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

SECTION 7.
Debate resumed on amendment No. 19:
In page 12, lines 12 and 13, to delete "a vote of not less than two-thirds" and substitute "a majority".
— (Senator Paudie Coffey).

Before recommencing I welcome the new Member, Senator James Carroll, to the House. I congratulate him and wish him the best of luck.

When the debate was adjourned, we were discussing Amendments Nos. 19, 20, 25, 26 and 46. I call Senator Coffey.

This amendment is about trying to retain the existing system within local authorities whereby a simple majority of the council can make material amendments, or whatever is required to make those amendments, to a development plan. Requiring two thirds of the members of a council to make these amendments could cause difficulty in trying to get development plans passed. That is our fundamental difficulty with the legislation as drafted. We feel it gives an unfair advantage to the minority within councils. There is a danger that a rump could form within a council and exclude good amendments that would have the support of the majority. That is our simple and fundamental view. In his speech on Second Stage, the Minister said this Bill was about empowering local authorities and enhancing the powers of their members. As drafted, however, the legislation diminishes the power of elected representatives, be they from villages, towns or cities. In most council votes, a simple majority is required to elect a cathaoirleach or mayor. It is recognised as being the required majority of those particular councils, so that is the reason we have tabled these amendments.

Last week, some speakers on the Government side expressed concerns about the legislation as it is drafted. Before Report Stage, the Minister of State and his officials should consider deleting the two thirds requirement to pass material amendments to development plans.

As regards amendments Nos. 19, 20, 25, 26 and 46, I acknowledge that differing views have been expressed. They may have arisen from a lack of clarity on the proposal of these amendments to increase the voting threshold in the case of material amendments to the draft development plan. First of all, I take the opportunity to clarify the intent of my Department in regard to these amendments. The proposed legislative amendment to introduce the two thirds majority was intended to ensure that any further changes proposed by members to those amendments to the draft plan, that had been the subject of public consultation — i.e. the second consultation period — were subject to a higher approval threshold because such changes would not be subject to any further scrutiny. It was always intended that a simple majority vote by members would be required, as is currently the case, in respect of approving a draft development plan; a draft variation for the initial public consultation; proposing and approving amendments to the draft plan, which would then be issued for a further public consultation phase, as the amended development plan — that is, there would be no second consultation phase concerning a variation or a draft local area plan; and approving by resolution to make a development plan and variations.

The amendments were proposed in order that approval of any further changes would require the higher threshold of a two thirds majority. From the reaction I have received, it would seem the legislation is perhaps not sufficiently clear in this regard. Therefore I propose to revert to the parliamentary counsel for further legal advice with a view to bringing forward some technical amendments to address the matter. We will find another opportunity on which to do that. That is my position. I have asked the parliamentary counsel to clarify this particular area.

The Minister of State's comments are very useful and I will therefore be withdrawing my two amendments to allow him to come back to the House on this matter. It may be, however, that this is not purely a technical issue, as the Minister of State stated. In fact, there is an issue of principle as regards the voting requirement at that particular stage of a development plan. Given the circumstances, I will reserve my position on the issue until Report Stage, as I do not accept that it is purely a technical drafting issue. There is an issue of principle involved. In deference to what the Minister of State has said, however, I will be withdrawing my amendments and will revisit the matter on Report Stage.

On a point of clarification, I said I would bring forward some technical amendments. I am not saying it is a technical issue.

I understand that.

I thank the Minister of State for his response. I understand that he will bring forward technical amendments, but I am not sure that will change the fundamental difficulty that my party has with the issue. We are prepared, however, to await whatever technical amendments the Minister of State will bring forward. We reserve the right to table amendments on Report Stage. The Minister of State made some interesting comments on the clarification, understanding and interpretation of the Bill. That is a general problem that we have with this legislation. There is a profusion of Planning and Development Acts because of the failure by the Government to consolidate the legislation. If we have difficulties in interpreting and understanding the legislation in this House, what will the reality be for local authorities and applicants? It might transpire that court cases will refer to this legislation also.

The Planning and Development Act 2000 was substantially amended in 2006. We now have another substantially amended Bill before us. The absence of any consolidated text makes the legislation confusing and difficult to follow. It concerns us that it will be a source of significant income for lawyers because of the lack of clarity in the legislation. The Minister of State has hit the nail on the head in saying it is a serious concern. I will withdraw the amendment at this stage, while reserving the right to resubmit it on Report Stage in light of what the Minister of State has said.

I thank the Minister of State for acknowledging that Members have a difficulty with this section on which clarification is needed. His comments have been helpful. I will wait to see what emanates from the entity into whose hands he has placed this matter. It is important for locally elected members to retain their powers. They are afraid of losing those powers, as we are also on their behalf.

I also welcome the comments by the Minister of State. I agree with my colleague Senator Glynn about locally elected members retaining their powers. The provision whereby a majority of two thirds would be required even for a minor amendment to a draft development plan is serious, as my colleagues on the Opposition side have pointed out. Contained within the section is a reference to the regional planning authorities, which are to be given more power in this Bill, including policing power. The authorities are to propose special strategies but the special strategy is now under review. It is a case of giving power to the regional authorities before knowing the exact policing powers they will have. This is putting the cart before the House. The Minister of State should consider this.

There are powers vested in the regional authorities at present. However, in a recent High Court challenge it was clarified that they could make guidelines but that the guidelines are for consideration only and can be ignored by the local authority, councillors and county manager if there is sufficient reason for doing so. There is often sufficient reason. Who knows better how to plan and develop a county than those democratically elected to do so? Reference was made to there being too many quangos. The regional authorities are another form of quango. This issue was raised with me by Councillor P. J. Kelly and I will pass the information on to the Minister of State for his consideration.

That has nothing to do with the amendments; it has more to do with the section.

It concerns the regional authorities.

The Senator may discuss that when discussing the section.

I will pass the documentation to the Minister of State.

Amendment, by leave, withdrawn.
Amendment No. 20 not moved.

Amendments Nos. 21 and 27 are related and may be discussed together, by agreement.

Government amendment No. 21:
In page 12, to delete lines 18 to 28 and substitute the following:
"(d) A further modification to the amendment—
(i) may be made where it is minor in nature,
(ii) shall not be made where it refers to—
(I) an increase in the area of land zoned for any purpose, or
(II) an addition to or deletion from the record of protected structures.",".

Amendments Nos. 21 and 27 propose to delete the obligation to publish notice of any further minor modifications to proposed material amendments and any further minor modifications to proposed variations, as long as they are minor in nature and would not warrant further consultation.

Amendment agreed to.
Government amendment No. 22:
In page 12, lines 30 to 33, to delete paragraph (g) and substitute the following:
"(g) by the substitution of the following for subsection (14):
"(14) (a) Notwithstanding any other provision of this Part, where a planning authority fails to make a development plan within a period referred to in paragraph (b), the manager shall make the plan provided that so much of the plan as had been agreed by the members of the planning authority shall be included as part of the plan as made by the manager.
(b) The period referred to in paragraph (a) is—
(i) not more than 2 years from the giving of notice under section 11(1), or
(ii) where subsection (7)(aa) (inserted by section 7 of the Act of 2009) applies—
(I) not more than 2 years and 4 months, or
(II) if appropriate in the circumstances, such longer period than 2 years and 4 months as is specified under subsection (7)(ab) (inserted by section 7 of the Act of 2009) by the manager as being required to facilitate an assessment referred to in subsection (7)(aa).”.”.
Amendment agreed to.
Question proposed: "That section 7, as amended, stand part of the Bill."

Clarity is sought on regional authorities and on regional plans. Senator Daly is right that we are putting the cart before the horse regarding regional authorities. Who puts in place the regional draft plans for regional authorities? Is it the county managers or the regional manager? It seems county plans are just fed into the regional plan and that this is how the latter is thought out. There is insufficient thought put into section 7 of the Bill.

Regional authorities do not know what their responsibilities are under the legislation. They are being given significant additional responsibilities under the legislation which the local authorities will have to feed into. There is confusion in section 7 over the production of draft plans, for regional authorities in particular. Perhaps the Minister of State will expand on what he envisages will occur with regard to the expanded role of regional authorities where planning is concerned.

Local authorities are being told they must refer to the spatial strategy and regional plans. Who has an input into the regional plans? Is it just the county managers or is there a draft regional plan put on display which everybody in the region can examine and on which one can make observations? The system proposed is different from the one in operation. We need to know the changes and what they will mean for local councillors and local authorities. How can the observations of the public be processed? We are giving many additional powers to regional authorities and they need to be explained further to everybody concerned.

I want to follow on from what I stated earlier. I agree with my colleague in respect of moving powers from the local base to regional authorities. The latter are only reviewing and refreshing their own guidelines at present. We do not know what powers we will be transferring up the line from councillors to the regional authorities. We do not know what process will be in place for people to view new guidelines or plans. At present, guidelines can be observed where appropriate or set aside where there is significant reason for doing so. We are now putting in place a system whereby the regional authorities will basically have a policing role. They will be judge and jury and will be able to rule whether development plans and actions by county councils are appropriate. They will be able to overrule the county councils. All public representatives are concerned that power will be moved from them to regional authorities, which will have elected members but also public servants adjudicating on their role.

I am worried about this also. The county council is sacrosanct in terms of how it develops the county without interference from a regional authority. The role of the latter should be to standardise practices in the region. That is fine but I am quite worried about how a regional authority will be able to affect a local county council and its development plan for the county. All regional authorities have representation from the county councils but we know the real decisions are made by county managers, who are involved in the regional authorities. I know this because I was a member of a regional authority and know how it works. It is for this reason that I have concerns.

I am something of a believer in the old adage: "If it is not broken, don't fix it." While we are talking primarily about county councils and county borough councils, I have concerns about any dilution of the powers of county councils, borough councils and town councils. They have worked well and we should be augmenting them in such a way that they will have additional powers that would allow them discharge their duties in a better way.

I ask the Minister of State to reconsider this matter to ensure power remains with all relevant local authorities. Local government, by its very nature, is such that people who are locally elected are best placed to determine what is best for their local communities. "Local" is the operative word. When one operates on a regional basis, the concept of the local gets lost. I urge caution.

I support what Senator Cummins said on regional authorities. Other Senators agree on the importance of determining how regional authorities will work in conjunction with local authorities. We saw recently that regional authorities play a bigger role than we give them credit for in terms of the adoption of county development plans. One could say the regional authority plan is sacrosanct when it comes to local authority members adopting their plans. It is interesting how all of this pans out locally. When a regional plan comes before a local authority or the county manager says that the regional authority has agreed it, then the local authority members have to take the regional authorities' ideas and plans on board and incorporate them into their plan.

Senator Cummins made an important point when he inquired where the regional authority plan originates. Is it with the regional authority manager? Do we have regional authority planners? Is it with the county managers from within the region who put their proposals together? Do the planning officers within each local authority meet and formulate the plans? Do the plans come from the Minister's office or central government to the regions based on decisions taken, for example, by the Department of the Environment, Heritage and Local Government or the Department of Transport, which state what they require in the regional plans? Do the regional authorities' rubber-stamp those plans without going into them in any great depth or consideration of the consequences of the adoption of the various development plans?

I agree with the point made by Senators Cummins and Butler that the county development plan should be the real plan. Before regional authorities were put in place we saw that adjoining local authorities worked well together. I would like to know the strategy for major schemes such as waste water. For example, the Dublin waste water treatment unit goes through a number of local authorities. Does the plan for such a project come from central government or the local authorities within a region? I presume the plans for national primary routes and national secondary routes come from the National Roads Authority rather than from a regional authority. Perhaps the National Roads Authority issues guidelines to regional authorities and those plans are put into county development plans as well.

Senator Cummins raises a very important point on how regional development plans originate and who has the input into them. Ultimately, local authority members' rubber-stamp them and when the plans go to county councils the councillors automatically include the regional plans, in many cases without considering the consequences of that. We need to debate carefully how the regional plans work out on the ground.

We are debating an important section which deserves time and consideration. What we are dealing with is a proposal to change essentially and fundamentally how county and city development plans are formed. Senators on the Government side are also concerned with this section and how it is elevating the role of regional authorities in the making of development plans. The Bill gives primacy to regional authorities in the making of development plans. All city and county development plans will be required to comply with whatever is contained within a regional development plan. We need to think through the matter fully before we take that step.

I sat on a regional authority. Senators previously referred to an issue about which I am concerned, namely, that regional authorities do not have the expertise in terms of full-time permanent staff to deal with planning issues. Currently, planning staff are seconded either from the Department or local authorities to draw up regional plans. The regional authority structure is underdeveloped. I was chairman of a regional authority and I am aware of the commitment of staff who go beyond the call of duty to try to make regional authorities relevant. Unfortunately, they are not given the resources or the teeth to do what is required of them by the Department. The Bill proposes a serious escalation in their obligations and requirements, yet no detail is provided on how the planning departments, which do not currently exist, are to be staffed and resourced. Neither is information provided on how the public will engage with the formulation of regional plans, which is the most fundamental right of any individual or community. In essence, what we are doing is removing the making of development plans one step away from the public.

What the Minister of State is trying to do is micromanage local authorities from a regional perspective. I acknowledge that there is a role for regional co-ordination. It is important that there is a regional strategy on how regions develop. However, not every local authority in every county and city within a region is the same. As I said previously, one size does not fit all. Every county has its unique attributes and strengths and it also has weaknesses. Why are we trying to make every county and city uniformly the same when in essence they are not? That is the effect the Bill will have. It will take power from counties and cities and funnel them back up through the regional structure to make them all look the same. That is not a good thing. Senators need to contemplate the issue seriously. I urge the Minister of State to review this section with a view to providing more detail on how he proposes regional authorities will cope with the extra important obligation.

Section 7 gives primacy for the formulation of development plans to regional authorities rather than local authorities. It is formulating plans from the top down rather than the bottom up. That is diminishing local democracyvis-à-vis elected members and the ability of the public to engage in terms of easy access to the making of development plans. If a survey was carried out in the morning I am not sure how many members of the public would even know that a regional authority exists, but in spite of that we intend to give it primacy in the making of development plans. There is a serious job to be done. I urge caution on all sides. We should think the issue through seriously before we try to implement it in law.

A national strategy is required for the country. We have a national spatial strategy. It is appropriate to put in place regional planning guidelines. We should remember that they are only guidelines. The Bill does not change in any way the powers of local authorities.

The central point is to achieve consistency between national and regional guidelines and what is adopted in the plan. It is a straightforward and streamlined approach to what is necessary in planning. It is important to remember that the members of regional authorities are members of local authorities. The guidelines that are agreed at regional level are put forward by local authority members and the manager and his or her executive. The local authority then decides on its development plan. This Bill does not take away the entitlement or the right of a local authority to bring in its country development plan.

I appreciate the Minister of State's response but we have serious concerns. We are not saying the power is being taken away, rather that the primacy is being taken away. More authority through law is being given to regional authority development plans and there is now an insistence through law that local city and county development plans comply with regional guidelines. The concern is that it is becoming stricter and more managed from the top down.

The Minister of State mentioned the members of regional authorities. I accept they are councillors representing each individual local authority but if we are giving this power to regional authorities, which is what we are doing in that we are giving them power but we have not seen how they will deal with the resources, perhaps we should consider having directly elected members to regional authorities where they are fully accountable to the entire region if they are making decisions that will affect all the constituents of that region. It is an issue we must consider because what they are, in essence, are delegations from local authorities. They are coming to the regional table with the views of the particular constituency, county or city they represent. In this legislation, however, they are being required to have a broader view, which is fair enough. Those of us on this side of the House accept the need for regional and national guidelines and national strategies but we have a problem with the accountability and the fundamental change to the democratic making of development plans. If councillors who sit on regional authorities are more accountable to the entire region, perhaps we should consider having a process of directly elected members but we believe this has not been thought through.

The Minister of State is using the structures of regional authorities that until now have been toothless and under-resourced to carry the vehicle that will micromanage development plans from a national and regional perspective. That is the way it appears to those of us on this side of the House and unless we hear more detail on the way it will be fleshed out and resourced, we will continue to have concerns and this is the place to express those concerns. I urge caution across all sides of this House in that we are fundamentally changing the way local, county and city development plans are being made and that will have implications locally.

I agree with my colleague, Senator Coffey, in this regard. The Minister of State is correct that we must have a national spatial strategy. We must have regional guidelines which come from the top but it is the make-up of the regional development plans specifically we are speaking about rather than the guidelines in terms of who organises them, puts them into place and operates them. As has been stated, regional authorities do not have the resources where planning is concerned. I want to refer to the actual plans rather than guidelines, the make-up of those and the power of regional development plans now which I understand will have greater strength where planning is concerned than they had previously. The goalposts have changed. We will not be in the same position we were in previously if this Bill is passed. This legislation will give greater control to regional authorities in terms of the input into their plans in particular and regional authorities having to refer to the regional plans. It is another unnecessary layer of bureaucracy that is being put into the planning system.

The Minister of State is correct. He is not taking any power away from local authorities. When the draft development plan is done by the local authorities and the authorities consider what the regional authorities are doing, the most important aspect, and there has been no mention of it in the legislation, is the local area plan, which is a bigger and more important plan. Each local area in the Dublin region has its own plan. That is not so much the case in the country but in the Dublin region each local area has its own plan. For example, the Cherrywood local area plan has been on hold for three, four or five years because there was no proper infrastructure in place such as the Luas in the Cherrywood area. The Luas has now gone in and the local area plan can be completed for that area. There is a science and technology park in that area as well.

When we take into consideration the draft development plan, the local area plan and the regional plan, it is important we do it in that way because it is the local people who will decide. For example, there will be 25,000 people living in Cherrywood. We cannot willy-nilly have a draft development plan and say there will be development in a particular area. It must be thought out. The infrastructure must be put in place and the jobs created. It must be sustainable. These are the relevant issues.

I agree with the Minister of State in terms of what he is trying to do. He is trying to tie those three aspects together. That is welcome but I caution the Minister of State against giving the regional authorities too much power because it will affect the local county. That is the problem. The Minister of State should be careful about that aspect of it.

I agree with Senator Butler. We have the county development plan, the integrated area plans, IAPs, and the town plans and there must be co-ordination among those but too often those of us who are in public life a long time, and I am in public life 30 years, have seen development take place in the absence of appropriate infrastructure. I am not necessarily talking about water and sewerage, which is important, but in the absence of schools and amenity services, all of which are important.

There is a great deal of merit in what the Members said earlier. They are sounding a word of caution about protecting the powers of the local authorities but, equally, we must acknowledge the Minister of State's remarks that we will have to have an approach above and beyond that, which is more or less what Senator Butler said. We must be able to tie in all of them, and that is something that will require a great deal of debate.

I am jealous of the powers of local authorities — the county council, the county borough and the town council. They are important units of local government and there is no better person to determine what is best for an area than the person elected to represent that area because they are suitably educated, if I may use that word, and informed by their local electorate.

I welcome the discussion, which has been positive, but it is important that I clarify a number of matters raised. The staffing and resourcing of regional authorities is negotiated between the directors in the regional authorities and the individual county managers on the councils. That is the process, and I am confident that process will continue.

On the matter of regional authorities and their plans, the simple fact is that they do not have plans. There is not a regional authority plan. There are regional authority guidelines for county councils to take into consideration in developing their plans in the same way as there is a national spatial strategy. Senator Butler put his finger on it. It is a process of having a national spatial strategy. We have regional planning guidelines. This legislation does not in any way take away the powers of a local authority to do its plans. I am not giving extra powers to the regional authorities. Senator Coffey asked if they should be directly elected but that is a matter to be considered in the White Paper or legislation at another time. It will be dealt with next year and people can make an input then. I am not giving extra authority to regional authorities in this legislation. I am not taking away the authority of local authorities over their plans but it is sensible that we observe what is necessary in an overall context for an area. All of us in public life want to take the common good into consideration in development plans. The authority of local authority members remains.

I thank the Minister of State for trying to clarify the matter but I disagree fundamentally with his claim that he is not taking power from local authorities or materially affecting regional authorities. If that is the case, why are there sections in the Bill that apply to regional authorities? Why are we changing the law such that it will require local authorities to comply with regional authority guidelines? That is a fundamental change and to say otherwise is wrong. We agree that there are regional planning guidelines and it is important that we have them in co-ordinating strategies in local authorities. However, to say the Bill does not change anything is wrong because it obliges local authorities by law to comply with regional planning guidelines, something they have not had to do heretofore. They have had to take account of and refer to them but they have not had by law to comply with them. That is a fundamental change to the way development plans are made.

We agree that there should be a national spatial strategy but who makes that strategy? What democratic consultation has there been on it? When will it be sent for public consultation, seeking submissions from the public, as happens in the case of a development plan? The national spatial strategy does not have the approval of the Oireachtas. It has the approval of the Minister and the Government. That could change at any time but we are obliging all local authorities to comply with the views of the Minister, the strategy and the regional authority guidelines. That is the problem; we have a top-down approach that fundamentally changes the way development plans are drawn up. I am trying to be fair and voice the concerns of those who are concerned that the fundamental mechanisms proposed in the Bill for making development plans are to be changed dramatically. There is no point in pretending otherwise.

I am not changing the powers of regional authorities. There is no provision in the Bill to do this. Local development plans must take into consideration regional planning guidelines.

As for the national spatial strategy, there was extensive national consultation. Even small areas had an input into it. It was a very long process. I do not know if there is a single stakeholder in the country who did not have an input.

Question put.
The Committee divided: Tá, 32; Níl, 14.

  • Bacik, Ivana.
  • 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.
  • McCarthy, Michael.
  • McDonald, Lisa.
  • Ó Domhnaill, Brian.
  • Ó Murchú, Labhrás.
  • O’Donovan, Denis.
  • O’Sullivan, Ned.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Prendergast, Phil.
  • Quinn, Feargal.
  • Ross, Shane.
  • Walsh, Jim.
  • White, Alex.
  • White, Mary M.
  • Wilson, Diarmuid.

Níl

  • Bradford, Paul.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Cannon, Ciaran.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Cummins, Maurice.
  • Fitzgerald, Frances.
  • Healy Eames, Fidelma.
  • Norris, David.
  • O’Reilly, Joe.
  • O’Toole, Joe.
  • Phelan, John Paul.
  • Twomey, Liam.
Tellers: Tá, Senators Camillus Glynn and Diarmuid Wilson; Níl, Senators Paudie Coffey and Maurice Cummins.
Question declared carried.
Progress reported; Committee to sit again.