Planning and Development (Amendment) Bill 2016: Committee Stage (Resumed)

Sections 24 to 27, inclusive agreed to.
NEW SECTION
Government amendment No. 44:
In page 55, after line 38, to insert the following:
“Amendment of Fourth Schedule (reasons for the refusal of permission which exclude compensation) to Principal Act
28. The Fourth Schedule to the Principal Act is amended by inserting the following paragraph after paragraph 23:
“23A.(1)The proposed development is by an applicant associated with a previous development (whether or not such previous development was within the functional area of the planning authority to which the proposed development relates) which—
(a) in the opinion of the planning authority in whose functional area the previous development is situated, has not been satisfactorily completed in the ordinary course of development, or
(b) the estate to which the previous development relates has not been taken in charge by the local authority concerned because the estate has not been completed to the satisfaction of that authority.
(2) In this paragraph ‘associated’, in relation to a previous development, means a development under the Planning and Development Acts 2000 to 2018 to which section 180 relates and in respect of which the development has not been satisfactorily completed or taken in charge by the local authority concerned due to the actions (whether of commission or omission) of—
(a) the applicant for the proposed development,
(b) a partnership of which the applicant is or was a member and which, during the membership of that applicant, carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act,
(c) a registered society under the Industrial and Provident Societies Acts 1893 to 2014 that—
(i) carried out a development pursuant to a previous permission,
(ii) carried out a substantial unauthorised development, or
(iii) has been convicted of an offence under this Act,
or, during any period to which subclause (i) or (ii) relates or to which any conviction under subclause (iii) relates, the registered society was, during that period, controlled by the applicant—
(I) where, pursuant to section 15 of the Friendly Societies Industrial and Provident Societies (Miscellaneous Provisions) Act 2014, ‘control’ has the same meaning as in section 220(5) of the Companies Act 2014, or
(II) as a shadow director within the meaning of section 2(1) of the Companies Act 2014,
(d) where the applicant for the proposed development is a company—
(i) the company concerned is related to a company (within the meaning of section 2(10) of the Companies Act 2014) which carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act, or
(ii) the company concerned is under the same control as a company that carried out a development referred to in subparagraph (1) where ‘control’ has the same meaning as in section 220(5) of the Companies Act 2014,
or
(e) a company that carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act, which company is controlled by the applicant—
(i) where ‘control’ has the same meaning as in section 220(5) of the Companies Act 2014, or
(ii) as a shadow director within the meaning of section 2(1) of the Companies Act 2014.”.”.

Amendment No. 44 complements measures agreed to in the Dáil debate on the Bill to address the past performance of developers in the consideration of planning applications. I commenced my approach to this issue during the Committee Stage in the Dáil by tabling an amendment to section 34 of the principal Act which would require planning authorities in the assessment and determination of planning applications to have regard to previous developments, which have not been satisfactorily completed and previous convictions against the applicant for non-compliance with the planning Act, the Building Control Act 2007 or the Fire Service Act 1981. I subsequently brought forward a second amendment on Report Stage in the Dáil to elaborate on this and address section 35 of the principal Act relating to the actual refusal of applications for planning permission for past failures to comply. Specifically, that amendment proposed that where a person has previously operated under a particular company name that has left estates unfinished and has subsequently applied for planning permission for new development under a different company name, that this may be taken into account by the planning authority as the basis for refusing the planning application under the second company name. That second amendment dealing with the past performance of developers which I tabled on Report Stage was inadvertently noted as withdrawn and consequently I am now retabling it on Committee Stage in the Seanad.

This is a very positive amendment that closes a loophole that has been debated in many council chambers all over Ireland regarding developers. It is a very positive step and I wish to support it.

Amendment agreed to.
Sections 28 to 34, inclusive, agreed to.
SECTION 35

We now come to Government amendment No. 45.

With the agreement of the House, I will discuss amendments Nos. 45 and 46 together.

Government amendment No. 45:
In page 57, lines 33 to 35, to delete all words from and including “(1) Section” in line 33 down to and including line 35, and in page 58, to delete lines 1 to 8 and substitute the following:
“(1) Section 28 of the Act of 2016 is amended by substituting the following for subsection (1) (which provides for an amendment of section 42 of the Principal Act):
“(1) Section 42 of the Act of 2000 is amended—
(a) in subsection (1) by substituting the following for paragraph (a):
‘(a) (i) the authority is satisfied that—
(I) the development to which the permission relates was commenced before the expiration of the appropriate period sought to be extended,
(II) an environmental impact assessment or an appropriate assessment, or both of those assessments, was or were not required before the permission was granted,
(III) substantial works were carried out pursuant to the permission during that period, and
(IV) the development will be completed within a reasonable
time,’,
and
(b) by substituting the following for subsection (4):
‘(4) A decision to extend the appropriate period of a permission shall be made not more than twice under this section and a planning authority shall not further extend the appropriate period. Where a second decision to extend an appropriate period is made under this section, the combined duration of the 2 extensions of the appropriate period shall not exceed 5 years.’.”.”.

Government amendment No. 45 comprises two measures. The amendment deletes the provisions of section 35 of the Bill to amend section 28 (2) of the Planning and Development (Housing) Residential Tenancies Act 2016. Section 35 relates to the further extension of the duration of planning permission for certain developments relating to 20 or more houses, which is provided for in section 42 of the Planning and Development Act 2000, as amended by section 28(2) of the 2016 Act. This provision is being deleted from the Bill because a provision to the same effect has been provided for in section 1 of the Planning and Development (Amendment) Act 2017, which was enacted on 19 July 2017. As a consequence, it is no longer necessary to include this provision in the Bill.

Second, the amendment will make two very significant changes to the provisions in section 28 of the 2016 Act, which in turn amends section 42 of the principal Act of 2000, relating to the extensions of the duration of planning permission. The first change will permit the extension of the duration of a planning permission only where substantial works are carried out during the initial duration of the planning permission. This effectively removes a provision introduced in 2010, in the middle of the economic downturn, allowing extensions of the duration of planning permission even where development works have not commenced and where substantial works have not been carried out during the initial duration of the planning permission. Having regard to the current lack of housing supply, the option to extend the duration of planning permissions, without development having been commenced or alternatively carried out, can no longer be justified because it facilitates the hoarding of at least some planning permissions for housing developments, including in areas, where new housing is most needed and demand is acute.

The second change to the legislation underpins the provisions relating to the extension and duration of planning permissions; this provides for a maximum of two extensions of duration applications being allowed, the combined duration of which cannot exceed five years. This change will empower the planning authority to carry out a proper interrogation of the realistic timescale for completing a development and consider the application of a reduced period in the granting of a first extension duration in the knowledge that if an unforeseen event arises that further delays the completion of the works, the authority may reasonably grant a second extension of duration of the permission on application by the developer.

I will now address amendment No. 46 tabled by Senator Grace O'Sullivan. The Green Party amendment No. 46 proposes to amend section 35(2) of the Bill to give effect to and bring into immediate operation on the enactment of the Bill, amendments of section 42 of the principal Act relating to the extensions of the duration of planning permission that are set out in section 28 of the Planning and Development Act 2016. I should point out that section 28 of the 2016 Act contains two subsections.

As I have outlined, subsection (2) relates to further extensions of the duration of certain planning permissions and it has been amended by the Planning and Development (Amendment) Act 2017, when the Minister, Deputy Murphy signed the commencement order in July 2017, bringing the amendments of section 28(2) of the 2016 Act into operation in August 2017. Therefore, this part of the Green Party amendment is unnecessary to the extent that it seeks to bring into operation on the passing of this Bill an action that is in operation. I am conscious that if the Bill is passed out, it is no-one's fault.

With regard to section 28(1) of the 2016 Act, this has not yet been commenced because section 35 of this Bill proposes to make certain further amendments to section 28. In this connection, Government amendment No. 45, which I have just outlined, proposes to amend section 35 by substituting a new subsection (1) that makes different amendments to section 28 of the 2016 Act.

These changes, which are aimed at tightening up the arrangements around extensions of durations of planning permissions, will confine extensions of duration to cases where substantial work is carried out through the initial period of the permission, and it will provide for a maximum of two extensions of duration for the completion of a development. There will be combined maximum duration of five years allowed for an extension of a planning permission.

Given the nature and significance of these changes, and I believe Senator Grace O'Sullivan will agree they are positive in helping to expedite and shorten the timeline for completion of certain developments and addressing the hoarding of land that is subject to planning permission, it is important to give notice to planning authorities, developers and other stakeholders of the new arrangements before they are brought in to operation. I do not, however, foresee a lengthy time lapse between enactment of the Bill and bringing it into operation by way of order commencing the amended section 28(1) of the 2016 Act, which I propose in this Bill. As I have indicated that some limited time is required to give notice of the introduction of the new arrangements having regard to their significance. I must, on that basis, oppose the Green Party amendment. I believe that Senator Grace O'Sullivan will agree with the overall thrust of the changes proposed to tighten up the extension of duration provisions. We want the same result but we just need a little bit of a time difference, if that is okay and if it is acceptable to the Senator.

Amendment agreed to.

I move amendment No. 46:

In page 58, line 9, to delete “This” where it firstly occurs and substitute “Section 28 of the Act of 2016 and this”.

I agree with the Minister's comments on amendment No. 46.

Amendment, by leave, withdrawn.

Did Senator Murnane O'Connor wish to speak on this section?

I will speak at the end before we vote on the Bill.

Section 35, as amended, agreed to.
NEW SECTION
Government amendment No. 47:
In page 58, between lines 11 and 12, to insert the following:
“Amendment of section 12 (transport strategy) of Dublin Transport Authority Act 2008
36. Section 12 of the Dublin Transport Authority Act 2008 is amended—
(a) in subsection (8) by substituting “the Minister for Housing, Planning and Local Government, the Office of the Planning Regulator,” for “the Minister for the Environment, Heritage and Local Government,”,
(b) in subsection (10) by substituting “the Authority shall send a copy of that draft to the regional authorities within the GDA and to the Office of the Planning Regulator and those regional authorities and that Office shall” for “the Authority shall send a copy of that draft to the regional authorities within the GDA and those regional authorities shall”, and
(c) in subsection (12)—
(i) by inserting “or from the Office of the Planning Regulator under that subsection,” after “from the regional authorities within the GDA under subsection (10),”,
(ii) by inserting “or of the Office of the Planning Regulator so given,” after “the advice of the regional authorities given under subsection (10),”, and
(iii) by substituting “shall inform in writing the regional authorities or that Office, as appropriate,” for “shall inform the regional authorities in writing”.”.
Amendment agreed to.
SECTION 36
Question proposed: "That section 36 stand part of the Bill."

On the final section of this Bill I wish to say a few words about the national planning framework. We are an island on the edge of Europe and we need to behave as if we want to become connected to Europe and not become just a place to take nice holidays. A key part of this national planning framework is to develop Dublin, Cork, Limerick, Galway and Waterford as points of economic and population growth. Nobody is saying that all towns need to be capital cities, which is wrong, but each county has a capital that can be connected to. I believe this aspect is missing from the plan. We need to focus on infrastructure, transport, job creation and rural Ireland. I want to bring this issue into the discussion because it is all connected to most of today's amendments. I am saying this now because I may not speak at the very end of the debate. It is about quality of life. I want to explain this for the Minister of State because I believe we are passing a plan here today and yet we are told that we cannot speak at the end of it. The Minister of State is aware that we had a launch of this plan a few weeks ago. I believe that we are creating a new politics here now. A plan can never be launched without all parties taking part in this, so today I ask that anything else to do with the national planning framework would be agreed with all Senators and that it would be launched by every party. It does not matter which party is in Government, everyone should participate in it. The reason I bring this issue up is because of an article I read in The Irish Times this week. I was concerned to see that it was revealed under a freedom of information request that a last minute intervention was made. I must bring this to the attention of the Minister of State because it applies to the plan.

The article said:

In a draft of the plans circulated in late January, a senior official at the Department of the Taoiseach emailed the Department of Public Expenditure to state: “It’s weak on the South-East

[...]

"Also, the TU [technological university] for the South-East needs to be singled out as a priority given the south east has no university.

"Could suggest it as a possible Irish campus of the new European University being contemplated.”

The final version of the plan included a stand-alone section on a new “technological university for the southeast”, to be formed from the merger of Waterford Institute of Technology (WIT) and the Institute of Technology Carlow.

It also contains a reference to it participating in a network of European universities.

While I welcome this intervention because it has a direct impact on my constituency, I might have made the suggestions in this Chamber had I been given the chance. We were not given the chance because we were told there would be delays. It is not good enough and that is why this can never happen again here. I put it to the Minister of State that we are practising new politics and we can never allow that to happen again. I could not let this go today without highlighting my concerns. This only happened one week ago and yet Senators were told that we could not address this in the Seanad.

I do not follow the argument. What does The Irish Times article refer to?

Yes, but I am not sure how it relates to this Bill.

I am not sure there was a question.

I would not mind responding.

Under a freedom of information request the article said "In a draft of the plans circulated in late January, a senior official at the Department of the Taoiseach emailed the Department of Public Expenditure to state: 'It’s weak on the South-East'" Senators have brought up many issues on this and when I wanted last week to put to a vote an amendment that never again should any national planning framework go out as a vote, I was told by the Minister of State, and he can look back on this, that it would take too long and that it would disrupt the whole national planning framework. That is what I was told, and as we know it did not pass, which is okay, and I have accepted that, but-----

Is the Senator making a statement rather than a question?

Absolutely, but I want to clarify that because I thought we should have had a vote then. It is important to me to highlight this today as I felt my amendment could not have been passed because the Minister of State, Deputy English, had told me that it would take too long, and yet this came out under a freedom of information request. I just wanted to clarify that.

I wish to clarify two points. The issues to which Senator Murnane O'Connor refers would have come up very clearly at the committees. Both committees were given the job of scrutinising the plan on behalf of the Houses of the Oireachtas after a motion in the Houses to do that. There was talk of strengthening the position around education, and it is plainly important that we do that in relation to planning. Decisions were then to be made on a regional basis as well. We are agreeing to put in place, through a planning Act, and this is not the plan itself but a Bill we are discussing-----

-----a process whereby new plans that are published and produced follow the spirit of the legislation, even though the legislation has not been passed yet. It is hoped it will get there some time this year. We are putting in place a process that guarantees, no matter who is in Government in the future, that there is a protocol that takes account of all the consultation we have had and that reflects the work carried out over the past three years. This is what we are asking the Senators to do and to vote on. There is a difference in the Senator saying that the Houses should have the final vote on a plan-----

-----but in that case it would be very difficult. It would assume a lot of the responsibilities of planners. That is the job of the planning departments and planners whose profession it is. We are politicians and legislators who make decisions on documents and so on. We would not be in a position here to do all that planning detail of a national plan that needs to be passed through the Houses. That would not be the correct way to achieve a plan for the State.

The second point is there would be a danger of massive delays on a plan if it had to come to the Houses of the Oireachtas for final approval. The Senator can check the record as this is what I said. For example, if we did that seven years ago with the Action Plan for Jobs we would never have got that plan through. There would be potential for everybody to feel the need to add to it and change it, change a line or put a word in and so on. That would not give us good planning.

That is what I said and that is what I stand over. Here, Senators are voting on a process to achieve a national plan.

The Minister has already launched the national planning framework, which should never happen again.

The Senator has made her point. I suggest that we move on to section 36. Does the Minister of State wish to say anything else?

Question put and agreed to.

Amendment No. 47a is in the names of Senators Humphreys and Ó Ríordáin was on the first additional list of amendments dated 17 April 2018. Their amendment has been ruled out of order because of a potential charge on Revenue and not being relevant to the subject matter.

Amendment agreed to.

Amendment No. 47a not moved.
SCHEDULE 1
Government amendment No. 48:
In page 61, to delete lines 4 and 5 and substitute the following:

.

(d) where relevant, to the National Transport Authority.”.

”.
Amendment agreed to.
Government amendment No. 49:
In page 62, to delete lines 2 to 5 and substitute the following:

.

(a) make available on the website of the Department of Housing, Planning and Local Government a direction under subsection (16), and

”.
Amendment agreed to.
Government amendment No. 50:
In page 62, to delete line 38 and substitute the following:

.

(c) to the National Transport Authority.”.

”.
Amendment agreed to.
Government amendment No. 51:
In page 63, to delete lines 40 to 43 and substitute the following:

.

(a) make available on the website of the Department of Housing, Planning and Local Government a direction under subsection (16), and

”.
Amendment agreed to.
Schedule 1, as amended, agreed to.
Schedules 2 to 4, inclusive, agreed to.
TITLE
Government amendment No. 52:
In page 5, line 5, to delete “Planning and Development Acts 2000 to 2015” and substitute “Planning and Development Acts 2000 to 2018”.
Question proposed: "That the Title, as amended, be the Title to the Bill."

Can I raise a few issues that I hope to deal with on Report Stage?

I can take that afterwards.

Yes, that is fine once they get taken.

Question put:
The Committee divided: Tá, 16; Níl, 2.

  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Craughwell, Gerard P.
  • Horkan, Gerry.
  • Lawless, Billy.
  • Leyden, Terry.
  • Lombard, Tim.
  • Mulherin, Michelle.
  • Murnane O'Connor, Jennifer.
  • O'Donnell, Kieran.
  • O'Sullivan, Grace.
  • Reilly, James.
  • Richmond, Neale.
  • Wilson, Diarmuid.

Níl

  • Ó Donnghaile, Niall.
  • Warfield, Fintan.
Tellers: Tá, Senators Paddy Burke and Tim Lombard; Níl, Senators Niall Ó Donnghaile and Fintan Warfield.
Question declared carried.
Bill reported with amendments.

When is it proposed to take Report Stage?

Dé Máirt an tseachtain seo chugainn.

Question, "That Report Stage be taken next Tuesday", put and declared carried.
Report Stage ordered for Tuesday, 1 May 2018.