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

We will now move on to amendment No. 31 in the name of Senator Ó Domhnaill and others. It arises out of committee proceedings. It has already been discussed with amendment No. 30 so cannot be discussed again.

I move amendment No. 31:

In page 46, line 34, to delete “revised.”.” and substitute the following:

“revised.

(10) The Government shall cause a copy of an annual review of the revised or new National Planning Framework to be laid before each House of the Oireachtas for consideration and debate and shall cause a copy to be sent to the relevant Oireachtas Committee.

(11) In this section ‘Appropriate Assessment Report’ includes that the Public Spending Code (2013) appraisal toolkit and value for money criteria be followed and implemented, prior to any announcement, in respect of all relevant public spending decisions under the auspices of the National Planning Framework.

(12) In this section ‘relevant Oireachtas Committee’ means a Committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas to which has been duly assigned the role of examining matters relating to environment and planning (other than the Committee of Public Accounts or the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann) or a sub-committee of such a relevant Oireachtas Committee.”.”.

Amendment put:
The Seanad divided: Tá, 19; Níl, 17.

  • Black, Frances.
  • Boyhan, Victor.
  • Clifford-Lee, Lorraine.
  • Conway-Walsh, Rose.
  • Daly, Paul.
  • Devine, Máire.
  • Gallagher, Robbie.
  • Higgins, Alice-Mary.
  • Horkan, Gerry.
  • Humphreys, Kevin.
  • Mullen, Rónán.
  • Murnane O'Connor, Jennifer.
  • O'Sullivan, Grace.
  • O'Sullivan, Ned.
  • Ó Céidigh, Pádraig.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.
  • Wilson, Diarmuid.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Richmond, Neale.
Tellers: Tá, Senators Jennifer Murnane O'Connor and Brian Ó Domhnaill; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared carried.
Government amendment No. 32:
In page 47, between lines 3 and 4, to insert the following:
"Amendment of section 28 of Principal Act
10. Section 28 of the Principal Act is amended by—
(a) substituting the following subsection for subsection (1C):
"(1C) Without prejudice to the generality of subsection (1), guidelines under that subsection may contain specific planning policy requirements with which planning authorities, regional assemblies and the Board shall, in the performance of their functions, comply.",
and
(b) inserting the following subsection:
"(1D) A strategic environmental assessment or an appropriate assessment shall, as the case may require, be conducted in relation to a draft of guidelines proposed to be issued under subsection (1).".".
Amendment agreed to.

On a point of order, I want to give Senator Coffey an opportunity to correct his statement to the House where he accused a majority of Senators of being parish-pump politicians. In fairness, I do not think the Senator meant it in that manner but it came out that way. This is in the context of our new politics and respect for Cabinet confidentiality where we have the Minister for Transport, Tourism and Sport, Deputy Ross's office ringing around councillors telling them of the new unannounced boundaries, which I find disappointing.

Senator Humphreys is going well beyond a point of order. I will not let Senator Coffey back in. I am ruling it out. It is not a point of order.

I must have an opportunity to respond to Senator Kevin Humphreys. That is on the record.

It is not a point of order.

On a point of order,-----

Briefly, the Senator is entitled to his view but I want to put this to bed.

It is not a view. On a point of order,-----

I am saying the other Senator is entitled to his view.

-----there was reference to statements that were ascribed to me. That was not what I had said and the record will prove that.

For the record, and I think I deserve this opportunity, I stated that we were debating a national planning framework and we should not allow that framework to be torn asunder and brought back into parish-pump politics like previous national planning frameworks.

Senator Coffey's point is noted. Amendment No. 33 in the name of Senator Grace O'Sullivan arises out of committee proceedings.

I move amendment No. 33:

In page 47, between lines 3 and 4, to insert the following:

"Amendment of section 28 (Ministerial guidelines) of Principal Act

10. Section 28 of the Principal Act (as amended by section 2 of the Planning and Development (Amendment) Act 2015) is amended by the insertion of the following subsection after subsection 1C:

"(1D) Where the Minister is considering issuing or amending guidelines which contain specific planning policy requirements, they shall be put to public consultation and subsequently, a draft of the guidelines shall be laid before both Houses of the Oireachtas, and the guidelines shall not be issued or amended as the case may be, until a resolution approving the issuing or amending of the guidelines has been passed by each House.".".

At the request of the former Minister, Deputy Kelly, the 2015 Act included a power for the Minister to issue binding directions without consultation. He immediately used it to establish maximum housing standards which local authorities cannot improve upon - an unacceptable situation. On Committee Stage, my proposal to delete that power was rejected. At this Stage, I propose that this significant power be subject to checks and balances by requiring that the specific planning policy requirements be put to public consultation and that the guidelines they are contained in be approved by each House of the Oireachtas.

I second the amendment.

I support the amendment. These powers were introduced - Senator Coffey was a Minister of State in the Department - for good reasons. We were starring down what has become the housing crisis and it was to try to get the building of houses started within the country. At this stage, we are still struggling to get built the volume of new houses that is badly needed.

However, there is a need for such checks and balances. With such checks and balances, we have had further changes used by the Minister which have delayed the building of new homes across the country because of uncertainty that if there is enough pressure put on the Minister one can get yet another change. Even when the most recent change was made by the Minister, Deputy Eoghan Murphy, there were cries from the builders and the developers seeking even further changes and delaying developments.

The latest changes brought in by the Minister, Deputy Eoghan Murphy, delayed housing starts as most developers sought new planning permissions and let the old ones wither. There is a strong need for the checks and balances with respect to the 2015 Act and I very much support Senator Grace O'Sullivan's amendment.

Senator Grace O'Sullivan's amendment relates to section 28 of the Planning and Development Act 2000, which currently provides that planning authorities shall have regard to guidelines issued by the Minister in the performance of all their planning functions such as determining planning applications, enforcement and forward planning. The amendment proposes to insert a new section 28(1D) which states: "Where the Minister is considering issuing or amending guidelines which contain specific planning policy requirements [SPVRs, pursuant to section 28(1C)] they shall be put to public consultation and subsequently, a draft of the guidelines shall be laid before both Houses of the Oireachtas". The amendment further provides "the guidelines shall not be issued or amended as the case may be, until a resolution approving the issuing or amending of the guidelines has been passed by each House".

Section 28(1C) enables the Minister in preparing statutory planning guidelines to distinguish between advisory or general commentary, on the one hand, and specific planning policy requirements to be applied by planning authorities in the performance of their planning functions, which requirements generally flow from wider settled policy, regulatory and operational requirements. I am opposing this amendment because it is impractical and unworkable in a manner that would defeat the purpose of preparing planning guidelines in the first place, which is to give guidance to planning authorities on the many varied and constantly changing types of issues that have to be grappled with on a day to day basis in the performance of their planning functions.

Senator Grace O'Sullivan's amendment would subject all cases of guidelines with SPVR-type content to an elaborate process of political scrutiny as well as public consultation, which would very significantly delay or even frustrate the rapid development and dissemination of advice that local authorities themselves frequently request. Senator Humphreys made the point that people would wait. Likewise, if one were to go through a big long process with this provision, one could have the same delays and they might also result in the putting off of proposed developments. There are pluses and minuses in terms of that space.

The need for such mandatory type guidance arises in many contexts, some being of a highly operational and time-bound nature, as in the frequent guidance produced by my Department in dealing with illegal quarries, under the provisions of section 261A, some years ago, and for which members of Senator's Grace O'Sullivan's party had pressed hard. If the Senator's provisions were enforced at that time, then the rapid development and deployment of guidance with SPVR-type content would have been delayed for months, to the detriment of citizens expecting effective enforcement of illegal quarries. In other cases where SPVR-type provisions were involved, as in the recently updated Department guidelines or where strategic environmental assessment type issues may arise, the Department engages in public consultation before the final guidelines are issued.

Therefore, the approach to developing guidelines and the need for engagement and public consultation on them is, in our view, best determined on a case-by-case basis, having regard to the individual circumstances in question, rather than being bound by a rigid requirement to submit them to an excessively elaborate vetting process before they are issued. It is for this reason that I oppose the amendment.

Does the Senator wish to respond?

I accept what the Minister of State said but we are talking about doing something in a timely fashion. I understand we are in a housing crisis and that the planning process needs to move on in many cases. It is not just about being timely it is also about being appropriate. As this amendment is about doing something in terms of housing standards that I believe is appropriate, I will press it.

The Senator proposes putting this process in place for essential interventions but some of them do not require that lengthy public consultation. We have shown, on the record, that when it was needed we have done that but on the need to intervene quickly, which the Minister has the ability to do at present, that would change if we were to include the Senator's amendment. I am not sure it will achieve what she is trying to achieve.

Amendment put:
The Seanad divided: Tá, 8; Níl, 22.

  • Black, Frances.
  • Conway-Walsh, Rose.
  • Humphreys, Kevin.
  • O'Sullivan, Grace.
  • Ó Céidigh, Pádraig.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.

Níl

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Daly, Paul.
  • Gallagher, Robbie.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Leyden, Terry.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Murnane O'Connor, Jennifer.
  • Noone, Catherine.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Ned.
  • Richmond, Neale.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Frances Black and Grace O'Sullivan; Níl, Senators Gabrielle McFadden and John O'Mahony.
Amendment declared lost.

Amendment No. 34 has already been discussed with amendment No. 6.

Government amendment No. 34:
In page 47, between lines 3 and 4, to insert the following:
“Amendment of section 31 of Principal Act
11. Section 31 of the Principal Act is amended, in subsection (1), by—
(a) substituting the following paragraph for paragraph (a):
“(a) a planning authority, in making a development plan, a variation of a development plan, a local area plan or an amendment to a local area plan (in this section referred to as a ‘plan’) has failed to—
(i) implement a recommendation made to the planning authority by—
(I) the Minister under section 12, 13 or 20, or
(II) the Office of the Planning Regulator under section 31AM or 31AO,
or
(ii) take account of any submission or observation made to the planning authority by—
(I) the Minister under section 12, 13 or 20, or
(II) the Office of the Planning Regulator under section 31AM or 31AO,”.
(b) inserting the following paragraph:
“(ba) a plan is not consistent with—
(i) the national and regional development objectives set out in the National Planning Framework and the regional spatial and economic strategy, or
(ii) specific planning policy requirements specified in guidelines issued by the Minister under subsection (1) of section 28,”.
(c) substituting the following subsection for subsection (3):
“(3) (a) The Minister may, following the making of a recommendation by the Office of the Planning Regulator under subsection (9) of section 31AN or subsection (9) of section 31AP, give a direction under this section to a planning authority in relation to a plan.
(b) The Minister shall, before giving a direction under this section to a planning authority, issue a notice in writing to the planning authority of his or her intention to give such direction and such notice shall not be issued after the expiration of 4 weeks from the making of a plan by the planning authority.”.”.
Amendment agreed to.

Amendment No. 35 has already been discussed with amendment No. 20.

I move amendment No. 35:

In page 47, between lines 29 and 30, to insert the following:

“(2) Section 34 of the Principal Act is amended by inserting the following subsection after subsection (2):

“(2A) A planning authority shall, unless a derogation from the provisions of the Water Framework Directive has been granted, refuse permission for any project which may cause a deterioration of the status of a body of surface water or where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the Water Framework Directive.”.”.

I second the amendment.

This amendment is designed to reflect the findings against Germany on compliance with the water framework directive in the European Court of Justice in case C-461/13 decided in July 2015. The Court of Justice of the European Union was asked what obligations the water framework directive imposes on a public authority in deciding on an application that could have an impact on a water body. The example before the court was the dredging of parts of the River Weser in Germany. The court decided that a public authority could not grant consent for development that may cause deterioration of the status of a body of surface water or jeopardise the attainment of good surface water status or good ecological potential and good surface water chemical status by the date laid down by the directive.

This is already European law and it is very clear. As such, it is something which Ireland is required to achieve through our planning system. As legislators we must ensure that we give effect to EU law in our national legal systems. When local authorities consider their functions they look first not at the case law of the European Court of Justice but at the Planning and Development Act 2000, especially section 34. We as legislators must play our part in ensuring that we implement the Water Framework Directive and thereby protect water bodies from pollution. That is why it is vital that we put this important and clear legal obligation into the planning code.

Senator Grace O'Sullivan's amendment is much the same as the one she tabled on Committee Stage to insert a requirement in the planning code that planning applications be refused where the proposed development would be contrary to the Water Framework Directive because it might cause a deterioration in water quality or the status of water quality and thereby jeopardise the attainment of good chemical status of water as required under the directive. As outlined in my response on Committee Stage, while Senator Grace O’Sullivan's amendment is well intentioned, I am opposing the amendment because the Water Framework Directive 2000/60/EC is already given general effect in section 1A of the Planning and Development Act 2000, as amended. More specifically, the Water Framework Directive is also given effect in relation to the forward planning functions of planning authorities by way of section 10(2)(cb) of the principal Act relating to the content of development plans.

I also draw the Senator's attention to the commitment given by the Department in the publication, Public Consultation on the River Basin Management Plan for Ireland, 2018 to 2021, to prepare a high-level guidance document for planning authorities on the relationship between physical planning and river basin management planning for the purpose of the development of river basin management plans under the Water Framework Directive. In that regard, my Department published the river basin management plan for Ireland in April of this year. One of the plan's objectives over the period 2018 to 2021 is that my Department will deliver guidance for planning authorities on physical planning and the Water Framework Directive, which will contribute to the protection of waters from deterioration arising from inappropriate future development. Support and technical guidance will also be produced, which will ensure that best environmental practice is applied where alterations to surface waters are undertaken.

Following on from the publication of the national river basin management plan my Department has already scoped out the development of this detailed guidance which will assist planners in their plan making and development management roles as well as developers and other stakeholders in the planning process. It has been recognised that external, expert consultancy support will be required to assist in the preparation of the guidance and in the completion of the project. As such, consultancy services have been procured by a public tender process and the successful consultants have been confirmed in recent weeks. The work to prepare this guidance will commence soon and it is expected that the guidance will be published in 2019. Training for planning authorities in the application of the guidance will also be necessary following on from the guidance. The preparation of this guidance will include input from the County and City Management Association, the Department of Agriculture, Food and the Marine, the Environmental Protection Agency, Inland Fisheries Ireland, Irish Water and the National Parks and Wildlife Service, as well as the Office of Public Works and other key stakeholders, as required. In preparing the guidance, consideration will also be given to relevant recent developments at EU level, including guidance recently published by the EU Commission concerning derogations from the provisions of the Water Framework Directive under Article 4(7) of the directive. In this regard it is acknowledged that new legislative processes may be required to facilitate the possibility of applying derogations from the Water Framework Directive in accordance with Article 4(7) where justified.

Given the integration of the requirements of the Water Framework Directive at a more fundamental level in the planning Act, it is unnecessary at this time to make this amendment. It would also be premature to do so pending the completion of my Department's work on the proposed guidance for planning authorities on the consideration of risks to river basis management plan objectives in plan making and development management. I therefore oppose this amendment.

Amendment put and declared lost.
Amendment No. 36 not moved.

Amendments Nos. 37 and 41 are related and will be discussed together by agreement.

Government amendment No. 37:
In page 50, between lines 29 and 30, to insert the following:
“Revocation or modification of planning permission for certain reasons
15. The Principal Act is amended by inserting the following section:
“44A. (1)The Minister may, upon the request of the Minister for Justice and Equality, the Minister for Foreign Affairs and Trade or the Minister for Defence and with the approval of the Government, make an order revoking or modifying a grant of permission under this Act if he or she is satisfied that—
(a) the carrying out of the development to which the grant of permission relates is likely to be harmful to—
(i) the security or defence of the State, or
(ii) the State’s relations with other states,
and
(b) the revocation or modification concerned is necessary in the public interest.
(2) The Minister may, before making an order under this section, consult with—
(a) the planning authority that granted the permission concerned,
(b) the person to whom the permission was granted, or
(c) any other person who, in the opinion of the Minister, is likely to be materially affected by the making of such order,
but shall not so consult if he or she considers that to do so would be harmful to the security or defence of the State or to the State’s relations with other states.
(3) This section shall apply to permissions whether granted before, on or after the passing of the Planning and Development (Amendment) Act 2018.
(4) Where an order is made under this section, the planning authority that granted the permission to which the order relates shall, within such period as may be specified in the order, serve—
(a) a notice in writing on—
(i) the person to whom the permission concerned was granted, and
(ii) any other person specified in the order,
informing him or her of the revocation or modification effected by the order, and
(b) a notice in writing—
(i) in the case of development commenced but not completed, on any person carrying out the development in respect of which the permission was granted, or on whose behalf such development is being carried out, requiring him or her to cease the development and restore the land, on which the development concerned is being carried out, to the condition it was in before the development commenced, or
(ii) in the case of development completed, on any person who carried out the development, or on whose behalf the development was carried out, requiring him or her to restore the land, on which the development concerned was carried out, to the condition it was in before the development was commenced.
(5) A person on whom a notice is served under paragraph (b) of subsection (4) shall comply with the notice.
(6) (a) The Minister shall, as soon as practicable after the making of an order under this section, give a copy of the order to the planning authority that granted the permission to which the order relates.
(b) A planning authority shall, as soon as practicable after the copy of an order has been given to it in accordance with paragraph (a), give a copy of the order to—
(i) the person to whom the permission to which the order applies was granted, and
(ii) any other person the Minister may direct.
(7) A permission to which an order under this section applies shall, upon the making of the order, stand revoked or modified, as may be appropriate, in accordance with the order.
(8) Any development carried out in contravention of an order under this section shall be an unauthorised development.
(9) Where the Minister makes an order revoking an order under this section—
(a) the second-mentioned order shall, for all purposes, be deemed never to have been made, and the register shall be amended accordingly, and
(b) the period between the making of the second-mentioned order and the first-mentioned order shall not be reckonable for the purpose of calculating the period since the granting of the permission.
(10) The Minister shall not, in relation to a permission, make an order under this section if the period since the grant of the permission exceeds 5 years.
(11) The making of an order under this section shall be recorded in the register as soon as may be after it is made.
(12) (a) Any proceedings before a court relating to an order under this section shall be heard in camera.
(b) A court before which proceedings relating to an order under this section are heard shall take all reasonable precautions to prevent the disclosure—
(i) to the public, or
(ii) where the court considers it appropriate, to any party to the proceedings,
of any evidence given or document submitted for the purposes of the proceedings, the disclosure of which, could reasonably be considered to be harmful to the security or defence of the State or to the State’s relations with other states.
(c) Without prejudice to the generality of paragraph (b), precautions referred to in that paragraph may include—
(i) the prohibition of the disclosure of such evidence or documentation as the Court may determine, and
(ii) the hearing, in the absence of any person or persons including any party to the proceedings, of any evidence or the examination of any witness or document that, in the opinion of the Court, could reasonably be considered to be harmful to the security or defence of the State or to the State’s relations with other states.”.”.

This proposed amendment to the principal Act to include a new section 44A has arisen from recent discussions with the Departments of Justice and Equality, Defence and Foreign Affairs and Trade, where it was considered that some provision should be made for the Minister, following the decision by Government, to be able to revoke or modify a granted planning permission where the carrying out of the development of the given permission would likely be harmful to the security or defence of the State, or the State's relations with other states, and where the revocation or modification concerned would be necessary in the public interest.

While it is envisaged that this power would only be invoked in very rare and extreme cases, it is considered that such options should be available to the Government and Minister to take proportionate and justifiable action where the national interests outweigh the personal rights of the individual or entity who has secured permission which is assessed to be a threat or unacceptable risk to the State.

The proposed section provides a number of safeguards, including consultations, where appropriate, with those impacted by the revocation order including the person or entity to whom the permission was granted, the planning authority that granted the permission concerned, or any other person who in the opinion of the Minister is likely to be materially affected by the making of any such order; notification to the person or entity concerned of the order to revoke or amend the planning permission, although such orders may not specify the reason for the revocation if detrimental to national security; and limiting such orders to permissions only granted within the five years prior to the order being made.

Any development carried out in contravention of an order under this section shall be an unauthorised development and there is further provision for an order to require any person carrying out development works to cease such works and restore the property to the condition it was in before the development works commenced. There are also avenues for affected parties to appeal such orders, through the courts, but given the national security nature of the rationale for issuing such an order, the draft provision ensures that all reasonable precautions are taken to prevent the disclosure of information that could harm or undermine the security or defence of the State including the conducting of hearings in camera.

These draft provisions supplement the existing provisions in section 44 of the planning Act empowering planning authorities to revoke or modify planning permissions granted where it is considered expedient and necessary to do so.

There is a further consequential amendment to section 195 of the principal Act to include a reference to the new section 44A in this section, which relates to the payment of compensation in the case of a permission being revoked or modified. Under this section, where the person who has an interest in the land on which the permission was granted has incurred expenditure or entered into a contract to incur expenditure in respect of works which are rendered abortive by the revocation or modification, he or she can seek compensation in respect of reasonable expenditure incurred prior to the order being made.

Overall, these amendments in relation to the revocation or modification of planning permissions for stated reasons in the interests of national security or defence, or the State's relations with other states, are considered to be reasonable and appropriate incorporating necessary checks and balances for any affected parties.

I wish to take a firm stand against this extremely significant amendment. While Sinn Féin is not opposed to measures that protect the security of the State, the proposal is very wide-ranging in scope. I cannot see how such a decision would even be appealed. I also do not think it is appropriate to propose such an amendment at this Stage given the significant and profound change involved. We have expressed concern about the increased powers provided to the Minister since the introduction of the Bill and that entire approach has been informed by the Mahon tribunal report. We are very concerned at the scope of the power it is proposed to give the Minister and the appeals process. Given the significant scale of the proposed amendment, Sinn Féin will not support it.

When one reads the amendment closely and goes through the detail it does not in any sense accord an untrammelled power to the Minister. That is not what we are trying to do. I accept one might be concerned about handing over too much power to the Minister.

The Minister can only make an order under this section having been requested to do so by the Ministers for Justice and Equality, Foreign Affairs and Trade and Defence. Moreover, that can happen only with the approval of the Government. It is not that the power is given to any one individual Minister. It is a Government decision and it involves three or four Departments as well. That is clearly set out.

Furthermore, as it is normal for a person affected to have recourse to the courts in respect of such a decision, the provisions in the proposed section 44A(12) are designed to ensure that the conduct of the court proceedings would not of themselves cause damage to the vital national interests that the order has sought to protect. That is simply common sense given the nature of the issues at hand. Of course it is a matter solely for the courts to decide on the provision of disclosure of evidence or documents or other precautions that would be taken in the course of proceedings. The courts operate independently subject only to the Constitution and the law. These precautions serve as much to protect the interest of the person or body challenging the order as they serve the national interest.

It is proposed to amend section 195 of the Act of 2000, which deals with compensation, to ensure that it applies to the proposed section 44A. Certainly, the idea is not to give extreme powers to the Minister. The order is brought forward by the Department of Justice and Equality, the Department of Foreign Affairs and Trade and the Department of Defence for good reason. It is brought through the Government as well. I accept the measure has been brought in at a late stage and I cannot argue with that point, but I appeal to Senators to bear in mind that it is a matter of national security. That is why we are putting it in. Certainly, the precautions are there to ensure that it is not abused.

Amendment put:
The Seanad divided: Tá, 22; Níl, 7.

  • Boyhan, Victor.
  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Coffey, Paudie.
  • Coghlan, Paul.
  • Conway, Martin.
  • Daly, Mark.
  • Daly, Paul.
  • Gallagher, Robbie.
  • Hopkins, Maura.
  • Horkan, Gerry.
  • Lawlor, Anthony.
  • McFadden, Gabrielle.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Richmond, Neale.
  • Wilson, Diarmuid.

Níl

  • Black, Frances.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • O'Sullivan, Grace.
  • Warfield, Fintan.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Rose Conway-Walsh and Fintan Warfield.
Amendment declared carried.
Government amendment No. 38:
In page 51, between lines 19 and 20, to insert the following:
“Amendment of section 50B of Principal Act
16. Section 50B of the Principal Act is amended—
(a) in paragraph (a) of subsection (1), by—
(i) substituting “statutory provision” for “law of the State”,
(ii) deleting “or” in clause (II),
(iii) substituting “applies, or” for “applies; or” in clause (III), and
(iv) inserting the following clause after clause (III):
“(IV) paragraph 3 or 4 of Article 6 of the Habitats Directive; or”,
and
(b) inserting the following subsection: “(6) In this section ‘statutory provision’ means a provision of an enactment or instrument under an enactment.”.”.

Section 50B of the Planning and Development Act 2000 provides for the special legal costs rules set out in sections 2 and 4 of Article 9 of the UN Aarhus Convention as applying to access to justice in environmental litigation, whereby independent judicial review proceedings challenging decisions, acts or omissions subject to the public participation provisions of the convention must not be prohibitively expensive.

Section 50B applies this requirement by providing that, in litigation of this type challenging decisions, etc., made under enactments giving effect to provisions of the environment impact assessment directive and two other directives, the strategic environmental assessment and the industrial emissions directives, each party to the proceedings shall, generally speaking, bear its own costs and may be entitled to costs from the losing party if the former wins. A party to proceedings may also be awarded costs in cases of exceptional importance and where it is in the interest of justice. Section 50B extends beyond the Planning and Development Act 2000 and regulations made thereunder to cover other relevant environmental legislation.

On foot of recent advice from the Office of the Attorney General, amendment No. 38 makes two substantive changes to subsection (1) of section 50B of the 2000 Act. The first substantive change is the substitution of new text in paragraph (a)(i) of the amendment, which removes the possibility that the provision could be interpreted as meaning that the special cost rules apply to challenges to decisions, etc., made under any provision of an Act that includes a provision giving effect to one of the three EU directives specified in the subsection. In this connection, the revised wording makes it clear that the special legal costs rules apply only to challenges to decisions, etc., made under a legislative provision that itself gives effect to one of the three EU directives concerned. This amendment also involves the insertion of a new subsection (6) in section 50B, clarifying the meaning of the term "statutory provision" that is being inserted into subsection (1).

The second substantive change to section 50B(1) is set out in paragraph (a)(iv) of the amendment and implements the November 2016 ruling of the European Court of Justice in the Brown Bears II case that the special costs rules under the Aarhus Convention apply to challenges to decisions, actions or omissions made under statutory provisions giving effect to provisions of a fourth EU directive, that is to say, paragraphs 3 and 4 of Article 6 of the habitats directive relating to appropriate assessment. The effect of the amendment is to apply the section 50B special legal costs rules to those elements of legal challenges to relevant statutory consents, including planning permissions, that are grounded in arguments relating to the requirement for, and carrying out of, appropriate assessment under the requirements of the habitats directive in respect of the projects concerned.

Similarly, Part 2 of the Environment (Miscellaneous Provisions) Act 2011 applies the special legal costs rules set out in sections 3 and 4 of Article 9 of the UN Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters to legal challenges aimed at securing enforcement of statutory provisions relating to the environment that are specified in section 4(4) of the 2011 Act. These special legal costs rules effectively provide that legal challenges on relevant environmental matters shall not be prohibitively expensive for members of the public or environmental organisations.

On the advice of the Office of the Attorney General, amendment No. 51 makes a substantive change to the existing special legal costs provisions by inserting two new paragraphs in subsection (4) of section 4 of the 2000 Act. In this regard, this insertion is aimed at implementing the November 2016 ruling of the European Court of Justice in the Brown Bears II case to the effect that the special costs rules under the Aarhus Convention shall apply to challenges to decisions, actions or omissions made under statutory provisions giving effect to paragraphs 3 and 4 of Article 6 of the habitats directive relating to appropriate assessment.

The effect of the amendment is to extend the provisions of section 4 of the 2011 Act, first, to consents for which a screening for appropriate assessment is required under regulation 42 of the European Communities (Birds and Natural Habitats) Regulations 2011 and, second, to consents and notices issued under regulation 43 of those regulations relating to the giving of consent for plans or projects for imperative reasons of overriding public interest, referred to as the IROPI process, notwithstanding that the plan or project will likely have an adverse impact on an important habitat that has been designated for protection or earmarked for such designation.

I should add that my colleague, the Minister for Communications, Climate Action and Environment, Deputy Naughten, is drafting the heads of a Bill to apply the requirements of the Aarhus Convention in a single piece of legislation. Senators will have the opportunity for a fuller debate on Ireland’s obligations under the Aarhus Convention when the Bill comes before the House.

These amendments are about the very important issues of access to justice in environmental matters. They are intended to give effect to the Aarhus Convention. Unfortunately, I do not think they do so as well as they should or may be intended. Important aspects of the environmental and legal regime are being altered by Report Stage amendments with no information about the changes in advance and no opportunity for public input into the changes. This goes against the Aarhus Convention, in particular Article 8.

I am concerned about the substances of the changes in that they do not go far enough and do not take into account recent decisions of the Court of Justice of the European Union which are binding on the Minister. For example, the Minister of State proposes to maintain the reference in the Environment (Miscellaneous Provisions) Act 2011 to compliance failures which have caused, are causing or are likely to cause damage to the environment, despite the European Court of Justice holding in the recent North East Pylon case that such a derogation is not possible as a matter of EU law. This clause means a civic minded individual or organisation seeking to ensure the implementation of the law has an unnecessary and unlawful hurdle to jump before he or she can avail of the costs protections which we have legally committed to as a member state of the European Union and as a party to the Aarhus Convention.

The practical consequences for many is that they cannot take the risk of litigation or, at their own expense, prove damage beyond a reasonable doubt. I am sure the Minister of State would agree that where the law has been developed or clarified by the European Courts he is bound to take the earliest opportunity available to bring legislation into compliance in the interests of legal certainty so that the public can know precisely what their rights are.

It is welcome that the amendments are providing clarity in extending the cost provisions to the habitats directive. However, the references in the amendment seem to restrict the costs provisions to only some elements of the directive. I would like the Minister of State to explain this. For example, it seems that there would be no cost protection for a litigant seeking to ensure the implementation of the provisions for the protection of species in Articles 12 to 16, inclusive, of the directive or raising issues relating to the ministerial direction under regulation 28 of the birds and natural habitats regulations. Is my reading of this correct? Is this the intention of the Minister?

There is a sense of nervousness in respect of the amendments the Minister of State is proposing. I would have far preferred to have an opportunity to discuss and debate them in detail on Committee Stage. To be honest, it is not clear to me what the Minister of State trying to achieve. My fear is that a citizen who wishes to uphold his or her rights will be prevented from seeking justice through the courts due to costs. Can the Minister of State allay those fears? Can he give me a practical example of how the amendments would affect a citizen who is trying to protect his or her rights and would not impose unjust costs on him or her? If one cannot afford to seek justice through the courts, one cannot access it.

Bringing in what I consider to be far-reaching amendments at this stage without the due rigour of consideration on Committee Stage is not good practice. I would like the Minister of State to provide a practical example. I am sure he has asked his officials how the amendment will impact on a citizen who is trying to uphold the environment or his or her rights. I am anxious to hear his response and I ask him to provide a down-to-earth, practical example.

A decision on changes in the north east has yet to be made. It will probably be dealt with in the legislation being brought forward by the Minister, Deputy Naughten. As I said, we will have a lengthy discussion on the Bill brought forward by the Minister.

On whether we are reflecting the most recent changes of the European courts, we are trying to deal with the most recent change in 2016 and make the position stronger and clearer. I do not have an example of a case relating to concern expressed by Senator Humphreys, but I will get one for him. I do not think we are restricting anyone's abilities-----

The Minister of State is asking about-----

We are not creating a restriction. The Senator asked me to give an example. This will not damage anyone's opportunity; rather, it is the opposite. I do not share the Senator's concerns. I cannot give him an example of his concerns. He can outline how he thinks people will be affected. I do not think we are affecting people's rights by inserting this amendment. It will be part of the legislation being brought forward in respect of the European directive.

Is the amendment agreed? Agreed.

Amendment agreed to.
Government amendment No. 39:
In page 51, between lines 28 and 29, to insert the following:
“Amendment of section 169 of Principal Act
18. Section 169 of the Principal Act is amended—
(a) in subsection (8), by inserting “any specific planning policy requirements contained in guidelines under subsection (1) of section 28,” after “the provisions of the housing strategy,”, and
(b) by inserting the following subsection:
“(8A) (a) A planning scheme that contains a provision that contravenes any specific planning policy requirement in guidelines under subsection (1) of section 28 shall be deemed to have been made, under paragraph (b) of subsection (4) of section 169, subject to the deletion of that provision.
(b) Where a planning scheme contravenes a specific planning policy requirement in guidelines under subsection (1) of section 28 by omission of a provision in compliance with that requirement, the planning scheme shall be deemed to have been made under paragraph (b) of subsection (4) of section 169 subject to the addition of that provision.”.”.

This amendment arises out of committee proceedings.

Amendment No. 39 will amend section 169 of the principal Act to clarify that planning decisions in strategic development zones, SDZs, shall be bound by specific planning policy requirements set out in ministerial planning guidelines. Consistency of policy approaches and practices in dealing with planning applications is a key requirement for the planning process to function effectively. Statutory planning guidelines issued by the Minister under section 28 of the principal Act are an important national policy instrument to give guidance and ensure greater consistency of approach across all local authorities. Recent amendments to the principal Act in 2015 have strengthened the scope within the publication of such guidelines to distinguish between advisory policy requirements and specific mandatory policy requirements under the provisions of section 28(1C) of the Act.

In such circumstances, where the Minister indicates in planning guidelines issued by him or her under section 28(1C) that the content of such guidelines is a specific planning policy requirement, SPPR, then local authorities must mandatorily apply these, even where their development plans might indicate otherwise. Section 28(1C) has been used sparingly but has been highly effective in bringing about more consistency in the planning system, such as in the case of the previously and increasingly disparate minimum standards specified by local authorities in regard to apartments and housing types generally, which was leading to confusion and increasing costs in residential delivery between different local authority areas.

However, some local authorities with approved planning schemes in Government-designated SDZs - some are in Dublin and there is one in my county - have questioned whether section 28(1C) applies in respect of such areas, pointing to the provisions of section 170 (2) of the principal Act which requires that no permission shall be granted for any development which would not be consistent with such an SDZ planning scheme.

In light of this, it is proposed to clarify that, similar to decisions on planning applications in a wider policy context, the decision of a planning authority in respect of an SDZ application is similarly bound by the provisions of section 28(1C), and that in addition to taking on board the requirements of such schemes, the planning authority also has to take on board relevant statutory guidelines, including the application of any specific planning policy requirements under section 28(1C), even where the requirements of an SDZ planning scheme might differ.

In respect of the Poolbeg West SDZ, the local planning authority increased the requirement for social and affordable housing above the regulated 10% figure. Will this be recognised under this amendment or is there a possibility of inserting in the planning guidelines the recognition of a local authority to increase the number of social and affordable houses above the 10% currently outlined in the SDZ?

Will this amendment allow that or could the amendment be expanded to allow the local authorities the power to expand beyond the 10% in an SDZ where there is a proven need for and shortage of housing?

In this case, the amendment specifically relates to the SPPR process that we discussed earlier. That is what I understand. It has to be the Minister's decision. As regards local authorities having that power, it would need to be the other way around, that the Minister would make an SPPR recommendation and guidance.

Could the Minister of State clarify what he is saying? Does this control reduce the power of the Minister to not sign off on the SDZ if the local authority's condition is not included in An Bord Pleanála's decision on the SDZ? It is a reserve function of the Minister?

This amendment relates to the SDZs. There is some confusion whether when a section 28(1C) is used there is a specific planning policy requirement. There is a confusion whether it is relevant in an SDZ area. There have been consultations between local authorities and our Department over the past few months about this. This will bring clarity to that matter to say that it does. If an SPPR is issued by the Minister, it takes effect in an SDZ zone as well as other zones.

Amendment agreed to.

I move amendment No. 40:

In page 52, between lines 18 and 19, to insert the following:

“Amendment of section 179 of Principal Act

22. Section 179 of the Principal act is amended by inserting the following subsection after subsection (2):

“(2A) The regulations to be made under subsection (2) shall provide that the information to be made available in accordance with subsection (2)(b) (ii) and subsection (2)(c) shall be at least as detailed as that which would be required for a planning application for the same development.”.”.

I second the amendment.

This amendment aims to respond to a problem with Part 8 applications in some local authorities. The Green Party contends that Part 8 applications which are for local authority owned developments should contain as much information as ordinary planning applications. I ask the Minister of State to accept this amendment. At least as much detail should be available for public developments as there is for private ones. This is clearly consistent and makes common sense.

In seconding the amendment, I recognise that local authorities do a public consultation process on Part 8 planning which is also important and informs the planning process. To be honest with the Minister of State, he needs to talk to a lot of the local authorities on Part 8 planning. Part 8 planning would be an excellent way to deal with the housing crisis rather than the rapid build because this is where local councils can recognise that there is a specific problem in housing within their area. The local authorities should be using their powers and we often hear them saying they do not have enough powers. Part 8 planning gives them the power to fast track the building of housing in local authority areas rather than going for these newfangled planning processes of 100 units. This is much more transparent than the application that can be made to An Bord Pleanála for 100 units or more because in Part 8 planning there is a process, public consultation and a vote in the council. However, I recognise that there should be the same onus in terms of giving information to the public as in an ordinary planning application. I, for one, wish to see Part 8 planning used a lot more.

Senator Grace O'Sullivan also raised this issue on Committee Stage. It relates to section 179 of the principal planning Act which in association with Part 8 of the planning regulations sets out the arrangements for approval by local authorities of own development proposals on social housing, local roads, libraries and community facilities, etc. This amendment proposes to insert a new subsection 2A in section 179 of the planning Act to provide that regulations made under that section shall require a local authority, when notifying prescribed bodies or providing information to the public, on any local authority own development proposal, and that the information provided shall be the same as required if the proposed development was subject to a planning application. It is important to note that the Part 8 process is not the same as an application for planning permission but is rather a notice of intention to undertake a proposed development, which is ultimately subject to the approval of the elected members. In any event, the Part 8 provisions already set out the procedure to give public notice of, and ensure the public and prescribed bodies are consulted on, any such proposed developments and inviting submissions on any such proposed developments. The councillors have full control over that and full sign off on a Part 8, so if there is any doubt in terms of information there are no better people than councillors to make sure that is addressed. I consider that the current Part 8 requirements are sufficient in this regard and on this basis, I do not consider the amendment is necessary and, as on Committee Stage, I oppose it.

On the use of Part 8, I agree with Senator Humphreys that Part 8 could be used more often to move developments forward. Rapid build is a form of construction but it is often used as a term to describe projects that are getting stuck in the planning system. Part 8 could and should be used and local authorities, in taking control of addressing the housing shortage in many areas, should be able to use Part 8. Some have used it quite well and I engage with local authorities most weeks and in fairness councils have been adhering to their responsibilities quite well and trying to bring Part 8 through, in many cases, in co-operation and consultation with the local community because housing developments are often being brought in to brownfield or greenfield sites. The councils are doing their job quite well, but Part 8 should be used more often because it will speed up the process and help us to solve the housing crisis.

Amendment put and declared lost.
Government amendment No. 41:
In page 53, between lines 13 and 14, to insert the following:
“Amendment of section 195 of Principal Act
23. Section 195 of the Principal Act is amended by inserting the following subsection:
“(3) This section shall apply to an order made under section 44A subject to—
(a) the modification that references to planning authority shall be construed as references to the Minister, and
(b) any other necessary modifications.”.”.
Amendment agreed to.

I move amendment No. 42:

In page 53, between lines 17 and 18, to insert the following:

“24. Section 208 of the Principal Act is amended in subsection (1) by deleting:

“in force on the commencement of this section”.”.

I second the amendment.

This amendment seeks to maintain rights of way referred to in a development plan. Currently, the legislation only requires maintenance of those rights of way listed in the plans at the time when the section was commenced. As interpreted by Dún Laoghaire-Rathdown County Council, for example, the obligation to maintain does not apply to any rights of way listed subsequently. The Green Party finds this illogical and is thus seeking to amend that provision with this amendment.

This amendment by Senator Grace O’Sullivan proposes the deletion of the phrase “in force on the commencement of this section” from section 208(1) of the principal Act of 2000. In this regard, section 208(1) requires that a public right of way shall be maintained by the planning authority where: a public right of way is created pursuant to this Act, or a provision in a development plan in force on the commencement of the section relates to the preservation of a public right of way. The reference in section 208(1) to “a provision in a development plan in force on the commencement of this section” was a transitional provision in the principal Act which was intended only to apply to such development plan provisions relating to public rights of way which were in force at the time of the commencement of section 208 in January 2002. While I understand the intentions of Senator Grace O’Sullivan’s amendment, I am of the view that her amendment is neither warranted nor appropriate as it appears to seek to introduce the ability to make planning authorities responsible and liable for maintaining historic public rights of way which have not been created pursuant to this Act, and which are not therefore the responsibility of planning authorities. Consequently, I do not propose to accept this amendment to the 2000 Act on the basis that it would, if adopted, oblige planning authorities around the country to become liable for the maintenance of numerous historic public rights of way going across private property which they have not created, with all the potentially significant funding and resource issues and potential legal liabilities that would ensue. For these reasons, I must, therefore, oppose this amendment.

Amendment put and declared lost.
Government amendment No. 43:
In page 53, between lines 17 and 18, to insert the following:
“Amendment of section 246 of Principal Act
24. Section 246 of the Principal Act is amended—
(a) in subsection (1), by substituting the following paragraph for paragraph (d):
“(d) the payment—
(i) to local authorities of prescribed fees in relation to applications for grants of licences under section 231 or certificates of safety under section 239, and
(ii) to planning authorities of prescribed fees in relation to any consultation or advice under section 247, and”,
and
(b) in subsection (3), by substituting the following paragraphs for paragraph (a):
“(a) Where, under regulations under this section, a fee is—
(i) payable to a planning authority by an applicant in respect of an application to which paragraph (a) or (e) of subsection (1) applies, or
(ii) payable to a local authority in respect of an application to which subparagraph (i) of paragraph (d) of that subsection applies, a decision in relation to the application shall not be made until the fee is paid.
(aa) Where, under regulations under this section, a fee is payable to a planning authority by a person in respect of—
(i) a request to which paragraph (c) of subsection (1) applies, or
(ii) a consultation or advice to which subparagraph (ii) of paragraph (d) of that subsection applies,
the planning authority shall not—
(I) give the declaration, or
(II) provide the consultation or advice,
as may be appropriate, until the fee is paid.”.”.

Amendment No. 43 inserts a new section in the Bill which proposes to amend section 246 of the principal Act, which contains the enabling provision for the Minister to make regulations for the payment to planning authorities of prescribed fees for a range of services provided. In this regard, under section 247 of the principal Act, before making a planning application, a person may request a pre-planning application consultation with the relevant planning authority in order to have initial discussions on a proposed development. Such consultation meetings are offered as a service by planning authorities for the purpose of ensuring that a proposed development is in accordance with the proper planning and sustainable development of the area and for providing advice regarding a proposed planning application. In certain circumstances, such consultations are mandatory.

Under the new fast-track planning arrangements for strategic housing developments, developers must consult the relevant planning authority regarding such proposed developments before they commence engagement with An Bord Pleanála. Section 24 of this Bill proposes to require mandatory pre-planning application consultations with planning authorities in respect of housing schemes of ten or more units and commercial developments with a gross floor area of 1,000 sq. m or more. Currently, there is no legislative basis for planning authorities to charge a fee for the purposes of such informal pre-application consultation meetings. It is a free service, in essence, at the moment.

Given that such consultations may involve input from local authority planning, roads, water and housing services, depending on the scale of the proposed development, it is proposed to provide that planning authorities may charge a fee for consultations held in this regard, with the rate of the fee being proportionate to the type of proposed development. I refer, for example, to strategic housing developments, smaller scale housing, commercial developments or other forms of development. In the first instance, this requires an amendment to section 246 of the principal Act to be amended to provide that the Minister may prescribe fees to be paid to planning authorities for consultations held under section 247. I am providing for this in amendment No. 43. A subsequent supporting amendment to the 2001 planning and development regulations, in which other planning related fees are prescribed, will be required to provide for the fees which should apply.

I have no problem with the introduction of fees for pre-planning consultation meetings. This consultation mechanism assists the introduction of good and strong planning permissions. I would be anxious for the fees to be set at a manageable level, especially in the case of small developments. They should not act as a disincentive for small infill developments in the city. I ask the Minister of State to watch that carefully.

I have been involved in several planning processes in Dublin city. Planning information meetings are available in Dublin City Council for residents. In many cases, residents do not want to object to developments. They often simply want their views to be taken on board at an early stage. I know of cases in which simple changes in the orientation of windows would have prevented observations that were made on planning applications going to An Bord Pleanála. By making provision for a community consultation mechanism in the case of a development of ten or more units, we can speed up the process. I accept the Minister of State's amendment. I suggest that a little more thought might help to bring about a quicker process, especially in cases of infill developments, which can be problematic. I ask the Minister of State to take that on board.

Amendment agreed to.
Government amendment No. 44:
In page 56, between lines 12 and 13, to insert the following:
"Amendment of Seventh Schedule to Principal Act
29. The Seventh Schedule to the Principal Act is amended by inserting the following:
"Communications and Data Infrastructure
5. Development comprising the following:
A facility consisting of one or more than one structure, the combined gross floor space of which exceeds 10,000 square metres, used primarily for the storage, management and dissemination of data, and the provision of associated electricity connections infrastructure.".".

This amendment, which proposes to introduce a new classification of "communications and data infrastructure", will allow data centres above a specified size threshold to be designated as strategic infrastructure development in the Seventh Schedule to the Planning and Development Act 2000, as amended. In effect, this will allow planning applications for qualifying data centres to avail of the fast-track planning arrangements that apply to strategic infrastructure development under the planning Act.

The existing fast-track arrangements for the determination of planning applications for strategic infrastructure developments were introduced in 2006. These arrangements relate to proposals for specific forms of strategic development, including energy infrastructure like power plants and oil refineries, transport infrastructure like airports, ports and motorways, environmental infrastructure like waste disposal installations and wastewater treatment plants, and health infrastructure like hospitals.

Data centres are essential infrastructure for the operation of companies in the digital economy. Many leading global players in this sphere are already operating in this country. Accordingly, such centres are an increasingly important aspect of our foreign direct investment package. Their presence here significantly enhances our reputation as a location for foreign investment. We recently saw the consequences of delays in obtaining planning permission for a substantial high-profile data centre project in the west of Ireland. We saw the subsequent further delays arising from court challenges to the planning permission for the data centre project in question.

In light of this recent case, and having regard to their strategic national and regional economic significance in terms of jobs and investment, the Government has approved the inclusion of data centres with a gross floor space in excess of 10,000 sq. m within the planning arrangements for strategic infrastructure developments. This will allow a more streamlined one-stage direct application process to An Bord Pleanála instead of the general current two-stage process involving initial application to the local authority concerned, with the possibility of a subsequent appeal to An Bord Pleanála. This process can take anything from eight to nine months and in some cases up to two years.

To supplement the proposal regarding data centres, it is proposed, subsequent to the enactment of this Bill and under the provisions of section 37J(5) of the planning Act, to prescribe in regulations a mandatory maximum timeframe for the determination of planning applications in respect of data centres by An Bord Pleanála. This will give project promoters greater planning certainty about the timelines for the determination of such planning applications. These proposed arrangements with regard to data centres are part of a wider package of measures being developed, including the streamlining of the judicial review of strategic infrastructure projects generally. These measures will be proposed later this year in the next planning Bill.

I hope Senators on all sides of the House can support and accept this important amendment, which relates to the inclusion of data centres under the planning arrangements for strategic infrastructure developments. It sets out clearer timelines. People will still have an opportunity to raise concerns and have their objections dealt with. We need to bring more certainty to key parts of the development of infrastructure.

I have a certain amount of concern. What happened in the case of the proposed Apple data centre in the west of Ireland was totally wrong. It probably robbed key infrastructure and jobs from that area. I am conscious that we could have a knee-jerk reaction to what happened in that case.

These data centres are huge consumers of energy. We have problems regarding climate change. Most data centres are offshore. Ireland is an offshore data centre for Europe. While I do not intend to object to this amendment, I suggest the Government needs to think more deeply about how we use our energy output in Ireland. A serious cost-benefit analysis is needed.

We will have to meet tough climate change regulations in the coming decades. We need to look at the energy consumption and carbon footprint of the infrastructure we develop in Ireland. Such factors need to be considered when infrastructure is being planned. I advise the Minister of State to be cautious. I will not object to this amendment because I agree that what happened in the case of the Apple centre was incorrect. We need a far more wide-ranging strategy for energy use and carbon emissions within our borders. As I have said, it is going to get much tougher to reach the targets we have set for ourselves and the EU has set for us. We have to watch everything.

I welcome this amendment. We need to learn from the Apple case in the west of Ireland. The Minister of State did not name the company involved, but I am happy to do so. The delays in that case were such that the proposed communications and data infrastructure did not ultimately go ahead. I believe this was a loss to Ireland Inc. and to the Irish economy.

I appreciate the concern expressed by Senator Humphreys on the basis that data centres are heavy consumers of energy. In this era of new technologies, we need data centres. If they are not in Ireland, they are going to be somewhere else. I understand they tend to be located here because of the suitability of the cooler Irish climate. Less energy is needed to run data centres in Ireland than in other countries.

At a time when we should be looking at climate change in a global sense, it makes sense to facilitate the installation of data centres in Ireland, where appropriate. Data centres in Ireland use less energy than data centres in locations that are much warmer. We need to learn from the mistakes of the past.

I welcome this amendment, which will help to clarify matters from a planning perspective and will bring certainty. It will allow for the future development of large-scale infrastructure that meets certain criteria. It is not the case that everything and anything will be allowed to go ahead. Proposals for infrastructural development have to meet specific criteria. This amendment brings clarity to the criteria that apply to data centres.

I thank the Senators for their support for this amendment, which we have flagged over many months. We said in 2017 that we would introduce a proposal of this nature on Report Stage as part of our efforts to deal with these issues in this planning Bill. The Government is proceeding with caution in this area, which is under constant review.

Data centres are prioritised by IDA Ireland and the Department of Business, Enterprise, and Innovation, both of which are doing great work to secure investment and jobs for this country. Data centres are recognised as key infrastructure in supporting companies that are located here. The companies in question are creating a lot of employment here and will continue to do so into the future. They have been well looked at. They are being prioritised as part of national policy. As part of this process, we need to be fully aware of the level of energy use associated with them.

Each application is subject to an environmental impact assessment, EIA, and an energy consumption assessment as well. In many cases, the proposals include suggestions on energy production, which is important. Senator Humphreys made the point that as a country we have to decide where we will use our energy resources. We are determined that data centres are a key part of our offering and they are a major part of the IDA's work. All Departments are monitoring the issue.

Amendment agreed to.

Government amendment No. 45 arises out of committee proceedings. Amendments Nos. 45 to 48, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 45:
In page 56, between lines 22 and 23, to insert the following:
“(b) by inserting the following definition:
“ ‘shared accommodation’ means a building or part thereof used for the provision of residential accommodation consisting of—
(a) communal living and kitchen facilities and amenities shared by the residents, and
(b) bedrooms rented by the residents,
but does not include student accommodation or a building, or part thereof, used for the provision of accommodation to tourists or visitors;”,
(c) in the definition of “strategic housing development”—
(i) by inserting the following paragraph after paragraph (b):
“(ba) development—
(i) consisting of shared accommodation units that, when combined, contain 200 or more bed spaces, and
(ii) on land the zoning of which facilitates the provision of shared accommodation or a mixture of shared accommodation thereon and its application for other uses,”,
(ii) by substituting the following paragraph for paragraph (c):
“(c) development that contains developments of the type to which all of the foregoing paragraphs, or any two of the foregoing paragraphs, apply, or”,
(iii) by inserting “, (ba)” after “(b)” in paragraph (d),
(iv) in paragraph (i), by—
(I) substituting “houses, student accommodation units, shared accommodation units or any combination thereof” for “houses or student accommodation units, or both, as the case may be,”,
and
(II) by inserting “or shared accommodation” after “within student accommodation”,
(v) by substituting “or shared accommodation” for “, or both, as the case may be,” in clause (I) of paragraph (ii), and
(vi) by inserting “or shared accommodation” after “student accommodation” in clause (II) of paragraph (ii),
(d) by inserting the following definition:
“ ‘student accommodation’—
(a) means a building or part thereof used or to be used to accommodate students whether or not provided by a relevant provider (within the meaning of the Qualifications and Quality Assurance (Education and Training) Act 2012), and that is not for use—
(i) as permanent residential accommodation, or
(ii) subject to paragraph (b), as a hotel, hostel, apart-hotel or similar type accommodation,
and
(b) includes residential accommodation that is used as tourist or visitor accommodation but only if it is so used outside of academic term times;”,”.

Amendments Nos. 45 to 48 amend section 3 of the 2016 Act to include "shared accommodation" in the definition of strategic housing development, which was originally introduced in the 2016 Act.

This requires consequential amendments to sections 5, 8, and 13 of the 2016 Act to incorporate shared accommodation within the established strategic housing development provisions. Shared accommodation is a form of residential accommodation that is increasingly common in other countries, but is relatively new in Ireland and has been recently enabled by the publication of updated statutory planning guidelines on apartments by the Minister for Housing, Planning and Local Government, Deputy Eoghan Murphy. Demand for this form of accommodation is expected in larger urban areas, in particular in city centre areas where an increasingly professional and internationally mobile workforce and other smaller households such as single persons seek a high quality managed and serviced rental accommodation solution which, in addition to living accommodation, provides shared facilities and amenities such as catering areas, work stations, communal areas and facilities that residents can work and use either for personal or social purposes.

As a result of the publication of the recently revised apartment guidelines and other actions under Rebuilding Ireland, there is a growing level of interest and activity in developing apartment schemes, including shared accommodation type schemes, especially through the fast-track planning arrangements for strategic housing developments, SHDs, allowing the submission of planning applications directly to An Bord Pleanála. However, as the shared accommodation concept is a relatively new accommodation format in Ireland, which was not envisaged at the time the legislation on the strategic housing developments was being drafted in 2016, the definition of residential developments admissible to the An Bord Pleanála fast-track SHD process needs to be widened. At present, the SHD application can only be made in a special development containing houses, apartments and student accommodation above specified thresholds. It is therefore proposed to add to the definition of strategic housing development in order that the new shared accommodation formats can be considered by the planning process, particularly the new fast-track planning process.

What proof does the Minister of State have that there is a demand for this type of shared accommodation, other than the case being made by developers? This type of shared accommodation is basically student accommodation for adults. A recent survey found that adults do not want to share accommodation when they reach the age of 25 years to 30 years. Professionals, building workers, clerical workers, bank officials and so forth want to live in their own accommodation. They do not want to share accommodation but to have accommodation that allows them to live independently. I have not seen any factual studies or know of any demand for so-called shared living. It is popular among the upper echelons, so to speak, among people who may work in New York or London from Monday to Friday and travel home to their country residence for the weekend. There is no great demand for shared accommodation, yet the Government is proposing to provide for it in planning legislation.

The Minister for Housing, Planning and Local Government repeatedly states that decisions will be evidence based. Where is the evidence of demand for shared accommodation? Is it what the developers who have been knocking on the doors of the Custom House want? The profits from this type of accommodation would be very good but I am not sure people in our cities want to live in shared accommodation for the foreseeable future.

I object to the amendments. If the Minister or Minister of State has proof, based on studies and in-depth research, that shared living is badly needed in our cities and towns, let him put the evidence on the table and let me read it. I will then support the measures but, as yet, I have not seen any proof for these assertions.

The Minister for Housing, Planning and Local Government, Deputy Murphy, is not proposing that the Government will build such developments with taxpayers' money. This is about people having a choice. Developers will build something if there is a need for it. Our planners and our team in the Department engage with their colleagues from jurisdictions all over the world. I remember when when we proposed our original housing plan two years ago, a proposal was made for different types of rental accommodation, including shared accommodation and shared spaces. It is a popular concept. I cannot show the Senator that there is a major demand for it in Dublin, but we will find out if that is the case.

The provision will allow for shared accommodation. We are not making anybody build or live in such accommodation. It will be a choice and if there is demand for it, people will build it. Similarly, if there is no demand for it, it will not be built and people will not have a choice. Senator Humphreys, a former Minister of State and potentially a future Minister, usually understands that people should be able to choose what form of accommodation they want. We accept there is not enough property in the system today and that cost is an issue. Developments of different shapes and sizes will be built in the years ahead and people will be able to choose what accommodation they want. This is a cost-effective solution to provide accommodation for people who want to live in Dublin during the working week and go down the country at the weekends. That is their choice and we are giving them a choice. We are not forcing anybody to live in this type of accommodation. I am surprised the Senator is against the Government allowing for it. This is not being done at the behest of developers who are banging on our door. The idea came from within the Department.

Amendment put:
The Seanad divided: Tá, 24; Níl, 14.

  • Burke, Colm.
  • Burke, Paddy.
  • Butler, Ray.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Clifford-Lee, Lorraine.
  • Coffey, Paudie.
  • Conway, Martin.
  • Daly, Mark.
  • Daly, Paul.
  • Gallagher, Robbie.
  • Hopkins, Maura.
  • Lawlor, Anthony.
  • Leyden, Terry.
  • McFadden, Gabrielle.
  • Mulherin, Michelle.
  • Murnane O'Connor, Jennifer.
  • Noone, Catherine.
  • O'Donnell, Kieran.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • Ó Céidigh, Pádraig.
  • Richmond, Neale.
  • Wilson, Diarmuid.

Níl

  • Bacik, Ivana.
  • Black, Frances.
  • Boyhan, Victor.
  • Conway-Walsh, Rose.
  • Devine, Máire.
  • Freeman, Joan.
  • Higgins, Alice-Mary.
  • Humphreys, Kevin.
  • Kelleher, Colette.
  • Mac Lochlainn, Pádraig.
  • O'Sullivan, Grace.
  • Ó Domhnaill, Brian.
  • Ó Donnghaile, Niall.
  • Warfield, Fintan.
Tellers: Tá, Senators Gabrielle McFadden and John O'Mahony; Níl, Senators Kevin Humphreys and Grace O'Sullivan.
declared.