Joint Committee on Housing, Local Government and Heritage debate

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

Chairman

Good morning everybody, and welcome to the Joint Committee on Housing, Local Government and Heritage where we are carrying out pre-legislative scrutiny on the proposed planning and development Bill 2022. This morning we are joined by members of the Irish Planning Institute, IPI, and the Royal Town Planning Institute Ireland, RTPI. They are all very welcome here to assist us in the scrutiny. I know from the opening statements that they represent nearly 1,400 planners across the country between both organisations, so they will be more than aware of the difficulties, complexities and challenges in the planning system and for planners.

From the Irish Planning Institute, we are joined by Mr. Gavin Lawlor, vice president; Mr. Philip Jones, chair of the policy and research committee; and Dr. Seán O'Leary, senior planner; and from the Royal Town Planning Institute, we are joined by Ms Valerie Brennan, chair; Mr. Niall Byrne, vice chair; and Mr. Craig McLaren, director. We received their opening statements and accompanying documentation, which will be available on our website after this meeting.

I wish to remind members of the constitutional requirement that members must be physically present with the confines of the place where 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 meetings. This means that they have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy, and it is my duty as Chair to ensure that this privilege is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks, and it is imperative that they comply with any such direction.

Members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

We will invite the witnesses to make their opening statements of about five minutes each, and then we will go to each of the members for seven or eight minute sections. That is the time allocated to ask the question and to answer the question.

I will go in the order of IPI and RTPI. I invite Mr. Lawlor to make his opening statement, and if he could keep it to five minutes or so I would appreciate it.

Mr. Gavin Lawlor

I thank the Chair and the committee for offering us the opportunity to talk about the draft planning and development Bill. I am a member of the Irish Planning Institute and the vice president of the institute, and I am accompanied by Mr. Philip Jones, who is a fellow of the institute and who chairs its policy and research committee; and Dr. Seán O'Leary, who is a member of the institute and its senior planner.

The institute represents more than 1,000 planners on the island of Ireland across the public and private sectors, with members of the IPI working in every local authority, An Bord Pleanála, central Government, regional assemblies, in private practice as consultants, for large developers and for semi-State organisations. Our members have first-hand knowledge across a range of backgrounds and sectors of the planning process and current legislation, and know its faults as well as its successes.

The institute was represented on the planning and advisory forum, and made two detailed submissions to the Minister for Housing, Local Government and Heritage in 2022, copies of which have been attached to our submission, and which cover some of the key points in the legislation.

Once the draft Bill was published, we invited our members to make detailed submissions on it. These have informed this statement, and we also intend to provide a more detailed submission, section by section, to the Department in due course and this can be made available to this committee also. This will be constructive and will draw from the membership’s day to day experiences of operating the system.

In the institute’s view, there are some important principles against which to judge the proposed legislation. The entire purpose of the planning system should ensure the proper planning and sustainable development of our country. We welcome that the term "sustainable development" is defined for the first time in the Bill, and that the role of the planning system is to balance social, economic and environmental considerations in the interests of the common good.

The planning system should be plan-led. We welcome many of the changes set out in Part 3 of the Bill, including the move to a ten-year time horizon, but we have some concerns about the timelines for preparation of these plans, which appear not to have changed, despite the many additional responsibilities on local authorities since 2000 and the Planning and Development Act 2000.

The role of the public, not only in meaningful participation at plan-making process, but also in the development management process, should be respected. This is a complex area which needs careful consideration. It is a long-established and cherished feature of the Irish planning system that there is full provision for third party rights, and in the institute’s view this must be retained and enhanced in the Bill. We have a number of concerns in this area, particularly in relation to declarations or referrals on exempted development, Part 2, on enforcement, Part 11, and about proposals in the Bill to restrict access to justice, especially for citizens with limited resources, Part 9.

The principle of subsidiarity, where decisions are made at the lowest possible level, is important, and in this regard we welcome the abolition of the strategic housing development, SHD, process, and the return of most normal planning consents to local authorities. We hope that this may lead to a reduction in recourse to the courts.

We have concerns about some aspects of the Bill, including the fact that it is unclear whether it provides, as the current Act does, for development contribution schemes, which were adopted by elected members, and which formed an important source of revenue for the provision of local infrastructure to support development generally in each county.

Of course, if the planning system is to work effectively and efficiently in the interests of all of our citizens, it has to be properly resourced, which it manifestly is not at present. The Bill includes many additional responsibilities and actions, which will increase the workload in both the public and private sectors, and these will clearly require more resources. While the principle of defined timelines for development management is recognised, such timelines must reflect the complexities of the cases involved.

Ultimately, delivering on the potential of the Bill cannot realistically be achieved unless substantial further resources, not least additional planners, planning administrators and other specialists such as ecologists, geographical information system, GIS specialists, and marine scientists etc., are recruited both in local authorities and An Bord Pleanála, or An Comisiún Pleanála as it is called in the new Bill. The funding of these resources should be explicitly dealt with in the Bill.

In the interest of brevity, we have not outlined proposed alternative wordings for each of the individual sections of the Bill, but hopefully our key issues can be outlined in discussions that follow.

It is disappointing that as planning practitioners we have had a limited input to date in the detailed drafting of much of the practical aspects of the Bill. As noted, we will be making a further written submission to the Department following consultation with our members, and trust this will be listened to as representing the views of the professionals who will be implementing the final Act. We also hope the expertise and planning judgment of planners will be further respected once enacted.

We are happy to address any questions that the committee members may have, and should the committee wish to further engage with the Irish Planning Institute on any aspect of today’s discussion or the legislation, we would be happy to assist in any way possible.

Chairman

Thank you Mr. Lawlor. That section by section submission that you are proposing to submit would be welcomed by the committee. We would like to get eyes on that. Do you have any idea when you would have that completed, because that is a substantial bit of work to do?

Mr. Gavin Lawlor

I will ask my colleague, Dr. Seán O'Leary, who is preparing it.

Dr. Seán O'Leary

We have started going through it. We asked for feedback, section by section, so we have a lot of detailed stuff. The policy committee has started meeting on it. I hope that we will have a draft of it for next week, and then it is a case of going through the process and reconciling some of the different views that are there. If you tell us when you need it, we will try to make sure to have a draft, but we are conscious of getting it in as early as possible.

Chairman

We are aiming to have our pre-legislative scrutiny report completed by the end of March, which is about five weeks or so away. This round of pre-legislative scrutiny finishes on 9 March. In the following three weeks, we will compile the submissions from the expert witnesses who have came in and also written submissions that we sought from other sectors, because we could not accommodate everybody in the public meetings. That is the timeline we are working to, so even a draft of that submission would be helpful to us, and we would take it into consideration.

I now invite Ms Brennan from the Royal Town Planning Institute to make her submission.

Ms Valerie Brennan

I thank the Cathaoirleach for the invitation to meet with the committee. I am chair of the Royal Town Planning Institute Ireland, and I am joined by Mr. Niall Byrne, our vice chair, and Mr. Craig McLaren, our director.

The institute's charter is to advance the science and art of planning for the benefit of the public. Our institute, also known by the acronym RTPI, has 27,000 members worldwide and it is Europe’s largest professional body for town planners, of which around 350 members are based in Ireland covering the private, public and voluntary sectors, academia and students. We set standards for education in planning and currently we accredit planning courses in University College Dublin, University College Cork, Technological University Dublin, Queen's University Belfast and Ulster University. Our members need to abide by our code of professional conduct, and we have a rigorous complaints procedure. We are engaged in a comprehensive research programme that strives to learn from good planning practice from across the world.

The RTPI welcomes the planning and development Bill 2022. The Bill provides an opportunity to pronounce a clear sense of the purpose of planning: that planning generates long-term benefits that help to tackle the climate emergency and stimulate a post-Covid-19 economic recovery with good quality and sustainable homes and communities. We have concerns over the length of the Bill and would suggest that it is sense-checked to assess whether all its provisions need to be included in primary legislation, or would be better included in regulations or policies.

We believe the planning system needs to be delivery and outcome focused. The Bill should signal a shift towards an outcomes-based approach to measuring planning performance by moving beyond simple metrics such as the speed of processing applications. Accordingly, the Government should work with the Office of the Planning Regulator to develop a performance measurement regime for planning authorities that focuses on the quality of the outcomes that are achieved on the ground. We believe, therefore, the Bill should include a new statement on its front page that clearly sets out that the purpose of planning is the long-term common good. We do not believe it is appropriate to introduce fines for planning authorities if they do not meet arbitrary deadlines. Approaches to performance improvement should be incentivised rather than penalised.

Planning should be a corporate function within local authorities and Government, which maximises the benefits for places with different characteristics. We would, therefore, like to see the Bill incorporate provisions for establishing statutory city planner or county planner roles, as appropriate, in each local authority to ensure that planning has influence when corporate decisions are made in local authorities to allow for place-based approaches which appreciate short-, medium- and long-term impacts.

We would also like to see provisions in the Bill for the RTPI, and other key professional bodies such as the IPI and the Royal Institute of Architects of Ireland, RIAI, to have a role in supporting the promotion and assessment of new board members of An Bord Pleanála. Similarly, we would welcome being specifically mentioned under section 20 of the Bill in terms of having a consultation role in the review of the national planning framework.

We want to see a truly plan-led approach that promotes the primacy of the development plan, incorporating upstreamed community and stakeholder engagement that builds consensus. Community engagement should be seen as a core part of planning, and funding should be allocated to support this and help to create a less adversarial approach. This approach would allow a more proactive discussion at the start of the planning process which lessens the need for appeal and judicial review at the end. We are firmly of the view that decision making on planning issues should be made within the planning system as often as possible.

We believe there is chronic underfunding in the planning service, which often results in planning staff being unable to meet the current demands placed upon them. The system must have the resources it requires. We need to ensure planners are equipped with necessary skills, and that the importance of professional qualifications and experience is recognised. Key to this will be the introduction of digital planning approaches.

Accordingly, we urge the Government to undertake or commission research to identify the number of planners in place across the country and the demands that are being placed upon them. This research should explore the trends over previous years; current planning department budgets; and the extent to which the costs of planning application fees meet the processing costs. There should be a stated goal of ensuring that planning fees cover the full costs and that these are ring-fenced and reinvested in the planning service.

The Bill should include provisions to allow planning departments to have the power to introduce discretionary charges for activities they undertake as part of the consenting process. We believe the likely increased role of planners in tackling climate change and supporting housing delivery will create increased demands on planning authorities. Given this, we ask the Government to undertake or commission research to explore the future demands on the planning service, and the number of new entrants required to meet these. The Government should also undertake a detailed analysis of the costs of any new duties which may be introduced through the Bill, and make sure that these are fully funded for implementation. We also have concerns about the lack of detail and costs of the transition arrangements that will need to be put in place to implement the Bill.

RTPI Ireland stands ready to help shape the Bill by providing the expertise of our members and staff, sharing evidence we have gathered through our research, and highlighting good practice from our interaction and network outside of Ireland.

Chairman

Ms Brennan mentioned the RIAI in her submission. For the record, we invited its representatives to attend today and they were unable to attend, but we will accommodate them during Thursday's session because it is important that we hear from them as well.

I will move now to questions from the members, which will be in eight-minute segments. I call Deputy Ó Broin.

Deputy Eoin Ó Broin

I thank both witnesses for their presentations. We will probably get two or three rounds of questions so I will come in when appropriate.

I will start with the IPI. I thank Mr. Lawlor for both his submission and the more detailed documents. I want to emphasise one line where he said: "It is disappointing that as planning practitioners we have had limited input." That is our sense of the Bill as we have been going through it, but that is disappointing because while professional planners should not have a veto on planning, they are the people both in the public and private sectors who deal with it daily. We must take note of them coming before this committee and putting that bold assertion on the record. I thank Mr. Lawlor for being so frank.

I want to get into the detail of both submissions. I will start with the Irish Planning Institute and in my second round I will come to the RTPI. First, on timelines both for county development plans and for consents, can Mr. Lawlor give more information on what he thinks needs to be in the Bill? The board made a similar case for statutory timelines, but to make sure they were appropriate for the kind of decision or plan that was being made. The local government sector made the same point yesterday. Can Mr. Lawlor share more of his thinking on that if he would not mind? He specifically mentioned development management in Part 2, Part 11 and the judicial review, JR, issue in Part 9. Can he go into more detail on his thinking on that?

One area he did not mention but that has preoccupied us a fair bit is the provisions in sections 22 and 23, which is the new version of the mandatory ministerial guidelines, as well as a series of sections, namely, sections 28, 62 and 120 and what we understand would be similar provisions for strategic development zones and the transitional arrangements. This is really about strengthening the ability of the Minister, with the approval of the Government, to set detailed planning guidelines and for them to be more quickly retrospectively inserted into existing plans. Has the IPI a view on those provisions and on whether they will improve or slow down and disimprove the planning process and decision-making? I am trying to give Mr. Lawlor as much time as possible in his responses.

Mr. Gavin Lawlor

I will take the first question on timelines. We have extreme concerns about the time that is being dedicated, particularly to the development plan provisions. We have a senior planners forum, which is made up of all the senior planners from the relevant planning authorities and they have made a submission to the institute raising significant concerns specifically about the timelines. We have the same timeline that is in the 2000 Act in the new Bill for the production of a development plan, yet quite an extensive amount of additional work is required to prepare a development plan now than had been the case 20 years ago, for example, regarding flood risk assessment, appropriate assessment, strategic environmental assessment and the list goes on. Two years is, therefore, insufficient. Irrespective of resources, it is just not enough time to get through the steps that are needed to get through properly, as well as to engage properly with the issues and the detail of a development plan.

More specifically, there are provisions being made relating to the ten-day period to deal with redactions in public submissions. Most public submissions are made at the end of a public consultation process. Then, there are only ten days to go through them, but in most planning authorities the numbers of submissions are in the hundreds. There may be more than 500 submissions. Going through each submission and redacting it-----

Chairman

What section is that?

Mr. Gavin Lawlor

I apologise that I do not have the section to hand. However, there is a provision under which the planning authorities have the ability to redact submissions in the event that certain issues are mentioned that are of a sensitive nature. It is just that the timelines are too rushed.

One of the big issues - and I mentioned this in my submission - that is important to the institute is engaging more with communities in the plan-making process. We firmly believe in a plan-led approach. We see the ambition of moving towards a more plan-led approach. Let us face it: we have a plan-led system at the moment, but what we are moving towards is a more detailed plan-led system. One of the things I know as a practitioner is it is difficult to get communities to engage with development plans. They find it impenetrable because of the language, the detail and whether they will be looking at 2D or 3D maps. I know this has come up in some of the submissions to the committee. The answer is not in an advertisement or in telling people that the plan is there. One has to physically engage with communities and that takes time and it takes expertise to listen. I know from speaking with communities and from making submissions - not in a professional capacity but a personal capacity for community organisations - is they feel disheartened when they are not listened to. Listening to them does not mean that they have to be agreed with; it just means that they have to be heard. A lot of the time, planning authorities just do not have the time to engage properly with communities. Because of that, people say, "I cannot be bothered" and because they are not engaging with the plans, plans happen that they then feel disenfranchised from. That is part of the start of the problem when it comes to planning and development because the plans are meant to be led by their councillors and representative of their community's views, or at least taking them into account. However, if one loses people at the beginning of the process, it will not be unusual for them to come back at the end of the process with JRs. The timeline that is provided, therefore, is not sufficient. We think instead of two years it should be a minimum of three years.

Another issue we have is with the sequencing of plans. There is the national planning framework, NPF, the regional spatial and economic strategy, RSES, etc. One thing this legislation will do is bring in ten-year development plans immediately after it comes in. The planning authorities, unless otherwise directed by the Minister, will come to the end of their natural plan and then get into the new sequence. There is a horrible complexity until all that works out. It will take anywhere up to 16 years. Dublin City Council's plans, South Dublin County Council's plans and Fingal County Council's plans this year are all newly adopted. Unless the Minister directs those planning authorities to start their development plan process, it could take up to 16 years and it will be a minimum of two to three years before those plans come in.

Deputy Eoin Ó Broin

I presume the transitional arrangements, particularly in respect of what they do with the special planning policy requirements under them, will make that even more complicated over that period.

Mr. Gavin Lawlor

Yes. This goes back to the issue of resourcing. A lot of planning authorities have limited numbers of planners and take two or three people from their planning team and they will say, "Right, for the next two years you will be writing a development plan". Then, they get them back and put them into enforcement or something else.

In authorities where there are lots of local area plans, LAPs, because they have lots of larger settlements that they have to deal with, for example in counties Kildare, Meath and Wicklow. The problem they have is that those teams then keep going. They will have done the two years of the development plan and they will move into all the LAPs, they have to write for themselves. The new plan is looking at even more plans on top of that. While the LAPs are now gone, they will be replaced with others. Instead of it just being a matter of development plan and LAPs, now it is a matter of development plans, urban framework plans, priority area plans and joint area plans. There are more plans. Given the resourcing and the time it will take to do all that, one would be very lucky to achieve all that within the ten-year period.

Another issue about which we have extreme concern is where the new Bill expects the urban framework plans to be completed within one year of a development plan. That is just not physically possible. I will raise another issue, which is that there are discussions about having seven different specific areas to deal with. That is a challenge whether they are in the development plan anyway. Last but not least is the issue of rights of way, which is hugely challenging in its own right. Expecting local authorities to be able to resolve that matter is hugely problematic, because there are a whole load of legal issues around it. What we do not want to be doing is introducing more legal uncertainty into the planning process; we want less.

In terms of-----

Chairman

I apologise that we will have to move on because we only have eight minutes per segment. We will have time to get back to him. It was section 335 to which Mr. Lawlor was referring. I call Deputy Higgins.

Deputy Emer Higgins

Chairman

On Deputy Higgins's point there, some of the scanned documents are also illegible then, such as scanned drawings that appear in applications.

I call Senator Boyhan to speak next, please.

Senator Victor Boyhan

First, I welcome our guests here today. I will comment, in the first instance, on the very professional way they have laid out their presentations to us. This is very much a newer angle, is about the nuts and bolts, and the administration of the systems, which I believe is important, because we have not had a great deal of focus on these two particular areas. Our witnesses come with great expertise in these areas and that has to be acknowledged.

I want to spend my few minutes here discussing the IT and digital possibilities in planning because I believe that that is the way forward. We have to be conscious that we will be in a period of transition and that there is an older generation, so it is also about accessibility to our planning process. It is about encouraging the public participation and access to the files. I happen to live in Dún Laoghaire-Rathdown and have been a councillor which involves a very high level engagement with our planning processes. It is certainly up at a very high level in respect of engagement with appeals and with An Bord Pleanála, because there is a great number of protected structures there.

If we just take protected structures as an example, the applicant will usually put five to seven sets of these very large boxes in to the local authority. One is referred to the prescribed bodies, such as An Taisce, or the Irish Georgian Society, which is not a prescribed body. An Taisce is an example of one such body. When all of this information then is finally distilled and determined; there is no obligation on the planning authority to keep these reports. They do not keep them. The Irish Architectural Archive, which is on the other end of Merrion Square here, seeks and tries to get these if it can, because they have a very valuable resource, but that is done on a voluntary basis.

Are there other European countries or worldwide organisations? Where else? What about Australia, New Zealand or the Netherlands? Where can we get the resources? Marine planning is another area we do not talk about that is going to become really big. There will be much more pressure on that area shortly. Does Mr. Lawlor have views on that? Where will we get the planning resources?

Dr. Seán O'Leary

I can come in on that if it is all right. Our figures are better. We accredit the three planning schools in the Republic. We are looking at probably 70 to 75 graduates coming out this year and then we are into the 50s for next year. That is assuming everybody graduates and does not defer and assuming that everybody goes into planning. Then, obviously, it is about building up competence. From our point of view, it takes at least two years' post-qualification experience before a person has a level of competence.

I have been asked to advertise jobs to our members for planning authorities in Australia that are also looking for people. We have mutual recognition agreements with the planning institutes in Australia and New Zealand and probably one forthcoming for France. It is an issue across the English-speaking world, however.

The Chairman mentioned that the board is looking to grow to 300 staff. Representatives from the Office of the Planning Regulator, OPR, appeared before the committee and talked about how it was looking for 30 staff. I think it is recruiting nine presently. The board is recruiting inspectors now. That is causing downstream issues whereby there are simply not planners and other specialists in the system. As the Chairman said, everyone is trying to avail of the marine spatial planning, MSP, opportunities as well and trying to work with the planning schools to upskill there.

One practical thing I would point to about getting people from overseas is that we have been told anecdotally about the attractiveness of some local authority posts, particularly maybe those of graduate, assistant and executive planner in local authorities. People are coming in at the bottom of the scale but they are coming from the UK, for example, with significant experience. It just does not add up to them to come in at the bottom of some of those scales with a significant amount of experience that is not recognised. That seems to be a practical barrier to people coming back.

Mr. Craig McLaren

There is one thing I should have mentioned. In England, they try to grow their own. They have a graduate planning apprenticeship scheme that has had approximately 400 people on it since it started. It is actually starting to make a difference. We had a couple of people go through that process who subsequently became members of the institute.

That is a way in which people can learn on the job. It means we can get people in quite quickly. They get really good rounded experience because they are working on the job and getting the academic work at the same time. We are keen to explore that. This could be something we could perhaps look at in Ireland. In Scotland, the Royal Town Planning Institute, RTPI, put a business case forward to the Scottish Government on it as well. That idea of growing your own is perhaps one way of looking at it.

Perhaps one of the issues we have as a profession is that it is not always seen as an attractive profession for people to join. That does not help when a lot of people slag it off, to be honest. It is seen as a bad thing. That makes our jobs harder in trying to attract more people into the profession. We need to have a much more positive articulation of what planning is and what it can do and the impacts it can have so that we can then make it a much more attractive career option for people.

Chairman

I fully understand that because it has come in for some really negative commentary over the years, which is unjust and undue. That may possibly apply to some players within the system but not the entire profession, which is the professional and-----

Mr. Gavin Lawlor

I am sorry, Chairman; there is one really important piece here with regard to bringing people from overseas, which is that planning is not a critical skill in terms of visas. We have a number of employees in our practice who come from abroad. We have one person from India and we have had colleagues from Australia, new Zealand and America in the past. They all had to go through quite a significant rigmarole to get a visa. We have architects and engineers but we do not actually have planners on the critical skills list.

Chairman

I know it is not absolutely relevant to this but the timelines and changes proposed here are going to be resource dependent. It is, therefore, a downstream issue for what is being proposed in here. I am out of time so I will move on to Deputy Cian O'Callaghan.

Deputy Cian O'Callaghan

I thank everyone for coming in. I want to ask more about section 5 and the new section 8 and the declaration on exempted development. Exempted development is a very important part of the planning process. Without it, everything has to go through the planning system, which is more resource intensive. It is, therefore, very important that people have confidence in exempted development and that exempted development works, if you like.

We have established that there is not a major issue with many requests from section 5 declarations. Can Mr. Lawlor explain the significance of why these are relevant or why they are used? What impacts can it can have if a person looks for a section 5 declaration? What is the impact of changing that and taking the public out of it? The Chair said that the third party would be removed from it. In a way, it is not just a random third party. My understanding is that a neighbour who is affected by development that may or may not be exempted development would not have any ability under this to get a declaration. Is that case? What impacts will this have?

Mr. Gavin Lawlor

I will ask my colleague, Mr. Jones, to deal with that one.

Mr. Philip Jones

The difficulty is that the impression was given at one of the committee's earlier meetings that this is really only intended for landowners or people who want to carry out development. That is not actually the case. I was in the system for 41 years before I retired two years ago. Twenty years of that was in local authorities working under the 1963 Act and then I subsequently worked in another place in Marlborough Street for the remainder.

It has always been the case, right back to the 1963 Act, that any person - the phrase used was "any person" - may seek a declaration as to what is or is not exempted development. It could be something quite small like a person's neighbour building an extension and he or she might be concerned about whether that extension is exempt. That person would be able to go into the local authority and ask if that extension was exempt and it would give him or her a declaration. The legislation currently states "any person". If someone did that, the local authority would notify the owner to give its view. In the proposal, only the owner or somebody wishing to carry out development would do that. It is a very serious retrograde step.

The suggestion I would make to the committee is that it suggests to the Department that it should go back to the existing wording in the 2000 Act. In a recent court case known as Narconon Trust v. An Bord Pleanála, the judge actually mentioned that there was a lack of public participation. If a landowner went to a local authority to seek a declaration, that was not publicly advertised so the public would not know. It would go in the planning register. In theory, if people were watching the planning register, they could take a review to the board within the eight weeks. They were not notified, however.

The second thing would be to not only go back to the legislation as we have in section 5(1) of the Act but to bring in a very small additional provision whereby every time a planning authority makes a declaration, it puts a newspaper notice in a newspaper circulating in the area saying that it received a declaration on a certain date and made a decision on a certain date. The legislation could very simply say that within a period of four weeks from that date, any person may take it to the board for a final determination, which would seem to be very logical.

To answer the Chairman's question directly, it is not just extensions. There have been cases where quarries have gone far outside their area and the only possible course of action the people affected had was to get on to the local authority for enforcement.

Wind farms are an example. There is a series of court cases called Crekav v. An Bord Pleanála, where a wind farm got permission for a certain size of turbines. The neighbours, while not happy, accepted the board's decision that they had been granted. The developer then decided to make the turbines bigger and the neighbours were concerned that now there might be shadow flicker on their house where it previously had not been. If they went on the route as currently proposed, they would be completely excluded from seeking a determination as to whether that change was an exempted development.

The issue can be small or significant, although I accept that an extension beside a person's house is significant to him or her. The cases range from small to very big. I cannot understand why the draft Bill seeks to take the public out of the process.

Mr. Gavin Lawlor

The Deputy asked why the provision is needed if there are enforcement provisions. Enforcement, historically, has been chronically underfunded in all planning authorities, and much of the time, enforcement officers are not planners and do not have planning qualifications. They make certain planning judgments by relying on the planning team. They go to a planning conference, say they have an issue and ask what people think. One of the benefits of the section 5 reference, therefore, is that the enforcement officer can say to the complainant that it would be a good idea if a given case were done as a section 5 reference because if he or she has a section 5 reference, he or she will be bound by that and can make a decision as to whether it is or is not development and what to the complainant needs to do to resolve the situation. It is helpful from that perspective.

Deputy Cian O'Callaghan

It is clear, objective and transparent and, over time, the process will help build up clear, objective and transparent information and decisions that can inform all the practice around planning enforcement.

Mr. Gavin Lawlor

Yes, and this goes back to exactly what Senator Boyhan said earlier about ICT systems and gathering information. One of the almost criminal aspects of our current planning system is that it is almost impossible to determine the precedent established by the board regarding references. It is there on the board's website but it is almost impenetrable. We in our practice, therefore, have our own matrix of it, and every time a reference has been decided by the board, we include that and have a reference and a link to it. That learning and precedent, however, is not really there. It is very impenetrable and is very difficult, even for a planner in a local authority, to determine the answer in a tricky case where there is nuance. That is not immediately available, which leads to significant differences in different parts of the country as to what constitutes development. That, in turn, leads to frustration with communities, whether it is a member of the public, a developer or a homeowner. Where somebody has converted a garage because it is 0.5 m too far forward on the boundary, that might no longer be exempted development. There is a great deal of frustration regarding that because the precedent cannot be clearly seen.

Mr. Philip Jones

I might add to that in light of my former role. Internally within the board, there is a referral database, but it is not currently available on the external website. To put this in context, I calculated some figures. The proportion of referrals decided by the board is between 3.6% and 5% of its case numbers. In 2020, for example, 2,628 decisions were made by the board, with 96 referrals. It is not a huge volume of information on the ICT system and the board is developing it but, currently, as Mr. Lawlor highlighted, it is difficult to find it out. I outlined the figures. It is a small volume of information that could be made available but is not currently.

Deputy Cian O'Callaghan

The process helps in providing more information and certainty, and these changes that have been proposed in the draft Bill mean there will be less of that. Everybody wants more certainty and clarity. That is in everyone's interest.

Senator Mary Seery Kearney

I thank our guests for their contributions. They have been fascinating. Do our guests see any correlation or concerns in regard to the declaration process in respect of what is or is not exempted, on the one hand, and the judicial review process, on the other?

Mr. Gavin Lawlor

There is no real correlation between section 5 cases and judicial reviews, although a number of the former have been judicially reviewed. Section 5 cases, generally speaking, concern whether something is development and whether planning permission is needed. The section 5 reference, from a developer's or landowner's perspective, is used more often by homeowners in certain circumstances than it is by large-scale developers, given most large-scale developers automatically need planning permission. It tends to be at the smaller scale that this stuff becomes more important, as opposed to for the average Joe or Mary who wants to know whether he or she needs planning permission. For a normal member of the public or homeowner, the idea of having to go through the planning process is daunting and challenging. There is a significant cost to it. If someone wants to make a simple extension to a house, he or she could pay up to €10,000 in professional fees to make that application for an extension that is 1 sq. m or 2 sq. m larger than the exemption. Section 5 references are important more for the smaller scale of development rather than the larger.

There are many other complexities to the exempted development provisions in the Act, in the regulations in particular, and there is lots of grey around certain language used, say, under section 41H, where there is reference to changes to a structure that do not interfere with the character of the structure. The idea of the character of a structure is something people find difficult to get their head around.

It tends to be in those type of areas where the language is, perhaps, a little vague or not clear that one ends up with more judicial reviews. This does not tend to be an issue with section 5s.

Senator Mary Seery Kearney

That question was triggered by the lack of publication of a declaration and seems to me to be a lack of transparency where there should be transparency, and what that would give rise to in that context. I appreciate Mr. Lawlor’s other point in respect of “character” and it is more a question of defining that. My next question goes to that point.

Where an area is zoned for community use and an argument is then made that an exemption to the zoning, or a permissible exemption within that zoning should be allowed, to allow residential development, does Mr. Lawlor believe that the threshold is clear enough and, if it is not, what should we be doing, and does this planning Bill address that? If it is, then at what stage should that be considered? I am aware of a couple of developments where people went to the local authority, the local authority seemed to ignore that aspect and then An Bord Pleanála would turn it down on the basis of it not meeting the threshold of deserving and meriting that extension. I am wondering about that process, please.

Mr. Gavin Lawlor

Deputy Eoin Ó Broin

The Deputy will be aware that there is a compressed timeline to get into that detail and even for us to go through the extensive spreadsheet of stuff that we have got back from our members. The institutes are probably the only avenue for that to ever be represented. There has been engagement with senior planners, directors and so on across local authorities. Ultimately, people were surprised that this was delivered roughly when it was said it was going to be delivered and that it did what it said it would do, with everything that was going to be in it. As the Deputy said, it would be useful if there was a map of what changed and which section does what, to at least speed up the process of having to go through it line by line.

Ms Valerie Brennan

There were approximately six planning advisory forum meetings. They were not particularly lengthy. We have seen much more of the content of this draft Bill than was discussed. There is no question that there was not enough time or detail. We now have the Bill and will make further detailed submissions because much has arisen. We want to help to find those errors and areas with issues.

Deputy Eoin Ó Broin

Omissions, even.

Mr. Craig McLaren

There was not a lot of logic to the timing of the planning advisory forum meetings. The notice one got was not particularly lengthy, which meant one had to work quite quickly to get back to the forum about some of the proposals that were put forward by the Government within a matter of days. As has been said, the debate and detail was very high level. Many matters in the Bill were not discussed at all. From our perspective, a much more collaborative approach to how the Government works on this would suit. As professional bodies, we bring much expertise. It would help the Government with the practicalities of delivering the Bill.

I think it would help the Government with that as well. It would be a much more collaborative, front-loaded approach to doing that. There is not an awful lot in terms of an evidence base, which we would like to see. There is not-----

Deputy Eoin Ó Broin

Let me ask again. I am interested in hearing people's views on this across the panel. There is an expectation, certainly from the Minister, that this bit of the process will be the shorter bit. What I am actually hearing from the witnesses is that if we do not give an adequate amount of time to tease out all these issues, we could end up with a Bill with as many problems as positives. There are positives in the Bill; there is no doubt about that. Would the witnesses be urging our committee - not to delay the process, because none of us wants to delay it - to make sure there is adequate scrutiny both of the provisions we have in front of us and the provisions, which will be quite lengthy, that we will see in the final Bill and that are still bring drafted? What is their ask of us as a committee in terms of the amount of time to get this right rather than to get it through?

Mr. Gavin Lawlor

I do not think it is a case of the amount of time. It is more a case of making sure we treat the symptoms rather than killing the patient. One of the biggest problems with these types of things is that they take whatever time they need to take. This is a significant change in national legislation. We have gotten to a point where we are almost in a stalemate with larger projects being dragged through judicial review and things are getting resolved at the end of the process rather than at the beginning, where they should be resolved. This Bill attempts to solve some of those problems. It is laudable in its intent but it is important that we get it right and make sure we do not create another set of open goals for the legal system to have a pop in this world.

Deputy Eoin Ó Broin

Does Mr. Lawlor think the legislation contains those open goals? That is the implication of his statement.

Mr. Gavin Lawlor

The biggest lesson learned would be from the SHDs. When you try to speed things up sometimes you slow things down. It is one of those cases of "slowly, slowly, catchy monkey". We have to do this at a slow and deliberate pace to get it right. If that takes an extra couple of months, that is an extra couple of months everybody is going to win back at the end of the process.

Chairman

I apologise if this was covered while I was gone, but I had a query about the IPI's opening statement. There was mention of concerns around declarations, referrals and enforcement. I ask our guests from the institute to talk me through them a little bit.

Mr. Philip Jones

Mr. Craig McLaren

It is not just the content of the national planning statement that is important, but how that statement plays out and its implications. There is a role for monitoring it regularly as well – I wonder whether the committee has a role in this regard – to see what good or bad effects it has had.

Mr. Gavin Lawlor

I echo what was said. The key pieces are transparency and engagement. If you want communities to engage, you have to ask their opinion and be seen to listen to that opinion. Be that through elected representatives, representative bodies or whatever, the more engagement there is when dealing with matters like national policy, the less controversy there will be. In terms of SHDs, the key issue that has resonated with communities is the implementation of national policy on height and density. They ask why something must be a certain way. They have not had an opportunity to challenge or engage with it, so they feel disenfranchised, meaning that there is not the community buy-in that is needed to achieve the densification required to deliver sustainable development. Any extra form of engagement, be it through the Oireachtas, representative bodies or opening draft plans to members of the community, would be important.

Monitoring should be evidence-based. For a long time, both of our institutes have been crying out for people to prove the need for changes and to monitor situations. I believe it was Senator Boyhan who spoke about IT systems. It is almost criminal that planning applicants are submitting very detailed applications – for example, childcare audits are a requirement in residential planning applications – that are put on a file and open for everyone to read but might be in an area where there are 50 other childcare audits. If it is properly analysed and processed, that is a large amount of information that is available for use by the planning authority and the wider community in examining deficits and needs, for example, childcare or schooling. The amount of information contained in planning applications now is colossal, is not being properly collated and managed, and is not being properly analysed except on an individual basis.

Monitor and track what happens after something is done. Devise a set of planning statistics for the country that we can measure ourselves against. Currently, we are mostly doing that in respect of housing, but what about other land uses? How are we in terms of the quantum of open space per capita and how are we with playgrounds? We do not have metrics that we can use to test whether Dublin is doing well or Cork is not.

Mr. Philip Jones

In terms of the national planning statements, Deputy Ó Broin is asking for specifics in the Bill. I suggest that, in section 24(2), "may" be changed to "shall" so that it would not be up to the Minister to decide on whether to consult before issuing the statement. I would also query the wording of section 24(2)(c), which reads: "any stakeholders or other persons the Minister considers appropriate". Perhaps this could be widened to include bodies representative of the planning and architectural professions, for example, the IPI, the RTPI and the RIAI, because we have some of the expertise. The Minister could decide that the only stakeholder he will listen to is the CIF. In fairness, he would want to consult stakeholders on both sides, but perhaps the Bill could be more specific in this regard and include the institutes. I will leave it up to legislators as to how the Oireachtas should be involved, but "may" becoming "shall" would be obvious so as to get the view of the public and, hopefully, us before issuing a national planning statement.

Chairman

To which proposed section did Mr. Jones refer?

Mr. Philip Jones

Section 24(2). It would be simple to turn "may" into "shall". Whether it would be acceptable to the Minister is another question, but given the committee's discussion, it might be logical. The phraseology of subparagraph (c) should include representative bodies of the planning and architectural professionals so that we would be involved.

Mr. Craig McLaren

I will add to Mr. Lawlor's point about monitoring. One of our issues with the Bill is that there is no clear route map. There is also no clear idea of what we are trying to achieve with this. It is just a series of statements. What is the Bill's ambition and how can we apply the metrics to that?

We spoke in our opening statement about taking a more outcomes-based approach to planning. We have conducted research in this regard and piloted the approach in Ireland, Wales and Scotland. There are some merits in this. As Mr. Lawlor mentioned, if we get a good digital planning system with good spatial data, we can agree what the metrics are and monitor progress on an ongoing basis. This would tell us not just how the legislation was working, but what impact it was having on the ground. Often, success is measured by how quickly a planning application is processed or how many housing units are built. While those are important, we need to move beyond them and monitor the impacts, what areas and buildings are being developed, how we are working towards or against climate change, and how we are working towards net zero. We need to bring these matters into the debate as well and use them as metrics to ensure we are showing what progress is being made through legislation and everything that flows from it.

Deputy Cian O'Callaghan

I agree with Mr. McLaren. There has been a problem with the discourse around planning in recent years, in that it has been discussed as if it is a burden. However, good planning leads to successful, sustainable, cohesive and vibrant communities that people want to live in, feel happy in and so on. That needs to become part of the discussion again. I agree that higher-level aims should be reflected at the start of the Bill. That was a good point.

I will ask a few questions. I apologise, as I had to step out for another meeting. An area of concern is that while we are being told that the Bill's aim is to create more certainty, reduce conflict and so on, it is not clear how it will do that. For area plans to work successfully and to give certainty, they need details on, for example, heights and densities. If they do that, though, there is the potential of them running afoul of national policy, in that people could challenge and take cases. Do I take it from what has been said at this meeting that the way to avoid all of this is to ensure that the guidelines, national policy statements and so on give strong direction on just the forward plans, development plans and area plans and that it should only be the development and area plans against which a planning application is judged?

If there are potential questions about those area plans or development plans, they should be questioned at the time of them being formed in terms of whether they fit in with national policy or guidelines. Have I got that wrong? What is Mr. Lawlor's view on that? What is the way to square those potential conflict of interest?

Mr. Gavin Lawlor

We are talking about things like SPPRs, where there is a directive that thou shalt not do anything other than has been directed, and an argument that that should be directed towards plans rather than towards development. It is still really important to have guidelines that give a range of applicability. Planning authorities need to have some availability of discretion. Dublin city centre docklands is not the same as west Cork, so we cannot say one size fits all in terms of height or density, for that matter. There has to be some discretion in that regard. A national planning statement that talks about height or density has to recognise that there is a range and where those ranges should be applied. That prevents people abusing the system.

On the flip side of that, one of the things that we say is much more important is community engagement. One of the big problems with local area plans, LAPs, or any other form of plan is that if you do not engage with the community that you are trying to impose a plan on - and I use the word "impose" because if you have not engaged with the community, you are imposing the plan and it is not agreeing with it - or you do not manage to get the community to engage with you, then the people have no clue about what is planned for their community. It does not matter whether three, four, six or ten storeys are planned for a site, or whether the shape or colour of it has been defined or otherwise. If the community has not engaged in that process, the people are going to feel disenfranchised and are going to get upset. Public engagement is key if you are going to move to a plan-led approach. We are very protective of our third-party system in the development management side, and rightly so. We believe that communities should be able to engage in planning applications. Why are they not engaging at the same level in development plans? If we want to move from a system where the development management side has more certainty because there is more specificity in our plans, we are going to have to engage communities and encourage more engagement with communities at development plan stages. That is a timing and a resourcing issue, and it is a huge problem. If you make a submission in a development plan - and I do not know if many councillors have done so and have felt just as disenfranchised as members of the public do - it is really disheartening to read in a manager's report that there is no change, and there is no engagement with the argument that is being made. That is what happens. Sometimes it is because the manager does not have time to explain why there is no change. It is not just simply a case of saying: "good luck with that one".

Community engagement is a key part of getting acceptance. It is a key part of how national policy is implemented. That is why we, at the institute, would say that if we are going to have the equivalent of SPPRs in a national policy framework, where there are directives to planning authorities, they should be dealt with at plan level. That does not mean that there should not be any other guidance. There should be guidance outside of that as well, but it is guidance, as opposed to directives.

Deputy Cian O'Callaghan

I think there are three issues with community engagement. As Mr. Lawlor has identified, there is a lack of resources. There is also a feeling in communities that if the area plans may end up being breached, there is no point in engaging in the process in any event. Third, there is often a deficit in the particular skill set around public engagement with communities.

I want to turn to the issue of childcare provision. It touches on the wider point that Mr. Lawlor made about how each larger applicant ends up getting a consultant's report that details the childcare provision, open space or retail space in the area. The applicants are doing all of that work and there is duplication and added costs because they are all doing that. Is there some sort of argument that we should be trying to move away from that in larger applications for cost reasons, to avoid duplication of that work and to get objective data? Should it not be the local authority that does an assessment of childcare provision in an area? For example, looking at childcare provision in particular, I know that in larger applications in my area, it would be very rare that the reports that go in with planning applications are in any way accurate in terms of the level of demand and need for childcare provision in the area. Often, the reports provided with the planning applications say that there is more than enough childcare provision. They list off the providers and say there is no issue and therefore, childcare should not have to be provided with that large development. Yet, everyone in the area knows that they cannot get their kids into childcare, that there are waiting lists and people are travelling very long distances to get their children into childcare. There is a lack of sustainability around that. There can be a lack of objectivity in some of these reports that come in. It can happen with traffic studies. All sorts of traffic studies are done at strange times that are particularly quiet and whatnot. Is there a problem with that? Is there a problem on the childcare provision side? In larger developments, we need this kind of provision. There are issues with developers trying to opt out of it or getting the permission but then not getting spaces tenanted, or the size is too small so they cannot get them tenanted. How do we address these issues?

Mr. Gavin Lawlor

There is a huge misnomer around childcare. Childcare is a particular interest of mine, as it happens. I am a demographer before I am a planner. It sits in behind all of that. The issue-----

Deputy Cian O'Callaghan

There is an issue around school places as well.

Mr. Gavin Lawlor

Deputy Cian O'Callaghan

Once the planning application is uploaded, it is available as a searchable PDF. All the technology is there. There is no reason it cannot be done.

Deputy Cian O'Callaghan

I thank Mr. Lawlor for that. I ask because it is 2023 and we have a draft Bill that states perhaps the documents should be available on the website.

Mr. Gavin Lawlor

Planning applications are not always for monster, 100 plus units. The vast majority, or quite a significant number of them, are smaller applications made by local residents who want to stick an extra glasshouse, garage or seomra in their back gardens. We have to be a little cautious about placing burdens on them. Traditionally, people could get their mate next door who is a technician to do up the drawings and lodge them with the planning authority. It was paper-based. That is why it is "may" as opposed to "shall".

Deputy Cian O'Callaghan

Would there be a way of stating that smaller applications of a certain size could be done either way but all others "shall" be uploaded?

Mr. Gavin Lawlor

A floor space could be specified or we could state that if it is not a domestic extension, it is required. There are many different ways to qualify it.

Mr. Philip Jones

The committee may have got this from the local authority councillors and staff. We have three planning administrative systems, depending on which local authority a property is in. They do not talk to one another. A big IT job is needed to fix that. Dublin City Council and I believe Wexford County Council have one. Cork and one other county share another. We have three different systems and there is no interoperability between them.

I would be cautious about putting mandatory IT requirements into the Act until it is practical to implement them. Apart from the requirement I mentioned earlier about the documents of the commission not being made available to the public, there is the question of whether planning authority documents should only be made available until the decision is made and after that all that would be available is the register on which the manager's order and the planners report are visible. Why can the documents, if they are in digital form, not be made available for 12 years as it is proposed for the commission to do? The committee may wish to look at that.

Mr. Gavin Lawlor

I would argue if it is in digital form, it should be available in perpetuity. Why restrict it to 12 years?

Chairman

I was about to ask the same question, why 12 years? They could be archived and made available on request.

Mr. Gavin Lawlor

The other classic issue is that there is significant variety in how and when planning authorities make documents available. A universal code on that would be helpful. Certain planning authorities will publish the planning officer's report and the internal reports if they include further information. Other planning authorities form the view that internal correspondence should not be released until three days after they have made the decision. There should be a unified approach across all planning authorities about access to information.

Mr. Philip Jones

Senator Boyhan is not here, but he queried whether reports being provided by bodies such as the OPW and various others are available. In section 334(2)(a)(iii) the Bill provides, "any report prepared by or for the planning authority in relation to the application or request", be made available. That is covered in the Bill. If certain local authorities are not providing it, the Bill certainly makes it a requirement now. There is no issue there, in fairness to the Senator.

Chairman

We have a half an hour left and much more to discuss. I will take the next slot.

Where is sustainable development defined in the Bill? I believe Mr. Jones was mentioned it in his opening statement.

Mr. Philip Jones

It is in section 2 off the top of my head.

Chairman

I did not see the definition. What is the definition?

Mr. Philip Jones

I think it is in the interpretations. The problem with paper is we have to go all the way back to it, but it is in there somewhere. It was suggested in 2000 that it be defined. We suggested that to the Department and I remember the assistant secretary at the time, Mr. John O'Connor, who became chair of the board, said "we do not want that". That was the answer.

Chairman

Mr. Philip Jones

I can give an example. It was a long judgment made many years ago regarding the first judicial review on the development beside St. Anne's Park in Raheny. It was a high-rise development. The inspector used the correct terminology to deal with the "appropriate assessment". For whatever reason, when the decision was made by the board members - I was not one of them - the wrong terminology was used for the appropriate assessment. That went to court. Many local residents brought a judicial review. The developer was a notice party. The board then agreed to have the decision quashed because it had used the wrong terminology in the board order, even though the inspector got it right. It had to be remitted back to the board.

Mr. Niall Byrne

There was a judgment concerning Ballyboden that dealt with frequency, so public transport frequency and capacity will comprise a much bigger focus of planning submissions. It was an issue in the Ballyboden case. In future, planning applications will have to contain more detail on the frequency and capacity of public transport.

Chairman

With regard to what can be included in conditions for the design of developments, some of the developments designed are just pedestrian-unfriendly. Driving into winding, cul-de-sac estates, you see that pedestrian permeability is a last-minute thought.

Mr. Gavin Lawlor

I agree but I think Chairman is mixing up the likes of guidelines and best practice. A poorly designed estate is a poorly designed estate. This should not happen but it does. Much of the development now is legacy; it is not the latest-latest. For example, the development plan for Dublin city centre has no car parking in residential schemes. That is for a good reason because everywhere is walkable and there is fantastic public transport available in Dublin city centre. The same cannot be said of other regional centres, such as Limerick and Cork. They do not have public transport available at the same level.

With regard to the use and frequency of public transport, it is funny that the Chairman said developments are advertised as being close to the M50. They are, but others are advertised as having their own car-sharing facilities, the Luas on the doorstep or a ten-minute walk to bus stops. These are becoming more important to people. People understand they can get places quicker on public transport than in a car.

To return to the court case, it is important to speak to the traffic engineers. They will state that, from a public transport perspective, frequency and capacity are set by the bus operator. When a bus fills up, it is in the operator's interest to make a second bus available. Just because a bus is full does not mean that if more houses are developed in the area, there will be no more capacity and residents will not have a bus to get. In fact, another bus is added in such cases, or another route is added. The integration of public transportation and zoning happened a long time ago in Dublin. I am referring to the Dublin Transportation Office and all the public transportation plans. Time has moved on a lot.

Permeability, surface car parking, home zones and so on are all in the guidance already. There is extensive guidance on the best examples of how to do things right and what works and does not. The issue is that there are many legacy schemes that came about before the guidance. Planning authorities should be seeking to retrofit better solutions in those spaces, where possible.

Mr. Philip Jones

We may have been critical about some of the guidelines in the past. Development management guidelines were produced jointly between the Departments responsible for housing and transport. It is perfect guidance on exactly what the Chairman is talking about. Unfortunately, while it has got buy-in with no problem from many planners, it has yet to get buy-in from the roads departments, particularly outside the cities. The roads departments still think about the convenience of the motor car. It is a matter of education and it will take a while to address.

Deputy Eoin Ó Broin

I have three more questions. On the judicial reviews, there are different opinions about two aspects of the proposed change. Some believe it will reduce the ability of certain actors to take judicial reviews and others say it will not have any impact. According to a related argument, some say the number of legal challenges will be reduced, whereas others say the change will increase the number of satellite challenges. Do the representatives of either organisation have a view on those two points?

My second question relates to the fact that a huge volume of this legislation will come to light only through additional regulations. In fact, I suspect the regulations will be substantially longer than the Bill itself.

Does the Irish Planning Institute have any comment on that? Is it a concern? Some things are much better in regulations, but given that it is so big, we will have quite a long regulatory and commencement process.

This comes down to how European law is transposed into Irish law and to being a little clearer and more specific in our law. The problem in that instance is clarity and transparency of the law. There are different things. If something comes from Europe and somebody takes the case to Europe claiming that is not what the directive meant, that is purely legal. If something is because we have not interpreted it properly in Irish law and an Irish court cannot say what the difference between particular wording in that directive versus this Act is, it may refer a case to Europe. The extent of legal interpretation and remittance to the courts in Ireland is very significant when compared with our European friends. The key question is why. It goes back to what we were talking about as planners: it is evidence based.

I believe the Deputy asked the board and the OPR if anybody had reviewed the 146 judicial reviews and what lessons were learned. However, he did not get an answer. I find that remarkable. If we are to move forward and improve, we need to learn from our mistakes. The best way to do that is by reviewing stuff, gathering the evidence, putting the evidence forward, identifying what went wrong, why it went wrong and how we can change it. It is that objective. People can see why stuff is being done. It should not end up with people saying that courts should not be making planning decisions. If somebody believes that the court is making planning decisions, that means they are interpreting that the judge is exercising planning judgment, which should not be the case. Members of the Judiciary will say that should not be the case. The perception that this might be the case is problematic and we need to fix that problem. We say it starts with getting the plans right in the first instance. That is the start of the process. We have a problem and mess that sits between the two.

Mr. Philip Jones

In both our submissions on PAF, we said we would be interested in looking at the judicial review stuff. The judicial review stuff never came before the planning advisory forum, however good or bad it was. It just came from the Attorney General or wherever. There is nothing I can see in the evidence the committee has received so far of any evidential rationale for the changes that are proposed. Where is the evidence that these are necessary?

Chairman

We did not get it from witness evidence from anybody who attended. What problem is-----

Mr. Philip Jones

A number of changes are proposed to the current provisions under judicial review. From reading the stuff I understand that departmental officials will appear before the committee at the end of this process. It would be very useful for everybody, particularly for committee members, to find out what specific changes are being made section by section and why.

Deputy Eoin Ó Broin

Many committee members share my view that we would like fewer planning matters coming before the courts.

Although I have sometimes used the phrase publicly, I am not of the view that the courts are making planning decisions. There are, however, increasing volumes of conflicts between different sets of planning law, such as between specific planning policy requirements, SPPRs, and development plans or between the transposition of EU environmental directives and development projects and the climate action plan. The Galway ring road is the most obvious recent example in that regard. If there was one set of clear planning laws, with a clear relationship between the hierarchies, that would make things much more straightforward. The frustration is that there is evidence that what is before us will restrict the access of certain groups to the courts but the Department told us in its opening statement that is not its intention or what it is doing, even though it is evidently what it is doing. The committee will probably hear evidence at a later stage from legal experts that this could increase litigation, albeit other kinds of litigation. The SHD process is very different from this but the outcome is the same. If, in trying to fix a problem, there is a focus on a symptom rather than the cause, that creates a set of other problems. Do the witnesses share that view on any of these matters?

Ms Valerie Brennan

There is a lot to be examined in the context of judicial reviews. It is advisable to get the legal people to consider whether it will achieve the desired objective.

Deputy Eoin Ó Broin

There is scepticism in Ms Brennan's voice.

Ms Valerie Brennan

Yes. As part of our CPD, we will soon be having a lawyer speak to us about it and I am sure we will get lots of ideas about issues that are there. We need to find these issues and wash them out in terms of making the Bill the best it can be.

Mr. Niall Byrne

On the large-scale residential developments, LRDs, this is moving back to the local authority as a decision maker in the first instance. There will also be the appeal mechanism. An LRD will no longer go directly to judicial review, but people might be satisfied with that opportunity to mount an appeal. That may reduce the number of judicial reviews.

Deputy Eoin Ó Broin

Deputy Eoin Ó Broin

It would be like what was done recently in the context of the construction sector.

Dr. Seán O'Leary

The Department is alive to it, but this goes back to getting people in transition year. It is a long process in which we all have a role. Digitalisation may release some staff but it will not realise the 700 staff imminently required, never mind creating a pipeline.

There is a big job of work for the institutes and the Department but it goes right down to secondary schools.

Chairman

I am going to have to bring the meeting to a close, much as we could probably keep going for a bit longer. It comes back to the point Dr. O'Leary made about demonstrating that planning is for the common good. It is what creates our societies, how we get around, where we should live, where are jobs are, and for all the good reasons we are so committed to it on this committee. In a way, maybe the judicial review discussion has done some good in that it has focused the minds of people that judicial review is not necessarily the problem. Only a very small percentage of applications are judicially reviewed and what I am hearing in this constant narrative of delays in the planning system and complaints that the system is bad is that it is down to the resources. If the board had the required number of staff, it would not have that backlog of 700 or 800 cases. That is something on which we need to be focused. Maybe that has been good in getting people to recognise we need a workforce plan, planning has a critical role in this country, we are under-resourced and we need to do something rapidly and long term about that.

Mr. Gavin Lawlor

I could not agree more with what the Chair has said. It comes back to resourcing. Everything that has happened in An Bord Pleanála was forecastable this time last year. When the controversy first arose about the board and a member of the board was suspended or he left the board, it was down one. A series of board members were also going to step down and there were provisions in place for them to be replaced. The board had a very clear line of sight for depleting resources over time. What we did not foresee is the Chair resigning as well later in the day. It took until January of this year before we had our new Chair in place. That left a four-month gap of no decisions being taken, and that is the primary reason we have such a big bubble that is there now for the board to get through.

Deputy Eoin Ó Broin

Notwithstanding that, resourcing and delays in the board were a problem prior to the recent controversy. What that controversy and the board member changes Mr. Lawlor mentioned did was to accelerate that to another level, but there has been a historical under-resourcing there.

Mr. Gavin Lawlor

It should not be acceptable that 30% of cases do not get decided in a reasonable time. It should also not be acceptable that the board is tested on an 18-week metric for all cases, that one size fits all. Those are two things that are not correct. We are not getting a true sense of how far behind the board is in certain projects.

Mr. Philip Jones

The question for members is whether centrally imposed deadlines that are unrealistic are something that should be done. The chair of the board said 18 weeks might be fine for one thing but may not be fine for something else. The Bill simply says 18 weeks and the rest is to be done by regulations.

Chairman

I thank the witnesses very much for their time this morning. It has been very helpful. We will have another couple of meetings on this topic. I will send the witnesses that section comparator document. We would be happy to take anything else that has occurred to them throughout this discussion which they did not include in their submission. If they could get it to us as soon as possible, along with that section-by-section examination, that would be great.

The joint committee adjourned at 12.43 p.m. until 3 p.m. on Tuesday, 28 February 2023.

Joint Committee on Housing, Local Government and Heritage debate - Thursday, 23 Feb 2023

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

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Dr. Seán O'Leary

Ms Valerie Brennan

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Craig McLaren

Mr. Craig McLaren

Ms Valerie Brennan

Mr. Craig McLaren

Mr. Craig McLaren

Mr. Craig McLaren

Ms Valerie Brennan

Ms Valerie Brennan

Ms Valerie Brennan

Mr. Gavin Lawlor

Mr. Philip Jones

Mr. Philip Jones

Mr. Philip Jones

Mr. Philip Jones

Mr. Craig McLaren

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Ms Valerie Brennan

Ms Valerie Brennan

Mr. Craig McLaren

Mr. Craig McLaren

Mr. Craig McLaren

Ms Valerie Brennan

Mr. Craig McLaren

Ms Valerie Brennan

Ms Valerie Brennan

Ms Valerie Brennan

Mr. Craig McLaren

Mr. Niall Byrne

Dr. Seán O'Leary

Mr. Craig McLaren

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Philip Jones

Mr. Philip Jones

Mr. Philip Jones

Mr. Philip Jones

Mr. Philip Jones

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Philip Jones

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Philip Jones

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Philip Jones

Mr. Philip Jones

Mr. Philip Jones

Mr. Philip Jones

Mr. Philip Jones

Mr. Gavin Lawlor

Mr. Philip Jones

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Gavin Lawlor

Mr. Philip Jones

Mr. Gavin Lawlor

Joint Committee on Housing, Local Government and Heritage debate -
Thursday, 23 Feb 2023