Planning and Development, Heritage and Broadcasting (Amendment) Bill 2021: Committee and Remaining Stages

Sections 1 to 7, inclusive, agreed to.
SECTION 8
Question proposed: "That section 8 stand part of the Bill."

Section 8 relates to the same principles that will be addressed in sections 9 to 11, inclusive. I will speak to the general principles in each section. This is a provision whereby the Minister with responsibility for planning and housing, the Minister who still has those powers, in fact, the primary Minister and the Minister for the purposes of this Act, would be required to “request the views of the Minister for Arts, Heritage and the Gaeltacht” in terms of section 177X of the Act. Let me give an example. If there were a situation where an appropriate assessment had been done of the Natura 2000 site but where the assessment found that a particular planning process was likely to damage that site, then it would be the Minister for Housing, Local Government and Heritage to consider whether the compensatory measures that were put in place were adequate.

Sections 8 to 11, inclusive, relate to situations whereby it is envisaged that the Minister with responsibility for planning and housing should consult with the Minister with responsibility for heritage. I am concerned that as the legislation is amended it simply states shall just consider the matters. It does not make it clear whether it is the Minister of State's Department or whether the senior or primary Minister, Deputy Darragh O'Brien, is required to consult with the Minister of State's Department, or who carries out these functions. In the Bill, these provisions seem like a belt and braces approach. Section 30 limited the power of the Minister with responsibility for planning to interfere in individual planning cases with certain exceptions, those exceptions being all of the ones that are covered in this section where it states that he could interfere or engage but only subject to “consultations with the Minister for Arts, Heritage and the Gaeltacht”. These are effectively the braces of the belt and braces approach that are meant to be part of the checks and balances in our section. That applies from sections 8 to 11, inclusive, which deals with, as people have described, the incredibly important things like Natura 2000 sites and appropriate assessments. We know from our planning, because the problem has often been that environmental factors and obligations have not been considered early enough in the planning process, that leads to problems down the line, which we have seen repeatedly.

These are important functions that the Minister with responsibility for heritage had and I want to know two things. Will the Minister of State's Department perform them? Will the senior Minister be obliged to consult with the Minister of State's Department on his actions in these areas?

I will not be accepting amendments Nos. 1 and 6 to 13, inclusive.

I reiterate that this is a technical Bill which is necessary to allow for the transfer of functions relating to heritage under a number of different enactments to the Minister for Housing, Local Government and Heritage. I will not be accepting any amendments which go beyond the very narrow technical nature of the Bill.

The purpose of section 11 is to provide for the transfer and merger of the consultation functions of the Minister for Arts, Heritage and the Gaeltacht, in section 177AC of the Planning and Development Act 2000, to the Minister for Housing, Local Government and Heritage resolving the Mulcreevy issue in this section. The proposed amendment No. 1 does not assist in resolving the Mulcreevy issue arising from Part XAB of the Planning and Development Act. Therefore, I will not be accepting this amendment.

I ask the Minister of State to speak to section 8 because we will move to the amendments later.

Yes, I apologise.

On the section-----

The Minister of State has just responded.

The Minister of State did not speak to section 8 but to section 11 and I asked the direct question of who performs these functions. I asked the same question on Second Stage and other Senators received answers to their queries on Second Stage.

It is the Minister for Housing, Local Government and Heritage.

Will the powers be delegated in respect of these functions?

It changes that, yes.

I thank the Minister of State. It is an information issue.

Question put and declared carried.
SECTION 9
Question proposed: "That section 9 stand part of the Bill."

I make the same argument.

We will come back to the Senator's amendments.

We need to be sure-----

The Senator has made her point well.

The fact that we are in a hurry is not my fault. The Government had the prerogative and chose to put this Bill through All Stages in one hour.

To be very clear, I have the same concerns about sections 9 to 11, inclusive. We are taking away another small element of the checks and balance system in our planning architecture. If issues arise further down the line then we need to be really clear that that is done. I do not think that that is necessary. These checks and balances could be accommodated within the Department but an explicit realisation needs to exist whereby certain functions need to be in balance with certain other functions and how those are divided. This has nothing to do with who is in which roles. This has to do with having an appropriate architecture that will stand the test of time if other persons take on senior or junior ministries within these roles. It is a fact that the Minister with responsibility for planning is meant to check in with somebody whose primary focus is heritage in terms of certain functions that he or she performs. That is my core point but it has not been addressed. I would like this matter to be addressed in the legislation. If not, then I would like to hear a commitment that there is an intention to address it in the practical operation of these provisions.

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

I have the same issue with section 10.

Question put and declared carried.
SECTION 11

Amendments Nos. 1 and 6 to 13, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 10, line 35, after “protected” to insert the following:

“and the views of any Minister with heritage responsibility and the Minister for the Environment have been sought”.

Unless we do not have time to speak to it there is a similar amendment in respect of section 12.

My amendment is very reasonable. Again, this my attempt to insert the safeguards that were intended in the primary legislation, which are part of the architecture in respect of safeguards, checks and balances in the planning system to ensure good practice, ensuring that we address things as early and as well as possible and consider the relevant issues in a way that is appropriate.

Simply, it is to suggest that the views of any Minister with responsibility for heritage and the views of the Minister for the Environment, Climate and Communications have been sought. This is the problem. At the moment these powers are consolidated with a single Minister who would previously have been required to check with the Minister with responsibility for heritage. Under several other provisions and sections the Minister would have been required to speak to the Minister in charge of the environment and other Ministers. Now we have a situation whereby the Minister has the power and may or may not consult with other Ministers as he or she sees fit. We are removing checks and balances internally in terms of heritage. This is the fundamental concern I have.

This does not have to be a problem. It is not a problem that the functions are going to the same Department but it is a problem if appropriate measures are not taken. We talk about this with companies all the time, including with the idea of the firewall. If a person is undertaking one function, then we do not have the same people in the same company performing the same function. It is a normal practice to put in place measures and appropriate division of powers internally.

There were several points relevant to amendment No. 1. I understand from the grouping that amendments Nos. 6 to 15, inclusive, are also included. There were points with these amendments whereby the Minister was required to consult with the Minister for the Environment, Climate and Communications. Several of those sections have been truncated. I understand that the titles in such sections may have been outdated but the principle of consultation was important. I have several amendments in which I suggest that rather than saying "such Ministers as the Minister considers should be notified", we say that the Minister for the Environment, Climate and Communications and such Ministers as the Minister considers should be consulted. I think that is appropriate.

This relates to the Wildlife Act and other measures relating to habitats and wildlife. Section 14 relates to the European Communities (Birds and Natural Habitats) (Amendment) Regulations 2011. These are all areas where it is appropriate that the Minister for the Environment, Climate and Communications would be consulted. I have framed the reference to the Minister for the Environment, Climate and Communications in my amendments in a way to allow it to be flexible. This means if the environment functions get moved to another brief and combined in a different title, then the Minister with responsibility for the environment would be consulted. Similarly, whatever Minister or Minister of State has responsibility specifically for heritage might be consulted.

These are safeguards that I am putting in place. I say as much respectfully to the Minister of State because I really admire his work. However, I need to be confident that we are putting in place good legislation. If I was hearing an interpretation of the legislation that gave us assurance that would be something, but I am not even hearing an interpretation of the legislation that indicates an understanding of the needs for checks and balances or consultation.

I wish to comment on this from the outside and as someone who sits on the Oireachtas Joint Committee on Housing, Local Government and Heritage. The Minister of State, Deputy Noonan, and his colleague, the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien, have been working hand in glove with one another and working closely. I have no doubt that when it comes to heritage matters, the Minister of State, Deputy Noonan, will comment and be in charge of those areas given his depth of knowledge and experience. Moreover, we have a collegiate working relationship across Government between all partners in government. The Minister, Deputy Darragh O'Brien, and the Ministers of State, Deputies Burke and Noonan, are working closely with one another. I have the utmost faith in that relationship and I believe it will prove fruitful for all sections, especially heritage.

I appreciate the clarification from Senator Cummins. I appreciate the concerns Senator Higgins is raising as well because it is not about the good working relations of this Government but rather putting in place the checks and balances for future Governments.

This is a technical Bill. The Minister with responsibility for heritage has a defined role. The Bill is aimed primarily at transferring the remaining functions across.

I will comment on the proposed amendments Nos. 6 to 13, inclusive. The Senator referenced these with the European Communities (Birds and Natural Habitats) Regulations 2011. Section 14 amends the designation of sites of special areas of conservation and special protection areas and the provisions of the European Communities (Birds and Natural Habitats) Regulations 2011 by providing that in designation or direction of process the Minister for Housing, Local Government and Heritage will inform and notify other Ministers of Government of developments. I hope that in some way clarifies the matter.

Amendment put and declared lost.

Can I ask for a time check?

We have six and a half minutes to go.

Section 11 agreed to.
NEW SECTIONS

Amendments Nos. 2 and 3 are related and may be discussed together by agreement.

I move amendment No. 2:

In page 11, between lines 25 and 26, to insert the following:

“12. For the avoidance of doubt, where a Minister of State has delegated responsibilities for heritage, functions under sections 8, 9, 10 and 11 shall be performed by or subject to the agreement of that Minister.”.

These amendments provide that where there is a Minister of State with delegated responsibility for heritage, the functions under the Act would be performed by, or subject to, the agreement of that Minister in respect of sections 8 to 11, inclusive.

Amendment No. 3 refers to where there is a Minister of State with delegated responsibility and provides that the functions under the Act as a whole will be performed by, or in consultation with, such a Minister of State. I have made clear the reasons I believe that is important. I do not believe we need to rehearse them. We can probably move to decision on those.

I will not be accepting amendments Nos. 2 or 3. Sections 8 to 11, inclusive, refer to sections 177, 177Y, 177AB and 177AC of the Act of 2000. As stated in my opening address, 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 Gaeltacht - this was the title of the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media at the time of enactment - as to whether the compensatory measures specified by a competent authority are sufficient to ensure that the overall coherence of the Natura 2000 network, European sites, special areas of conservation and special protection areas are protected where the making of certain land use plans specified in the Act or the granting of consent for proposed development under the Act would adversely affect the ecological integrity of the European sites. It is proposed that it should still go ahead for imperative reasons of over-riding public interest.

Sections 8 to 11, inclusive, provide for the transfer and merger of the consultation functions of the Minister for Arts, Heritage and Gaeltacht under Part XAB of the Act to the Minister for Housing, Local Government and Heritage. On foot of this merger of functions and having regard to the functions and remit in this area, the National Parks and Wildlife Service, which is within the heritage division of the Department, will of course continue to be consulted to ensure any proposed compensatory measures are sufficient to ensure the overall coherence of the Natura 2000 network is protected.

Amendment No. 3 proposes that the Minister will consult with the Minister of State with delegated responsibility for heritage when performing his or her functions under the planning Act. It would not be feasible for the Minister to be required to consult with the Minister of State before a function could be exercised under the Act.

Such a proposal would result in the planning Act of 2000 being unworkable. Therefore, I will not be accepting amendments Nos. 2 and 3.

As the Minister of State outlined, there are imperative reasons of overriding public interest. Bear in mind, the Natura 2000 sites are not generally protected areas. They are the highest quality, most precious areas of biodiversity we have in the State. If a decision was made that basically said we are willing to have damage done to a Natura 2000 site for a reason of public interest, it would be something which we have never done as a State. One of the things which ensured we never did was because there were checks and balances. This is really important and it is something we lose without consultation. It is not simply about who makes the decision. It is about transparency around how the decision is made. One of the things which was good about consulting with a Minister was that there were two different opinions available to the public, the concerned, the planners, and those in the Oireachtas. There were two different opinions and two different areas of expertise brought to bear on such a serious decision. That is an example whereby having a different and particular set of perspectives is vitally important. I worry that we will lose an element of transparency there. I think we will see consequences down the line. I am signalling that as an area of concern and that it is something that could have been avoided had there been slightly better crafting.

I will address that concern. Certainly, as I stated, the National Parks and Wildlife Service, NPWS, will continue to be consulted. It is important that those checks and balances are there and I give my assurance. The NPWS may be on a different statutory footing following the review process, but for now there are important checks and balances in place. I give that assurance to Senator Higgins in that regard.

Amendment put and declared lost.

I move amendment No. 3:

In page 11, between lines 26 and 26, to insert the following:

“12. Where there is a Minister or Minister of State with delegated responsibility for heritage, the functions under this Act will be performed by, or in consultation with, such a Minister.”.

Amendment put:
The Committee divided: Tá, 11; Níl, 28.

  • Bacik, Ivana.
  • Black, Frances.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Higgins, Alice-Mary.
  • Keogan, Sharon.
  • Moynihan, Rebecca.
  • Ó Donnghaile, Niall.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Blaney, Niall.
  • Burke, Paddy.
  • Buttimer, Jerry.
  • Byrne, Malcolm.
  • Carrigy, Micheál.
  • Chambers, Lisa.
  • Clifford-Lee, Lorraine.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Currie, Emer.
  • Daly, Paul.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Fitzpatrick, Mary.
  • Gallagher, Robbie.
  • Garvey, Róisín.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • McGahon, John.
  • Murphy, Eugene.
  • O'Loughlin, Fiona.
  • O'Reilly, Joe.
  • O'Reilly, Pauline.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Alice-Mary Higgins and Lynn Boylan; Níl, Senators Robbie Gallagher and Seán Kyne..
Amendment declared lost.

The time for this debate has expired. I am required to put the following question in accordance with the order of the Seanad of this day: "That section 12 is hereby agreed to in Committee, in respect of each of the sections undisposed of, the section is hereby agreed to in Committee, the Title is hereby agreed to in Committee, the Bill is accordingly reported to the House without amendment, Fourth Stage is hereby completed, the Bill is hereby received for final consideration and the Bill is hereby passed.

Question put and declared carried.
Sitting suspended at 6 p.m. and resumed at 6.18 p.m.