Planning and Development (Amendment) (No. 2) Bill 2017: Committee and Remaining Stages

SECTION 1

Amendments Nos. a1 to 3, inclusive, are related and will be discussed together.

I move amendment No. a1:

In page 4, line 8, after “and” to insert “is under active construction but cannot reasonably be completed, and”.

The Bill is concerned with providing a further extension of duration for housing developments with over 20 units where the development was commenced within the original period or an extension of it and substantial works were undertaken during the original or extended period. It inserts a new category of extensions just for housing. It is somewhat akin to category A in the original Act but less rigorous as, notably, as initiated, the Bill does not even require that the housing developments be completed in a reasonable timeframe, as section 42(1) does. The Bill provides that the planning authority, if it receives an application, shall grant an extension.

There is no discretion to refuse it if a valid application for an extension is submitted meeting the broad new category. It limits the checks the planning authority is entitled to make to checking only that the application for the extension is in order, to just the paperwork therefore. No consideration is allowed of the suitability of the development in the area. This is despite a potentially very significant lapsed period since it was given permission. Conceivably there could now be many new developments, with huge traffic, sewerage and water supply issues to be considered, as well as other matters such as flooding considerations, etc.

We are potentially seeing a return of development with poor infrastructural support such as we saw in the worst of the Celtic tiger days. The Minister can prescribe regulations under section 43 to require the submission of evidence to support the consideration of whether the development can be completed. The Minister has entirely failed to allow the councils to consider such matters in the Bill, as initiated. The extensions of duration may be applied for by unscrupulous developers and they do exist, with a view to only changing the paper value of the land, which would increase suddenly if it had a valid permission attached to it. I appreciate the Minister of State saying that this is not the aim, but the question we asked was around what safeguards were in place to ensure this would not happen.

The further extended period is limited to an upper limit of the 31 December 2021. Two issues arise. The date can easily be changed by the Government and pushed out again. The Bill does nothing to ensure assured delivery under these provisions in a reasonable timeframe, commensurate with the amount of work outstanding. The developer can sit on the extended permission up to December 2021, which is three and a half years from now, and either do nothing and simply take advantage of low land value implications, or the site could be developed at the eleventh hour when the market has been squeezed to the optimal point for the developer in the area in question. Critically, it also facilitates development with out of date standards and regulations but at tomorrows' prices. This is because the Bill does not just allow for another extension, it allows for another extension of a permission which has not only run out of its first period but which has been extended and also run out of that period. Unlike the current section 42, there can be a much more significant period between the development being granted permission and conditions that were attached to that permission that reflected regulations and standards at the time. This can be the case now or in the period into the future when extensions can be sought under the new provisions.

Given the time lag between the original full consideration by the planning authority, many relevant planning considerations may have changed such as the development objectives in the relevant county development plans, regional and spatial strategies. Even if the development was extended under category B previously - some of them were - time has elapsed again and the council would have no discretion to amend conditions. In the context, for example, of the awful tragedy of Grenfell Tower there has been increased focus of fire regulations and building standards. Additionally, new factors and considerations such as flood risk and flood maps have emerged, with climate mitigation and adaptation plans, which could have a bearing on whether the continued development of the site in question is consistent with proper planning and sustainable development. No consideration is permitted on these factors.

Amendment No. 2 specifies a number of critical planning considerations, with which the planning authority must be satisfied in order to grant an extension of duration such as adding a requirement that the evidence that the development can be completed should be satisfactory evidence. It calls for consistency with normal planning considerations such as development plans and regional and spatial guideline and the Minister's own policies. It adds new appropriate considerations in respect of flood risk and climate change and, additionally, part II of amendment No. 2 recognises that issues could arise consequent on how old and out of date are the underlying permission and associated conditions on it. It recognises the context of the time lag between when a further extension is sought and when it was originally permitted. This is particularly expedient and in the public interest given the absolute failure of the Minister to stipulate any definition of "substantial works" as has been raised by Senators previously.

We have no clear view of what has been done or is outstanding and yet to be developed. There is a clear failure to require explicitly in the alternate that in fact the development had to be substantially completed. It is sensible, therefore, that we require that what is an unclear and unspecified amount of outstanding development simply has to be completed to the most current and up-to-date standards. To fail to do this would subject the most vulnerable and desperate home seekers in the market to substandard development and less optimum standards than is reasonably feasible.

Amendment No. 3 requires a definition of “substantial works” and that the Minister provides regulation that conforms to what he said in the Dáil, which otherwise would be meaningless. It deals with issues we see in the real world where the demolition of existing structures, some site clearance and the digging a hole on site are deemed to be "substantial works". This is even though tenders or key contracts may not have been written let alone met, and no real development has taken place. Such developments, which have not really been commenced, should be reconsidered fully and be treated differently to something that has been genuinely advanced.

That is the rationale for putting forward the amendments. We appreciate the thrust of the Bill, but we believe it needs to be amended in the House.

Given the time lag between the original full consideration by the planning authority, many relevant planning considerations may have changed such as the development objectives in the relevant county development plans, regional and spatial strategies. Even if the development was extended under category B previously, and some of them were, time has elapsed again and the council would have no discretion to amend conditions. In the context, for example, of the awful tragedy of Grenfell Tower there has been increased focus of fire regulations and building standards. Additionally, new factors and considerations such as flood risk and flood maps have emerged and climate mitigation and adaptation plans, which could have a bearing on the continued development of the site in question ,is consistent with proper planning and sustainable development

I thank Senator Ó Clochartaigh. For the purposes of clarity, amendments Nos. a1 to 3, inclusive, are related and may be discussed together. Amendments Nos. 2 and 3 are logical alternatives to amendment No. 1. I thank the Senator for pointing that out.

It is important that the Minister of State clarify that this is only for schemes that are substantially commenced and that it is not for schemes that have not started. Equally, to address the point I made in my earlier contribution, where people are looking for second extensions to duration of planning permissions, it only applies to substantially commenced projects. We cannot have a situation where people who have sat on planning permissions since 2008 and are still sitting on them with not a blade of grass disturbed and not a shovel having gone into the ground wanting to extend the permission for a second time. In those situations, even if a first extension to duration is allowed, we cannot have people going back and getting extensions of such duration where an area development plan has changed the ground rules. If the development plan has changed the rules it means that they have been changed for a logical reason. The members of a local authority may have decided to change them and building standards are of a different quality than heretofore. It is important that we do not allow planning permissions that were granted in an earlier time to be extended when we have already changed the rules as to what and how projects should be built.

I take on board what Senator Ó Clochartaigh said. They are valid concerns and I do not have a problem with them. I started by saying the Bill would enable us to deliver more houses, but clearly, we do not want houses on sites that are not appropriate, nor do we want buildings that are built without proper planning controls, etc. The reality is, however, that these are sites that have received planning permission. This is a further extension of an extension. There is a due planning process that has already been gone through. That is an important point to make. The Minister has already confirmed that it is open to the planning authorities to restrict the measure to a two year extension of duration. It does not have to be another five-year extension. No good planner or local authority wants dodgy buildings built within their local authority area. These are important points to bear in mind.

The Minister has also confirmed, as result of a parliamentary question I tabled, that there would be no extensions beyond 2021 - we are now in mid-2017 - which is the lifetime of Rebuilding Ireland. The Minister of State has also confirmed this and I hope I am correct in his interpretation. We are talking about a very narrow timeframe, which goes back to the points made by Senator Ó Clochartaigh about the need to quantify the sites involved. Deputy Eoin Ó Broin made this valid point in the Dáil and he also has requested that the sites involved be quantified. I believe that should be addressed. The Minister of State says there may be 50 to 100, but I suggest there are 75, based on some correspondence I read from the Department recently. Quantifying the sites would help. I cannot imagine that the Minister of State does not know roughly where these sites are. I presume that he does know. It is important that the Minister of State could make that information available soon. Clearly he cannot make it available today, but we could quantify these sites and have a look at them. No planning authority or planner wants dodgy buildings or inappropriate buildings.

I also reiterate again that it is up to the Minister and his officials are here. There is clearly a planning code set down through the Planning and Development Act 2000. We have planning controls and regulations and all of these still apply. I am reasonably comfortable about it and one might say who am I to be like this, but I have great interest in the planning and development process. Given the tight timeframe of the period, ending as it does in 2021, and the legislation we have, I believe this is a reasonable measure which would allow us to be assured that it is covered within guidelines set out in the existing legislation. I would like to hear what the Minister has to say. I reiterate the call for quantifying the sites. As soon as we have the definitive list of these sites the better.

I wish to speak to my amendment, amendment No. 1. I thank the Minister of State for coming to the House.

When I look at the various pillars of Rebuilding Ireland, I believe there is an overlap.

The need for local authorities to provide social housing has been discussed. Although the Minister of State has outlined the number of units that have been constructed and the commendable progress that is being made, that is, unfortunately, not evident to those affected. The level of homelessness is rising.

I propose that a new section 12 be added to the Bill to strengthen it and to recognise that there is a sense that the legislation is being rushed through the Seanad. Other Members and I want to do our jobs, strengthen the Bill and recognise some of its weaknesses. My amendment aims to ensure planning permissions extended will be in keeping with current environmental and building standards and in compliance with the most recent planning and development regulations. As other Senators have said, things have changed in recent years and I am, therefore, bringing forward this amendment. Permissions can be extended under the proposed Bill. Conditions could be out of date as it includes permissions which have run out of time, been extended, run out of that extended period and lapsed.

Members know that fire regulations need updating. One does not build one's way out of a housing crisis by constructing substandard developments and giving a windfall cost benefit to developers to develop at old standards and sell at today's prices. My party colleague, Deputy Catherine Martin, and academic, Ms Deirdre Ní Fhloinn, who wrote our motion on building standards which was passed in the Dáil, have recently raised the issue of current building standards being totally unsuitable.

The Bill does not give a definition of "substantial works". The Minister for Housing, Planning, Community and Local Government, Deputy Eoghan Murphy, last week said further extensions of planning permission must be for developments beyond the point of no return. On 13 July, Mr. Brendan McDonagh, the chief executive of NAMA, told the Joint Committee on Finance, Public Expenditure and Reform, and Taoiseach that, since its inception, NAMA had sold vacant land on which 50,000 houses could have been built. To that date, 3,700 had been built or were under construction. He said there was little disincentive to the hoarding of any site for as long as the owner expected house prices to rise. Allowing for an open definition of "substantial works" could lead to abuse of the procedure and further land hoarding, which has been described by many NGOs, academics and even the head of NAMA as a contributor to the current housing crisis.

I would also like to hear the Minister of State's definition of "substantially commenced".

In regard to the automatic granting of an extension to planning permission, since some permissions have been given, the catchment flood risk assessment and management, CFRAM, studies have been published. Members have not been told where the units are located. Are some on a flood plain and, if so, how many? Would it potentially be better that such units not be finished? Is it correct to grant extensions to planning permissions? The Bill proposes an automatic extension. Has due diligence been carried out in regard to what planning permissions are to be given extensions? It is possible that houses will be completed only to be flooded in two years' time. However, Members do not know those details. The Minister of State is asking us to buy a pig in a poke. A list of sites should have been published in order for the impact to be assessed, along with a consideration of how planning and development has changed in the relevant area. No Member wants to delay the building of a unit because every unit built means another family can be housed. However, there is a responsibility to ensure we are not buying a pig in a poke. That assurance has not been given by the Minister of State. He has not told Members where those developments are located. Can he tell me that none of these developments is on a flood plain or within 30 feet of a river that has a history of flooding? I do not hold all planners in the high regard that some do. I have met some very good planners in local authorities but also some horrendous planners who have given dodgy planning permissions. I am aware of people in County Meath whose houses in a rezoned area have been flooded on a regular basis. Can the Minister of State give Members some comfort on the details of the legislation?

I also ask him to respond on the delay in the provision of affordable units in Dublin due to a lack of necessary legislation.

I will try to answer most of the questions posed. I missed Senator Humphreys' question earlier. The delay in the provision of affordable units in Dublin is not due to a lack of relevant legislation. Senator Humphreys raised the issue last week and I know he hoped to discuss it again this week. I am happy to debate the issue but the delay is not due to lack of legislation. Many such sites throughout the country have been identified for the development of social housing, affordable housing and private development. The Department is not dictating to local authorities on how to bring those sites forward. Councillors have enough common sense, working in tandem with their officials, to bring forward proposals for lands. They have been asked to have all proposals in by September. The Department, rather than dictating to them, wants to see what is brought forward by local authorities in terms of what they think is best for their areas in making the best use of public lands and the deliverance of social and affordable housing appropriate to each site, with private housing.

Some local authorities are bringing forward proposals for high levels of affordable housing, which is to be welcomed. We have asked for the plans to be brought forward. The Department has identified the sites and will make money available, with personnel to enhance and develop local authority teams, but it needs to know what appropriate action local authorities want to take in their areas. Members have emphasised the importance of councillors and local authorities. The Department wants to hear their views on the sites in their areas, most of which are in local authority ownership. The Department does not currently dictate the course to be taken, nor does it intend to do so. If housing development is not progressed in the near future, there may be a change in the process, but progress is currently being made. The Department wants to see what plans are developed for each site. That is important. If I am incorrect, and new legislation is required to alleviate the delay in the provision of affordable units in Dublin, I will address that immediately but that is not my understanding in regard to the current situation.

The Bill does not address greenfield sites. Members are absolutely correct in that regard. It addresses sites on which works have substantially commenced. A person will not be able to get a mortgage to buy a house on a flood plain, nor will he or she be able to get finance to build a house on a flood plain, irrespective of whether planning permission has been granted, because the OPW has identified all potential flood plains. I, therefore, do not share the concerns of Members in that regard. I do not know the location of each of the 70 or 80 sites and, therefore, I cannot give a guarantee to Members in that regard, but funding will not be given for the development of sites on a flood plain. However, I cannot promise that planning permission has not been granted for developments on flood plains. All available talents are being used to identify such sites. Some people have sites for which they do not realise planning permission has expired. It is likely that in such cases development has not been commenced. The Bill addresses sites on which work has substantially commenced and is progressing. We want the development of those sites to be completed. I would be surprised if Members have not received calls from people about these sites. I have received several such calls. I can, therefore, speak about some of the sites but not all of them. One will not receive funding to build a house on an identified flood plain unless one can prove through one's engineers and in consultation with the OPW that the house is safe from flooding. It is usually the case that if finance cannot be obtained, houses are not developed. That can also be a problem on some good sites, but that issue can be discussed at a later date.

I will discuss all of the amendments together. On amendment No. a1, which, in a sense, supersedes amendments Nos. 1 and 2, the further extension of direction provisions which emanate from the Government's action plan for housing will affect not only future permissions but also those that expired after the publication of the action plan last summer. Such permissions may be reactivated under the provisions of the Bill because some such planning permissions would have expired in August, September, October or November 2016 but a commitment was given in mid-July 2016 that, from that date, any site with planning permission on which development had commenced would qualify under this scheme. Development on some sites may have commenced and then ceased. To require that there be active construction in progress is problematic because of the commitment given last year. The Government opposes the amendment because it would preclude those developments which have already received an extension of duration of permission which expired after the publication and which, therefore, would have stopped work before now. There are such sites.

The effect of this amendment would be that only a development under active construction would benefit from the extension of duration. It would exclude that cohort of developments, the submissions on which had withered away after the publication of the action plan in July 2016. As this runs contrary to the objectives of the action plan, I cannot accept the amendment. I hope Members will understand why we cannot accept it. I know the principle it aims to achieve. This is not to facilitate the hoarding of land and we will do more on that in our planning Bill, for which some amendments have already been tabled and which colleagues may have seen. The amendments to the larger Bill will be very much in line with what the Senator wants to do to try to ensure there is no land hoarding. Members can be assured that land hoarding does not fulfil our aims or help us with our plans. We will do all we can to prevent land hoarding.

On amendments Nos. 1 and 2 on the principal list of amendments and amendment No. 3 on the additional list, all of which we oppose, in subparagraph (A)(I), "established evidence" is not defined and will cause great uncertainty as to what it means precisely. I remind Senators that the provisions in this Bill already require planning authorities to interrogate the application to extend the duration of the permissions and to give only as much time as is required to complete the development. Senator Ó Clochartaigh's colleague, Deputy Eoin Ó Broin, mentioned this matter. If it merely needs six or nine additional months, it does not need to be given an extra five years in order that they can sit back and not develop it. That is for the local authority. It makes the decision on that. Again, I hope the authorities will do their job correctly. That is what we will be asking them to do and that is the guidance they will be getting. In law, local authorities have to be the judge of that and it is quite common in most cases. It is inherent in the processes envisaged under legislation that developers would provide reasonable estimates of how long the completion of developments will take, and it is therefore impractical to require developers to provide evidence of something that has not yet occurred. The Senator said there was a belief in some local councils that there was an automatic right to an extension and that people would have their applications rubber-stamped. That is not always the case. I have come across people who did not get their permissions extended. Timelines can be put in. If the Senator has evidence of this, he should bring it forward. My experience, from talking to councillors and people who were themselves involved, is that these applications are not always rubber-stamped and people have not always received their extension. In this case, the chances are that if applicants have not done substantial work, they will not get it. The legislation is very clear on that point. They have to have made major progress on the site. It is as simple as that.

On subparagraphs (A)(II), (A)(III) and (A)(IV) and (B) of the amendment, the provisions propose to assess retrospectively the planning merits of a development which has already received consent and where substantial works have been carried out. It is like a new planning application. I know that is Senator Grace O'Sullivan's concern, but it is like going back to square one and resubmitting a planning application. We propose that in respect of planning permissions which have run out in the previous nine or ten months or are about to run out on sites where work has started and building is under way, those sites can be finished out. It is not a greenfield site, it is not starting again from scratch, but if we accept the amendments, it would in practice be a return to the starting position of a new application which would undo the certainty we are trying to introduce in this model. The reopening of the determination of the planning merits of a particular application where developments have substantially commenced is not reasonable and it is generally not possible to add or vary planning conditions after construction substantially commences, as proposed in this amendment. Some of these developments are well advanced and almost finished, and we are trying to get them finished. The effect of accepting these amendments would be to complicate an administrative process and effectively create a second consent process, which would bring massive uncertainty and financial risk to house providers in terms of undermining developments which have already passed through the planning process, with the potential for unforeseen consequences in relation to other infrastructural projects also.

I am not inclined to insert a definition of the term "substantial works" in primary legislation, as proposed in amendment No. 3 on the first additional list, as it is subject to a widely litigated and complex area of case law which would not be well served by a restricted definition. It is noted that a consideration of whether substantial works have been carried out should be determined on the basis of the particular facts of the case and not by reference to any predetermined formula or rule of thumb. Again, this goes back to the planning authorities in the area making the judgment and, in the principal Act, it is their call. It is not defined in legislation, and if we were to do that, it would need a much more lengthy process. It is something we can look at again, but it is not something that is done without consulting the different stakeholders and having proper public consultation. There is considerable case law and to undermine it would involve much work. If people want to do that, we can look at it, but it is a complex area and not something to be done just like that.

This legislation reflects the discussion in the debates we had here last December and in January. Most people would agree that if a development is under way on a site, it should be finished because we need the houses, and that is what we are trying to do here. There are also people for whom this is their livelihoods. They will be working on these sites today. Are we to say that they cannot be on site next week? That is what we are discussing and those are the practicalities. This does not relate to hundreds of sites. It is about 50 to 60 sites. Some people are saying 70 sites and we are saying it might be 50 to 100. People are on those sites today, delivering houses that we all need, whether for the purposes of social or private housing, but it is also their livelihood and we are trying to facilitate that. When we discussed this in December, most people were satisfied with that. We made changes because they made sense logically. It is not to protect hoarders or greenfield sites from being developed for another five years. I want to be clear that is not what we are doing.

As it is now 6.15 p.m., I am required to put the following question, in accordance with the order of the Seanad today: "That amendment No. a1 is hereby negatived, that section 1 is hereby agreed to in committee, that section 2 and the Title are hereby agreed to in committee, that the Bill is accordingly reported to the House without amendment, that Fourth Stage is hereby completed, that the Bill is hereby received for final consideration and that the Bill is hereby passed."

Question put and declared carried.