Planning and Development, Heritage and Broadcasting (Amendment) Bill 2021: Second Stage

Question proposed: “That the Bill be now read a Second Time.”

Gabhaim buíochas leis an Leas-Chathaoirleach. I thank the Senators for providing me with an opportunity to set out the provisions of the Planning and Development, Heritage and Broadcasting (Amendment) Bill 2021. As I set out in the Dáil a number of weeks ago, this technical Bill is necessary to allow for the transfer of functions relating to heritage under a number of enactments to the Minister for Housing, Local Government and Heritage. Normally such transfers of ministerial functions are affected through orders made under the Ministers and Secretaries (Amendment) Act 1939. A number of powers and functions in respect of heritage have already transferred to the Minister for housing under the Heritage (Transfer of Departmental Administration and Ministerial Functions) Order 2020. However, two problems arise as to the transfer of the remainder of the functions relating to heritage to the Minister for Housing, Local Government and Heritage which must be addressed by this Bill.

First, section 30 of the Planning and Development Act 2000 prohibits the primary Minister under the Act, the Minister for Housing, Local Government and Heritage, from exercising any power or control in respect of any particular planning case. Section 30 must now be amended to provide for the Minister for Housing, Local Government and Heritage to lawfully exercise certain heritage functions proposed to be transferred from the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media, and in particular, certain functions regarding commenting on planning applications and draft development plans from a heritage perspective.

Second, the Supreme Court decision in the Mulcreevy case of 2004 holds it to be impermissible to use secondary legislation in the form of the transfer of function orders to merge into one Minister functions of the Oireachtas in primary legislation which the Act had intended to be divided between two separate Ministers, this being seen by the court as breaching a key constitutional principle that only the Oireachtas can make and amend primary legislation. There are certain legislative provisions relating to heritage in which this problem arises and must be addressed by this Bill.

If this Bill is enacted and commenced, the remainder of the heritage powers and functions held by the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media may be transferred to the Minister for Housing, Local Government and Heritage by a transfer of functions order.

I will give a brief overview of the main areas of legislation to be amended by this Bill.

Section 4, amendment of section 13 of the Act of 2000, amends section 13(2)(a) of the Planning and Development Act 2000, which deals with the adoption by planning authorities of variations to development plans by the substitution of "to the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media" for "to the Minister for Arts, Heritage and Gaeltacht" and similarly amends section 13(8)(c) of that Act.

Section 5 amends section 32 of the Planning and Development Act 2000 to allow for the Minister for Housing, Local Government and Heritage to exercise certain heritage functions transferred or proposed to be transferred to him or her. Sections 6 amends section 51 of the Planning and Development Act 2000 by providing that the Minister for Housing, Local Government and Heritage shall prescribe the form of a record of protected architectural structures. Section 7 amends section 52 of the Planning and Development Act 2000 by providing that the Minister for Housing, Local Government and Heritage shall issue guidelines to planning authorities concerning certain development objectives.

I will now deal section 8, which is the amendment of section 177X, and section 9, which is the amendment of section 177Y, section 10, which is the amendment of section 177AB, and section 11 which is the amendment of section 177AC of the Act of 2000. Part XAB of the Planning and Development Act 2000 provides for consultation by the primary Minister under the Act, the Minister for Housing, Local Government and Heritage, with the Minister for Arts, Heritage and the Gaeltacht which the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media was titled at the time of enactment.

Sections 8 to 11, inclusive, amend sections 177X, 177Y, 177AB and 177AC within Part XAB of the Act in order to resolve the Mulcreevy problem in this section of the Act. Section 12 amends section 59(3) of the Wildlife Act 1976 which refers to access to or use of foreshore for nature conservation purposes.

Section 13 amends section 16(2)(a) of the Wildlife (Amendment) Act 2000 so that the Minister for Housing, Local Government and Heritage shall seek the observations of any Ministers of the Government as the Minister considers appropriate in the circumstances of the proposed designation of a natural heritage area rather than seeking the observations of certain specified Ministers.

Section 14 amends the designations of the sites of special areas of conservation and special protection areas and the directions and provisions of the European Communities (Birds and Natural Habitats) Regulations 2011 by providing that the designation or direction process for the Minister for Housing, Local Government and Heritage will inform another Minister or Ministers of developments.

Section 15 provides, in accordance with the relevant provisions of the Planning and Development Act 2000, for the Minister for Housing, Local Government and Heritage when he or she is performing a heritage function to first make a planning application to a planning authority, to make an appeal to An Bord Pleanála, to make a request for a declaration to a planning authority, or a referral for a decision or apply for a determination to An Bord Pleanála as to exempt development and, finally, to do any act or thing pursuant to the provisions of the Planning and Development Act 2000 relating to any of these matters.

Part 3 of the Bill contains two sections in respect of the amending of the Broadcasting Act of 2009.

In conclusion I am very pleased to have the opportunity to outline the provisions of this Bill here today and I look forward to hearing Senators' views on it.

I thank the Minister of State and I now call Senator Garvey to speak. Each speaker has five minutes.

Fáiltím roimh an Aire Stáit. Is deas é a fheiceáil sa Teach seo inniu agus tá an-áthas orm go bhfuil sé i gceannas ar an bpost nua seo.

I support this Bill and it is very important that it is happening. The Minister of State has done the following work since assuming this position in July: increased the national parks and wildlife funding by 80%; he has recruited 50 additional National Parks and Wildlife Service, NPWS, conservation rangers; launched the new all-Ireland pollinator plan; enabled the contribution of €2.6 million to 15 sites for major raised bog rehabilitation projects; created 30 jobs for curlew protection; and announced €6 million for the Ulster Canal greenway. I could go on with many more projects around invasive species. It is my opinion that the Minister of State, Deputy Noonan, is probably the perfect person to ensure that this new role is taken on by this Department and it will be done by him to the highest possible standards.

If anyone can keep on top of technical housing things, special areas of conservation and special protection areas, it is the Minister of State. I look forward to him playing a blinder in that role.

I welcome the Minister of State to the House and congratulate him again on his role as having responsibility for heritage. I concur with Senator Garvey that he has brought great energy and enthusiasm and insight to the area of heritage which is what we need. We have a very rich heritage, built and natural, and I have full confidence that he as Minister of State in the Department will really champion heritage over the course of the Government.

The Fianna Fáil group will support the Bill. It provides for the transfer of functions to the Department of Housing, Local Government and Heritage and it empowers the Department and the Ministers in it to champion our heritage. It also provides for the transfer of consultation and consent functions under the Broadcasting Act 2009 to the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Deputy Catherine Martin. It amends no fewer than five Acts, the Planning and Development Act 2000, the Wildlife Act 1976, the Wildlife (Amendment) Act 2000, the European Communities Birds and Natural Habitats Regulations 2011 and the Broadcasting Act 2009. It also makes provision in relation to certain planning matters relating to heritage which are also important. This is important housekeeping work. It also provides for the Minister for Housing, Local Government and Heritage to be notified of proposed variations to planning authority development plans and the making of such variations. Here in Dublin city, councillors are in the process of making a new city development plan. The city and county development plans are hugely important documents that give local communities and individuals an opportunity to engage in setting the strategic planning objectives, not only for their communities but also their counties and cities. It is important that we take care of these matters from a legislative perspective.

The programme for Government sets out very important commitments in terms of our natural heritage, including the publishing and implementation of a new all Government heritage policy and its nationwide implementation, a commitment to explore multiannual funding models and ensure that adequate funding is made available for the implementation of each county heritage plan, promoting biodiversity initiatives across primary, post-primary and third level sectors and ensuring that every school, college and university across the country will play an active role in providing areas to promote biodiversity. It is apt that we are having this debate this week. Last week was national biodiversity week. I live in the city but even in the city we have very rich biodiversity, everything from our pigeons to the flies and ants and wild flowers. It is really important, and perhaps Covid has made us more aware of our natural environment and surroundings. We all need to act to protect our biodiversity. From a Government perspective, it is important this legislation is progressed promptly.

While the Minister of State is in the House, I want to mention something. The built heritage in the city is very important and I want to thank him for the support he has lent to the regeneration and rejuvenation of what had become very derelict heritage in the heart of the inner city with the national monument buildings in 14 to 17 Moore Street. The Minister of State's commitment has made a huge difference in not only ensuring the dereliction that has taken hold there on the street market and the national monument will not only be stopped but will be reversed and we will have a State-led rejuvenation of the street market and a national monument where our history will be recreated, reimagined and preserved and made available to future generations. I thank him for the support he has lent the Moore Street advisory group, with stakeholders from the 1916 relatives, the street traders and all the businesses in the area. They appreciate the fact that he has given it priority and will lead a State-led regeneration of the street market and the creation of a 1916 commemorative centre there.

I commend the Minister of State on that. I wish him well with it and commit to our continued support.

I join my colleagues in welcoming the Minister of State to the House and echo their comments on the hard work and dedication he has applied to the role since taking office last year. I too believe he is a very good fit for the role and heritage is a very good fit for him within the Department. We are trying to ensure that we have all the technicalities in place to allow him to exercise his function as Minister of State with responsibility for heritage to the full extent, which I have no doubt he will do.

Section 15 is appropriate in that it will give power to the Minister to comment on development plans. As my colleague, Senator Fitzpatrick, said, 31 of the 33 local authorities are undertaking development plans currently, so it is particularly important to ensure that is in place. The Bill will amend the Planning and Development Act 2000, the Wildlife (Amendment) Act 2000, the European Communities (Birds and National Habitats) Regulations 2011 and the Broadcasting Act 2009, which is addressed in Part 3.

I appreciate the Minister of State appearing before the House and wish him every success in his role over the term of the Government. I will welcome him to Waterford next month to open the national museum of time. We are very proud of the work that has been done to put that museum together over recent years. He will be more than welcome to cross the River Suir into Waterford, given that he is a next-door neighbour in Kilkenny. He might comment on the possibility of providing biodiversity officers within local authorities to supplement the work of heritage officers. They are often overburdened, particularly in areas that have a rich heritage. We are very lucky, both in my county, Waterford, and nationally, to have such a rich heritage, both man-made and natural. That might be something the Minister of State could consider.

I thank the Senator. It occurs to me it is a wonderful form of Irish glasnost that he has invited a Kilkenny man to Waterford.

I welcome the Minister of State to the House to discuss this legislation. As we have heard, the Bill will allow for the transfer of functions relating to heritage to the Minister for Housing, Local Government and Heritage. Notwithstanding my concerns regarding the constant moving of the National Parks and Wildlife Service from pillar to post over the years, it is at least somewhat reassuring that there is now a Minister of State such as Deputy Noonan, who clearly cares a great deal about the brief. Sinn Féin will not oppose the Bill, but I will outline a number of areas I hope the Minister of State will prioritise in his role.

The first relates to the status of the National Parks and Wildlife Service, NPWS. A review into this is under way but I add my voice to that of the Irish Wildlife Trust in calling for the service to be placed on a similar statutory footing to that of the EPA. For too long, the NPWS has been underfunded and its research ignored. This has impacted on morale within the organisation and has also negatively impacted on our biodiversity. One such example is that of Killarney National Park and its management of rhododendron. For more than 20 years, Groundwork ran a science-based, systematic clearance of the invasive plant from some of our most important ancient oak woodlands.

I am very familiar with the scheme as I worked as both a volunteer and an employee of Groundwork. Despite all of the evidence showing that the Groundwork approach worked, in its wisdom Killarney National Park halted Groundwork in 2005 and adopted a system of leaving dead rhododendron standing in situ or in piles. There is strong evidence to suggest that this policy contributed to the devastating fires that we witnessed last month. The National Parks and Wildlife Service manual No. 33 clearly referred to standing dead rhododendron as a potential fire hazard. It also referred to the need for fire breaks around dead rhododendron hedges. Despite this clear advice from the National Parks and Wildlife Service, the Killarney National Park 2018 management plan is a direct contradiction to the service and states that there is no requirement for rhododendron brash management. I hope that a future National Parks and Wildlife Service will be able to ensure that its advice is not just advisory but carries legal weight that must be heeded by national park management. I hope the National Parks and Wildlife Service will be given the enforcement powers it requires to tackle wildlife crime.

I raise the need for marine protection zones to be implemented in parallel with the marine planning framework. We cannot have a situation whereby planning permission will be granted for large offshore wind farms before we have designated our most important marine wildlife zones. We have to ensure there is a marine inspectorate body established to ensure that the construction, operation and any future decommissioning of offshore wind farms is done with the highest possible environmental and biodiversity protections. Not only is that good for our marine wildlife but it will also ensure we have fewer planning objections and therefore bring our offshore wind capacity online as fast as possible to meet our climate targets.

I implore that the biodiversity data centre find a permanent home within the Heritage Council so we retain the expertise of the researchers and the data they collect. Such an important resource cannot continue on a service level agreement. It is bad for the morale of the researchers and for retention of that expertise within the Department.

I raise the matter of Moore Street and ask the Minister of State to ensure that the plan for the 1916 cultural quarter, as set out by my colleague, Deputy Ó Snodaigh, and unanimously supported by all parties, is implemented.

We support this Bill, which will see the Minister of State receive all of his functions, but I ask that he give the matters outlined by me his utmost attention.

The Minister of State has heard the high regard he is held in across the House and I echo much of that but everybody is speaking to and anticipating the positive use he might make of the powers under this Act. My concern is not about persons but about structures. My concerns relate to the legislation in front of us and the fact that the Minister in this legislation is not the Minister of State but the primary Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien. That is clear in the briefing note. The reason that matters is nothing about who is in which roles. There is a reason this is in legislation. It is not a technical Bill. If it was a technical matter, it would have been transferred under the Ministers and Secretaries Act, as those other powers often have been.

The reason we are having a debate and need legislation is that our planning architecture has checks and balances within it, including checks on the powers of the Minister for planning and housing. The reasonable provisions in section 30(1), which is being amended here and which is called "Limitation on Ministerial power", state that the Minister responsible for the entire architecture of planning should "not exercise any power or control in relation to any particular case". There is a reason that provision is there in law. It is an appropriate check. There is a reason the Minister is limited. The Minister in charge of An Bord Pleanála or the planning authority should not be able to ask it for things, in terms of planing applications, appeals, or determinations, including a determination of exemption from certain planning obligations.

There is a reason that check and balance existed, and there were exceptions to it in previous Bills. There were exceptions in terms of the performance of certain functions, but none of them included the provisions or wide powers being set out in this Bill in regard to planning applications, appeals and determinations. I accept they are performed in regard to certain functions, but the point I am making is it matters who performs them. We should have had a check and balance between Departments previously. That is what the Mulcreevy case tell us. It is not an oversight; the primary legislation intended the division of function between two different Ministries because the Minister with responsibility for planning has particular concerns and thoughts, and the Minister with responsibility for heritage has a different mandate, a different duty of care and a different set of concerns to be mindful of. That is part of the system in regard to many of the important matters with which we deal, including how we deal with appropriate assessment, for example, what may or may not constitute an imperative reason of overriding public interest that allows us to skip over or damage Natura 2000 sites. These are all areas where the Minister with responsibility for planning and housing was required to consult with the Minister with responsibility for heritage for a reason.

I acknowledge that the Minister is doing a great deal of good work in the Department, but if those checks and balances are no longer in existence between departments we need to be clear in this legislation that they will still exist within the Department. It is not simply a matter of who allocates the tasks, it is vitally important that it is the Minister with responsibility for heritage who gives heritage observations on local development plans. I am speaking not about the Minister of State, Deputy Noonan, as a person but as the Minister with responsibility for heritage and not the Minister with responsibility for planning and housing. It is the Minister with responsibility for heritage who must be consulted in regard to any decisions on Natura 2000 sites and their protection in a planning imperative measure.

We need to see those measures. The Minister of State will be aware that I have put forward amendments to attempt to insert those safeguards, but I remain concerned. In the briefing note it is explicitly clear that section 30 must be amended to provide for the Minister for Housing, Local Government and Heritage as the primary Minister to exercise these functions. We need clarity on whether it will be the Minister of State, Deputy Noonan, who, under the amended section 30, will perform this function and if it will be him only who can submit planning applications and appeals.

The Bill also provides that certain other remainders of heritage powers and functions may be transferred to the Minister for Housing, Local Government and Heritage. How can we be sure that these powers will be appropriately delegated and that the Minister of State, Deputy Noonan, will be able to fulfil his mandate in terms of heritage in an appropriate conversation with the Minister with responsibility for planning and housing, and that that check and balance will be intact? I await the Minister of State's closing statement and I look forward to further engagement with him on my amendments on Committee Stage.

The next speaker is Senator Burke who proposes to share time with Senator Ahearn. Is that agreed? Agreed.

I welcome the Minister of State, Deputy Noonan, to the House again. He is in regular attendance in this House. I would like to concentrate my remarks on section 30, which is an important section in that it deals with the transfer of powers. I do not agree with the Department's view that councillors cannot comment on planning applications. Councillors spend a lot of time developing and studying county development plans. In the case of a planning application, which may be controversial or not, on which a decision may be imminent or made, a councillor is prohibited from taking any stock as to what the executive can or cannot do. We have seen some deplorable planning decisions by executives over the years. I appreciate that the main function of councillors is to put in place county development plans, but when they put those plans in place, surely they should have some form of oversight of them to ensure transparency. Councillors who have spent years putting together the plans should be able to comment on them.

They all might agree that in their view a planning application might not fit into an area. At the end of the day a planning decision is only somebody's view anyway. In most cases it is a view - my view or the planner's view. This is something the Minister of State should look at. The Minister has taken away the powers of councillors to comment in the chamber on planning applications.

I am nearly out of time, but I wish to refer to another area the Minister should have a look at. I refer to discussing county development plans on Zoom or other form of e-meeting facility. I am not sure it is in the best interests of putting a county development plan together. Some councillors could be under pressure. There could be somebody in the room with them. The telephone line or Internet might go down. A whole host of problems can arise. This is an area the Minister of State should examine. A county development plan is a very legal document. Many decisions are taken in it on development plans. This is an area that has not been thought out that well.

I welcome the Minister of State, Deputy Noonan, to the Chamber. I also welcome the Bill and the proposal to move the powers to the Department of Housing, Local Government and Heritage. It is the right thing to do and I welcome it. I thank the Minister of State for the work he has done in the past year. I have seen his commitment to this portfolio in a case in which he has been very engaged. I refer to Knocklofty House in Tipperary. I thank him for meeting with the Save Knocklofty House group, which is working in my parish of Grange to preserve a building that has been left idle and has fallen into decay in recent years. I know the Minister of State has agreed to visit during the summer. I hear he is going to Waterford not Tipperary. He is looking out for all his neighbouring counties, which is very much welcome. I would welcome it if he gets an opportunity to respond. I hope we can get consensus between those who own the building and Tipperary County Council and that the Department would be able to do something to support it financially in order to maintain it. I am not saying the building must necessarily be restored, as that is a big task in itself, but to stop the decay and dereliction that is the case currently. In his portfolio, the Minister of State is aware that there are so many beautiful historic buildings around the country and Knocklofty House is one of those. He knows from the people he spoke to in that group that there is a real passion in the community for the building. I thank the Minister of State personally for his engagement with the group and the work going forward.

I thank all the Senators who contributed to the debate for their comments and kind words. I thank Senator Garvey for what she said about the Department's work. I thank Senator Fitzpatrick for what she said about the new city development plan. It is vitally important that development plans are aligned. I give my absolute commitment on Moore Street.

Senator Cummins inquired about biodiversity officers. It is our commitment to roll out those positions over the lifetime of the Government. Funding is in place this year to do a certain amount of that work, but it is our objective over the lifetime of the Government to try to have a biodiversity officer in every county.

Senator Boylan raised a number of important issues on the National Parks and Wildlife Service. The review is ongoing, and it will take some time. We are due to have a report at the end of June from Professor Stout and Dr. Micheál Ó Cinnéide. I take on board that the structure will be determined by the outputs of the report. There has been a significant level of engagement. Rhododendron management in Killarney National Park has been widely raised. We have ongoing meetings regarding it. I have read some of the reports and it is something to which we will give consideration.

The wildlife crime unit will be established later this year. There is a good, positive alignment between marine protected areas and marine planning legislation, and I hope we will be in a position to highlight that in the coming weeks and months. The public consultation on marine protected areas is still ongoing. I give my firm commitment that we are working with the Heritage Council on the future of the National Biodiversity Data Centre. Similarly, the issue of Moore Street has been raised.

On Committee Stage I will address the issues raised by Senator Higgins, and Senator Burke's reference to planning applications being in public. Councillors have the right to make submissions on planning applications, the same as members of the public. Reference was made to discussing development plans over Zoom. We are all tired of Zoom, but there is a significant role for e-planning, and we should look at some of its merits and good outcomes. In particular, online meetings have helped councillors with time management. Some counties have done very well with the management of development plans over Zoom. I thank Senator Ahearn for the issues he raised about Knocklofty House.

Ireland's heritage, built and natural, cultural, linguistic, tangible and intangible, is of fundamental importance to all aspects of society, our identity, well-being and economy. However, heritage faces many challenges, including those stemming from land use change, climate change and biodiversity loss and dereliction through a lack of awareness of the value of heritage. The Government is making a significant investment in the heritage sector with a view to addressing biodiversity loss, habitat restoration and species protection. It is also undertaking essential investment in national parks, nature reserves, heritage estates and national monuments. For example, earlier this year, funding of €1.35 million was announced for local authority biodiversity projects, including €500,000 for projects targeting invasive alien species in their areas. The significant funding increase in 2021 to €1.89 million means the National Parks and Wildlife Service farm plan scheme has been expanded. The sum of €14 million has been allocated to conservation management and restoration of protected raised bogs in 2021.

National parks and nature reserves have remained open for the duration of the Covid-19 pandemic. It has been important to keep this 87,000 ha network accessible to the public to provide areas where people can get fresh air, experience nature and exercise while still being able to adhere to physical distancing protocols.

The intention of the Planning and Development, Heritage, Broadcasting (Amendment) Bill is not to alter existing Government policy or to introduce new policy, it is a technical Bill, the primary function of which is to facilitate the transfer of the heritage powers and functions to the Minister for Housing, Local Government and Heritage under a number of enactments which are currently held by the Minister for Tourism, Culture, Arts, Sport, Gaeltacht and Media. In that regard, the overall objective is to give legislative underpinning to the full transfer of these powers and functions to the Minister through amending certain primary and secondary legislation, as required. Some of the proposed amendments set out in the Bill have been prepared to allow for the amended section of the relevant European Communities (Birds and Natural Habitats) Regulations 2011 to function without further amendment in the event that the ministerial heritage functions were at some future time separated again from the planning functions. Section 13 amends section 16(2)(a) of the Wildlife (Amendment) Act 2000 and section 14 amends the designations of the sites of special areas of conservation and special protection areas and the directions and provisions of the 2011 regulations. We are working hard to deliver on the ambitions set out in the programme for Government with respect to heritage.

Question put and agreed to.

When is it proposed to take Committee Stage?

Is that agreed? Agreed.