I am not in any way saying we will lose the transparency, but perhaps what I am saying is that there might be some rebalancing whereby a huge amount tends to be covered in a planner's report. The question has become how much of that needs to be covered again in the ground in the decision by the board. The reports are getting longer and longer, even for quite small and minor developments. I have no issue where it is a very big development - an EIA development or a strategic infrastructure development - but do we need to do this for Velux windows, to take an extreme example at the other end? I am not in any way suggesting that people should not understand the reasons a decision is given. I just wonder whether we have perhaps shifted too far for all decisions and whether there is either something we need to do within the board or something we can cover with the Department in the Act that will permit us to take decisions as efficiently as we can. It should be borne in mind that we will have these mandatory timeframes to commit to, so there is an element of transparency, quality and efficiency. It is just something we need to bear in mind.

Mr. Niall Cussen

On the EIA question, my understanding is that the existing code has largely come over into the new Bill. To be blunt, there has been so much litigation in the area around EIA and project splitting that there is probably an abundance of caution as to how comprehensively things are assessed these days. There was some analysis some time many years ago about the number of environmental impact statements - or environmental impact assessment reports, EIARs, as they are now - that are prepared in Ireland compared with the number prepared in comparator European countries. We have set quite low thresholds and we have a huge amount of work in that area. There may be litigation on particular cases, and there will be the argument that something has been subject to project splitting, but my experience and my sense of it is that there is an abundance of caution in ensuring that EIA, appropriate assessment and all the different European environmental assessments are done as thoroughly as possible.

Chairman

That concludes the meeting. I thank Mr. Cussen and his team from the Office of the Planning Regulator and Ms Buckley and her team from An Bord Pleanála for having taken a half day out of their incredibly busy schedules and workloads. I know the workload just builds up as they are here and they have to get back to it. The committee acknowledges the incredible work both organisations do and the role they have to play in the future planning of this country and all we have to do. We have another eight meetings on this legislation to go. We expect to produce a report by the end of March and we will ensure the witnesses are issued with copies. If any recommendations spring to mind from the discussions today, they should feel free to write to us and we can consider whether to include those in the report.

The joint committee adjourned at 12.34 p.m. until 11 a.m. on Tuesday, 14 February 2023.