Planning and Development (Housing) and Residential Tenancies Bill 2016: Committee Stage (Resumed)

SECTION 4
Debate resumed on amendment No. 2:
In page 7, between lines 24 and 25, to insert the following:
“(3) An order referred to in subsection (2) may only be made subsequent to an independent review of the operation of this Chapter to include a public consultation process, any such review to commence not later than July 2019.”.
- (Senator Victor Boyhan)

To recap, I made my argument for an independent review. Surely there would be no problem with having an independent review. The Minister has clearly said it is a temporary arrangement and we know that he has the power to extend the date. I am not trying to curtail his extension of the period to five years or whatever other period he would have in mind; I am simply suggesting there be an independent review. I am not suggesting it be a departmental review but a meaningful review that would allow the Minister, his officials in the Department, An Bord Pleanála and members of all parties and none to contribute. The Minister has repeatedly said that when the matter is discussed at various fora there will be a learning curve and teething problems and that we will have to iron out bits and pieces. There will be hiccups because, by its very nature, it is something that is new. It would, therefore, be fair and reasonable for him to agree to have an independent review that would add strength. I reiterate that people should feel involved in the process and they would feel involved if the Minister was to indicate that he was happy to have an independent review. I hope he will agree to same.

I assume the Minister of State at my Department, Deputy Damien English, responded to the amendment and read the reply on it.

No. We do not receive copies of replies.

We had a scintillating talk.

What did Senators and the Minister of State talk about?

After the three-year period expires, there will be an option under the legislation for the Minister to extend the period for a further two years. The measure will be subject to a lot of scrutiny to see whether it has been effective. There will be many opportunities for the Minister to attend debates in both Houses. I have been here three times to debate the topic of housing. Therefore, I am slow to introduce the concept of an independent review unless it is absolutely necessary to do so. There will be a good understanding on the part of the Minister - whether it is me or whoever will be in my place - of whether the measure is working. It will be the prerogative of the Minister of the day to use his or her judgment in deciding whether it should be extended by a further two years. We are talking about a further two years, which means a maximum period of five years. It will then fall. There will be appropriate political scrutiny. Any Minister worth his or her salt will make a case for an extension. I sense we do not need to put in place another formal independent review process when both Houses will have an opportunity to scrutinise the measure which I suspect will happen long before the three-year period lapses. I envisage being here next year talking about whether the number of planning applications is up, whether developers are using the facilities being provided for and how An Bord Pleanála and the local authorities have responded to the measure. I have a lot of sympathy for Senator Victor Boyhan's other amendment, but on amendment No. 2, I am slow at this stage to commit to having an independent formal review process as we will be able to judge the effectivenes of the new measure after it has been up and running for a period. I am not sure, therefore, that the amendment is needed. A Minister might well decide to enhance the case for an extension, but that will be a judgment call for him or her to make in a couple of years time. I do not mean to be unhelpful, but what I have outlined is fair.

The Minister's response is disappointing. The Minister for Public Expenditure and Reform has launched with great fanfare a new consultation document on openness and transparency. Talk of open engagement means nothing and rings hollow. I want the Minister for Housing, Planning, Community and Local Government and his officials to be part of an independent review. Ministers will not stand up and talk about having a review. The plan is the Minister's baby and his political reputation rests on it.

The Minister is happy to do that and he knows it. That is fair enough. It is the Minister's commitment and it is the Minister's Rebuilding Ireland programme. It is about his vision for himself in terms of his political station at this point in time. He has a lot hinging on this. Of course the Minister is not going to feel that way. In a healthy democracy, a Minister might say that he or she favours an independent review of himself or herself and of his or her officials. I accept that the Minister feels the way he feels. I reserve the right to table the amendment at the next stage. The Minister is shaking his head and he will have the same old response at that stage. Let us not start with talk of new politics again, because this is not new politics.

I wish to be helpful and I wish to move on, because we are going to be here for a long time dealing with this. The Bill will not be passed next week at the rate we are going. I withdraw the amendment at this time but reserve the right to table it again.

Amendment, by leave, withdrawn.

Amendment No. 3 is in the name of Senators Catherine Ardagh, Jennifer Murnane O’Connor, Lorraine Clifford-Lee, Mark Daly, Paul Daly, Aidan Davitt, Robbie Gallagher, Gerry Horkan, Terry Leyden, Brian Ó Domhnaill, Ned O’Sullivan, Keith Swanick and Diarmuid Wilson. The amendment has already been discussed with amendment No. 2.

I move amendment No. 3:

In page 7, between lines 24 and 25, to insert the following:

“(b) Prior to extending the specified period the Minister shall order the Department to undertake a policy review of strategic housing development and submit it to the Oireachtas for scrutiny.”.

Just to clarify, I have spoken to this amendment already and while I do not wish to go over it all again, it is important that-----

This amendment has already been debated and therefore it cannot be debated again.

Yes, but the Minister was saying that he or whoever the Minister will be has the power after 2019 to extend the period to 2021. The Minister may correct me if I am wrong. That needs to be addressed. That is what this review is about. There needs to be clarification on that. It says that when it expires in 2019, an order of the Minister-----

-----can be extended to 2021-----

I have to close this down because I am not allowed to let the Senator speak to this amendment again. The House has already decided that it would be discussed with amendment No. 2.

We suspended Standing Orders to take the Minister early and Senator Brian Ó Domhnaill was down to speak first. He was not here at 6.30 p.m. but he is entitled to speak.

Any Member could have offered to speak when the amendments were being discussed together, but nobody offered. I am now in the predicament that we cannot have a debate on it now.

We suspended Standing Orders to take the Minister early and Senator Ó Domhnaill was to speak at 6.30 p.m.

On a point of order-----

Senator Ó Domhnaill should have been here.

He did not know.

Maybe I should have been here, but I was at another important meeting. I was told according to the-----

I can only run the House in the way it is supposed to be run.

Through the Chair, the Order of Business was set that the Planning and Development (Housing) and Residential Tenancies Bill 2016 would resume at 6.30 p.m. On that basis-----

It was to resume on the conclusion of Private Members' business.

-----I made sure I was back in the House for 6.30 p.m. I am not casting any aspersions and I am not criticising the fact that the Minister was available earlier. That is great and I wish to acknowledge the Minister's presence-----

The Order of Business was that the debate would resume on the conclusion of Private Members' business, in fairness.

Okay. I accept that.

Am I allowed to speak?

No. The fact is that we have already debated this amendment and my hands are tied.

You cannot come back in because the amendment has been discussed.

We are all first-time Senators and we are all learning.

We can come back in on our own amendment, absolutely.

The point is that the amendment has already been debated with the previous amendment.

We have not pressed our amendment. We have not said that we are going to press it.

I will certainly allow the Senators to press it. Is the amendment being pressed?

We were not asked, but we were precluded from speaking.

On a point of clarification-----

I am not precluding the Senators from speaking at all. The fact is that my hands are tied. This amendment was supposed to have been discussed with the previous amendment.

I stated that they were not discussed together. I know the Acting Chairman has only been catapulted into this debate. She was not here earlier. The previous Chairman told us we were resuming at 6.30 p.m. on the dot.

We were told to be back here for 6.30 p.m.

On a point of order-----

We withdrew amendment No. 2. We did not in any way prevent our colleagues in Fianna Fáil from progressing amendment No. 3.

The fact is that here in front of me it says in black and white that amendments Nos. 2 and 3 are related and to be discussed together. That was agreed by the House.

We finished discussion on our amendment No. 2. We did not finish discussion on Fianna Fáil's amendment No. 3. The Fianna Fáil amendment, as far as I am concerned, should be discussed now.

The point is that technically it has been discussed.

We could argue this all night.

My hands are tied. It now has to be decided. Are the Senators pressing the amendment?

Minister, could you clarify?

Can I make a point of information?

I believe there has been a genuine misunderstanding. Obviously, I respect the rulings of the Chair.

If the House agrees, I will allow a very brief discussion on it in that case.

It could have been over by now.

I will be brief on the amendment. I wish to be helpful because I know that there are rules that must be obeyed. I am happy that a review would take place and that it would be laid before the Oireachtas before any future Minister would make a decision to extend the period beyond three years. The review would be fully scrutinised, Deputy, or Senator, sorry.

We are working on it.

I can assure Senators that I am not hiding from anything when it comes to the policies that we are bringing forward on housing. I do not see why the Department would not have a thorough independent review that is fully scrutinised by the Oireachtas and would not be happy to commit to that in legislation. That would be a perfectly normal procedure before a policy decision is extended. However, I believe there may be some wording issues with the amendment. In principle, if the Senator agrees to withdraw it, I will introduce an amendment to the same effect on Report Stage.

Will it go back to the Oireachtas?

We will do that. That is agreed.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 7, after line 38, to insert the following:

“(6) A permission granted under this Part may only be extended where it meets the conditions in section 42(1)(a)(i) of the Act of 2000 as amended.”.

The point of this amendment is to restrict the possibility of the extension of fast-track permission. The original provision for extending planning permission was that substantial work must be carried out on foot of the permission. Separate weaker criteria for the extension of permissions were introduced as a result of the bursting of the housing bubble to enable permissions to be held until economic conditions changed. There is no justification for allowing a fast-track permission to be held in reserve for years and years. This is a use it or lose it amendment. If we are serious about providing housing, planning permissions need to be acted on and not held back.

I also see this as a use it or lose it clause and I support it. Again, the legal advice I have received on this amendment is to check the wording, because there is one element that we need to cover. If somebody does start building, but for some reason there is a problem, for example, if the estate is substantially completed and runs out of planning, what we do not want is a half-finished estate either. There needs to be a provision for an extension in that circumstance. However, if the building has not begun at all after a five-year period, as I said earlier, I do not see why we should be facilitating a streamlined decision-making process for developers who do not bother to use the planning permission once they get it.

If the Senator agrees to withdraw it, I will introduce an amendment to the same effect with the addition of making the exception for estates that are substantially completed to ensure that we do not end up with a half-finished estate and having to go through the planning process for a year. I think that would be crazy. Certainly, this is a stick that we can use. If we are introducing a streamlined decision-making process for planning that can reach decisions on developers' applications in 25 weeks, we are doing so because we want the developers to build houses on those sites. If they do not bother doing that, or if they cannot do that for the next five years, then they should probably not be using the fast-track process at all if there is no intention to build in the foreseeable future. We want this system to be used by people who want to turn sites into homes.

For that reason I am happy to support what Members are seeking to do in this amendment, with the minor addition in regard to sites that are substantially completed, so we do not have unfinished estates going back for planning permission.

On a point of clarification, are we talking about developments that are in excess of 100 units?

Yes. They are the only applications eligible for the streamlined process.

I thank the Minister for his willingness to engage with this constructive amendment. I think it has been constructively taken. The amendment is clearly designed to deal with the concerns we raised earlier in regard to speculation, ensuring that where speedy planning permission has been granted, we do not see a significant number of applications being granted and then house building being drip fed over a long period. Our amendment would ensure that those who seek planning permission under this new process will be those who intend to follow through and build. It would facilitate a managed return to a normal and full length planning process in the future. We do not want to see planning applications for buildings in the next five to 30 years going through a process without the level of scrutiny that would obtain in normal circumstances and become the new blueprint for planning in Ireland.

It would be very positive if the Minister were to work with us to see how this amendment might be fine-tuned in order to ensure that all those who get planning permission under the process set out in this Bill will follow through and build within five years and not seek extensions, except where the building plans are substantially completed. We had thought that was covered already in terms of where plans had met the conditions set out in section 42 (1)(a) of the Planning and Development Act 2000. That was an attempt by us to ensure the extension could be granted where there was a question of substantial completion. We are happy to work with the Minister to fine-tune that and ensure the Government feels able to accept this amendment on Report Stage.

We can accept the wording of the amendment as is, and if there is any problem we can come back on Tuesday and change it on Report Stage.

That is greatly appreciated.

Let me add my support on behalf of Sinn Féin to the amendment. It is positive that the Minister is taking it on board. I hope that will continue with a number of the other amendments in that vein.

Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill."

I outlined our concerns about the democratic deficit in respect of sections 3 to 19, inclusive, and on that basis we will oppose these sections, section by section.

I spoke extensively on section 3 and no more than the previous speaker I will not rehearse the arguments. All of the sections are interconnected. If one opposes one section, logically one must oppose the related sections, until the subject matter finishes. We will oppose it as well.

Question put:
The Committee divided: Tá, 31; Níl, 9.

  • Ardagh, Catherine.
  • Boyhan, Victor.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Conway, Martin.
  • Craughwell, Gerard P.
  • Daly, Mark.
  • Davitt, Aidan.
  • Higgins, Alice-Mary.
  • Hopkins, Maura.
  • Horkan, Gerry.
  • Kelleher, Colette.
  • Lombard, Tim.
  • McDowell, Michael.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Murnane O'Connor, Jennifer.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Céidigh, Pádraig.
  • Ó Domhnaill, Brian.
  • Reilly, James.
  • Richmond, Neale.
  • Swanick, Keith.
  • Wilson, Diarmuid.

Níl

  • Black, Frances.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Gavan, Paul.
  • Landy, Denis.
  • Mac Lochlainn, Pádraig.
  • Ó Clochartaigh, Trevor.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.
Tellers: Tá, Senators Gabrielle. McFadden and Michelle. Mulherin; Níl, Senators Paul. Gavan and Trevor. Ó Clochartaigh.
Question declared carried.
SECTION 5

Amendments Nos. 5 to 7, inclusive, are related and will be discussed together.

Government amendment No. 5:
In page 8, to delete lines 2 to 4 and substitute the following:
“(1) Subject to subsection (2), a prospective applicant shall, before making the application in accordance with section 4(1), make a request to the Board to enter into consultations with the Board in relation to the proposed strategic housing development and any such request shall comply with subsection (6).”.

These are technical wording amendments. They do not change very much in the paragraphs which is why I was not going to spend much time on them. I can go through each amendment individually if the House wants but they are essentially technical wording amendments which do not change the meaning of the Bill.

Amendment agreed to.
Government amendment No. 6:
In page 8, to delete lines 5 to 10 and substitute the following:
“(2) A prospective applicant shall, prior to making a request to the Board under subsection(1), have consulted the appropriate planning authority or authorities in whose area or areas the proposed development would be situated, comprising at least one meeting,as if the consultations with the planning authority or authorities concerned were for the purpose of making a planning application to it or to each of them, as the case may be, and for that purpose—”.

This part of the Bill refers to the strategic housing developments-----

Sorry, Senator. This amendment has already been discussed. We just have to decide.

Amendment put and declared carried.
Government amendment No. 7:
In page 8, to delete lines 15 to 20 and substitute the following:
"(3) Consultations under section 247 of the Act of 2000 in relation to proposed development referred to in subsection (2) shall be held within 4 weeks of the date of receipt by the planning authority, or planning authorities, as the case may be, of a request by the prospective applicant for such a consultation, unless the prospective applicant requests that the period be extended by a specified period, in which case—".
Amendment put and declared carried.

As amendment No. 8, in the names of Senators Colette Kelleher, Alice-Mary Higgins, Lynn Ruane and Grace O'Sullivan, is related to amendments Nos. 9 and 15, the amendments may be discussed together.

I move amendment No. 8:

In page 8, between lines 40 and 41, to insert the following:

"(viii) information as to what percentage of the proposed development will meet the definition of "universal design" as set out in section 52 of the Disability Act 2005, as well as plans to ensure the accessibility of any proposed development to amenities and services.".

I will be brief because it is getting late.

I am heartened to hear that measures are in place to ensure people will not be sleeping rough in Cork, Dublin or any town in Ireland because they do not have a place to go. The aim of the universal design amendments is to make sure the speedier planning process which we understand is necessary to ensure there will be enough housing available will not overlook the need for developments to be as accessible as possible. Universal design, as set out in section 52 of the Disability Act 2005, is considered to be the standard design which is accessible to all. We should ensure the greatest possible percentage of buildings meet the universal design standard. Under the 2005 Act, "universal design" means:

the design and composition of an environment so that it may be accessed, understood and used—

(i) to the greatest practicable extent,

(ii) in the most independent and natural manner possible,

(iii) in the widest possible range of situations, and

(iv) without the need for adaptation, modification, assistive devices or specialised solutions,

by persons of any age or size or having any particular physical, sensory, mental health or intellectual ability or disability,

They include people with dementia. There are 600,000 people with disabilities in Ireland and we need to create a housing stock that will enable people to enjoy their right to choose where and with whom they live on an equal basis to their non-disabled counterparts. This fundamental decongregation policy which is underlined in Rebuilding Ireland will enable people to age in place, rather than having to move to specialised or specialist units because of their increasing fragility or immobility. We need to be thinking of the future when we are building housing. I am reminded that Denmark has not had to build a single nursing home since 1987 because of its progressive policy on integrated housing and care. If we pay attention to universal design when we are building stock in order that we will not have to retrofit after the fact, we should be able to avoid having to solve other problems when people's health and mobility issues change. I hope we will have ratified the UN Convention on the Rights of Persons with Disabilities by the end of the year. It will place an obligation on the State to take appropriate measures to ensure accessibility in housing and other areas. The amendments would go some way towards ensuring these issues were given adequate consideration. I, therefore, ask the Minister to take them on board.

I express my support and that of Sinn Féin for the amendments. At a time of such great dependence on the private rented sector for housing, many people with physical disabilities or who are aged or have mobility issues are finding it increasingly difficult to find suitable housing. I have come across a number of such cases in the Galway area, particularly within the private rented sector. For that reason, the principle underpinning the amendments is absolutely laudable. I join Senator Colette Kelleher in hoping the Government will ratify the UN Convention on the Rights of Persons with Disabilities sooner rather than later. Sinn Féin fully supports the amendments and I hope the Minister will be able to take them on board.

I would like to speak briefly in support of the amendments and join Senator Colette Kelleher in giving a sense of from where they are coming. We spoke earlier about strategic housing development and strategic planning. Demographic planning must play a vital role in that strategy as we move forward, given that 18% of citizens will have a disability at some point in their lives. We should recognise that universal design serves, fits and facilitates the use of homes by people of all ages. This family-friendly approach gives people, as they grow older, the option of spending all of their years in their own home without being moved. We have an opportunity to get it right from the beginning in order that we will not have to depend on adaptation grants. I know that the Government has stated its intention to ratify the UN Convention on the Rights of Persons with Disabilities. If these measures are to move forward, they really need to be reflected now. We do not want to have to try to retrofit the legislation afterwards to ensure we are meeting the highest standards and our commitment to the rights of people with disabilities.

I would like to spell out what our intention is in proposing these three important amendments which we hope the Government might take on board. We have tried to identify three points in the process. The Minister might say these factors are already taken into account, but it is important for them to be set out and enumerated explicitly in order that the information will be given.

Amendment No. 8 seeks to ensure a developer who is proposing to build a development woud have to give An Bord Pleanála information on "what percentage of the proposed development will meet the definition of 'universal design' as set out in section 52 of the Disability Act 2005". In addition, it proposes that developers would have to set out their "plans to ensure the accessibility of any proposed development to amenities and services". We have included this because we consider it is the kind of thing that could fall by the wayside if it was explicitly provided for in legislation. We want to ensure the plans fit in with the wider strategy on social inclusion.

In amendment No. 9 we are proposing that "considerations, related to sustainable development, universal design and accessibility to services as set out in section 52 of the Disability Act 2005" be included in the information provided by a developer for An Bord Pleanála.

Amendment No. 15 is crucial because it proposes to amend section 9 by requiring An Bord Pleanála to consider and take on board "an assessment of housing needs of people with disabilities in the relevant area, and whether the level of universal design set out in the proposed development will appropriately increase the available housing stock for people with a disability in that area, with due regard to the Disability Act 2005" when it is deciding on planning applications under this legislation. I know that we are not yet considering section 9, but it is my understanding these amendments are being discussed together. It may seem like we are proposing an additional obligation or responsibility, but I suggest it is very much in line with the Government's existing commitment to ratify the UN Convention on the Rights of Persons with Disabilities and, therefore, appropriate to be set out as one of the considerations. We might not have an opportunity to debate this proposal in detail when we reach section 9.

I urge the Minister to ensure consideration of universal design will not simply be a box-ticking exercise when applications are made by developers. We want to provide that those assessing such applications have a responsibility to give due consideration to the extent to which housing proposals meet the needs of real people with disabilities who comprise almost one fifth of the population. The amendments would ensure developers and those assessing development applications would know they had this responsibility, as set out in the legislation. I hope the Minister will support both parts of this two-part process. If those making applications know that the level of universal design will be considered when determinations are being made on the success or otherwise of their applications, they will take seriously the requirement to include detailed information. I urge the Minister to consider accepting, or working with, the amendments at both stages in the process.

I would like to make a final point about the amendments. They follow on from a motion on housing and disabilities which was proposed by the Civil Engagement group and passed universally by the House. I know that the Minister took part in that debate. This is not an issue to which we are coming for the first time. We are trying to be consistent with the commitment that was underscored by all Senators to ensure the right of people with disabilities to have their housing needs met will be a central and mainstream aspect of our approach to this issue. I appreciate that additional measures might be put in place. Given that we are talking about large-scale developments of 100 units or more, it is possible that the landscape will be shaped for many years to come by the planning permissions that will result from this process.

We want to ensure we are not simply seeking an addendum later but building it in from the beginning.

I would like clarification, particularly relating to people with disabilities. The Minister is aware people are living longer. The biggest issues that local authorities have are housing adaptation and mobility grants, stair lifts and housing for the elderly. With this plan, particularly as it relates to developments of over 100 units and new builds, must every home have a bathroom downstairs? Local authorities are seeking much funding for people with disabilities or elderly people as a downstairs bathroom is now a must, particularly as people are living longer. Will all new builds and particularly those in the local authorities have a downstairs bathroom?

Amendments Nos. 8, 9 and 15 collectively propose insertions relating to the considerations of universal design, sustainable development and accessibility to services as set out in section 52 of the Disability Act 2005. The concept of universal design centres on achieving a built environment that can be accessed, understood and used to the greatest extent possible by all people, regardless of age, size or disability, is something we all support. All new buildings, including social housing units, must comply with the legally enforceable minimum performance standards set out in the building regulations for 1997 to 2014. In this context, the building regulation Part M amendment of the 2010 regulations and the accompanying technical guidance document for access and use, which came into effect on 1 January 2012, set out the minimum statutory requirements applicable to new buildings and existing buildings where new works and material alteration or material change of use is proposed.

In essence, Part M of the building regulations aims to foster an inclusive approach to the design and construction of the built environment. The Part M requirements may be regarded as a statutory minimum level of provision but the accompanying technical guidance encourages building owners and designers to have regard to the design philosophy of universal design and consider making additional provisions where practicable and appropriate. The latest iteration of Part M of the building regulations initially coincided with the general downturn in economic and construction activity and its positive effects on access and its use in the built environment should now be seen more widely as the economy recovers and continues to take hold and, more important, as construction activity increases and moves to a more sustainable footing.

As the issues proposed by the Senators are already covered in the existing building standards regulations and associated technical guidance, it is not appropriate or necessary to include provision for these matters specifically in the Bill. As suggested, these are matters more appropriate to building control and standards legislation rather than planning legislation. I understand the point made by the Senators in that sometimes we need a belt and braces approach. The thinking is although these elements are required by the building standards, regulations and guidance document, if we require developers to have this as part of their applications, they might be forced to think about the issue and prioritise it. The only problem is if we start down that road, there is a series of issues under building standards documentation and legislation that we could decide must be part of the planning process. What the Senators are asking for is already required and as long as there is a proper inspection service to ensure it is followed through, we do not have much to worry about. It is not right to essentially put what may be a very important issue into legislation when it is already fully covered.

I am not proposing to accept the amendments. That is not because I do not agree with their proposals, as I do very strongly. Many developers may argue that if they did not have to do X or Y, they could build houses more cheaply, etc., but although the standards and progress that has been made in regulations make houses more expensive to build, it should become the norm. We have not really seen the building regulations take effect to the extent that they might have if we had not seen a building collapse, as they came at more or less the same time. Now we will see a dramatic increase in the number of social housing and private units built and the building regulations will simply be a standard part of the process that builders and developers must comply with. The issue is enforcement and inspection rather than pretending to do something already covered by putting something into the legislation that is not needed, given it is already catered for in other legislation.

Will the Minister provide clarification on one of the other amendments? I appreciate the Minister's points. There may be legislation but enforcement and inspection after the fact is an issue. This is an opportunity to provide enforcement and it is important that a signal be sent. Will the Minister comment on our amendment No. 15 to section 9? The Minister may argue the obligations are on builders and developers but what I am asking for relates to when a number of elements have been set out for a decision by the board. For example, these could be an environmental impact assessment, natural impact assessments and consequences for proper planning and sustainable development. There are a few elements there and potential scope to make it explicit for the board in considering these applications. This affects whether we press for a vote. Even if the Minister was not keen to accept our amendment, does he see scope to incorporate the issue at points, for example, where there is consideration of "the likely consequences for proper planning and sustainable development" in an area. Is there scope to incorporate some reference to the rights of persons with disabilities in the State's obligations, the question of universal design or existing legislation? This relates to areas for consideration by the board in its decisions.

We have our proposal for section 9 but it would be very useful for us to know if the Minister is amenable to considering some way to incorporate the issue. There are two pages relating to operation so there is scope to insert this in some shape or form. We are talking about a significant section of the population. It would be consistent with the Government's strategy in this area to find some way to incorporate the issue into the decision process.

My understanding of the Minister's response is that current building regulations ensure all builds are universally accessible. Is that aspirational or is there a certain percentage involved? The developments with more than 100 units are going to An Bord Pleanála. Does that mean each of those would be subject to universal accessibility?

Absolutely. It refers to all new buildings, including all social housing. There are not as many new social housing units around as we would like but the number is increasing and there will be more next year. They are A-rated in terms of energy.

The quality of the design in new social housing stock is very good. There is a financial cost to that but there are also quality-of-life and accessibility issues involved. We are exploring the question of design variants within local authority housing estates and mixing single-storey units, double-storey units, etc., to try to cater for different needs, including those of the elderly and people with disabilities. Although the design of houses and accessibility have improved significantly in terms of turning room in bathrooms and toilets and the width of doorways, other things can be done to provide a diversity of design to cater for different needs. The core building regulations are required to be followed in all buildings. These are things not just required to get planning but to build a house or a housing unit.

Is there going to be an assessment of housing need in particular areas?

Part M requirements may be regarded as a statutory minimum level of provision. The accompanying technical guidance encourages building owners and designers to have regard to the design philosophy of universal design and to consider making additional provisions where it is practicable and appropriate to do so. There is a basic standard in the regulations and a guidance document that encourages design to reflect universal design philosophy. I will examine the three amendments to see if there is an indicator that we can include to encourage this to be considered. I need to check whether such a thing would, in legal terms, need to be taken into account as part of the planning consideration, as opposed to the building quality consideration.

Consideration should be given to the number of people with disabilities living in an area and their housing needs. If we are bypassing some of the local authority considerations, it is crucial that An Bord Pleanála has this knowledge, namely, some sense of housing needs. That is a planning issue, not regulation. If there is a large number of older people in a particular area, for example, there may be a major need for universal design. If it is a student development, what proportion of the student body is likely to have a need for disability designs or other access? A strategic assessment of housing needs is part of planning.

Is it something a planner needs to take into account in the context of the planning laws?

It involves planning for communities.

There is consistency in local area plans and county and city development plans in the context of zoning considerations, housing quality, design, open spaces and transportation. We might be getting into a tricky area if we add new criteria not contemplated in the planning laws to the planning application process and if we ask An Bord Pleanála to take new issues into account. We are legislating for a new system of decision-making, not changing the planning laws.

If the Government ratifies the UN Convention Rights of Persons with Disabilities, which it said it would, it will apply across all public bodies.

I will come back to the Senator on that point.

At the end of this process we will need a sufficiency of housing stock, both social and otherwise, for everyone, including people with disabilities and older people. We need to ensure we do not end up with stocks of houses that are not suitable. In my neck of the woods, there is housing in the old Our Lady of Lourdes Park in which nobody will live because a sufficiency of thought was not put into people living in that area. There were no bus routes provided, for example.

In fast-tracking there is a danger we will create housing but not housing that will last into the future. I gave the example of Denmark, where thoughtful planning leaves a stock of housing for people who become older, more infirm and more immobile and for people with existing disabilities. An Bord Pleanála may not have the same focus on that as a local authority. There is an elderly population in Raheny because that is how the suburb developed. In other parts of Dublin, there are younger populations. We need to be sensitive to those demographic profiles so that we have a housing stock that lasts into the future rather than fixes a problem for today.

The proposals are right and highlight some very valid points but the Minister is also right. There are two distinct issues. The housing authority carries out a housing needs assessment and local planners should be aware of what these are. I actually think we need a new housing assessment for every housing authority in the county. Planning and sustainable development are key for the board. This particular Bill relates to fast-tracking planning for a few years. The proposals are valid but I believe councils are already aware of the issues from their own housing assessments of the past.

The question is how to dovetail the need in the context of Part 8 and council developments. They are clearly not delivering but the Minister is correct on this point. This is about planning and sustainable development. The other issues can be addressed through co-operative housing, joint ventures and social housing involving charities and other bodies.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 9, after line 40, to insert the following:

“(i) considerations, related to sustainable development, universal design and accessibility to services as set out in section 52 of the Disability Act 2005.”.

I will withdraw the amendment but I reserve the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.
Question "That section 5, as amended, stand part of the Bill", put and declared carried.
SECTION 6

Amendments Nos. 10 to 12, inclusive, are related and may be discussed together, by agreement.

Government amendment No. 10:
In page 11, line 7, to delete “application” and substitute “proposed strategic housing development”.

I can go into the technical details but these are minor wording changes. My understanding is that there is no change in the meaning of the legislation. These are technical amendments, if people are happy to trust me on that. I could go through the detail of it if they want.

I accept that they are minor wording changes. It is a pity, as my colleague Senator Boyhan said earlier, that a Bill that is so new has such minor changes proposed now. It is just a point worth making although it does not change how we are going to support the Bill or anything.

Point taken, but we are trying to improve it all the time. That is why we are here.

Amendment agreed to.
Government amendment No. 11:
In page 11, line 8, to delete “application” and substitute “proposed development”.
Amendment agreed to.
Government amendment No. 12:
In page 11, line 22, to delete “the holding of the consultation meeting” and substitute the following:
“the holding, in accordance with subsection (5), of the consultation meeting or, if more than one such meeting, the last of the those meetings”.
Amendment agreed to.
Question proposed: "That section 6, as amended, stand part of the Bill."

We oppose the section on the same basis that we opposed sections 3 to 5, inclusive, which is that we have issues around the failure to take the democratic role of local authorities into consideration. It should have been taken into consideration.

Question put and declared carried.
SECTION 7
Question proposed: "That section 7 stand part of the Bill."

I note our opposition to the section for the reasons mentioned in relation to sections 3 to 6, inclusive.

Question put and declared carried.
SECTION 8
Government amendment No. 13:
In page 16, to delete lines 15 to 25 and substitute the following:
“(b) In the report referred to in paragraph (a) the planning authority shall—
(i) set out the authority’s opinion as to whether the proposed strategic housing development would be consistent with the relevant objectives of the development plan or local area plan, as the case may be,
(ii) include a statement as to whether the authority recommends to the Board that permission should be granted or refused, together with the reasons for its recommendation, and
(iii) specify in the report—
(I) where the authority recommends that permission be granted, the planning conditions (if any), and the reasons and grounds for them, that it would recommend in the event that the Board decides to grant permission, or
(II) if appropriate in the circumstances, where the authority recommends that permission be refused, the planning conditions, and the reasons and grounds for them, that it would recommend in the event that the Board decides to grant permission.”.

Section 8 sets out the actions the prospective applicant for a strategic housing development must take immediately before applying for planning permission for the project and the actions An Bord Pleanála and the planning authority concerned must take when such an application is made. Amendment No. 13 substitutes a new 8(4)(b) in the section relating to the report the planning authority must make to the board in respect of an application for planning permission for a strategic housing development. The principal change in the paragraph is set out at (i), which relates to cases where the planning authority recommends that permission be granted for the proposed development and empowers it to recommend conditions it feels should be attached to the granting of a permission. The Bill, as published, provides that it is only in the case where the authority recommends refusal of permission that it may recommend conditions to be attached to the granting of permission should the board decide accordingly. The new paragraph also refers to the recommendations of a planning authority in this regard whereas the text in the Bill, as published, refers incorrectly to the decision of a planning authority in this context.

In other words, what we are doing here is empowering local authorities to give a recommendation in the positive or the negative after the nine-week consultation process and to attach conditions if they decide to suggest a recommendation as opposed to the scenario with the previous wording whereby they could recommend conditions if they were recommending a refusal but set out conditions should the board recommend a grant of permission. We are trying to reflect the concern that local authorities should have an impact on the process whereby at pre-planning consultation, where there is a statutory nine-week period, recommendations as part of the file would go to An Bord Pleanála for full consideration and decision. The capacity is now there for local authorities to give recommendations around acceptance or refusal as well as recommendations around some of the conditions that should be attached. It is a positive move.

I want to tease this out with the Minister. He says he is empowering the planning authority. We need to be clear what we are talking about when referring to the planning authority, which is the executive of the local authority which is, in effect, the planning authority. We are not talking about elected members here. There is no ambiguity about this; it is the executive. It should be remembered that the executive does not always agree with the elected members and vice versa. Many elected members have challenged executives on planning decisions and put their hands deep into their pockets to do so. Members have overturned decisions, which I am not sure the Minister is very aware of. I might try to pull out some statistics to show the Minister tomorrow on a number of key applications elected members appealed to An Bord Pleanála to successfully overturn their own planning authorities. It is an unusual thing, but it has happened. I have done it myself. We have actually overturned our own planners decisions and put our money where our mouths were to appeal them.

I have confidence in the board and have no problem with it per se. This is about the executive. Can the Minister confirm that in talking about the planning authority, he is referring to a recommendation of the executive, not of the elected members? I have no difficulty once we are clear that is what the Minister is saying. It is why I have been saying there should be an additional mechanism to allow elected members to make their own submissions in their own right. There is no better person to articulate one's views than oneself. If this was going to a big debate in a planning authority with 40 members, one would never get consensus or understanding. One would not be able to make head nor tail of the minutes. I am sure the Minister is clear, but he might just state that he is talking about the executive, which is to say the officials of the authority.

The Acting Chairman might indulge me in that I had meant earlier to convey our condolences in respect of Liam Gavin, who was director of roads in Galway County Council. We got the news earlier today that he passed away. Many Members may actually know him. He was a great man and a really good guy and it was a big shock for everyone. I convey our condolences to his family, colleagues and friends. It was a big shock for all of the councillors to whom I spoke. I neglected to mention it earlier.

In a similar vein to Senator Boyhan, I have concerns and seek clarification around this question of an authority's opinion.

There is a growing concern in local authorities with the changes brought in under Putting People First and the reorganisation of their structures that even more powers are being taken away from local councillors while opinions such as this will only be sought from the executive. There may be situations where the councillors might not be aware of what opinions have been put forward in a report until after the fact when they examine an application.

That is part of the reason we would have concerns about this section. We still do not see an argument as to why the standard planning process has failed in any manner in strategic developments of over 100 houses. We have concerns in this regard because, no matter how good the members of the committee in An Bord Pleanála who will be assessing a planning application, an element of local knowledge is brought to bear. Sometimes it may be a thorn in the side of executives that local councillors bring that information to the table about specific developments. It is a valid part of the whole process of trying to find a plan which will sit properly in an area.

For example, in Galway, councillors were constantly told there were no moneys available for this, that and the other. An executive decision was made between Galway City Council and Galway County Council to buy an airport worth €1 million at the time, however. The councillors had not realised those moneys were available in the council. In many cases, a local authority executive can make decisions about which councillors have no idea and they get wrong-footed on it as a result. Local authority members are elected on behalf of the people. This highlights the concerns we have with this section.

The next amendment, amendment No. 14 in the names of Senators Victor Boyhan, Gerard P. Craughwell, Grace O'Sullivan, John G. Dolan, and Michael McDowell, deals somewhat with this issue. When the debate started earlier the Minister gave a commitment that, on a case-by-case basis, councillors would be consulted by the local authority executive and their views would be taken on board. Therein lies the difficulty, namely the term "taken on board". From the Minister's amendment, it seems it will be the executive that will write up the report to go to An Bord Pleanála, having taken on board the concerns of the councillors but not necessarily putting anything about them in it. Is this just a box-ticking exercise? If the Minister introduces an amendment on Report Stage or accepts amendment No. 14, will we just be going through the motions of placating councillors? Are we really taking away the democratic process in place already? This is my concern about the whole Bill.

For 25 years, I have heard local authority officials, with the greatest respect to them, agree with everything councillors have said only to then put down something completely different in writing. This is my concern and I would like the Minister to comment on it.

Will this power be an executive function of a council or a reserve function for councillors?

This is the planning authority and councillors do not make planning decisions. We need to start to have an honest conversation here. Councillors have to be afforded an opportunity to have their say as representatives of the public, just like any member of the public should have an opportunity to make an objection or an observation to a planning application. Of course, we need to go beyond that because councillors represent large numbers of the public. Chief executives, as part of the process, and the planning authority should inform councillors and seek their views, if they want to give them, on large-scale planning applications. That is the way some local authorities work at the moment. A planning decision is not a decision for a councillor. A councillor obviously asks questions about an application and ensures it is consistent with zoning decisions, and LAPs, local area plans, county development plans and so on. That is the kind of scrutiny in which councillors are involved in all the time. They can continue to have that role.

However, the way some Members are talking it is as if councillors make planning decisions and we are taking that away from them. We are not. A planning authority, instead of making a decision in a local authority, would make a recommendation at the end of the nine-week consultation process which would be detailed. It will be a little like what they do at the moment when they are assessing a planning application and make a decision at the end of eight weeks or seek further information or whatever. They would make a recommendation before the application formally goes to the board. That is a proper process of consideration. The recommendation of the planning authority would have to be taken into account by An Bord Pleanála, as it is at the moment if the board is asked to appeal a decision.

I am trying to ensure there is a role for councillors in having the kind of say they have on large-scale planning applications being considered by a council for decision and that they would have a similar input in the context of the consideration under this Bill. I am not trying to take anything away from councillors. The planning authority, instead of making a planning decision that will go to An Bord Pleanála if it is appealed, will be making a recommendation knowing that it is automatically going on to An Bord Pleanála for a formal consideration.

I understand the other debate, which is separate, around the devolution of power to local authorities and councils, as well as many of the issues which they have had to deal with in the reform process of the past several years. This is not about the diminution of power for local authorities. This is about large-scale residential projects which require a planning decision. We are trying to streamline the decision-making process where the local authority has an important function, where the planning authority at local authority level makes a recommendation and can make recommendations around conditions that should be attached or that there should be consideration of those conditions being attached. It then goes on, under a statutory period, to An Bord Pleanála for a formal decision. An Bord Pleanála is also involved in the preplanning process to ensure local knowledge is carried through from the preplanning process to the formal consideration process.

That is a much more comprehensive approach than is currently the case. When there is an appeal to An Bord Pleanála from a local area, it may not have that kind of preplanning consultation knowledge around the local issues which apply. It simply looks at elements such as county development plans and so on. The reason I did not bring an amendment on how we include councillors in the process was because I wanted to hear what Senators had to say on this issue. Senator Victor Boyhan in particular has been talking about this issue for quite some time. We want to understand exactly what Senators are looking for and try to reflect that in an accurate wording. As for amendment No. 14, I do not believe we are a million miles apart on that.

Senator Denis Landy keeps raising this issue about us cutting out councillors or reducing the role of local authorities. It must be remembered this applies to only a tiny percentage of planning applications and it is only for the big ones. Even with those applications, there is still a strong role for the planning authority at local level in making a recommendation which will influence the final outcome with An Bord Pleanála. This is what happens anyway. We will try and put an obligation within that system to inform and consult councillors if they want to make a comment on that. Ultimately, planners are paid to make planning decisions and recommendations, as well as attaching conditions to those recommendations. It will be the planning authority, ultimately, which will do the report.

The contributions from councillors, who represent the local community will certainly be factored into a report, but the planning decision and recommendations must come from the planning authorities.

I accept that planning decisions are not taken ultimately by councillors. However, this is slightly different because there is no third party appeal mechanism to this process. The Minister talks about a small number of applications, in the region of 50, but this low number of applications will be for a large-scale development. I know that developers are lining up to apply for planning permission under this system. The Minister may not realise that the scale of the proposed development will run to 80,000 houses. The Minister will be punch drunk with excitement if this all goes right and I will be the first to join him and say it is great. I believe, however, there is no third party appeal mechanism.

At present, the public come to councillors for a range of reasons. Councillors raise issues during the planning committee meetings, and they are the custodians of the county development plan. I am a former member of a local authority and like most councillors would meet the planners in an open, transparent and formal way at a planning meeting. We would be constantly doing battle to remind the planners of their obligations. Planners do not get all decision right, and neither do councillors or Ministers. We are human and make errors, but as councillors are the custodians of the county development plan, they make the case as representatives of the community. The Minister may not know, but many councillors up and down the country make submissions on planning applications and pay the fee of €20 to the local authority. I can think of four independent councillors in Cork who have taken serious issue with the environmental impact of a planning application and put their hands in their pockets and registered their concern by paying the fee of €20 to appeal the case.

I have done it myself.

It is not fair or appropriate that elected councillors are paying to engage in a planning process. The Minister has confirmed that he has done it himself. Is that fair and right to expect local representatives to put their hands in their pockets? I do not think it is right. The Minister has the power to strengthen the capacity of local elected members.

I said I would look at the fees issue.

I appreciate that, but-----

If the Senator wants, we can debate the fees issue again. I told the House that I would look at the fees issue, and I will. That is a separate issue to this amendment.

I am making the case that the key point is the executive. The executive does not always represent the elected members. Once the executive sends its decision, the elected councillors have no right of appeal. They cannot go back to the board and say that the decision is not correct. Elected councillors of the local authority have no right of audience with An Bord Pleanála once the executive commits its views to paper and submits them to it. Councillors do not have an opportunity to correct or rectify something that has been said by the executive.

One can see the results of bad planning decisions up and down the county, with buildings on flood plains and so on. The only recourse of the citizen, as has been eloquently pointed out by Senator Boyhan, is the local elected representative, who will give an account of what has happened. The public will let the councillors know at the next elections whom they felt let them down or worked on their behalf. Unknowingly, the Minister put his finger on the nub of the issue a couple of minutes ago, when he said this is not a devolution of power. The Bill is not about devolution of power but the recentralisation of power. He is taking the power from the people and their local councillors and giving it to a body, An Bord Pleanála. I have discussed the issue ad nauseam at this stage. I do not see the logic of it. The Minister is taking the process from the local authority to An Bord Pleanála, without making it democratically accountable. We are then looking at democratic redress through the courts. The Minister has not stood up the case he is making for this change, based on delays or otherwise to any great degree.

In response to my question, the Minister spoke about the 78 weeks it takes for a planning decision, but he still has not given reasons that this new process will make it better. The Minister said that practically every large development was appealed to An Bord Pleanála, but that is not the case. The records show that is not the case.

The majority, Senator.

What the Minister is doing is taking power from local democracy and putting it into a body, An Bord Pleanála, in Dublin. I disagree with the Minister if he thinks that is good for democracy.

That is not what we are doing.

It is exactly what the Minister is doing.

Most of the Members in this Chamber do not agree with Senator Landy on that point. We are not taking power away from councils. We are dealing with an issue of time for a limited number of applications. The large-scale developments that we are trying to encourage take a long time to get a decision. If one compares the 25 week process, as proposed in the Bill, to a 78 week decision making process that we know is the case from the 15 cases that I have looked at, it is a significant improvement. Senator Boyhan spoke about a line of developers who are looking to use the new system because they believe it will work. Is that not exactly what we are trying to achieve? We are trying to get houses built for people in places-----

Walking on people

We are not walking on people.

Order. The Senator has made his contribution.

With respect, we have gone to great lengths to try to ensure that is not the case. We are ensuring that local authorities have a real say in the process of assessment and consistency with local area plans. Most of the bad decisions in regard to houses in the wrong places, such as building on flood plains and so on were zoning decisions as well as planning decisions. The zoning decisions were taken by councillors. Mistakes were made that should not have been made and councillors are still responsible for deciding where houses go. The only thing we are discussing in this House is the density, design and quality in terms of all the planning considerations that have to be taken into account.

Local authorities through the local planning authority make strong recommendations through the pre-planning process, which will be for a statutory nine week period, and it will impact on that. Councillors and anybody else can make an observation once the formal application goes in and they can make an objections once the formal application is lodged - just like they can do during the current process. We have a crisis that we need to address. The normal planning procedures are not delivering large scale housing decisions at present. We are trying to change that for a temporary period to try to get momentum into the housing delivery market to address the issue of supply. It is nothing more or less than that.

Let me assure Members because I have been on Cork County Council, the largest county council in the country, and I have been through a development plan process. I have been in and out to planners in terms of one-off housing applications and larger applications, trying to make sure they fit in with the environment and the zoning and all the rest, as have Members, but let us not paint the issue as something that it is not. I am not trying to bypass anybody. I am trying to get an appropriate response to what many people in this House and elsewhere have referred to as a housing crisis, where young people cannot get access to homes they can afford to buy, because they are not there. One of the ways in which we are trying to address it is by getting large-scale developments up and running, to get decisions that can make that happen sooner rather than later.

I appeal to Members to work with me in that spirit, rather than trying to see something in the Bill, which is not intended, such as to undermine democracy or to bypass anybody. That is not what we are trying to do. If we were simply to invest in the existing planning system, I do not see and we have looked at this in a very intense way, how one can make decisions in 25 weeks that involve an appeal to An Bord Pleanála. I do not see how it can be done. We have introduced a system that An Bord Pleanála accepts it can do. We have been speaking to chief executives of the local authorities, and I have also been talking to a great many councillors, to try to gain acceptance that, for a temporary period, we need to get things moving again. It is in the interests of local authorities to deliver houses quickly in the areas where there is most pressure. I am sorry if I sound a bit defensive but we have had this conversation over and over again in this Chamber and I think it is important that there is a fair reflection on what we are trying to do with this element of the legislation.

I have a number of specific questions which I hope will clarify issues for me.

I appreciate that I am not an expert in this particular aspect of it, not having come directly from a local authority background. The consultation process should be publicly accessible. To what extent would the report from these consultations be available to the public or to what extent would the public have access to information on the issues highlighted by its representatives? Senator Boyhan and others have proposed an amendment about council meetings and the Minister has indicated some openness to it. I would like if the amendment was stronger and provided an opportunity for the feedback councillors give on planning to be captured. How will the public be made aware of this part of the process?

I am concerned about section 6(10)-----

We are dealing with section 8.

I apologise. We have moved past the issue I was concerned about. The debate moved fast.

We are on section 8, amendment No. 13.

My concern is about the provision in section 6(10) that "The Board may, at its absolute discretion, consult with any person who may, in the opinion of the Board, have information which is relevant for the purposes of consultations". I apologise. I know that it has happened that councillors have raised legitimate concerns about developments but the chief executives have met with others. I am concerned about the reference to “absolute discretion” and transparency about who the board is meeting with or why. I apologise, I did not realise that we had moved with great briskness past the bit I was waiting to speak on.

I am hoping we might move with more briskness.

We still have a long way to go.

It has been a long day for the Minister.

Many of the issues we have brought up relate to county councillors and the Minister might be forgiven for thinking that we are in some way pandering to our electorate. Two of my sisters live on flood plains. One lives in fear every year because the water gets as far as her front door but has not yet crossed it. The other watches it in a field behind her house, coming close to her. There is no getting away from the fact that some of the zoning decisions were almost as criminal as were some of the planning decisions.

What the Minister is trying to do here is genuinely good stuff. He is trying to do something about housing and we want to support him. At the same time there is a genuine concern on our part that we do not bypass the people who should have the local knowledge, the local councillors. I will not dwell on the fees issue. The Minister understands why we are making that point. We are not trying to obstruct him but to assist him and to make sure the Bill passes smoothly over the next couple of days and that he can get on with the job he wants to do. He should please not take our criticisms or comments as in some way politicising this. It is genuinely trying to move things forward and to make sure that when this is all over and done with we will not be accused of dropping the ball on our side.

I know the Minister is saying that the main aim of this section is to fast track the process but there are 26,000 or 28,000 applications in the greater Dublin area, depending whose figures one takes. I am not sure how many are for developments of over 100 units. The Minister might not have those figures to hand but I am sure several of them are. The argument that the local authorities have been holding up the process still does not wash with me.

Senator Boyhan raised the lack of an appeal process and we have not touched on that but it is important to raise and discuss it. To turn the argument on its head, most of the debate has been around the fact that An Board Pleanála will pass all of these applications very quickly but it may turn down applications for developments. That happened in Connemara with the N59, where a decision was favoured by the local authorities, public representatives and communities but An Bord Pleanála turned it down. People were dumbfounded and do not know why the decision was made. There is no appeal process, so there has to be a new application. This is a similar situation. There may be a development that the local authority, public representatives, community and developer are in favour of but for some reason An Bord Pleanála may say "no". There does not appear to be an appeal process in place. How would an appeal be handled in that situation?

For years local authorities have been de-zoning land under the spatial strategy following a recommendation from the Department. What will happen if a builder comes to a council saying he wants to build 100 houses on land he owns that has been de-zoned? Has the council the authority under a material contravention to zone the land? What is a councillor's and the local authority’s role in that situation?

I have sat here for the whole of this debate today. There are many aspects of this Bill that I would like to change and that I would do differently. We have to consider the serious matter we are trying to address. We are in the midst of a housing crisis and some of the issues being discussed are hair-splitting. We come in here every morning for Commencement Debates and listen to people whinging and crying about housing and homelessness but if we want to address this, why not give it a push? I know there are serious concerns, which I and everyone else here have talked about, but some of the stuff that is being repeated and rehashed here is not productive.

This Bill has to be progressed. Senator Boyhan, for example, has a great knowledge of planning issues and Senator Ó Clochartaigh was on a council for years. Like others here, they understand the mechanisms of planning and how slow it is. The Minister is trying to speed it up and bring in large sites that have not been in use or considered for planning because all these guys went bust. At least if we have the planning for houses there is some chance they will be built. We can squabble about many of the details as long as we want and hold up this Bill but it would be a very sad day if this Bill dies because it is timed out and many will have egg on their faces if that happens.

Can we move on from amendment No. 13 to section 8? The Minister has elaborated on this and pushed it through. We are exercising our function here but the Leas-Chathaoirleach has a very important function to keep people on track and to know where they are and to move people in and out of order, telling them it is not relevant.

The Senator should not provoke the Chair.

Every time we come to a section there are so many people hopping up and down from their chairs that I do not blame him.

They are hopping up and down and banging on the locked door trying to get in. I feel sorry for the Leas-Chathaoirleach not knowing the way around the place. Can we just get on with the business? I propose that we move on to the next section.

Is the amendment agreed?

No. A number of points were made.

The Minister has replied.

Let me answer. One question-----

The Senator is dragging out the debate by proposing that.

I am trying to speed this up.

One question deserves a detailed answer. We have rehearsed some of the issues around fees for objections and so on. We will do something on that. There is a separate Bill wherein there are recommendations in that regard. We will follow through on that.

The question on the lack of appeal deserves an answer. That goes for many sections in this legislation. This provision only applies to large-scale housing developments because the majority - not all, as Senator Landy mentioned - of large-scale residential planning applications get appealed or objected to by someone at An Bord Pleanála level, and that is where an application ends up for final decision anyway.

In this measure, we are trying to streamline a process whereby local authorities, through the local planning authority, effectively make a positive or negative recommendation, including on conditions, that An Bord Pleanála will then take into account as part of the nine-week pre-planning process before undertaking the formal assessment process to make a decision. There is a built-in double check, as it were. There is an initial recommendation and the formal assessment and decision. There will be an opportunity for councillors to have their say during the pre-planning process and there will be an opportunity for them and the public to make an objection and observation when the formal planning assessment is being made by An Bord Pleanála.

We are trying to take a belt-and-braces approach, one that is not much different than a planning decision being made and then appealed, that is, it is formally examined twice. Under this measure, a decision will be informally examined the first time and formally decided on in the second stage of the process so that we can have a statutory process that goes from consideration to decision within a 25-week period.

I take the point about appeals. Anyone who says that there is always the option for a judicial review is giving a nonsense answer.

Judicial review is not about assessing the planning decision. Under a judicial review, one can merely legally challenge the fairness of the process, its consistency with legislation, etc. I do not ever make that argument.

There is a belt-and-braces approach being taken to the planning decision and there is a localised and intensive consultation process. Even before that, there is a pre-consultation process with the local authorities that developers will have to be a part of. If they are not, they will not get far in this process. The nine-week and 16-week periods will follow. It is like a planning decision process that arrives at a recommendation rather than a decision that goes to An Bord Pleanála for a formal assessment and decision. Given the limited number of applications that we will receive, this approach gives the process credibility in terms of the integrity of decisions, but it is a temporary intervention in the planning system so as to allow for the developments that need to get moving in areas like Dublin, Galway, Cork, Limerick, Waterford and, to a certain extent, Kilkenny, Clonmel and so on. We need more ambition from developers, higher quality applications that can get through this process and a construction industry that starts building houses for people again.

Senators are right to raise concerns about appeals, but when they consider the detail of what is involved, they will see that there are two serious assessments of the planning application. The first is at pre-application stage, which results in a planning authority making a recommendation. Then there is a formal decision-making process through An Bord Pleanála. Given the pressures that we are facing, this belt-and-braces approach is acceptable.

The question on dezoned land was an important one.

Sorry. Let me be crystal clear, in that a planning application cannot get consideration under this process unless the land on which that application is made is currently zoned.

We just wanted that clarified.

It cannot be considered if it has only been zoned at some stage in the past. It has to be currently zoned under-----

Yes. If it has been dezoned, it will not be subject to this consideration process until it is zoned.

I welcome the Minister's clarification.

Is the amendment agreed?

No.

Amendment put and declared carried.

I move amendment No. 14:

In page 16, between lines 32 and 33, to insert the following:

"(6) That the Planning Authority would be required to hold a formal council meeting with their local authority elected members to brief them on a strategic housing development planning application in advance of its submission to An Bord Pleanála.".

I will be brief. The process outlined in the amendment is already happening, in that members are briefed on some applications, taken through the drawings, told the rationale, etc. A memo is taken by the planner in question. I can speak for Dún Laoghaire-Rathdown County Council, the local authority with which I am familiar. The suggestion is that minutes will be taken, but a council meeting of 40 members could last for hours. How can the remarks of 40 people about different matters be represented? The minutes must be approved at a further council meeting. Many councils amend the minutes. There is a great deal of debate. Some councils are not even getting their ordinary business done. Dún Laoghaire-Rathdown County Council's elected members have not been able to debate a motion or their own business in the council chamber for 12 months. That is extraordinary, but it is a fact. Councillors can be briefed on applications and those with an interest can make written submissions to the board.

There are two elements to this. The Minister must tick a few boxes in terms of openness and transparency. The amendment requires a statutory "council meeting" because many modern local authority meetings are webcast. There is a public gallery and members of the public can attend and see the craft of politics, with elected representatives on the floor teasing out the issues. That would be open and transparent. The local and national media are allowed into every council meeting. There would be oversight mechanisms for the public and people could engage in the process. The Minister needs to strengthen oversight in this legislation, because that is one of its weaknesses. We should increase the ability of elected members to do their work. I will await the Minister's response on this matter and I am mindful of what he said about fees, but surely he could tell us what he is thinking about the latter. He does not have to be tied to the idea. Come on. Get real. He is talking about engagement at one level and-----

What is the Senator talking about? I-----

I was led to believe that I had the Minister's support on some of these amendments last week. I have heard a different story today. In fairness, the Minister cannot have it all his own way.

I have told the Senator that I support the principle.

We will hear the Senator out, and then the Minister can reply.

The Minister might indicate what he is talking about. Is he favourably disposed to the idea of waiving fees for councillors to make submissions to An Bord Pleanála in respect of this specific item?

The Minister will respond in due course.

I know. Of course he will. He is here to respond. He has been responding all day. Nothing has changed just because the Leas-Chathaoirleach has entered the room.

(Interruptions).

I would appreciate it if the Minister reverted to us on these two issues.

It is a good amendment, but I seek clarification through the Chair. The wording is "formal council meeting" rather than "full council meeting". I presume that this refers to an in camera meeting of the executive and councillors.

That is the only issue that I would raise with this.

A formal, open and transparent meeting.

I was just curious about what the Senator meant.

In our opinion, the argument for the traditional process still holds strong. As it appears not to have been taken on board by Senators, however, we will support this amendment in that it goes at least some way towards keeping councillors involved in the process and allowing them to engage in commentary on planning applications, which we see as a very important principle. We will support the amendment.

I second the amendment. I will not take up much of the Minister's time. I know he is favourably disposed to the amendment but that he wants to put his own words on it. If all he is trying to do is put a Fine Gael stamp on the amendment, he should not waste his time, Let it go as it stands. As my colleague, Senator Boyhan, told him constantly, he should outline his thinking on it. We believe he is favourably disposed to these measures so he should throw it on the table, so to speak, and the officials will have to follow him.

Some of these issues were raised earlier and many of us have voiced our concern regarding councillor involvement. However, we have to state clearly that it is not a function of elected members to decide a planning application. We need to be careful, as we debate this legislation-----

We did that when the Senator was downstairs.

It was not while I was downstairs. With respect, I have been working on legislation for much longer than the Senator. We all need to be fair to the Minister. As Senator Davitt stated, we are in this House expressing our concerns about the housing crisis on a daily basis. This is but one measure in this legislation to deal with and streamline large-scale housing applications in large urban areas that are under the most pressure, namely, Dublin, Cork, Limerick, Galway and Waterford. That is from where the applications will most likely come.

The Minister listened to the debate and indicated that he is willing to consider many of our concerns about engagement with councillors at an early point in the pre-planning stage so that their concerns, views or submissions can be taken into account by the CEOs and the executives of councils and, in turn, submitted to An Bord Pleanála. That is a reasonable approach for the Minister to take. He is listening to what Senators are saying. However, we should not over-egg the pudding. We should have respect for the system and the process. We must be careful that we do not involve councillors in any way in decision-making relating to a planning application process. After all, Ministers, Deputies or Senators cannot be involved in such processes. We need to tread carefully. We should involve councillors but, as I suggested earlier, the appropriate forum would be in terms of the municipal districts. Where a large planning application is submitted, the councillors the relevant area would be called to a meeting, which would be minuted, where their observations and views could be submitted and then forwarded to An Bord Pleanála. There is a reasonable avenue that the Minister can take on this and he has indicated that he is willing to do so. We should work with him.

I will be brief. As some of my colleagues who co-signed the amendment are not present to support it, I want to indicate our support for it. It is a constructive amendment. My concern - it is important that this be understood - related to the one-way dynamic of briefing. As it has been described, however, if the briefing is going to take place at a full council meeting, there will be an opportunity for discussion. I stress that it will be a discussion and not a decision. It is not introducing a new obligation in terms of sign-off but that a briefing and an opportunity for discussion will be available to the public to engage with and see the information available.

This is a reasonable amendment that would deal to some degree with the concern and discomfort about members of the public being able to see that their representatives work on these issues. Houses will spring up, so to speak, and people will go to their local representatives to ask about that. They should be able to see the information that is available to their public representatives and the feedback that might be given in a normal council session. I do not believe that would delay the process unduly because I understand the Senator is not looking for a decision to be required, rather a briefing and a discussion.

Something struck me when the Minister was speaking. If a development of over 100 houses has a large element of social housing, who will be responsible for its long-term maintenance? Some councils take estates in hand or take responsibility for their management. That incurs an ongoing cost to a local authority. That is an element local councillors would be concerned about because it will impact on their future budgets. Is there not an argument in favour of this type of meeting taking place so that local councillors can take into consideration the ongoing budgetary implications for them as a council of developments that are taking place?

I indicated early on today that I am supportive of this amendment. The only issue is whether we have the wording right in terms of legal drafting and so on. In fact, what is being sought in this amendment is less than what I was talking about doing earlier. Essentially, it is stating that there will be a formal council meeting. I presume it will be up to the council to decide the form of that in terms of whether it will be municipal districts or whatever. Actually, there are no municipal districts in some cities, rather the equivalent of that. It might be a special housing committee or something like that. We need to get the terminology right to allow councils decide the appropriate mechanism for them, but there are a couple of principles on which this amendment is right. First, it needs to be a public meeting so that the public in the gallery will have an opportunity to see the minutes being taken and who is saying what.

Second, this is an opportunity to brief the elected members on the strategic housing development and the planning application. I had proposed that we would go beyond that and also ensure that the views given would be reflected in the report to An Bord Pleanála. I take the point about difficulty with that but what we do not want is to go through a process of approval of minutes and so on. There is a danger that will delay the entire process. We do not want motions on planning proposals formally coming from councillors, which would need to be debated with minutes taken, calling on the Minister to come before the council to explain policy or something like that. This is a planning process and as in any planning process the councillors, particularly for large-scale applications such as these ones, need to know what is going in their area. They deserve to be briefed comprehensively by the planning authority in their area. Obviously, the conversation will be reflected in the report that goes to An Bord Pleanála.

I am committed to this amendment. If it would be helpful we can accept it today and look at amending it slightly, if the Senator wants to do that, or he may wish to withdraw it and allow us come forward with our own wording. Either way, I am happy to support it.

I would love the Minister to accept it.

Is Senator Craughwell looking for a press release out of this?

My colleague will get the press release out of it.

I am not interested in who gets the credit for what here. This is an issue about responding to a genuine concern that has been outlined by many Members, particularly Senator Landy, who is not here now, to ensure that respect is given to local councillors in terms of ensuring that they know what is going on. He has just come into the Chamber.

One of the issues raised the last time we debated this was about the public having access to information on what is contained in planning applications. Currently, if a local authority is considering a planning application, any member of the public can ask for the file to see what is going on in their area. We are committed to ensuring that in any of these applications, if and when they go to An Bord Pleanála, the public will still be able to access the file to see what is going on because I understand the IT system that will allow people to do that online will not be in place for another six or eight months.

In the meantime we will have to make sure that a file physically exists in local authorities, for the public to be able to see it, if they want to make an observation or objection to Bord Pleanála during the process. That is a separate issue and I do not wish to trigger another debate. I am happy to accept amendment No. 14.

The Minister does not have to do so.

I reserve the right to amend the amendment on Report Stage if we need to improve the language.

Amendment agreed to.
Question proposed: "That section 8, as amended, stand part of the Bill."

I wish to note our opposition for the reasons that we outlined previously when we debated sections 3 to 7, inclusive.

Question put and declared carried.
SECTION 9
Amendment No. 15 not moved.

Amendments Nos. 16 and 17 are related and may be discussed together by agreement.

Government amendment No. 16:
In page 19, to delete lines 20 to 23 and substitute the following:
“(12) The Board shall include in each report made under section 118 of the Act of 2000 a statement of—
(a) the number of matters which the Board has determined within each of the periods referred to in paragraphs (a) and (b) of subsection (9), and
(b) the number and the aggregate amount of all sums paid (if any) by the Board under subsection (13),
together with such other information as to the time taken to determine such matters as the Minister may direct.”.

Amendment No. 16 relates to subsection 12 that provides that the board shall include in its annual report two things. First, a statement of the number of strategic housing development applications that it has determined within the 16-week period specified in section 9 or such other period as has been prescribed under subsection (10). Second, such other information as to the time taken to determine such matters as the Minister may direct.

The revised subsection (12) proposed to be inserted into section 9 includes additional information to be included in the board's annual report. In this regard the annual report will now have to specifically state the number of payments made by the board to applicants in accordance with the provisions in subsection (13) arising from a failure to decide on the strategic housing development application within the 16-week period specified in subsection (9), or such other period as may be prescribed under that subsection or subsection (10), together with the total amount paid by the board in such payments.

All of that is a technical way of saying that within the board's annual report there is a section in this Bill that requires An Bord Pleanála to pay a penalty if it does not make a decision within the statutory timeline outlined in the legislation. It is not a huge penalty but it is a consequence for the system not delivering what is promised in the legislation. The amendments calls on the board to report same.

It should be taken out of the wages of board members.

It will not be taken out of their wages.

Will a person get to see it instead?

The amendment contains a mechanism for two reasons. First, to show that I am confident An Bord Pleanála will deliver. Second, I wish to make it known publicly that we are serious about delivering the targets that we have set in the legislation. Otherwise we have deadlines with no consequence if they are not met and that is not credible.

Amendment No. 17 relates to subsection (13) of section 9 that provides for where the board fails to make decisions on an application for permission for a strategic housing development within a 16-week period, as specified in subsection (9), or such other periods as may be prescribed under that subsection and becomes aware that it has so failed. The board shall proceed to make the decision notwithstanding that the period has expired. In such a situation the board shall pay to the applicant a sum equal to the lesser amount of €10,000 or three times the fee paid by the applicant in respect of his or her application for permission.

The amendment removes an incorrect reference in paragraph (d) in the prescribed fee for an application for permission for a strategic housing development. Such fee will in fact be determined by the board subject to the approval of the Minister. The amendment also substitutes an incorrect reference to the planning application fee paid to the planning authority in subsection (13)(d) and corrects this to refer to the planning application fee paid to the board. The second amendment is a correction but both amendments refer to the consequences of not meeting the targets that have been set out in the legislation.

My question is directly related to the latter. Is there recourse in law for the applicant besides a penalty? I think the penalty is farcical. Where will the board get the money? It is no penalty to those who are now going to be charged in the special unit. What happens if an applicant chooses to take legal action against the board for not making a decision within the prescribed period? Has the Minister an opinion on the matter? Has he received legal advices as to whether there is an avenue open for applicants to take a legal case against the board for not meeting the time stipulated? Can he comment on the matter? I do not know whether he has checked the matter with the Attorney General.

It is my understanding that there is no recourse. The board will go on to make its decision after the 16-week period, as outlined in this section, but there is a consequence in terms of the fine.

The Bill also provides for a public consultation period if justified that will push the decision well past the 16-week period. In the normal course of events, considering these applications, I am very confident that the board will have the resources to make a decision and will do so within the 16-week period. It is important that there is some public consequence to the board not making a decision. We have given a commitment to respond to an emergency situation and that is what we are doing with this legislation.

The Senator is right that board members will not pay the money. The money will be funded through my Department but the board will not want to see a fine paid. It is important to have an incentive and I am confident that the board will meet the target. The provision gives us a lot more credibility if there is a consequence. I take the point made by the Senator. The provision gives a bit of teeth to the requirement to make a decision within the timeframe outlined.

Amendment agreed to.
Government amendment No. 17:
In page 19, lines 35 and 36, to delete “the prescribed fee paid by the applicant to the planning authority” and substitute “the fee paid by the applicant to the Board”.
Amendment agreed to.
Question proposed: "That section 9, as amended, stand part of the Bill."

I wish to note, for the reasons we have outlined previously, that we have an issue with the section and therefore oppose it.

Question put and declared carried.
SECTION 10
Question proposed: "That section 10 stand part of the Bill."

I wish to note we oppose the section for the reasons outlined previously when we debated sections 3 to 7, inclusive.

Question put and declared carried.
SECTION 11
Question proposed: "That section 11 stand part of the Bill."

I wish to note that we oppose the section for the reasons outlined previously when we debated sections 3 to 10, inclusive.

Question put and declared carried.
SECTION 12
Government amendment No. 18:
In page 22, between lines 1 and 2, to insert the following:
“(a) consultations with planning authorities for the purposes of section 5(2),”.

I appreciate that the Leas-Chathaoirleach is trying to proceed with the amendments as quickly as possible, however, it would be useful if the Minister explained the rationale behind this amendment.

Section 12 of the Bill enables the Minister to make regulations providing for procedural and administrative matters relating to the content of sections 4 to 10, inclusive. This amendment relates to subsection (1) which specifies some of the matters to which regulations under this section may relate. The amendment provides for the insertion of a new paragraph (a) in subsection (1) specifying that the matters to which regulations may relate include the pre-application consultation under section 247 of the Planning and Development Act 2000. The reference to section 5(2) deals with the prospective applicant for a strategic housing development and the planning authority. This is a very technical amendment which I do not believe is in any way controversial.

Amendment agreed to.
Question proposed: "That section 12, as amended, stand part of the Bill."

We are opposing the section for the same reasons we opposed sections 3 to 11.

Question put and declared carried.
SECTION 13
Question proposed: "That section 13 stand part of the Bill."

We are opposing the section for the same reasons we opposed sections 3 to 12.

Question put and declared carried.
SECTION 14
Question proposed: "That section 14 stand part of the Bill."

We are opposing the section for the same reasons we opposed sections 3 to 13.

Question put and declared carried.
SECTION 15
Question proposed: "That section 15 stand part of the Bill."

We are opposing the section for the same reasons we opposed sections 3 to 14.

Question put and declared carried.
SECTION 16
Question proposed: "That section 16 stand part of the Bill."

We are opposing the section for the same reasons we opposed sections 3 to 15.

Question put and declared carried.
SECTION 17
Question proposed: "That section 17 stand part of the Bill."

We are opposing the section for the same reasons we opposed sections 3 to 16.

Question put and declared carried.
SECTION 18
Question proposed: "That section 18 stand part of the Bill."

We are opposing the section for the same reasons we opposed sections 3 to 17.

Question put and declared carried.
SECTION 19
Question proposed: "That section 19 stand part of the Bill."

We are opposing the section for the same reasons we opposed sections 3 to 18.

Question put and declared carried.
SECTION 20
Question proposed: "That section 20 stand part of the Bill."

I am opposing sections 20 to 23 as they are all related to the first section.

I welcome section 20, which deals with EIA screening. It is targeted at areas where flood relief measures are needed, including repairs to river banks. The system at present requires a lot of bureaucratic applications to numerous Departments and State agencies and this gives an opportunity for a screening and consent process to a planning authority or relevant State agency.

Can the Minister clarify the intention of sections 20 to 23 and their relationship to strategic housing developments?

Section 20 amends the Planning and Development Act 2000 by inserting three new sections 176A, 176B and 176C into that Act relating to environmental impact assessment screening. For the purpose of further implementing EU Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, this section allows for a determination in advance of making a planning application as to whether an environmental assessment is required. This involves screening for an environmental impact assessment in respect of a proposed development of a class specified in regulations made under section 176 of the 2000 Act. The chapter also provides for EIA screening in respect of appropriate assessments, also required under the EU directive, to be carried out at the same time.

This section followed a conversation with the Minister of State at the Department of Public Expenditure and Reform, Deputy Seán Canney, who is trying to streamline the planning and approval process for many of the flood relief projects that are needed in different parts of the country. The question of whether an environmental impact assessment is actually required depends on the environmental complexity of the project and if it is not necessary we need to move ahead and get permission without having to go through what can be a lengthy EIA process. It is a practical measure and, in the same way as I am trying to get housing moving, the Minister of State is trying to get flood relief projects, to which we have allocated a lot of money, to move through the system.

I thank the Minister for his clarification. We are looking at that section and have not brought forward any amendments on Committee Stage. I do not know if we will do so on Report Stage but we reserve the right to.

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

We reserve the right to bring in amendments on Report Stage to this section.

Question put and declared carried.
SECTION 22
Question proposed: "That section 22 stand part of the Bill."

We reserve the right to bring in amendments on Report Stage to this section.

Question put and declared carried.
SECTION 23

Amendments Nos. 19 and 20 are related and may be discussed together by agreement.

I move amendment No. 19:

In page 33, to delete lines 9 and 10.

This amendment seeks to maintain the ordinary majority in votes on Part 8 developments. At the moment, councillors can amend or reject a Part 8 development through a normal vote at a council meeting. For reasons which may not have been explained to us, the Minister is proposing to change this provision. If the Minister gets his way the exercise by the elected members of a council will require a special majority of all members of the council, not simply a majority of those present at the meeting. In circumstances are councillors were ill or otherwise unable to attend a particular meeting, this undermines the democratic operation of the council. It tips the balance in favour of executive power and undermines the reserve function held by the elected members.

Progress reported; Committee to sit again.
The Seanad adjourned at 9 p.m. until 10.30 a.m on Thursday, 24 November 2016.