Planning and Development (Amendment) Bill 2009: Committee Stage (Resumed).

SECTION 16.
Question again proposed: "That section 16 stand part of the Bill."

As I already have spoken on this subject in some detail, I will not continue at length. Fine Gael had concerns regarding variations in county development plans. I refer to the scenario whereby a regional authority receives notice of such variations which, in the opinion of the regional authority, are not consistent with the regional planning guidelines. I seek clarity from the Minister of State as to exactly who will make this decision within the regional authority structure. Will it be the director or the elected members?

The people who will make the decision are the members of the regional authority.

Question put and declared carried.
Section 17 agreed to.
SECTION 18.
Government amendment No. 38:
In page 21, lines 33 and 34, to delete "(inserted bysection 11(c))” and substitute “(inserted by section 11(c) of the Act of 2009)”.

Amendment No. 38 is a technical amendment to clarify that the reference to the time period for the coming into effect of section 11(c) refers to the 2009 Act as distinct from the 2000 Act.

Amendment agreed to.

I move amendment No. 39:

In page 23, to delete lines 5 to 9.

This amendment pertains to the proposed new section 31(12), which states:

The inspector appointed under subsection (11)(b) shall be a person who, in the opinion of the Minister, has satisfactory experience and competence to perform the functions required of him or her pursuant to this section and shall be independent in the performance of his or her [duties].

Fine Gael is concerned about the wording of this provision. While reference is made in this part of the Bill to an inspector, no definition or indication is given as to who that inspector will be. Is it intended that the Minister will have power to appoint a completely new category of inspector or is it intended to be an inspector appointed by An Bord Pleanála? This is a reflection on the Bill's complexity and clarity is required in respect of its wording in order that it will not be subject to challenges when it is being enforced or implemented. I do not believe there is a clear definition of the inspector or the process of appointing that inspector. The Minister of State should clarify this point for me further.

Amendment No. 39 seeks the deletion of the proposed new section 31(12). This would remove the selection criteria for the inspector to be appointed by the Minister to report to him or her on the draft direction. There must be overarching criteria that will determine whether a person is experienced and qualified to act as an inspector for the purpose of reporting to the Minister on planning and development issues. Without such selection criteria, the inspector's report would not have credibility and would be open to challenge. Therefore, this amendment is not acceptable.

Amendment, by leave, withdrawn.

Amendments Nos. 40 and 41 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 40:
In page 23, to delete lines 15 to 18 and substitute the following:
"(b) shall consult with the manager and elected members of the planning authority,
(c) may consult with the regional authority and persons who made submissions under subsection (7)(c), and”.

These amendments are considered prudent and practical, given that the local manager and elected members should be consulted by the inspector on foot of their central statutory role, while leaving consultation with the regional authority and other persons who have made submissions at the inspector's discretion.

Amendment agreed to.
Government amendment No. 41:
In page 23, to delete line 19 and substitute the following:
"(d) shall no later than 3 weeks after he or she was”.
Amendment agreed to.

Amendments Nos. 42 and 43 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 42:

In page 24, line 12, after "public" to insert "within 7 days of receiving such direction".

We seek a clear definition of the timeframe for inspections by members of the public. We do not want to leave this open-ended but want clarity on the progress of any directions issued under this legislation. The new section 31(19) provides that the "planning authority shall make a direction issued to it under subsection (16) available for inspection by members of the public, during office hours of the authority, at the offices of the authority". There is, however, no provision in the subsection stipulating when that should be done, for example, if it be done within seven days of receipt of the direction. No effort is made to provide for the length of time it should be available for inspection. These are basic omissions. In the present planning process there are clear timeframes for various stages and directions. We propose this amendment to bring clarity to the Bill and to give all stakeholders an idea of the lengths of time that will be allocated to these stages when directions are issued under this section. Would the Minister of State consider implementing some timeframe, if not seven days then two weeks or whatever, to give clearer definition to this section?

I have listened intently to Senator Coffey and there is a great deal of merit in his suggestion. I urge the Minister of State to consider examining this and coming back to the matter on Report Stage.

I support Senator Coffey's amendment. It is important to have a timeframe because it is not possible to leave the matter open-ended. Senator Coffey makes a valid point about the timeframe and two weeks is a generous enough time.

Senator Coffey's amendment has some merit in respect of transparency. It may not, however, be consistent with other statutory provisions for making official documents available to the public. While I do not propose to accept the amendments as part of the primary legislation I will consider addressing best practice in communicating with the public within any statutory guidance which may issue to planning authorities on the direction process. I am trying to come some way towards meeting the Senator on this point. We will see what guidance we can give.

I am happy to hear the Minister of State say he will consider this aspect of the Bill. We bring it to his attention because there is a clearer definition of the timeframe required. We will be happy to withdraw our amendment and reserve the right to resubmit it on Report Stage. The Minister of State has said he will take on board what we have said and hopefully he will address it with an amendment we can support.

I did not say I would deal with this by an amendment. I will consider it in the context of best practice in communicating with the public. I will report back to the House and the Senator on that matter.

Amendment, by leave, withdrawn.
Amendments Nos. 43 and 44 not moved.
Question proposed: "That section 18, as amended, stand part of the Bill."

This section refers to the powers of the Minister to issue a direction under section 31 of the principal Act to local area plans. It prescribes a new consultative procedure whereby the Minister can issue a proposed direction and seek views from local stakeholders. I was a member of the Oireachtas Joint Committee on the Environment, Heritage and Local Government that heard delegations from Mayo County Council which had concerns and reservations about ministerial direction to it. Without getting involved in the planning aspect of that issue, which is a matter for the council and the Minister for the Environment, Heritage and Local Government, I welcome the fact the Minister has listened to the committee's recommendations for a consultation procedure prior to direction. Mayo County Council decided unanimously to adopt the county development plan but it had concerns about the handling of direction by the Minister's office. It felt this was to a degree an attack on local democracy. Whether it was right or wrong is for another day but I welcome the proposal in this Bill for a consultation process that engages the stakeholders, including elected members, local authority and departmental officials, and the Minister prior to direction. That will help the communication of the essential thrust of planning policy.

I welcome the provision in the section for local authority members to make a submission to the Minister when he has issued a direction to the local authority in respect of its development plan. He has, however, taken on a serious power. He has the ultimate power in the adoption of a county development plan because if there are aspects of it that he does not like he can change the plan. Even if the local authority members make a further submission to the Minister's intervention he still has the whip hand to make whatever direction, and put into law, whatever he feels necessary.

We have seen the powers that some Ministers for the Environment, Heritage and Local Government have taken on themselves. The Minister has the ultimate power here and while I do not fully agree with it I welcome the provision that local authority members can make a submission to the Minister on his intervention in a plan.

Section 18 amends section 31 of the principal Act where there was no consultative process in the Minister's power. This enhances the position because now there is a consultative process with stakeholders, including the council. I note the Senators' comments.

Does the Minister intend the powers in section 18 to be retrospective to plans that have already been adopted, when the section becomes law? The powers should be retrospective only if there is a significant issue to be addressed. What are the Minister's intentions for these powers? I am not sure whether my colleagues have touched on this issue and apologise if they have. I am interested in the Minister of State's view.

I am of the opinion that it would not be possible to have the powers adopted retrospectively but I will seek clarification on it for the Senator.

I am grateful to the Minister for that.

Question put and agreed to.
NEW SECTION.
Government amendment No. 45:
In page 24, before section 19, to insert the following new section:
"19.—Section 34(6) of the Principal Act is amended in paragraph (a):
(a) by the substitution of “concerned would contravene materially the development plan or local area plan” for “concerned would contravene materially the development plan”,
(b) in subparagraph (iii) by the substitution of “authority,” for “authority, and”, and
(c) by the insertion of the following subparagraph after subparagraph (iii):
"(iiia) not later than 6 weeks from the publication of the notice under subparagraph (i), the manager shall prepare a report for the planning authority advising the authority of his or her opinion regarding the compliance or otherwise of the proposed development with any relevant Ministerial guidelines under section 28 or any relevant policies or objectives of the Government or Minister of the Government or with any regional planning guidelines and the report shall be considered by the authority before a resolution is passed under subparagraph (iv), and”.”.

Amendment No. 45 proposes to provide for material contraventions of local area plans and the overall consistency of approach to development plans and local area plans. It also proposes to obligate the manager to prepare a report for the planning authority advising it of his or her opinion regarding compliance, or otherwise, of the proposed development with any relevant ministerial guidelines under section 28 or any relevant policies or objectives of the Government or Minister or with any regional planning guidelines. This report will have to be considered by the authority before a resolution is passed on the proposed development.

Amendment agreed to.
Amendment No. 46 not moved.
Section 19 agreed to.
SECTION 20.

Amendments Nos. 47 to 52, inclusive, are related and may be discussed together by agreement.

I move amendment No. 47:

In page 24, line 38, after "other" to insert "connected".

These technical amendments seek to bring clarity to section 20 which amends section 35 of the principal Act. A provision that will be inserted in the section states, "any information available to the planning authority concerning development carried out by a person to whom this section applies pursuant to a permission (in this section referred to as a ‘previous permission') granted to the applicant or to any other person under this Part or Part IV of the Act of 1963,". The insertion of the term "connected person", from a point of law, brings clarity to this section.

The amending section also contains a provision about substantial unauthorised developments. What is the definition of a "substantial unauthorised" development? Why does the legislation need to be too specific in this regard?

It is hard to define a "substantial development". In some cases a house at roof level could be termed "substantial" while in others, it could be the site works. A clear definition would be better. I support Senator Coffey's amendment.

Section 35 of the principal Act lists a series of persons who can be refused planning permission. This amending section contains a provision that states, "the planning authority is satisfied that a person to whom this section applies is not in compliance with a previous permission or with a condition to which the previous permission is subject, has carried out a substantial unauthorised development, or has been convicted of an offence under this Act,". The Labour Party's amendment No. 51 wants to add to that a person who has failed to complete a development.

All Members will be familiar with the phenomenon of unfinished estates. While there are many fine builders who do as they are contracted, unfortunately some rogue builders do not complete estates leaving home owners with difficulties and no recourse. I accept finishing estates has become a condition of planning permissions and a refusal can be made if the applicant is not in compliance with a previous permission. However, this amendment will put the matter beyond doubt.

Whether we like it or not, regrettably there is a lack of planning enforcement. Last year a case was brought to my attention concerning a young married couple in the west. It would take €100,000 to put their house right but the builder did not want to know. He was driving around in a BMW car but had to all intents and purposes gone bust legally. Another case involved a young couple in the midlands. The house was finished so badly and was so unsafe, they had to move out.

There are too many instances of unauthorised developments with subsequent applications for retention. Often this is refused at all stages of the planning process up to An Bord Pleanála. An enforcement order for demolition may be served but it may never be followed up. I have always been for people who invest to create jobs and build infrastructure. I have no time, however, for the fly-by-night builder who leaves estates unfinished resulting in the local authority and the residents picking up the tab. As a consequence, other necessary local authority works have to be cancelled because of the lack of funds.

I welcome this section if it eliminates this problem to any extent.

Section 20 amends section 35 of the Planning and Development Act 2000 which deals with the grounds on which planning permission can be refused on the basis of past performance of a developer.

Amendment No. 47 concerns the insertion of the word "connected". The current provision allows for a planning authority, when deciding whether it is appropriate that permission should be refused on the basis of past performance of a developer, to have regard to any information available to it concerning the development being carried out by a person to whom the section applies, pursuant to permission granted to the applicant or to any other person. To insert the word "connected" would mean the planning authority could only have regard to the development being carried out pursuant to the permission granted to the applicant or the person connected to the applicant. It would mean the planning authority could not have regard to the development carried out pursuant to the permission granted to another person other than a connected person. The planning authority could not, therefore, have regard to the development carried out by the applicant pursuant to a permission granted to a person for whom the applicant had bought the land or the premises concerned unless this person was connected to the applicant. I am sure it was not the Senator's intention to limit the scope of the provision in this way. Accordingly, I cannot accept the amendment.

Amendment No. 48 concerns the insertion of the words "body corporate". I recognise the intent of Senator Coffey in regard to this amendment and while I am willing to reconsider it, I must first take legal advice on the matter.

Amendment No. 49 concerns the deletion of the word "any" from the provision that a planning authority may, in deciding whether it is appropriate that permission should be refused on the basis of past performance of a developer, have regard to any information concerning a conviction for an offence. I am unclear as to what would be the effect of the deletion of the word "any" but I am willing to have the matter examined from a legal perspective and come back to the House on it.

Amendment No. 50 concerns the deletion of the word "substantial" from the provision which allows a planning authority to refuse permission, subject to certain conditions, including where a developer has in the past carried out a "substantial unauthorised development". I am not in favour of removing the word "substantial". It must be borne in mind that the term "unauthorised development" comprises any development, regardless of how minor, which required permission and did not obtain it such as a garden wall which is slightly higher than two metres. "Unauthorised development" also includes any development which deviated from the planning permission, even in a minor way owing to an error on the part of the recipient of the permission. It is reasonable that consideration of refusal of permission for past unauthorised development be confined to cases of "substantial unauthorised development".

Amendment No. 51 proposes to insert a further ground for refusal of permission, namely, the developer has failed to complete a development. Under the Planning and Development Act 2000, planning permission may be refused to a developer who has substantially failed to comply with a previous permission. It is generally a condition of every planning permission that a development be completed in accordance with the plans and drawings submitted by the applicant. Such a condition and all other conditions of permission must be complied with, including conditions in regard to the standard of footpaths, public lighting and so on which the developer is obliged to meet. Accordingly, the proposed amendment is not necessary. Where a development is left substantially unfinished, this would be substantial non-compliance with permission by a developer which is already a grounds for refusal of permission.

The provisions in regard to the refusal of permission for past non-compliance permit refusal only where the planning authority forms the opinion that because of past non-compliance there is a real and substantial risk that a future planning permission would not be complied with. We may now be faced with the situation where developers fail to complete developments not because of a disregard of planning law but because they are bankrupt. It is questionable whether such non-completion would entitle a planning authority to form the opinion in some future, I hope entirely changed, circumstances that such developers are unlikely to comply with future permissions.

I am willing to re-examine amendment No. 52 but will also have to take legal advice on the matter.

I welcome the fact that the Minister of State is open to further examining the Fine Gael amendments which seek to bring clarity to the legislation. I accept that he must take further legal advice on the amendments. On that basis I am prepared to withdraw them while reserving the right to resubmit them on Report Stage.

I am disappointed that the Minister of State has not agreed to reconsider amendment No. 50 which seeks the deletion of the word "substantial". The word "substantial" is not defined and could become a point of argument in law. The amendment seeks to clarify and simplify the legislation. While the Minister of State has gone to great lengths to explain the reasons he cannot accept the amendment, I ask that he re-examine the matter with his officials between now and Report Stage. It is our advice that acceptance of the amendment would clarify and improve the legislation.

I welcome the Minister of State's commitment to re-examine the Fine Gael amendments and come back to us on them on Report Stage.

As regards the deletion of the word "substantial", the Minister of State will agree that the history of some developers, in terms of works carried out by them in other jurisdictions, must be taken into account. How does a local authority obtain this information? We all know in respect of planning permission that it comes down to the view of a particular planner and that there can be many interpretations in this regard. A window overlooking a property could in one person's opinion represent a serious breach of planning law but not in that of another person. Would this be considered a substantial breach?

We are all aware that some planners can hold grievances against developers. Will it be the chief planner or county development manager who will put the brakes on a developer having previously been involved in an unauthorised development? With whom will the buck stop in this regard? I am sure the county manager as chief planning officer will be the person with whom the buck stops in regard to the refusal of permission to a person who on a previous occasion carried out an unauthorised development.

I agree with Senators Coffey and Burke on their proposal to delete the word "substantial" from the Bill. The Minister of State should, as urged by Senator Coffey, revisit the issue for precisely the reasons outlined. One person's view of what constitutes a substantial unauthorised development is not necessarily held by another. There is no doubt but that this will lead to litigation. A person trying to have himself or herself removed from the list of, say, prevented persons will unquestionably try to litigate his or her point around the word "substantial". I do not see any reason it cannot be deleted.

The Minister of State said acceptance of the amendment would result in the exclusion of people guilty of carrying out even the most minor of unauthorised developments, which may be a valid point. However, it could be addressed by him re-examining the wording of the section. Senators Coffey and Burke are correct to maintain the position that the word "substantial" should be deleted.

On amendment No. 51, I do not, regrettably and with respect to the Minister of State, accept the explanation for his refusal to accept the amendment. The phrase "a failure to comply with a previous permission or condition" does not, it appears, include within it a situation where a developer has failed to complete a development. The Minister of State is saying a failure to complete a development amounts to non-compliance with a condition. He gave examples of the conditions he had in mind in his response to the amendment. It is right that people should be excluded for a failure to comply with a previous condition, but that is different from the person who has failed to complete a development. The two are not the same and I remain to be convinced that the phrase "failure to comply with a condition" comprehends the person who has failed to complete a development. They are two entirely different propositions.

I ask the Minister of State to reconsider. As Senator Glynn said, this issue is a plague throughout the country. The fact that estates might not be completed for some other reason now does not take from the fact that all Members have experienced the problem of estates not being finished by builders who were in a well funded position and perfectly capable of doing so but who just made themselves scarce. We are aware of the rows about what must be done to finish the estate, long delays amounting to years before an estate can be taken in charge by a local authority and many other complications that have a huge effect on people living in estates. I ask the Minister of State to recognise that the failure to comply with a condition is one thing, but the failure to complete a development is something else.

The existing ground for refusal is that the applicant has substantially failed to comply with a previous permission. The Bill proposes to add two further grounds for refusal of permission, that the developer has carried out a substantial unauthorised development or has been convicted of an offence under the planning Acts. The amendment proposes to insert a further ground for refusal, that is, the developer has failed to complete a development. Obviously, in current economic circumstances there may be many developers who have run out of funds to complete developments. It is open to such developers to apply for extensions of the planning permission which, if granted, would give them a further period of up to five years to complete the development. If they do not complete the development within any further extensions of permissions, such developments would be technically in non-compliance with planning permission. In such cases the planning authority should take such enforcement actions as are possible to compel the completion of the development by the developer. Where the developers are bankrupt, there might be little point in taking such enforcement action. In such cases the planning authority should call in any bonds in so far as that is possible to complete the footpaths, lighting and services in the phases of the development that have not been completed. We have tried to cover all areas.

This is a planning measure. We have debated bankrupt developers and builders and are conscious of that problem. We debated the NAMA legislation at considerable length and are aware there are implications in respect of unfinished developments. I understand why the Minister of State refers to the issue of bankrupt builders and developers as being relevant in this instance, but we should not allow a planning measure to be influenced by an extraneous consideration. It is a very relevant one, but not a planning consideration. The fact that builders are becoming bankrupt is one we can note, but the Bill is a planning measure. We should not allow our legislation on planning to be influenced by the exigencies of the financial position or speculated financial position of developers or builders. Either it is the right provision to have in the planning code or it is wrong. I believe it is the right one.

The Minister of State has not addressed the basic point I put to him, that there is a clear distinction between failure to comply with a condition and failure to complete an estate. The other condition mentioned by him is the continuation of the exclusion of persons not in compliance with a previous permission. Somebody who is not in compliance with a previous permission does not necessarily mean the person who has not finished an estate. The person received the planning permission and has not carried out fully the works he or she is obliged to carry out pursuant to the permission. However, that is not the same as somebody who is not in compliance with a previous planning permission.

The Minister of State appears to be reluctant to address the issue again. I will not push the amendment on this Stage but will certainly return to it on Report Stage. I urge the Minister of State to consider what has been said.

The existing ground for refusal is that the applicant has substantially failed to comply with a previous permission. There is the opportunity for a person to go to the High Court about the matter. The Deputy is aware that happens, although not on a regular basis. The Bill provides for two further grounds, that the developer has carried out a substantial unauthorised development or has been convicted of an offence under the planning Acts. The amendment proposes to insert a further ground for refusal of permission, that the developer has failed to complete a development. We have already included two more grounds. That is the position.

I know that two additional grounds are included in the Bill but neither of them covers the issue of unfinished estates. I will accept the Minister of State's word that the previous two are already included in the planning code. They are already grounds for refusing permission, that is, if somebody is not in compliance with a previous permission or with a condition to which the previous permission is subject. He is adding two additional grounds but they certainly do not cover the problem of unfinished estates, whatever about the existing ones. The fact that he is introducing two new grounds is neither here nor there with regard to the point I am making. The previous two might cover unfinished estates but I believe they do not. If they do, it should be spelled out and amending the Bill would be the perfect opportunity to do so.

All Members are aware of the problem of unfinished estates. It is all very well to say that if a builder does not finish an estate, people can take an action against him or her in court. The vast majority of people who buy a house in an estate are not in a position to mount court challenges or chase builders. The way to ensure such rogue builders are caught is by not giving them planning permission in the future when they do not finish estates.

I agree with Senator White. This has been a huge issue during the years. In my years as a member of a local authority and as a Member of this House, over 30 years, I could never see how councils could get the upper hand with regard to unfinished estates and developments. They have tried several means ranging from bonds to taking in charge of part of a site, but in the end they always ended up worse off. In most cases where the rogue developer took off and left an unfinished estate, the local authority was left with a big bill. There must be some way around this problem. Senator White has proposed that such rogue developers should not get permission to build another development but I presume the developer could build in another local authority area. There must be a way of curtailing these builders. Taking bonds and sites has not worked; therefore, councils do not have the right mechanism. If they do not have a mechanism, we should include a proper one in the Bill. If we miss this opportunity, we will be discussing the problem for the next 30 years.

I spoke on my amendments about the technical language used. With regard to unauthorised development and the refusal of permission for future developments, this is the one power local authorities should have in recouping costs in respect of unfinished estates. Some Senators mentioned bonds that form part of the conditions in planning permissions. However, they relate to the completion of minor jobs, such as a road's final surface, a section of footpath or a light in an open space. Bonds were adequate. The Bill does not meet the new challenges. Estates lie unfinished, lacking major infrastructure such as roads, drainage or sewerage. Completing these estates will take considerable investment, which their developers cannot do. As mentioned, local authorities need a mechanism to empower them to finish estates.

Banks will not release bonds because they are relying on the legislation and challenging the conditions set by planning authorities. The banks do not have the money to give. The bonds and planning conditions have been found to be too weak to ensure the bonds, no matter how small, are captured to try to finish estates. The councils do not have the money to finish them.

This legislation presents an opportunity. I do not have all of the answers or wording. Senator Alex White's reasonable proposal should be considered. Unfinished estates will develop into one of the largest issues at council meetings. The Minister of State knows this, since he deals with housing. The hundreds of unfinished estates have serious infrastructural deficits. Developers and councils do not have money to finish them and bonds are sitting in the banks which are challenging the councils seeking them. We have an opportunity in law to address this matter and to empower councils to finish estates. It would be a progressive measure.

While I agree with Senator Alex White, the Minister of State could consider another matter. When one buys a house in an estate, one hands over money to a solicitor. Could a portion not be held back until the applicant is satisfied the estate is properly finished? Some €5,000 or €10,000 could be held back until footpaths, public lighting, green areas and roads are completed to the satisfaction of a residents' association. The final part of the payment could be handed over to the developer.

It is my experience that not all developers failed to complete estates because they could not afford to.

In too many cases for my liking, developers drew down money from purchasers, put it in their pockets and clipped it away. If any entity is to retain funding appropriately, it should be the planning authority. We have been discussing this matter for years. I discussed it 30 years ago. The late Gerry L'Estrange, God rest his soul, was a member of Westmeath County Council in 1979 when he and I tabled a joint motion. I am glad it will be addressed at long last.

I agree with Senators but I do not agree with the method of their proposal. The current legislation addresses their issue exactly. The difficulty used to lie with the guidelines not being up to date, but we updated them in respect of the local authority system in June 2007. We made development management guidelines available. We also updated them in February 2008. The guidelines state that the bond is to reflect what works remain to be done by the developer. Under the principal Act, local authorities have all the powers requested by Senators. I do not need to include further measures.

Dún Laoghaire-Rathdown County Council only accepts cash bonds. Alternatively, the county manager and law agent can draw up a contract for the bond in which the guidelines clearly set out what must be done. County councils were not diligent enough in putting proper contracts in place for bonds. This was the problem. Dún Laoghaire-Rathdown County Council had little trouble because it always had control of the money and was able to finish the job if the developer did not.

The Minister of State is right, in that the powers exist. Councils have not been diligent enough in following up with people or drafting proper contracts when the bonds were lodged with banks. Loopholes were found in the contracts. It is up to every law agent to have the right procedures in place.

We have had a lot of discussion on this matter.

Some bonds have been used for more than one estate irrespective of whether local authorities allowed it.

That is the point.

It is amazing that every local authority, with the exception of the one mentioned by Senator Butler, is in the same boat.

Most of Dublin's local authorities, including Fingal——

Senator Burke has the floor.

In my town, 20 estates are unfinished.

Are they by one developer?

No, by several developers. As Senator Alex White stated, the legislation is not strong enough. The Minister of State is clearly saying that local authorities have the power to take whatever actions are necessary to ensure a bond is taken from a developer, even a rogue one, thereby prompting him or her to complete the job.

There is a roll-over bond situation, but guidelines were issued in 2007 and updated in 2008 to address the specific issue under discussion. As Senator Butler stated, it is a matter for the local authority to ensure the bond it signs covers what it wants to get done. It is not a question of further legislation. Rather, authorities must implement the law and draw up their bonds in line with our guidelines. They must work in a way that protects them and the public.

I do not wish to go over ground that has been covered, but unfinished estates constitute a major problem. I live and operate in Fingal, where this has been a significant problem for years. Notwithstanding the Minister of State's assertion that the local authority has powers to deal with it, the council is obviously not using those powers. Should we be happy that authorities are not using their powers and allow the problem to continue or could we be more explicit, insert these powers in the legislation and leave people in no doubt? Even if local authorities have the powers in question, I do not see the problem with including this condition on unfinished estates in the Bill.

We have got diverted into a discussion about bonds, which I agree is relevant but which is not the point with which we are dealing here. We are dealing with a list of circumstances whereby a person can be refused planning permission, which the Minister is updating in the legislation.

The Minister put into that list two circumstances that are already in the planning code, failure to comply with a previous permission and failure to comply with a condition in a previous development. Then he adds to that the business about carrying out a substantial unauthorised development and being convicted of an offence under the Act. If the person is guilty of any one of those four circumstances on the list, the person should not be given planning permission. What is the problem about adding a fifth?

The Minister is already stating an errant builder who finds himself or herself in one of these four categories cannot be given planning permission. He is already establishing the principle of excluding people from being given planning permission if they have done something wrong, and there is no debate about that. There are four different types of person who have done wrong as a developer and the Minister will exclude them from future permissions, and we propose he adds a fifth, that is, a person who has failed to complete a development.

It is all very well to speak of bonds. The bond system is a good system if it works. I have no difficulty with the bond system. However, this is not a substitute for the bond system. Neither is the bond system a substitute for what I am talking about. We need both.

They are safeguards, and certainly the bond system should be in place.

In response to what Senator Butler stated, I personally am aware of a considerable number of examples on the south side of the city where bonds were taken up and were inadequate, not slightly but grossly, to deal with the problem that emerged at the end of the day. The council was fumbling around for a few bob to finish an estate and was tens of thousands of euro short of what was required.

As Senator Burke stated, we should have the bond system but it is not a perfect system. The Minister has his guidelines etc. That is all fine. I congratulate him on that. That work should continue. Let us just keep our eye on the ball here. We are talking about four different examples of where one will be excluded, and we want to add a fifth.

In my time on the local authority, every year the county engineer, as he was then known, would bring a list of estates before the members. There would be X number which would be recommended for taking in charge, then there would be information on others which had so much works to be done etc.

Given that planning and planning enforcement is an executive function in the main, it might be an idea to give the elected member something of a role on a reserve function basis. The Minister tells us the law is there butde facto it is just not happening.

Clearly, we do not like it.

I ask the Minister of State to consider coming back on Report Stage with a Government amendment to give the locally elected members a role in directing the chief planning executive, which is the county manager, to take action against rogue developers. Clearly, what is obtaining at present is not successful.

During my time on Dún Laoghaire-Rathdown County Council I proposed a motion that the developer's bond had to be supported by an engineer's report. The engineer drew up the plans for the estate outlining clearly what was to be done and when the estate was finished the engineer was totally responsible for that estate. I got that motion passed in the local authority and instead of our engineer going out and checking the estate, the developer's engineer had to give a full report on the estate and a guarantee, and his indemnity was called on——

Is Senator Butler proposing that model for the rest of the country?

Anyone can do it.

It might work.

I ask Senator Butler to stick to the amendments with which we are dealing. We have gone off track completely.

We have not gone off track completely. The idea was to ensure local authorities were acting correctly.

The other action I had to take during my time on the local authority was to put down a number of section 4 motions to ensure the manager carried out the work. If the councillors or the council are not active, the manager will not do the work. We have seen it all over the country. Unless one has good councillors putting down section 4 motions on a monthly basis, the manager will not do the work. He will do as little as he can for one. Everybody who has been a councillor knows that.

Before we go any further, I ask Senators to stick to the amendments. We are going off course completely. We will be here all night.

In line with the development management guidelines issued in June 2007 and updated in February 2008, there was also a request sent to local authorities that they submit to the Department all estates taken in charge and all of the requests for estates to be taken in charge and the reasons they have not been taken in charge. The findings of that will be issued shortly and that will enlighten this House and the public of what has been happening in the local authority system.

Twenty years in some cases.

Senator Alex White stated there are four circumstances where planning can be refused and he wants a fifth. The fifth one is included in section 35 of the principal Act, and it is clear. The existing grounds for refusal are the applicant has substantially failed to comply with a previous permission. That is the fifth one. How it is implemented by the local authority is what the development management guidelines are about, and that is the reason we issue them.

It is a matter for local authorities to stick to the guidelines, and cover the local authority and the public, when they give planning permission and, subsequently, put a bond in place. The bond should be adequate and substantial enough to carry out the works that are left unfinished if that be the case. That is the position on the matter.

In fairness, the Minister of State has given a commitment that he would look at some of those again on Report Stage.

Amendment, by leave, withdrawn.
Amendment Nos. 48 and 49 not moved.

I move amendment No. 50:

In page 25, line 2, to delete "substantial".

Question "That the word proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendments Nos. 51 and 52 not moved.
Question proposed: "That section 20 stand part of the Bill."

Fine Gael agrees with the general thrust of this section whereby it will empower planning authorities to refuse permission where the applicant has carried out an unauthorised development. I stated earlier in some of my submissions that Fine Gael should not be seen as being against every aspect of the Bill because we realise the Planning and Development Acts need to be amended and revised. We opposed large sections of the Bill today, but we welcome section 20 whereby it would empower local authorities to ensure persons who have not been compliant certainly do not get permission again.

We debated the issues on how best that is done and the responsibilities of the executives of local authorities. We have heard examples here from around the country where they are not doing their job. It may be in the interests of proper planning and development if a circular letter issued to local authority executives to remind them of their obligations in this part of the legislation. We have heard from all sections of the country that there are problems with this regard. In the current economic climate, it is more relevant than ever. I would like the Minister of State to comment on those points.

I agree with the last comment by Senator Coffey.

Question put and agreed to.
SECTION 21.
Question proposed: "That section 21 stand part of the Bill."

I call Senator Coffey to speak on section 21, which is opposed.

The explanatory memorandum states:

Section 21 provides for the extension of cost recovery to pre-application, scoping requests for Environmental Impact Assessment for strategic infrastructure development cases under the Seventh Schedule of the Principal Act in addition to cost recovery for cases that proceed to full application and determination by An Bord Pleanála.

I have some views on this which I will offer to the House, but I am interested to hear an explanation of this matter from the Minister of State, as well as what his intentions are for this section. It seems to be an entirely new departure in the planning process to recover costs incurred in planning applications. I would like to hear what the Minister of State has to say on it and I will come back in later.

In support of Senator Coffey, the remit of An Bord Pleanála has changed completely in recent years. It has a much wider remit now than when it was established. The Bill proposes to confer more powers on it as regards the charges it can make. If we allow this it will, in some cases, put it outside the reach of the normal person who may object to a planning application. I hope the Minister of State will reconsider this matter. If one is looking for an expert opinion from An Bord Pleanála, God only knows what the cost would be. From my reading of this section, in some cases, one might be paying for an engineer's report as An Bord Pleanála would be entitled to charge for it.

Section 21 amends section 37H(2)(c) of the principal Act by providing for the extension of cost recovery to pre-application consultations and scoping requests related to environmental impact assessment for strategic infrastructure development cases under the Seventh Schedule of the principal Act in addition to cost recovery for cases that proceed to full application and determination by An Bord Pleanála. This Bill maintains the provision in the principal Act whereby the board shall state a reasonable sum to be paid and direct the payment of that sum to any planning authority that incurs costs during the course of the consideration of the application, and to any other person as a contribution to the cost incurred by that person during the consideration of the application. This amendment therefore provides for the recovery of costs associated with pre-application stage. Such costs can be offset against the formal application fee for those cases that proceed to a determination by the board. The “applicant pays” principle is the basis for the payment of costs under the Planning and Development (Strategic Infrastructure) Act.

I thank the Minister of State for that clarification. Is he saying that if it does get to full application stage, costs that have accrued pre-application can be allowed by the board? If so, I welcome it.

I have already highlighted my concerns over costs. The planning process and the decision making around it must enjoy public confidence. In recent years An Bord Pleanála has been involved in a high profile case which involved a huge cost to the Exchequer due to the way in which the board responded to an application to the High Court for a judicial review of a case in County Kildare. I will not go into the details of the planning aspects because that does not interest me. The case went to the High Court and in 2007 Mr. Justice Kelly quashed a decision by An Bord Pleanála on the grounds that the court found there was objective bias against An Bord Pleanála and there were irregular planning procedures within its decision-making process. No minutes were taken of the An Bord Pleanála meetings that decided this planning application, which was for a landfill in Usk, County Kildare. Under this Bill, would the board be in a position to try to recover its costs having defended its decision in court and lost? This could be seen as essential infrastructure. It is a fundamental question.

In that High Court case Mr. Justice Kelly quashed a decision but he also made recommendations to An Bord Pleanála to minimise any further risk or costs. He made two recommendations to the board. One was to take legal advice before proceeding further on the application. The other was that any board members previously involved in the original decision should not be involved in any further consideration of the application. They were reasonable recommendations by the judge to guard against any further costs to the State and to ensure An Bord Pleanála would follow the proper procedure.

I was concerned to discover that these recommendations were ignored by An Bord Pleanála at huge cost to the taxpayer. In July 2009, there was a second High Court case regarding the same matter. An Bord Pleanála's decision was quashed again, by Mr. Justice MacMenamin, owing to irregular procedures in the planning process within the board. I was horrified to discover that the chief executive of An Bord Pleanála reappointed almost all the same board members in the decision-making process, despite the previous High Court recommendations. We are told that he also did not seek legal advice, despite being recommended to do so previously by the High Court. Therefore there was a blatant disregard of court recommendations at a huge cost to the taxpayer by the actions of An Bord Pleanála. I have a serious difficulty with this.

I have no issue concerning the planning matters and An Bord Pleanála needs to be independent of all politics and any interventions. However, I have a problem with the whole procedure, including the transparency and accountability with which An Bord Pleanála does its work. Perhaps the Minister of State can clarify whether section 21 allows An Bord Pleanála to recover costs owing to some crazy decisions it has made to defend decisions without proper accountability and transparency. I certain hope it does not. It has been found by the courts to have objective bias, which is a serious attack on the fundamental integrity of the planning process. An Bord Pleanála failed to oversee and ensure proper procedures within the decision-making process.

I asked this question at a sitting of an Oireachtas joint committee and I was told that the judge had made a wrong assumption. That was a serious statement of arrogance by An Bord Pleanála. The following day the Courts Service took issue with that assertion by the head of An Bord Pleanála. I have concerns about the transparency, accountability and integrity of An Bord Pleanála's planning process and how it arrives at its decisions. Perhaps the Minister of State can clarify whether any element of this section refers to the recovery of costs where An Bord Pleanála has made decisions that were wrong and should never have been taken. I would appreciate some clarity on that matter.

What has been stated is outside what we are discussing here. Section 30 prohibits me from making any comment on any cases that have been mentioned by the Senator. Therefore I cannot comment and it would not be appropriate for me to do so.

What excludes the Minister of State from making a comment?

Individual cases.

This is not an individual case that is before any court. It is a decided case. It goes to the fundamental trust and integrity of the planning process, how An Bord Pleanála carries out its functions, the costs it accrues because of its decisions, and the cost to the taxpayer. An Bord Pleanála should be accountable to somebody, be it the Minister or otherwise, for the actions it takes. It is estimated that its actions in the case to which I refer could cost from €1.5 million to €2 million. The Attorney General was engaged in legal argument for over a week on this matter because the board had insisted on driving forward with its decision. This is a major issue that involves the whole planning process.

The transparency and integrity of An Bord Pleanála in dealing with planning applications have been called into question. The board has been found by the courts to have objective bias. This is a serious statement by the courts and should not be ignored. If the Minister of State cannot say anything about this today, he should take note of what I have said. It is serious for the board to lose two cases in a row and ignore totally the recommendations of the High Court at great cost to the taxpayer. This is serious and I certainly would not like to see it happening again. The Minister of State and his office should take account of it. Somebody within An Bord Pleanála should be held accountable for the manner in which it dealt with the application in question.

In fairness, the Minister of State said he could not respond on an individual case. I ask him to take note of it.

Question put and declared carried.
Section 22 agreed to.
SECTION 23.

Amendments Nos. 53 to 55, inclusive, are related and may be discussed together.

I move amendment No. 53:

In page 27, line 12, to delete "each of".

Section 23 refers to the extension of planning permission. In the light of the current economic circumstances, it is proposed to extend the period of planning permission from two years to five to cater for unfinished developments with planning permission where the developers are under financial strain. I can understand why one would press for an extension of planing permission owing to the economic climate. There is no demand for a lot of property; it is not selling and the markets are down. This will have an impact on how communities develop. This, I presume, is the reason the Minister of State is proposing to extend the period.

I have concerns about the extension. Members referred to bonds for unfinished estates and developments. Once a development has substantially commenced, a developer is entitled, by law, to seek an extension of the time to complete it. The council must grant such an extension and the period is usually up to two years. If I understand the matter correctly, it is being proposed to extend it to five years. The legal advice is that one cannot try to use the bonds set down as part of a planning permission unless the developer has been given the opportunity to finish the development in the extended period allowed. There are implications associated with the extension from two years to five. Councils cannot call in the bonds until the planning permission has expired.

There is a catch-22 in that, while one may be helping developers by extending the period to five years and allowing them time to recover financially and the markets to recover, estates and developments will remain unfinished for a long period. As public representatives all know, residents of estates and people in communities will complain about half-built infrastructure and developments, most likely boarded up. They are constantly calling on their local elected representatives and councils to enforce enforcement orders to have the developments finished. By enforcing this section of the Bill, it will tie the hands of councils in trying to make developers finish their developments. I, therefore, ask the Minister of State to take the amendment on board. I am interested in hearing his views.

Amendment No. 54 more or less speaks for itself. We propose that the creation of jobs be considered by the Minister of State in this context.

I agree with Senator Coffey on this issue. Perhaps what is proposed could be achieved on a phased basis. As Senator Coffey stated, we will extend planning permissions for a further five years and large parts of estates will be left unfinished. This will cause serious problems for residents' associations because they will not have the money to carry out works themselves. It will fall to the local authorities to do so. If the extensions are to be granted, something substantial should be done to complete unfinished works. An extension for another five years at that point would leave residents thrown to the wolves.

I welcome the inclusion of section 23. It is very important because it amends section 42 of the 2000 Act, under which, if somebody's property has been substantially completed, he or she can obtain an extension of the period in which the works may be completed. The main reason for the exercise of section 23 is to address the needs of those who cannot get a loan from the bank. Such persons would be able to apply for an extension of the period in which to complete their building. It could happen that they could not go ahead and their planning permission would lapse, thus leaving them unable to obtain planning permission again on the site and leaving them stuck, having bought the site for €50,000 or €100,000 and having been paying a mortgage thereon. In such cases, they would be stuck with a field without planning permission.

We could work on one measure, a power given to NAMA. Some of my colleagues in this Chamber and around the country will be aware that in recent months a number of planning permissions lapsed. I refer to one-off cases in rural areas where those who bought sites were not able to proceed with their developments. They are now left with land that is no longer an asset. As planning restrictions become tighter in rural Ireland, such persons may not be able to obtain planning permission. I ask the Minister of State to backdate the legislation to benefit those who have fallen into this trap. There is a precedent for so doing in Schedule 2 to the NAMA Act, whereby NAMA can apply to local authorities to backdate planning permissions that have expired since 1 January. If we are to give the power to NAMA to revive planning permissions, a matter which is very difficult for local authorities to deal with, it must be taken into account. If a local authority is to give planning permission, it must know that all the permissions it has issued are extinct. NAMA will be reviving planning permissions and putting a strain on services. I ask the Minister of State to consider that people would be able to do what NAMA will be able to do, namely, to backdate planning permissions that have died since 1 January 2009 and revive them in the same way as NAMA will be able to do.

I am conscious that the Minister of State has not had an opportunity yet to address the amendment. Perhaps I should have waited until he spoke. Is it the case that section 23 deals with, as Senator Daly outlined, people who find themselves in financial difficulty with the banks or otherwise? That was not immediately apparent to me, but if that is what is intended, I would be interested to hear the Minister of State confirm that. I will speak further on the matter later.

I apologise as I did not explain myself properly when moving amendments No. 53. The aim is to delete "each of" in line 12. We have been advised about the clumsiness of language in the Bill. We refer to "each of" in line 12 and then we use "either" in a subsequent part of the section. There is no point in having both "each of" and "either". It is something lawyers would love to debate, that "the permission relates to be completed provided that, each of the following requirements is complied with. We must take out "each of" or "either". We are open on the issue. It is an attempt to clarify the language in that part of the Bill.

Amendment No. 55 is similar to an earlier amendment whereby we tried to define a time limit for the recording of applications on the relevant entry in the register. We suggest the insertion of "within one week of such application or decision" in order not to leave the matter open-ended. We propose one week, although we accept the Minister of State might have a better idea. It is a technical amendment to try to bring clarity to the Bill. I hope the Minister of State will accept the amendments or consider tabling a Government amendment on Report Stage to address those issues.

Existing legislation covers planning permission where substantial work has been carried out on developments. If one has substantially completed works, one is entitled to an extension of planning permission to continue the development.

The provision in question is an attempt to address cases where work has not commenced. Section 23 seeks to amend section 42 of the principal Act to permit an application to be made to a local authority to seek the extension of existing permission. That mirrors the existing legal provision that allows the life of a permission to be extended where substantial works have been undertaken. The section provides for the extension of the permission for a period not exceeding five years in circumstances where substantial works have not been carried out but where there were commercial, economic or technical reasons beyond the control of the applicant which substantially mitigated against either the commencement of the development or the carrying out of substantial works.

My Department is examining section 23 with a view to bringing forward further amendments that set out the conditionality that will apply to the section. Amendments Nos. 53 to 55, inclusive, will be considered in that context and on the advice of the Parliamentary Counsel and the Attorney General. We will propose amendments on Report Stage to address the issues further. I am not in a position to give any comfort to Senator Daly on his suggestion. I accept he has not tabled an amendment.

The Minister of State was to reply on the issue of further conditionality. In terms of the overall intention of section 23, we are familiar with situations where developments have been substantially completed. It is a new section 42 of the principal Act. There is no controversy about that, but the Minister of State is adding the new circumstance where developments have not been completed but where some other issue has arisen for the developer. That is covered by the provision "the authority is satisfied that there were considerations of a commercial, economic or technical nature beyond the control of the applicant".

Senator Daly and others were unsure of what problem the measure was intended to solve. Senator Daly inquired whether it related to cases where people find themselves financially unable to secure funding from a bank or other source of funding of which they had expected to avail. Is that the reason? What is the basic rationale for the provision? Is it what Senator Daly was canvassing? I am just curious.

Some types of developments where work has not commenced are not environmentally friendly. For example, in some cases in Dublin developments have been built with hollow blocks with no insulation. Will new conditions be imposed on a developer responsible for such a development who applies for an extension of planning permission for five years to ensure he or she conforms to the new green technology? Is it the case that an application for an extension would consist of a formal letter seeking an extension of time owing to the fact that he or she ran into financial difficulties?

This could be a golden opportunity to ensure developments which use poor quality insulation are brought up to the required standard. A motion was tabled in the House a number of years ago to make developers in the Dublin region conform with the insulation standards that existed in the rest of the country. I believe some developers in Dublin are still building with hollow blocks and I suggest that conditions to bring them into line with green technology would be applied to any applications by them for a further extension of time. I refer to solar panels and proper cavity insulation.

I ask Senators to stick to discussion of amendments, please, because we will be here all night if we do not.

On a point of clarification for Senator White, I was not quite canvassing for it. The most important aspect of the section is——

In fairness to Senator Daly, I did not mean canvassing in that sense.

Senator Daly is canvassing all the time.

Thank you, Acting Chairman. The issue is one of saving the taxpayer money more than anything else. That is one of the most important sections in that many of these developments will come under the remit of NAMA and therefore if their planning permission runs out and NAMA has to revive the planning permission by paying fees to architects and engineers, it will keep them all very busy but it will also incur costs of tens of millions when one takes all the projects combined.

I thought the plan was to rezone some of the developments.

That is a different issue. We are trying to save the taxpayer money. That is why I welcome the Minister of State's insertion of the provision. It is probably the most important section in the Bill because it is about saving the taxpayer a fortune.

Senator Daly raised the matter of planning permission that has expired. I am not in a position to give any comfort on that matter. The grounds for extension of a planning permission are for commercial, economic or technical reasons.

I intend to table further amendments on Report Stage to deal with issues such as that raised by Senator Burke. He is aware that since I took over responsibility for this area we have introduced strict regulations on energy and building standards. That is the law of the land. Even if a permission is four years old, it must still comply with the building regulations. If that is what the Senator is referring to, as Minister of State with responsibility for housing, I would not be interested in people building a structure on the basis of permission granted four years ago that did not comply with existing regulations and legislation I had brought forward.

In terms of the phrase "commercial, economic or technical", does the Minister of State have in mind a person who has run out of money?

Will the Minister of State consider amendment No. 54, particularly subparagraph (II) — he may want to introduce in his own format on Report Stage — to the effect that the proposed use of a development would lead to the creation of at least ten full-time jobs? If there was a clear commitment that jobs would be created on a particular development, it might be reasonable to consider extending the permission. I ask the Minister of State to outline his view on that matter. If he does not accept the full Fine Gael amendment, I ask him to consider that part of it.

The phrase "commercial, economic or technical" may refer to what the Senator said. It may be a situation where someone is extending their hotel, the financial arrangement with their bank was withdrawn 12 months ago but might be reinstated in six or 12 months' time. I presume that is one situation that might arise and there may be others.

I said in reply to Senator Coffey that amendments Nos. 53 to 55, inclusive, will be considered on the advice of the Parliamentary Counsel and the Attorney General's office. As I said, I will come back to the House on section 23.

I welcome the Minister of State's decision to come back to the House with further amendments. I welcome also his comments on developments that have not taken place and where further improvements can be made to plans.

I, too, will be very interested in the Report Stage debate on this aspect and what the Minister of State will bring before the House, particularly in regard to the phrase "commercial, economic or technical". I am not saying we should not do it but we should be careful about allowing a non-planning circumstance to find its way into planning decisions. If a person has funding at a particular stage and it runs out at a later stage, that is a serious position for him or her to be in and one has enormous sympathy for a person in that position. It may affect many others also who are depending on what is to happen but it is not a planning issue. I do not want to be too po faced about it but we are talking about planning legislation. People run out of money or are financially compromised and so on but, with respect, the planning code is not the place to deal with that issue. People know what to expect from the code. There are many rules and regulations in place for good reasons and if we start introducing to the planning code extraneous issues such as people running out of money, which I accept is a serious extraneous issue, we will undermine its integrity if we go too far.

We have existing legislation for properties on which substantial works have been done, in respect of which the period is two years. There is an extension in that regard, so to speak, to five years. These are properties which have planning permission.

Mention has been made of properties for which permission has run out. I have addressed that matter. I am talking about properties which have live planning permission.

Amendment, by leave, withdrawn.
Amendments Nos. 54 and 55 not moved.
Section 23 agreed to.
SECTION 24.

Amendment No. 56 is in the name of Senator Quinn. Senator Mullen wishes to be associated with this amendment.

I move amendment No. 56:

In page 28, paragraph (b), between lines 39 and 40, to insert the following:

"(i) the provision of facilities for physical activity to promote a healthy lifestyle.”.

Section 24 amends section 48(17) of the Principal Act. Section 48 provides that: "A planning authority may, when granting a permission under section 34, include conditions for requiring the payment of a contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority and that is provided, or that it is intended will be provided, by or on behalf of a local authority (regardless of other sources of funding for the infrastructure and facilities)". Subsection (17) provides the necessary definition of public infrastructure and facilities under various headings. Section 24 proposes the extension of the wording to include, within the definition of public infrastructure and facilities, the refurbishment, upgrading, enlargement and replacement of roads, car parks, car parking etc.; the provision of high capacity telecommunications infrastructure such as broadband; and the provision of school sites etc.

I strongly welcomed section 24 on Second Stage. In the context of the Bill, it is particularly desirable that there be that focus on the communitarian dimension. I welcome and support Senator Quinn's proposed addition which would on page 28, paragraph (b), between lines 39 and 40, to insert a new paragraph (i), the provision of facilities for physical activity to promote a healthy lifestyle. On Second Stage Senator Quinn made some valuable points on the importance of promoting physical activity and a healthy lifestyle. He made the point that urban planning should promote an active lifestyle to ensure citizens could lead a healthy life. He noted that the Bill called on local authorities to show how their future planning strategy would align with national and regional policy and how the provision of land for residential development would align with population projections.

Senator Quinn made particularly valid points about obesity levels in Ireland and said we had not done enough in that regard, which is the case. He noted a 2007 report by the World Health Organization which showed the link between physical activity and health and the need to create opportunities to engage in active living in urban environments. The WHO argues that issues such as access to physical activity facilities, land use mix, transport opportunities and perceived safety measures in neighbourhoods impact on physical activity levels and, therefore, on life expectancy. While the Senator accepts that where a person lives is linked with leading an active lifestyle, he said — I agree with him — that there was a lack of integration when it came to urban planning.

It is appropriate that Senator Quinn's amendment to insert a reference to the provision of facilities for physical activity to promote a healthy lifestyle should be considered. This would be included in substitution for the existing paragraphs (e) and (f) in the principal Act. I urge the Minister of State to take a positive view of the proposal.

I strongly support the amendment. Senator Mullen eloquently laid out the reasons it would fit with the provision of broadband and the other ancillary services required in a state of reasonable size. It makes sense to promote such facilities to encourage a healthy lifestyle through the provision of physical activity within any estate of a reasonable size. Without labouring the point, because Senator Mullen has made it so well there is nothing for me to add, the Minister of State can see how well this simple amendment fits with the section.

Senator Quinn made a good contribution on Second Stage and has discussed the matter with me since then and I understand where he is coming from. I accept the intention behind the amendment but I will not accept it because I do not think it is necessary.

Section 48 of the Planning and Development Act 2000 currently provides for the development contribution system to be drawn up by each planning authority and approved by elected members following a consultation process. It is a matter for the members of the planning authority to determine the level of contribution and the types of development to which they will apply. Planning authorities may levy development contributions in respect of public infrastructure and facilities provided by or on behalf of the local community that benefit development in the area, including recreational facilities. It is the reserve function of the elected members in each local authority to specify the nature of such facilities in their adopted schemes.

The Planning and Development Acts, therefore, already provide for the provision of facilities for physical activity. The Minister has already stated his intention to provide statutory guidance under section 28 of the Planning Acts on development levies. This guidance will provide for the appropriate mechanism to clarify what is meant by recreational facilities, including the provision of facilities for physical activity and to promote healthy lifestyles.

I support this amendment. It is harmless but it puts into law the provision of facilities. There is a healthy lifestyle aspect to life. We have huge challenges around obesity and related illnesses. We are talking about planning, infrastructure and development but we must plan to allow our communities to develop healthy lifestyle attitudes and activities. I generally support this section of the Bill and the thrust of the Bill is to empower local authorities to ensure proper community infrastructure is provided for when developments happen. It is no harm, therefore, to include the healthy lifestyle aspect to that provision of community infrastructure. Health is as important as education or any other of the aspects mentioned, such as broadband.

I have a niggling concern about how this would be implemented by local authorities on the ground. I am concerned that where a development happens, it should not act as an opponent to incentive for development. There are costs associated with all of this infrastructure and previously they should have been provided by condition or otherwise but the cost of this infrastructure, which is expensive, with waste water treatment plants, broadband and school sites, will be passed on by developers to purchasers within the community. I hope that niggling concern does not stop development due to unsustainable costs in the private sector or for people who are purchasing.

The general thrust is right. It is an attempt to rebalance development to ensure proper facilities where development occurs. We should learn from the mistakes of the past when there were not enough of those facilities. I welcomed the inclusion of flood relief and proper drainage. There was a debate on flooding earlier and we can see the devastation around the country in regards to this at the moment. It is important that proper assessments of flooding and impacts on surface water and drainage are carried out and the appropriate infrastructure is installed when developments happen. I am happy to see it written in law that it is considered prior to planning permission being granted. It is important from a infrastructural point of view and for proper and sustainable development.

I hear what Senator Coffey has to say and he would not resist me too strongly when I say that obviously there is a need to be concerned about the idea of any costs being passed on to buyers but it is like the debate on whether people exist for the economy or the economy for people. We can say the same about development. We have just lived through a period where people existed to suit developers whereas development should be at the service of the community and the needs of people.

Senator Coffey was right to raise the issue of flooding. The amendment of section 48(17)(c) of the principal Act, which specifically refers to the inclusion of water mains and flood relief works in section 24(a) is highly topical and welcome and ultimately focused on addressing people’s needs. We are talking about developers’ levies but here we are talking about the extension of the potential application of the funds to come from such levies in favour of communities and much needed amenities. It would be more than within the spirit of the Bill with regard to the needs of communities and the well-being of people given the concerns there are about obesity and that we need to encourage active lifestyles in the school curricula in terms of how much time children spend doing physical education during the school week, developing public spaces to encourage people to be active for their benefit and, ultimately, for the economic benefit of the State. If we have healthier citizens there will be less of a drain down the line on our health services and on the Exchequer.

That is why I hoped that in the spirit of the topicality of the Bill, as in the inclusion of flood relief work, this specific proposal by Senator Quinn would be taken on board. The Minister of State says it is not necessary, but that is not the test. The question he should ask himself is if such a section would do any harm. I have not heard from the Minister of State that it would. If it would not, surely a public policy objective would be achieved by stitching into the legislation this important social objective. I have not been shown how Senator Quinn's amendment would bring about undesired consequences. The Minister has not given the House a reason why the subsection should not be added.

I remind the House that the Minister for the Environment, Heritage and Local Government, when he introduced this Bill, rightly made a point of the fact that planning is about people and the provision of what is necessary by way of infrastructure and otherwise. What more than this is necessary to promote a more active and healthy lifestyle? This is totally in keeping with what the Minister outlined to the House on Second Stage. It fits perfectly and for all the reasons advanced by Senator Mullen and Senator Coffey, I plead with the Minister of State to reconsider the matter. It will not do any harm, it will do great good and it is proper and correct to achieve the active, healthy lifestyle we need for our citizens.

I rise to support Senator Quinn's proposal for the provision of facilities for physical activity to promote a healthy lifestyle in principle. Not many people would disagree with it so I await clarity from the Minister of State on the stance of the Department with interest. Section 24 provides for a wider definition of public infrastructure and facilities to reflect newer infrastructural requirements. One of the newer requirements we have witnessed is that of facilities for physical activity. In saying that, I commend the local authority in my area, Dublin City Council, which has assisted with other joint ventures to maximise the potential of existing facilities that are under-utilised and to bring on and roll out new facilities. I can speak only for my own local authority. I shall not list them tonight but in a number of instances and within a stone's throw of where I reside a multi-million euro facility is being developed in a joint venture.

Perhaps the Minister of State will clarify the position regarding the sustainable communities agenda and other policy developments such as the developing areas initiative. What is included concerning facilities for physical activity? In all the years of experience between the Department of the Environment, Heritage and Local Government and local authorities has any model of suitable density been recognised by the Department as one that would accommodate all that is required? This includes what was mentioned, which we all support, namely, school sites, infrastructural development, broadband provision and, as we speak, flood relief works. The last is required in my constituency. Has any type of density model been accepted and recognised as self-sustaining, requiring all the ingredients one would understand to be required?

It is important we should acknowledge in some form the need for facilities for physical activity. On the other hand, as a person who had a stint in the Department of Health and Children, we promoted this issue under health awareness as the importance of physical activity. If we are to do this in one part of Government policy, are we going to implement it in others? I look forward to the Minister of State clarifying the position with regard to the three items I mentioned, namely, the sustainable communities agenda, the development areas initiative and the suitable model for sustainable densities.

May I speak on the section?

We are speaking on the amendment.

We are very much at one on this issue. Senator Quinn rightly referred to the relationship between planning policy and promoting healthy lifestyles. Under existing planning legislation, planning authorities' development plans must include objectives for the integration of the planning and sustainable development of an area, with social, community and cultural requirements for the age of population and the preservation, improvement and extension of recreational amenities. Statutory planning guidelines, such as the guidelines for the planning of authorities on sustainable residential development in urban areas, cities, towns and villages and guidelines for planning authorities on design standards for apartments 2007 have been provided to planning authorities. They reinforce the need for providing adequate open space and recreational facilities, especially for children, and for designing new residential developments which should prioritise cycling and walking and minimise the need for private cars.

The residential development guidelines recommend integrated housing and public transport development which minimise the requirement for car use and for proper footpaths and cycleways to be assessed in new developments. It also recommends direct walking and cycling routes to local facilities such as shops and schools and sets quantitative open space standards for active or passive use within developments. Those guidelines can be accessed through my Department's website.

I believe legislation and guidance exist which provide the framework and tools for planning authorities to make provisions in their development plan policies which positively address obesity and support general healthy well-being for people of all ages. In addition, my Department is represented on the task force on obesity which is under the remit of the Department of Health and Children. It will continue to play a full role in the cross-departmental initiatives in this area.

In the existing legislation, section 48(17) of the Act states there should be provision of open spaces, recreational and community facilities and amenities and landscaping works. The Bill emphasises what is stated already. Regarding the local authority to which Senator Callely referred, it was under the provisions of the existing legislation it was able to do that work.

It is not that I wish to exclude in any way the intent of the amendment. I spoke to Senator Quinn on this matter at lunchtime today and told him of my support for the principle involved but I am conscious of a particular area, namely, a reserve function of local authority members with regard to the disbursement of levies. I wish to let the House know that.

Is the amendment being pressed?

Amendment, by leave, withdrawn.
Question proposed: "That section 24 stand part of the Bill."

I wish to speak on this section which is a very important part of the Bill. We should have a land use policy but do not seem to have one across the various local authorities. Economies of scale are needed with regard to some of the issues proposed by the Minister of State, for example, infrastructure such as schools and so forth. Local authorities do not appear to have any real guidelines that stipulate that where a certain number of houses are being built a school and certain other facilities are also needed in the area. We do not have those types of guidelines although we have various others concerning regional authority planning and so forth. In the area of development planning we do not have guidelines in respect of schools and such facilities.

We can consider current development charges which are quite significant and place a severe onus on developers to come upfront with development charges at the beginning for roadways, water, waste water, public lighting and so forth. There are additional costs included in the Bill regarding infrastructure for broadband and schools. Is this to be an additional cost to those already put in place by local authorities? I understand the costs put in place so far are ring-fenced with regard to some of the facilities, as the Minister of State said. It is a reserve function of local authority members to disperse that funding in a manner that is ring-fenced. This is an area that requires a much bigger debate than we are having today.

Regarding county development plans, for land use where areas are zoned, the Minister of State wants planning to be done on a piecemeal or staged basis as land becomes available. This is where one might talk of a school and other pieces of infrastructure to be included. There should be certain guidelines to say that if there is going to be development in an area for houses then schools and accompanying infrastructure are needed. If there is commercial or industrial activity in another section of a town there must be the necessary infrastructure to go with them. Consequently, some land use policy is needed in this section, as are guidelines for local authorities in respect of the specific amount of development that takes place. In other words, if a specific amount of development takes place, there should be certain requirements regarding schools, broadband and other infrastructural items. As Senator Coffey mentioned in the context of flood relief works and schemes, this is where the system has fallen down. All of these factors would kick into play were one to conduct planning on such a basis.

I will return to the issue of development contributions. Does the Minister of State envisage this as another development contribution in addition to the contributions local authorities already have put in place? Were that to be the case, as Senator Coffey correctly noted, it would place an enormous cost on those who intend to buy a house. Moreover, first-time buyers would be the purchasers of the majority of such houses. Second, development charges for commercial activity would be enormous and are already quite significant. In fact, the charges have become so ridiculous that they have put off development in many cases. If this issue cannot be dealt with in the section, it should be revisited. Alternatively, the Minister of State might revert to the House on Report Stage with some guidelines.

I welcome the inclusion of this section in the Bill. However, the Minister of State and his departmental colleagues should put in place a mechanism, whereby one could adjudicate on the benefits accruing from the implementation of the section. Were one in private business, one could put in place a mechanism to enable one to make an assessment after an appropriate time, be it 12 months, 24 months or otherwise. One would have clear knowledge of the reason for the section's inclusion and would have a form of ready reckoner as to when one would expect to see benefits accruing from that mechanism. As section 24 is being included, can the Minister of State indicate what mechanism will be in place to evaluate its benefits? When can he revert to the House or me as an individual with an assessment of the merits or otherwise of section 24?

I make this point with reference to my local authority area in the capital city which has massive infrastructure. If one takes as an example the single area of drinking water infrastructure within the capital city, it is known that it is ancient, is leaking at all levels and will cost an arm and a leg to replace. However, to be practical, I met the city manager last week who informed me that the amount in development levies he expected to collect this year would be approximately 15% of the amount in development levies he had collected two years ago. Consequently, this provision does not match up. I do not suggest this is an issue on which the Minister of State should respond in the Chamber this evening because I am sure he did not draft this provision. However, while section 24 may be merited, it does not appear to stack up in respect of the practical realities of the section's implications.

I seek clarity from the Minister of State. While I welcome the redefinition and, as I stated previously, the newer infrastructural requirements, I note the line in the explanatory memorandum which states the definition "is re-defined to allow development contributions to be levied". I seek clarification in this regard. While development levies are already in place, this refers to allowing "development contributions to be levied and used to fund". I return to the point I made on the section previously and to which I believe Senator Burke also alluded, that is, the density models appropriate for sustainable development and to meet the required level of infrastructure that all Members have discussed. Is there progress in that regard?

First, aside from the legislation under discussion, one of my delegated responsibilities in my Department is for developing areas.

As for timescales, the existing law is that a council brings forward development charges and a set of schemes. It must report within five years and bring a further set of schemes at that time. Consequently, there is a timescale, although whether it is considered to be too wide is another matter. In practical terms, this provision gives a wider definition to a local authority and its members of what are its public infrastructure and facilities. This is long overdue, if one considers some of the decisions that had to be taken recently such as on the provision of schools in the outlying areas of the city. This matter possibly should have been dealt with at the time the developments were under way. This legislation and the developing areas initiative give an authority the entitlement to make such a decision.

I appreciate the point made by Senator Callely on the reduction in development charges on account of the decreased amount of construction activity in local authorities. However, that should not prevent one from introducing good legislation on the matter or updating legislation to allow local authorities to define and have a wider definition on what constitutes public infrastructure and facilities. This provision is a facility in law for them and their members as regards infrastructure. It does not differ in respect of levies under existing mechanisms. Members are aware this is a reserved function and is a decision that must be taken by elected members. As I noted previously, the five-year rule is in place and it is a matter for elected members to ensure it is adhered to. I am sure they do because it is one of their more important functions. Up to now, it was a function that was helpful to local authority members in their own areas. They could ensure their localities had facilities when a scheme was being put in place and at the same time they knew that adequate finance was available through the development charges to meet them.

This may not be the case this year or perhaps next year. I hope, however, it soon will be the case again that there will be such development charges or, if not, that a different source of resources will be available in this regard. I do not have anything further to say other than to note that its purpose is to give the opportunity to local authorities to cover new infrastructure in their plans. Essentially, this follows on from Members' previous discussions about recreational facilities and so on. I am highly conscious of the subject of sustainable communities and the developing areas initiative is one of my areas of responsibility. For the benefit of the House, I note that I intend to bring a report to the Government on the issue very shortly.

Question put and agreed to.
Sections 25 to 27, inclusive, agreed to.
SECTION 28.
Question proposed: "That section 28 stand part of the Bill."

This section pertains to An Bord Pleanála and the required quorum to decide on applications before it.

In this section the Minister proposes to reduce the quorum from three to two. We oppose this idea and section because we see no logic in reducing the quorum and wonder what it will achieve. I understand that during the construction boom An Bord Pleanála was under serious pressure because of the number of applications before it. In the current climate, however, this move is not necessary.

In his speech the Minister stated "Section 28 amends the principal Act to empower An Bord Pleanála to reduce the quorum for meetings from three members to two on the recommendation of the chairperson that such a reduction is necessary to ensure the efficient discharge of the business of the board". We do not agree because we cannot see why An Bord Pleanála would put so much emphasis on the board. The Government emphasises the fact that An Bord Pleanála is widely representative of society yet there is the ridiculous situation that only two random members can be left to make legally binding decisions and in doing so can apply their own views unchecked. This does not achieve anything.

According to the explanatory memorandum "If a meeting where a quorum is 2 is evenly divided on a vote, the matter shall be referred to a meeting where the quorum is 3". This is unnecessary layering and bureaucracy. The existing legislation, which requires three members for a quorum, should remain. This proposal is completely at odds with the idea of comprehensive and balanced decision-making and raises the issue of potential deadlock between the two board members and difficulty in determining whether a borderline case requires the consideration of a third member.

I am calling for a review of An Bord Pleanála and earlier outlined some serious issues I have with the manner in which it carries out its work. I mentioned specific cases and I hope the Minister of State and his officials were listening. This may not be the legislation in which to address the review and reform of An Bord Pleanála. It needs more transparency and integrity in the way it deals with the matters before it. This section does not improve the legislation. Reducing the quorum from three to two is a measure to try to create efficiencies that are no longer relevant. There will be cases in which the two will reach a deadlock and have to return to a quorum of three. This is unnecessary and we oppose it.

How many board members should be available to attend meetings? What is the quorum requirement?

I can support some of Senator Coffey's points about An Bord Pleanála decisions which are legally binding, some of which may be challenged. There may be a need to revisit the board. Anyone can make an error or be responsible for a misunderstanding but this can have serious financial implications for the individual involved. I am aware of such a case. We all support the aim of this amendment which is to secure a higher compliance rate with the statutory objective period of 18 weeks for a decision on an appeal. That is very important. We all know it was put in place but not met.

An Bord Pleanála brought in some consultancies. I understand that it used UK planners to make decisions and adjudications some of which these individuals misunderstood and that led to ambiguity. That is why I support the suggestion of some reform or a mechanism to deal with a decision of the board, other than judicial review or reapplication for planning permission.

An Bord Pleanála has a crucial role in providing an independent appeal mechanism for planning cases and in processing strategic infrastructure and other cases. Delivering on a high number of cases in recent years while incorporating all elements of environmental assessment and public participation has been challenging for the board. I propose to assist the board in achieving efficiencies of operation by providing for a reduction in the current statutory requirement quorum of board members from two to three for the purpose of determining certain classes of routine cases. The chairperson or deputy chairperson of the board will have the power to recommend which cases are suitable for a reduced quorum.

The provision in this amendment will not apply in the following case types: development that would materially contravene an irrelevant development plan, strategic infrastructural development or a development or class of development referred to in the regulations made under section 176 of the principal Act, or EIA type development. If there is a deadlock it will be referred to a quorum of three. The issue is to try to speed up decisions in An Bord Pleanála. We have all received complaints about the length of delay and time spent.

The board has reduced its backlog by 46% to 1,499 cases on hand at the end of October from 2,799 for the same period in 2008. The board's 18 week compliance rate for 2008 was 23%. It is envisaged that in the coming months that will double to over 50% and will continue to rise in 2010, aided by this amendment.

There is nothing more in it. There are ten members on the board, a chairperson and nine ordinary members. That is what is involved and the chairperson or deputy chairperson will recommend moving on some suitable cases and that there would be a quorum of two, and there is a prohibition on certain types of case.

I accept the Minister of State's view that this section is included in the Bill to try to speed up the appeals before An Bord Pleanála but it is not the correct mechanism to speed up appeals before the board. Reducing the quorum from three to two enhances the power of the individual members of the board. This can create deadlock in many decisions and further bureaucracy because the decision will then have to go to the three member quorum. The Minister of State believes that it is necessary for An Bord Pleanála to speed up the way it does its business, but this section is the wrong vehicle for reform. The Minister of State and the Department could consider the reform of An Bord Pleanála under separate legislation or in a separate debate rather than try to stitch it in here. I cannot see how this will improve matters, especially in the current climate because there will be fewer appeals to the board.

If the Minister of State is serious about speeding up how the board does its business he should maybe examine the formation of the board. The rural sector feels that it is not represented. Perhaps there would be an opportunity to appoint two additional board members so that the quorum of three for minor appeals will remain. The section is irrelevant and Fine Gael will be opposing it because it has not heard any strong reasons why the quorum should be reduced.

The amendment aims to improve the throughput of An Bord Pleanála and secure a higher compliance rate with the statutory objectives for appeals at no additional staff costs. It is estimated that over 60% of the current caseloads will be affected by this proposal, offering a significant potential for improved performance. It will also allow more board time to be allocated to complex and economically significant cases. The intention is to get cases outside of the areas I mentioned dealt with in as quick a time as possible. The opportunity is there for the chairman, or the deputy chairman in his or her absence, to recommend particular cases to a two-member quorum meeting. If there is a dispute, it can be referred to a three-quorum meeting.

I accept the intention of the section in terms of making efficiencies. If there are relatively minor appeals that can be easily dealt with, then three board members, when they meet, can deal with them swiftly. I am not convinced the reduction in the quorum will solve the issue of time delays in the process. There is always an odd number in committee, interview panel, etc., for one reason — that there will not be deadlock and a democratic decision is taken at every level. Will the two-quorum meeting model be so efficient? If there were a deadlock between two members, they will have to send it to a three-quorum meeting. I do not believe it will improve how An Bord Pleanála functions. It may be better to examine the wider issue of setting regulations for board member attendance for appeals and properly resourcing the board to carry out its remit.

I declare an interest in that I have referred some planning applications to the board in the past although I do not have any with it currently.

All Members accept the board was under immense pressure because of the amount of development taking place. If this section assists the board to make decisions which heretofore were taking an unacceptable time, then it is a good section. One would like to think the adjudication process for such matters has been appropriate be it a two-member or three-member quorum. I support the move towards allowing the technical assessment of a proposal to be done by the two members rather than letting it sit for weeks.

Certain issues will be referred to this group. However, one would have thought a board of nine members would be fit for purpose and organise its business to ensure the technical decisions in question would be adjudicated on properly and on time. It is not an easy process of just rubber-stamping decisions and this section contains appropriate mechanisms to deal with matters as suggested by the Minister of State.

Senator Callely has put his finger on it. This is a facilitation mechanism to move matters on. The chairman will refer files to a board meeting with a two-member quorum, at which stage it will have various reports. It is unlikely that the chairman will refer a contentious file or matter.

It is disheartening for some people that because there must be a three-member quorum, their cases will not be dealt with for another six weeks. It would be better if the chairman could move it on in one day and get a decision made. It is not a rubber-stamping exercise but a mechanism to move cases on in a speedier way at the direction of the chairman. Developments which could contravene development plans, strategic infrastructure developments and developments listed in the regulations made under section 176 will not be dealt with by this mechanism.

Question put.
The Committee divided: Tá, 28; Níl, 15.

  • Boyle, Dan.
  • Brady, Martin.
  • Butler, Larry.
  • Callely, Ivor.
  • Carroll, James.
  • Carty, John.
  • Cassidy, Donie.
  • Corrigan, Maria.
  • Daly, Mark.
  • de Búrca, Déirdre.
  • Ellis, John.
  • Feeney, Geraldine.
  • Glynn, Camillus.
  • Hanafin, John.
  • Leyden, Terry.
  • MacSharry, Marc.
  • McDonald, Lisa.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Brien, Francis.
  • O’Donovan, Denis.
  • O’Malley, Fiona.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Ryan, Brendan.
  • Walsh, Jim.
  • Wilson, Diarmuid.

Níl

  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Doherty, Pearse.
  • Donohoe, Paschal.
  • Fitzgerald, Frances.
  • Healy Eames, Fidelma.
  • Mullen, Rónán.
  • O’Reilly, Joe.
  • Phelan, John Paul.
  • Twomey, Liam.
Tellers: Tá, Senators Camillus Glynn and Diarmuid Wilson; Níl, Senators Paudie Coffey and Maurice Cummins.
Question declared carried.
NEW SECTION.

I move amendment No. 57:

In page 29, before section 29, to insert the following new section:

29.—The Principal Act is amended by the insertion of the following section after section 151—

"151A.—A planning authority shall put in place procedures to ensure that a consistent approach to planning enforcement is taken throughout the functional area of the authority.".".

This amendment will require a planning authority to put in place procedures to ensure that a consistent approach to planning enforcement is taken throughout the functional area of the authority. It will insert a statutory obligation on planning authorities to have consistency with regard to planning enforcement.

The Minister will recall that on Second Stage I raised concerns about the enforcement aspect of planning and the role of the planning enforcement officer, who has a great deal of power and against whose decisions there is no appeals mechanism. The amendment is a general provision and I ask the Minister to accept its objective. I will table a more specific amendment relating to an appeals mechanism on Report Stage. I can offer an example of the inconsistency in the enforcement process. It involves two side-by-side houses of similar build. Both owners installed a verandah but in one case the local authority pursued the home owner to the High Court while the development in the other case was okay. I could offer many other examples.

On Second Stage I asked about the situation where a developer takes a chance and does something he did not propose to do in the hope of getting away with it. It is unauthorised development. On foot of a complaint by a citizen the enforcement officer could decide it is only a minor infringement and not take any action. There is no appeals mechanism in such circumstances and the developer gets away with it. The enforcement officer's decision might be influenced, as I have observed, by lack of staff. The enforcement officer might decide at his desk in County Hall that it is only a minor matter, but it might be a very serious matter for the neighbours concerned. The Minister, Deputy Gormley, has been quoted as saying that planning is about people and has spoken about the effect such incidents can have.

There is a need for consistency in view of the many examples of inconsistency. There is also a need for standardisation. Perhaps the Minister will comment on this amendment and on the possibility of an appeals mechanism, on which I will table an amendment on Report Stage.

I am aware that Senator Ryan raised this matter on Second Stage. The amendment proposes a new section providing that a planning authority should put in place procedures to ensure that a consistent approach is taken to planning enforcement throughout its functional area. The Planning and Development Act already imposes clear statutory obligations on planning authorities relating to unauthorised development. A planning authority must issue a warning letter regarding written complaints about unauthorised development or other unauthorised development it becomes aware of, except in the case of trivial or minor development; carry out an investigation; expeditiously decide whether an enforcement notice should be issued; enter its decision on whether to issue an enforcement notice on the planning register, including the reasons for that decision; and where it is decided not to issue an enforcement notice, to inform any complainant.

My Department's development management guidelines make strong recommendations to planning authorities in respect of enforcement. These state that, while the issuing of an enforcement notice is discretionary, notices should issue in all cases where it has been established that an unauthorised development is being or has been carried out unless there are compelling and defensible reasons for not doing do. They also state that persons who do not comply with the enforcement notice should be prosecuted in all cases. These guidelines are issued under section 28 of the Planning and Development Act 2000 and planning authorities must have regard to them in the exercise of planning functions. For this reason, I do not intend to accept the amendment, as I consider the current provisions adequate. That aside, I have some concerns. I will take further advice from the Parliamentary Counsel on this matter and revert to the House on Report Stage.

I appreciate the Minister of State's comments on taking further advice and his sympathy for my case. He mentioned trivial and minor matters. Therein lies the problem. In many cases, an enforcement officer with an excessive workload defines something as a trivial or minor matter in his or her report to the complainant, but no further explanation is given. This does not help the person living next door who has a difficulty with the matter in question and to whom it is not trivial.

There is no appeals mechanism. Most aspects of planning include an appeals mechanism, but the power afforded an enforcement officer in this instance cannot be appealed. If the office claims something is trivial, that is the end of the matter.

I referred to this matter and I am glad that the Minister of State will re-examine it. Whether something is a trivial matter depends on who is living next door. What seems trivial to a planning enforcement officer might be a major issue for the person living there.

I know of such an instance, but I will leave it at that. As I am satisfied by the Minister of State's comments, I will not contribute as I had intended.

I have stated my position. I will reconsider the matter and revert to the House on Report Stage. I will not give a cast iron agreement and I will not accept the amendment, but I am prepared to examine whether anything can be done in this regard.

I will not press the amendment, but I intend to deal with the matters I have raised on Report Stage. I also reserve the right to table a more specific amendment on an appeals mechanism.

Amendment, by leave, withdrawn.
SECTION 29.
Government amendment No. 58:
In page 30, lines 6 to 8, to delete all words from and including ""£1,500"," in line 6 down to and including ""£400"." in line 8 and substitute the following:
""£1,500",
(e) in subsection (5) by the substitution of “€1,500” for “£400”, and
(f) by the substitution of the following for subsection (8)—
"(8) Where a person is convicted of an offence under section 154, the Court in addition to imposing a penalty referred to in subsection (1) or (2) as the case may be, may order the person so convicted to take all or any steps specified in the relevant enforcement notice within such period as the court considers appropriate.".".

Section 156(8) deals with the penalties in connection with unauthorised developments and provides that, where a person has been convicted of an offence under section 154, which is an offence of not complying with an enforcement notice, the court may, in addition to imposing a specific penalty, order the person to take steps notified in the enforcement order. However, the reference throughout the rest of the enforcement provisions of the Act is to an enforcement notice rather than an enforcement order. Accordingly, this is a technical amendment to replace the word "order" with "notice" for consistency.

The other amendments to section 156 of the principal Act under amendment No. 58 are grammatical corrections.

Amendment agreed to.
Section 29, as amended, agreed to.
Section 30 agreed to.
SECTION 31.
Question proposed: "That section 31 stand part of the Bill."

This section is a blow to democracy. Currently, the occupiers of a development have a right to vote on whether it is taken in charge. The Bill will remove this right and confer it on the owners rather than the occupiers. The Minister of State claims that he is following the Law Reform Commission's recommendations, but we suggest that this provision be deleted.

The Law Reform Commission, LRC, asserts that only the owners should have a say in whether an estate is taken in charge. The Bill's explanatory memorandum refers to this regarding section 31. It states:

. . . the Principal Act which provides that a housing/residential estate would be taken in charge by the planning authority, in certain circumstances, on foot of a request from a majority of the owners or occupiers. The Law Reform Commission Report on Multi-Unit Developments recommended that it should be owners of units only who would have the right to determine whether the estate is taken in charge.

Am I right in believing that the Government is trying to encapsulate the owners and occupiers in this provision? Owners should have a say. A house's occupants might move on, but the owners will still need to have their say. I am not sure that we entirely agree with Labour's opposition to this section. The LRC recommends that the owner should have a say, but the Government's section allows the owners and occupiers to have a say. Will the Minister of State clarify the situation?

I agree with Senator Coffey's interpretation. As the tenant will move on, I support the legislation.

Section 180 of the principal Act provides that a residential housing estate would be taken in charge by the planning authority in certain circumstances on foot of a request from the majority of the owners or occupiers. The LRC's report on multi-unit developments recommended that only owners of units should have the right to determine whether the estate is taken in charge. This amendment implements that recommendation.

The principal Act is also amended by the placement of the reference to open spaces and car parks in the list of facilities that must be taken in charge. This is to clarify that the planning authority's obligation in respect of taking in charge in a residential estate does not extend to some spaces, such as private communal spaces, private playgrounds, bin storage areas, private car parks and allocated parking spaces. The planning authority is not required to take in charge communal spaces reserved for the use of the residents and that are not accessible to the public.

I acknowledge the Minister of State's response, but the legislation will bestow the right on owners only. Since the occupiers should also have a role, we oppose this section. However, I do not propose to press the issue.

Question put and agreed to.
SECTION 32.

Amendment No. 59 in the name of Senator Coffey is ruled out of order, as it would impose a potential charge on revenue.

Amendment No. 59 not moved.
Question proposed: "That section 32 stand part of the Bill."

There is a reason for this section's inclusion in the Bill. I assume that high costs are associated with An Bord Pleanála processing appeals and applications of large infrastructural nature. Where do these costs accrue now? Do the board and the State pay? Is it the intention of the Minister to recoup these costs by this section in the legislation? The Minister of State might clarify that for me.

I would also make the point on the section that there are many proposed infrastructural projects and An Bord Pleanála will deal with quite a few of them, for example, the renewable energy wind projects, offshore or even onshore. The Spirit of Ireland has mentioned projects such as hydro schemes in combination with wind schemes and many of those will possibly come before An Bord Pleanála. I hope we are not excluding these sustainable infrastructural ventures or creating a disincentive by imposing costs on them. I urge caution on the Minister of State and the Department to ensure cost implications do not deny good infrastructural projects from happening in the private sector or wherever. I cite renewable energy projects as a good example. Senator Butler has often spoken about the Spirit of Ireland. He has an interest in that and so have I. I hope this legislation will not be used by agencies such as An Bord Pleanála to impose high costs which could cause those projects not to go ahead. I have a concern in that regard. The Minister of State might clarify it.

At present those costs are by subvention to the board. As I stated already when we dealt with this matter earlier, these costs can be offset against the planning application fees at a later stage. The determination of those are regular costs, and whether it is an environmental assessment, the pay of a consultant or whatever, the important aspect is that the board can charge these. The subvention pays for the developers' investigation at infrastructural level at present. It is only proper that preplanning investigation is paid for. The developer has the opportunity of offsetting it at a later stage.

I thank the Minister of State for the clarification.

Question put and agreed to.

Amendment No. 60 in the name of Senator Coffey is ruled out of order as it involves a potential charge on the Revenue.

Amendment No. 60 not moved.
Section 33 agreed to.
NEW SECTION.
Government amendment No. 61:
In page 32, before section 34, to insert the following new section:
"34.—Section 191(2) of the Principal Act is amended by the substitution of "the making of a new development plan under section 12 or the preparing, making, amending or revoking of a local area plan under section 18 or 20." for "the making of a new development plan under section 12.".".

Amendment No. 61 provides for an amendment to the right to compensation provided under Part XII, Chapter II of the principal Act, namely section 191, restriction of compensation. It is proposed to restrict compensation for the preparing, making, amending or revoking of a local area plan. This is a consequential amendment to restrict or rule out compensation on foot of a zoning decision in a local area plan which, under amendment No. 29 referred to earlier, provides for a section 19(5) in the Act to provide that there is to be no presumption in law that any land zoned in a particular local area plan is to remain so zoned in a subsequent local area plan.

Amendment agreed to.
SECTION 34.

I move amendment No. 62:

In page 33, line 7, to delete "creation, management, restoration or".

Fine Gael proposes in page 33, line 7, to delete the words "creation, management, restoration or" for the simple reason it is too prescriptive. The legislation would be quite sufficient if it stated "(g) secure the preservation of any site of scientific or ecological interest, including any Nature”. The preservation is the important matter and that encompasses all, including the term “creation, management, restoration or”. We believe it is just too much detail and too prescriptive in terminology.

We do not need to make this planning Bill any more complex than it needs be. We must remember that this must be interpreted by every planner in the country. Any person who makes an application should be able to understand it. It should not be the job of law to over-prescribe on how planning is processed. It would be quite ample to remove the words "creation, management, restoration or" and I would ask the Minister of State to genuinely consider this. It is a reasonable request.

In addition, this section refers to the national heritage areas, wildlife and such like, all of which are obviously important areas, and I want to make a general comment.

We will deal with the amendment. I will let Senator Coffey in on the section.

I accept that ruling.

Where European, national or local nature sites are threatened, local authorities need to have the ability to intervene where appropriate to manage or restore the site or to provide for its management or restoration. This corresponds with the biodiversity responsibilities of local authorities. Where European or national sites or protected species are involved, it would be expected that there would be close liaison and co-operation with the national parks and wildlife service.

I see the local authorities as having an important role and responsibility in ensuring Ireland complies with its obligations under the EU nature conservation law. Section 212, which is being amended, is not an obligatory provision but an enabling one. In effect, the proposed new provision will add an additional set of tools that local authorities will be able to use where warranted to protect the natural heritage in their areas. For that reason, I am unable to accept the change proposed by Senator Coffey in amendment No. 62.

Amendment, by leave, withdrawn.
Question proposed: "That section 34 stand part of the Bill."

I would ask the Minister of State to note the following general comment. Representatives of turf cutters made presentations last week to the Joint Committee on the Environment, Heritage and Local Government. They made a reasonable argument on the matter of conservation areas. These are the people who live and were reared on the land. It is important we note their views and that they are not lost. There is an important drive towards conservation and preservation, but it is also important we take account of the native people who were born and bred in these areas. We are talking about wildlife in this section but I would argue that we should also give due consideration to native inhabitants of rural Ireland and the practices they have carried out over generations. The representatives of the turf cutters made the reasonable argument about how they have contributed to the preservation of the wildlife and the countryside in which they live.

While I understand the importance of the existence of the special areas of conservation, the way their boundaries are drawn needs to be reviewed. If one looks at the maps where they are delineated or marked, they normally follow, for example, a stream or a river course. They follow natural boundaries or fence lines. Sometimes they move out across roadsides into fields and back down again, and there seems to be no logic to some of the areas included in special areas of conservation. If a planning application is made within those areas, local authorities automatically deem them unacceptable because they are in this hatched area which is a special area of conservation. However, when such a hatched area was being established on day one, there was no proper analysis of its boundaries. It creates many difficulties and much bureaucracy within the planning process. It is an area that needs to be revisited to come up with a better system of clearly delineating and understanding special areas of conservation on maps. There are many areas that should not be marked as special areas of conservation. If one analyses the maps, they jump outside areas that have any relevance to the protection of wildlife or special areas around rivers or streams. I have not tabled an amendment in this regard, but I wanted to make that general comment.

I ask the Minister of State and his officials to take account of what I am saying because such areas do cause problems for planning authorities. There should be a better system whereby such areas could be reviewed by local authorities on a phased basis if resources are a problem. They should not be a problem now, however, because planning authorities do not have the workload they had heretofore. This may be an opportune time to revise special areas of conservation to see that they are being appropriately allocated for the reasons they were initially created.

One of the serious issues that needs to be addressed in the Planning Acts is Ireland's failure to meet the requirements of the habitats directive. In recent years, this has been the subject of two substantial judgments against Ireland by the European Court of Justice. The State is now obliged to address these judgments which found, inter alia, that Ireland had failed to transpose the Birds and Habitats Directives into Irish law. These two areas arise here. First, under Article 6 of the habitats directive, all State agencies, including planning authorities, must in the exercise of their functions take account of special protected areas, sites for the protection of birds, special areas of conservation and sites for the protection of other species of flora and fauna, and habitats. We have an obligation in that regard. Sites that have been selected for designation as SPAs and SACs must also be protected. Furthermore, under Article 10 of the habitats directive, member states must endeavour, where they consider it necessary in their land use planning and development policies, to encourage the management of features of landscape, which are of major importance for wildlife and fauna.

Question put and agreed to.
Section 35 agreed to.
NEW SECTIONS.
Government amendment No. 63:
In page 34, before section 36, but in Part 2, to insert the following new section:
"36.—Section 251 of the Principal Act is amended by the substitution of the following for the section:
"251.—Where calculating any appropriate period or other time limit referred to in this Act or in any regulations made under this Act, the period between the 24th day of December and the first day of January, both days inclusive, shall be disregarded.".".

Amendment No. 63 provides for the holiday time period as it already applies to the development management process timeframe to be applicable to the development planning process timeframes.

Amendment agreed to.
Government amendment No. 64:
In page 34, before section 36, but in Part 2, to insert the following new section:
"37.—Section 253 of the Principal Act is amended—
(a) in subsection (1), by the substitution of “enter a premises or on land” for “enter any premises”,
(b) in subsection (3)—
(i) by the substitution of "enters a premises or on land" for "enters any premises", and
(ii) by the substitution of the following for paragraph (a):
"(a) require from an occupier of the premises or land or any person employed on the premises or land or any other person on the premises or land such information, or”
(c) in subsection (4)—
(i) in paragraph (a) by the substitution of—
(I) "prevented from entering a premises or on land" for "prevented from entering any premises",
(II) "present in a premises or on land" for "present in any premises",
and
(III) "by the authorised person in the premises or on the land" for "by the authorised person in the premises",
(ii) in paragraph (b) by the substitution of—
(I) "prevented from entering a premises or on land" for "prevented from entering a premises",
(II) "to enter the premises or on the land concerned, if need be by force" for "to enter, if need be by force, the premises concerned".".

Section 253 of the Act already gives an authorised person power to enter a premises in relation to the enforcement of planning control. For the avoidance of any doubt, a reference to land is also being added, that is, the power to "enter a premises or on land" is now being specified in the section. Each reference to a premises in which the section is being replaced by a reference to "a premises or on land". The purpose of this amendment is to remove any doubt that the powers of entry extend to the power to enter onto land where there might not be a building, that is, in an extract of industry for the purpose of any enforcement provisions of the Planning Act. That is to say, in case it could have been considered that the word "premises" could not encompass land with no buildings on it, the word "land" is being added in each case. This is to ensure that there can be full access to all relevant places for the purpose of planning control.

Amendment agreed to.
Government amendment No. 65:
In page 34, before section 36, but in Part 2, to insert the following new section:
"38.—Part I of the First Schedule to the Principal Act is amended—
(a) by the substitution of the following for paragraph 6:
"6. Carrying out flood risk assessment for the purpose of regulating, restricting, and controlling development in areas at risk of flooding (whether inland or coastal).", and
(b) by the insertion of the following paragraph after paragraph 11:
"12. Regulating, restricting and controlling development in areas at risk of erosion and other natural hazards.".".
Amendment agreed to.

Amendments Nos. 66 to 68, inclusive, have been ruled out of order as they involve a potential charge on the Revenue.

Amendments Nos. 66 to 68, inclusive, not moved.
Section 36 agreed to.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Is that agreed? Agreed.

Report Stage ordered for Tuesday, 1 December 2009.

When is it proposed to sit again?

Ag 10.30 maidin amárach.