Planning and Development (Amendment) (Large-scale Residential Development) Bill 2021: Committee Stage

I welcome the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien, to the House.

Section 1 agreed.
SECTION 2

Amendment No. 1 is in the names of Senators Higgins and Black, amendments Nos. 1 to 4, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I remind Members there are 45 amendments and we will continue the business until the amendments have been dealt with.

I move amendment No. 1:

In page 4, line 22, to delete “70 per cent” and substitute “80 per cent”.

I note that the scheduling of the business, the times allocated, adjournments, continuations and so forth are all outside of my control, as a member of the Opposition, and are within the scope of the Houses of the Oireachtas as proposed by the Government.

Amendments Nos. 1 to 3, inclusive, deal with a similar issue, which is the concern in regard to these strategic housing developments, SHDs, or strategic large-scale residential developments. There is a 30% ambiguity, and possibly more than 30%, in that the kind of fast-track process that has been talked about and the kinds of special concessions that are being made to this kind of development still only require that 70% of the floor space in a large-scale residential development, LRD, is, in fact, for housing or residential. There is a need for clarity on what happens with the other 30%. Local authorities have rightly had very serious concerns on the way these issues have been approached and, for example, the priorities and concerns that may be in a local area development plan and the things which require particular scrutiny in terms of their special or different environmental impact, if we are looking to certain kinds of commercial activity. What we do not want is that those measures and those proposals are not part of a proposal, and the fact of the 70% figure for residential housing means they are not getting the scrutiny they should.

I have three amendments. Amendment No. 1 suggests that if this is large-scale residential development, at least 80% of its floor space should be housing. Again, I would reserve the right to come back with further comments in terms of what kind of housing it should be, and that is something we may examine further on Report Stage. Currently, the Bill allows that another figure could be inserted instead of the 70%.

Amendment No. 2 stipulates that if another figure is inserted instead of 70% for housing, it must be a figure higher than 70%. We certainly should not see a situation where a large-scale residential development with, say, only 50% or 60% housing is getting the kind of process that is given in this legislation as that would not be in the spirit of the legislation, given the housing crisis we face. It would also create real concerns in terms of proper scrutiny, as well as proper consultation and public scrutiny.

Amendment No. 3 stipulates that if 30% of large-scale residential development floor space is not being used for the purposes of housing, it should be used for the listed amenities. I am open to the suggestions of the Minister and open to a possible revised version of the amendment on Report Stage to reflect the amenities that we know should be accompanying housing, for example, public open spaces, landscaping, play facilities, pedestrian permeability or other ancillary services where required, including childcare facilities, which, frankly, should be there as standard in any large-scale residential development at this point. In this amendment, I am seeking to specify the kinds of things I believe should be in that 30% if it is to be 70% residential. I would appreciate the Minister's thoughts on what should be happening with that 30% and, indeed, what role the local authority should have in prescribing how any space that is not housing should be used.

Amendment No. 4 is slightly different and the four amendments are probably not a natural grouping, but so be it. Amendment No. 4 is specific to the issue of student accommodation. Currently, the legislation provides that student accommodation cannot be used as a hotel, hostel, apartment or other type of accommodation other than for the purposes of residential accommodation for tourists or visitors outside of academic term times. My amendment would remove the phrase "academic term times" and replace it with "the academic year". That is very important because we currently have a situation where the Christmas break is not included in that restriction. We know there may be situations where, as soon as the term finishes, even though students may well be facing into a number of academic requirements over the Christmas period and may be facing exams, for example, in January, they are in a situation where they do not have that same protection. I do not think we should impose a situation on students whereby there is a risk they may have to vacate their accommodation during the Christmas period. I am particularly thinking of international students in the current context of Covid.

By accepting this amendment, which I hope the Minister will, he would give clarity that when students access student accommodation, they are able to have access to that student accommodation for the full period of the academic year without any risk that they may, in fact, find themselves replaced by tourist money or visitor money during a key period in their academic studies.

I thank Senators Higgins and Black for tabling amendments Nos. 1 to 4, inclusive. I will deal with the first three together. These proposed changes are positive and they arise out of the considerations of the SHD consultative forum. In particular, the Bill proposed to increase the “other use” allowance from 15%, which was far too restrictive, to 30%, and it would encompass all of the various things the Senator has mentioned. That is up to the planners. I do not want to be prescriptive as to exactly what is in that 30%, but it is effectively to allow up to that to be for commercial and other uses, bar residential. This was a big issue within the SHD developments, particularly for inner-city brownfield sites, which tend to require this. They are the ones we really need to develop to ensure we have intensified developments on vacant brownfield sites in our cities in particular. That has been a nut we have not managed to crack. From the consultative forum and looking at what changes we think will actually work, we would allow up to 30% to take into account the differing needs of inner-city areas, as well as to make the overall development more economically viable while still ensuring the provision of rental accommodation.

This would be best practice. While I say this respectfully, it is considered that these proposed amendments would be overly prescriptive, they would limit the ability to respond to future external factors as indicated, and they may very well affect the viability of sites which we already have issues with. The viability of brownfield in our cities is a real issue. I know that no Senator would want to bring in any change that is going to make that even more acute because we need to develop on brownfield in our cities and we need good quality, high-density development in our cities.

The proposed increase in the commercial “other use” threshold would also allow the relevant local authority to consider what is appropriate in the relevant area on a case-by-case basis. That is the whole purpose of this legislation; it is to bring planning back to the local area with the people who know best. Therefore, I cannot accept amendments Nos. 1 to 3, inclusive.

Amendment No. 4 proposes to amend the definition of student accommodation by replacing the reference to "academic term times" with "the academic year". I have issued a recent circular on this and have told local authorities that we do not want any large-scale changes in this area. I cannot accept this amendment. There is arguably a need, on some occasions, for student accommodation providers to be allowed some degree of flexibility, if desired, regarding the short-term letting of accommodation during holiday periods, when it is not being used as student accommodation. This possibility helps to make the accommodation complexes more viable.

The primary concern I would have with regard to student accommodation complexes is that they should not be used as permanent residential accommodation or permanent short-term letting accommodation, which we are not going to permit, or, indeed, as a hotel, hostel or other type of accommodation which is explicitly precluded by the existing definition. They are dedicated student accommodation complexes and that is what they should be used for, having regard to the general shortage of student accommodation at this time and the need to provide as much accommodation as possible. We are seeking to improve the supply of such accommodation and we will do that. I cannot accept any of the amendments.

I am a little concerned. It is one thing to have the idea that there are certain ancillary facilities, and I know that is recognised around childcare and other supports that are needed in regard to the residential developments. However, I am concerned that, in the Minister's reply, he focused very heavily on what developers want.

What developers want, I have heard, is the commercial piece and the financial viability. We know we have an over-inflated market in which large profits are to be made. The Minister referenced commercial activity adding to the financial attractiveness of large-scale residential development. As we have had so many provisions and such a long record of provisions that are geared towards incentivising, supporting, enticing and encouraging investment in residential development, the balancing of that with ensuring we are clear on what kinds of activities will be there matters. It matters because if we have a particular kind of commercial activity attached to a large-scale residential development, that may have significant implications for other commercial actors in an area, including long-established ones. We know the difference when new sites get developed and it may be to the detriment of a main street.

There are a lot of considerations in this. I accept it cannot all be housing and do not really have a problem with the amount but it would be useful to have more clarity around what kinds of things will and will not be in that 30% space, which is quite a large space. One of the amendments provides that it could be as much as 50%. We have the scope that the 70% figure could be replaced by another figure. That raises concerns. If the case for these kinds of provisions and special measures is residential, we need to ensure that things that are residential or supportive of residential happen in a development that benefits from these measures.

Perhaps the Minister or colleagues across the House may want to bring a nuance to the amendment. There may be exemptions or exceptions in terms of holiday time. The problem at the moment is there is no protection and we have seen situations where students are effectively being required to vacate. They are working until the end of a term with a huge course load, things they need to do and exams they need to prepare for. In the case of international students, sometimes they have nowhere to go that is not priced at holiday prices. They may be in a vulnerable situation. It is a seller's market on student accommodation so they will not necessarily be in a position to refuse a situation where they are being required to vacate their home during a holiday period. We need to get the balance better on that and let it be an exception that holiday periods be excepted. Let there be mechanisms around that exception rather than a general provision that students are only protected during term time.

The Minister has rightfully pointed out that we have to allow flexibility in the process to local authorities if they feel there is a need for commercial activity in an area. We may have areas of the country where large numbers of housing developments have gone in in the past without the commercial side. They may need a supermarket or GP surgery that is not in those areas. If we do not allow sufficient provision within the legislation for up to 30%, we restrict the ability of the local councils to provide much-needed facilities in the area, independent of the viability question. For that reason, I do not support the amendment.

The core part of the legislation is restoring democracy to local authorities. We either believe in our planning system and our planners, who are eventually the ones to make the decisions regarding these large-scale residential developments, or we do not. I am not hung up on 10%, 20% or 30%. I believe we are being prescriptive and my preferred option would be to leave it to the planners to decide the level of commercial activity on any given site because no two sites are the same. The demands and what is required on each site are different. At the moment, the least productive thing is probably commercial and the most profitable is probably residential. At any time, things can change.

On what Senator Higgins said on scrutiny of planning permissions going through, this legislation restores that more than through the SHD process. The legislation provides an additional pre-planning process before a planning application is made. We have seen from the SHD process that the quality of applications being submitted when they go through pre-planning is far better than what it was in previous terms. Once the planning application is submitted, it goes through the normal planning process, where the public has the opportunity to make observations. The opportunity is also restored to the public to appeal to An Bord Pleanála. This restores further scrutiny on developments than what was in the SHD process. I do not agree with the Senator regarding the scrutiny.

I agree with my colleagues. I understand the thrust of the amendments but I ask Senator Higgins how many brownfield site developments we have seen happen in any of our major cities in recent years. We are bringing forward this change because it has been deemed necessary post SHD to get rid of SHDs and get planning back to where it should be with the local authorities so the planners make the decisions on what is required in any given area. We are not changing it to up to 30% to enhance the commercial viability. It is about good planning and good facilities. There is nothing wrong with commercial. The way the Senator was saying it was like commercial was a problem. One of the issues we have had is where it is all residential and there are no facilities. We cannot build all residential. We want in the measures to give the planners the capacity.

Senator Casey mentioned something important. On Second Stage we went through it in some detail and I am grateful for Senators across the House who supported the Bill. The Bill went through Second Stage without dissent. We will have a detailed pre-application process. That was one of the good things that happened with SHDs. We have a better handle on and a plan-led approach to planning permissions being granted. All of this should come out in the wash. The idea in the amendments is that the Seanad or the Oireachtas start to put planning conditions on the planners. However, we are trying to bring back planning to those qualified to make those decisions at local authority level across the country. I cannot accept amendments Nos. 1 to 4.

Senator Higgins, what do you want to do with amendment No. 1?

I will say a last sentence on this. I totally want to see planning brought back to local authorities. We are lauding this as a move on from the SHDs but we raised concerns about the fast-tracking of SHDs. I was in the Seanad when we highlighted concerns we had about how it might be abused and fail to deliver. Many of those concerns proved to be correct. When we are flagging concerns or questions, it is important that we be clear on them.

We talk about commercial and, if it is about having shops, of course we want shops near houses. The case is different if it is about having empty office space. We know about commercial and speculative real estate. Many of the clauses that were supposedly going to drive industry, business, employment and inner city living have translated into empty office and commercial buildings because their purpose is not week to week or day to day, but speculative. They are commodities for trading.

I am not against commercial activity but there is nuance and difference in this. I laud the restoration of some role for the local authorities. I will withdraw the amendment for now but I will come back to it on Report Stage. There needs to be real consideration and monitoring. I am putting down a flag on that 30% piece, because that is not a loophole and should not be allowed to be exploited to create a commodity add-on to residential development. That, unfortunately, happened systematically with many incentive schemes created in the past.

What does the Senator propose to do with the amendment?

I withdraw it, reserving the right to reintroduce.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 4, line 22, after “other” to insert “higher”.

I withdraw the amendment, reserving the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 4, line 24, after “development” to insert the following:

“and where the remaining 30 per cent is comprised of public open spaces, landscaping, play facilities, pedestrian permeability or ancillary services, where required, including child care facilities”.

Amendment put and declared lost.

I move amendment No. 4:

In page 4, line 35, to delete “academic term times” and substitute “the academic year”.

I withdraw the amendment, reserving the right to reintroduce it on Report Stage.

Amendment, by leave, withdrawn.
Section 2 agreed to.
NEW SECTIONS

Amendments Nos. 5 and 6 are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 5:

In page 4, between lines 35 and 36, to insert the following:

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

3. Section 28 of the Principal Act (as amended by section 20 of the Planning and Development (Amendment) Act 2018) is amended by the deletion of subsection (1C).”.

I welcome the Minister to the House. These two amendments scrap the controversial power the Minister has to make dramatic changes to planning law without a vote in the Oireachtas. They also ban substandard design of built-to-rent and co-living properties for renters and repeal the building height guidelines.

On amendment No. 5, in 2016, the then Minister for the Environment, Community and Local Government, Deputy Kelly, introduced highly controversial legislation that gave the Minister with responsibility for planning the power to unilaterally introduce changes to planning law without a vote of the Oireachtas. This meant Ministers could introduce mandatory planning guidelines which would override the democratically agreed decisions of city and county councillors. These would then have to be complied with by An Bord Pleanála, local authorities and others.

On amendment No. 6, in 2018, the then Minister, Mr. Eoghan Murphy, published the mandatory ministerial guidelines for apartment dwellings. These guidelines allowed for two fundamental changes to building standards which opened the door to co-living and build-to-rent developments. The current Minister claims co-living is gone, although I disagree as there is a back door in regulations. While there is a presumption against planning permission, this may not apply if a development is "required to meet specific demand identified by a local planning authority further to a Housing Need and Demand Assessment (HNDA) process". These same planning guidelines also introduced build-to-rent design standards that were lower than in the case of apartments being built for purchase.

I hope the Minister can accept these amendments, which were well drafted by our team. I look forward to his response.

I support these amendments. I note the discussion on my previous comments regarding the importance of planning, the independence of our planning structures and the Oireachtas not being overly prescriptive. By the same token, whatever about the Oireachtas being overly prescriptive, it would certainly not be appropriate for the Minister to be able to override, through these guidelines, hard planning decisions. We have seen the ministerial guidelines on height being used to make decisions that go against the collective and agreed will of the people who live in a place, through their local authority.

There are other concerns. I sit on the Joint Committee on Disability Matters. We are on a slow journey towards any improvement in Part M of the building regulations in respect of disability access, whereas speedy decisions were taken to lower standards for build-to-rent developments. These regulations have contributed to the delay in projects. Those who had planning permission saw they could get better value from their investment by having lower standards, such as smaller rooms and buildings. There have been negative consequences from the kinds of guidelines addressed by amendment No. 6.

I reserve the right to table amendments if there are ministerial guidelines. I have opinions on the kinds of areas these should cover. A very valid argument is being put forward by Sinn Féin on the appropriateness of such guidelines.

I thank the Senators for their considered amendments. We need to have a consistent planning approach and we need to be able to set guidelines. Any Minister needs to be able to do this. The amendment to delete section 28(1C) of the Planning and Development Act would remove a legislative provision introduced to empower the Minister to ensure a nationally consistent approach to planning by all 31 local authorities, the three regional assemblies and An Bord Pleanála, when implementing national planning policy. That is pretty fundamental. Are the Senators suggesting we should not have a national planning policy? That is absolutely consistent. A change like this would actually remove the ability to have a consistent approach at a policy level for planning and that our planning authorities and regional assemblies would have to have regard to national policy set out by me or any future Minister. That would be very problematic.

I accept the manner in which the Senators have put this forward but it will have massive intended or maybe unintended consequences. The proposals to repeal, by deletion, ministerial guidelines would be in direct conflict with the statutory role of a Minister to amend or revoke these guidelines on the basis of expert advice and input. That could relate to safety, design, densities and so on. What would happen with the area of strategic environmental assessments if this whole function was effectively removed and this fundamental section that ensures national planning policy must be followed was removed? Any Government in the future will look at previous plans and amending them in line with the thrust of development at the time. To remove the ability to set those guidelines would be a very serious and grievous error.

Amendments Nos. 5 and 6 would facilitate inconsistency, give rise to absolute uncertainty and open up the planning system to risk that would absolutely adversely impact on delivery, viability, investment and construction activity. All of that would delay the really critical delivery of housing and infrastructure. I cannot accept the amendments.

Let me explain the motivation behind the amendments. The mandatory planning guidelines, controversial as they were, were introduced by a previous Minister, Eoghan Murphy. They have given us co-living, build-to-rent and further height controversy. That is the motivation behind amendment No. 5. With regard to the motivation behind amendment No. 6, we talked about build-to-rent standards. Eoghan Murphy's guidelines mean less dual-aspect apartments, less storage, more studio apartments, fewer lifts and stairwells, yet higher rents. What does that say to renters? It says that if you are a renter, you deserve less than what you would get if you owned or built your own home.

Unfortunately, build-to-rent apartments are all we see being developed in our urban centres with renters paying extortionate rents to live in lower standard accommodation. Essentially, these policies that were started by the then Minister, Deputy Kelly, have significantly shifted investment away from affordable residential homes, which is what we need. That is the motivation behind tabling those two amendments. What is currently in place is undemocratic and, therefore, I would like to press the amendment.

Does the Minister wish to respond?

I do not call into question the Senators' motivation in tabling the amendments. The motivation may be sound but the effects could be genuinely catastrophic and could remove powers from any Minister to make some changes by way of guidelines in the future. I am not questioning, nor would I, their motivation for tabling the amendments but I cannot accept them.

Senator Warfield is pressing the amendment.

Amendment put:
The Committee divided: Tá, 11; Níl, 17.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • Mullen, Rónán.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Dolan, Aisling.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • Seery Kearney, Mary.
Tellers: Tá, Senators Fintan Warfield and Paul Gavan; Níl, Senators Lisa Chambers and Seán Kyne.
Amendment declared lost.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.

I move amendment No. 6:

In page 4, between lines 35 and 36, to insert the following:

Amendment of section 28 (Ministerial guidelines) of Principal Act

3. Section 28 of the Principal Act (as amended by section 20 of the Planning and Development (Amendment) Act 2018) is amended by the insertion of following subsection after subsection (1C):

“(1CA) The following planning guidelines are repealed:

(a)The Build to Rent and Shared Accommodation sections of the Sustainable Urban Housing: Design Standards for New Apartments— Guidelines for Planning Authorities, issued March 2018;

(b)Urban Development and Building Heights Guidelines for Planning Authorities, issued December 2018.”.”.

Amendment put:
The Committee divided: Tá, 11; Níl, 18.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • Mullen, Rónán.
  • Sherlock, Marie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Dolan, Aisling.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
Tellers: Tá, Senators Fintan Warfield and Paul Gavan; Níl, Senators Lisa Chambers and Seán Kyne.
Amendment declared lost.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.
SECTION 3

Amendments Nos. 7 to 13, inclusive, and amendment No. 17 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 7:

In page 6, between lines 1 and 2, to insert the following:

“(e) a statement setting out how the proposal will be consistent with the objectives of the relevant development plan or local area,”.

I welcome the Minister to the House. When I reflect back to when the Minister and myself were members of the Oireachtas joint committee on housing, I recalled we talked about strategic housing developments SHDs and all the anomalies there were in those. I genuinely welcome many of the initiatives in this new Bill, the Planning and Development (Amendment) (Large-scale Residential Development) Bill 2021, with which we are dealing. I also welcome the Minister's colleague and Department official, Mr. Terry Sheridan, to the House. I will be quite concise. There is no point in talking things out here. The Minister and I know how the system works. Basically, the Association of Irish Local Government came to us and made a very simple request - Senator Craughwell was there as were some colleagues here, who were members of it. The association also furnished us with a copy of a letter to the Minister of State, Deputy Peter Burke, in September 2021. They made three simple requests and what I am proposing was one of them. I want to read the amendment as there is a slight typographical error in it, which I want to bring to the attention of House and the Minister. The amendment states: "In page 6, between lines 1 and 2, to insert the follows: "(e) a statement setting out how the proposal will be consistent with the objectives of the relevant development plan or local area,”. The word "plan" appears to be omitted in the text.

The Minister and I understand what we are talking about.

The Association of Irish Local Government, AILG, made only three asks, which are reflected in the three amendments I tabled. I have not proposed any other amendments.

The Minister and others spoke about bringing the planning process back to base, to the local authorities. That is important. Without giving a history lesson on the SHDs, leaving out the councils was a major anomaly. In fairness to the SHD system, it imposed an obligation on the manager, chief executive or planner to convene a meeting to discuss the SHD application and go through the maps, proposals and so on and take note of councillors' concerns and suggestions. This worked for councillors, which was not envisaged at the time.

A great thing about that system was that it was done in an open and transparent way. It was not done in a loft or attic or in a private room with a manager. One of the criticisms made in the planning tribunal was that the planning system was not sufficiently open and transparent. One of the great things about the SHD system, which has many faults, is that it has created an open and democratic engagement in city and county halls. That was positive and showed how local councils could respond to the concerns of their communities and residents associations. This healthy process is not envisaged in the new Bill, which is a shortcoming.

The representative body of councillors, the Association of Irish Local Government and the Local Authority Members Association, LAMA, spelt this out at the joint committee. It also spelled it out in correspondence to Members of the Oireachtas and, more importantly, the Minister of State, Deputy Peter Burke. I do not think the Minister would have any issue with this. I do not like the idea that it will happen in regulations. It should be in the primary legislation because it is a primary understanding of the significance and power of councillors. We hear all the time through the Planning Regulator and officials in the Department that this is the people's plan and the councillors' development plan.

The amendment provides that a statement would set out the proposals and that if anything happens in relation to these applications, they must be consistent with the objectives of the relevant development plan or local area plan. To make a plan is one of the strongest reserve functions of an elected member and we put great emphasis on it. There is a long process behind making a county development plan, as the Minister knows. I ask that he agree, if he can, to support his colleagues and mine - and I think most of us came from local government - and embed this in the primary legislation. I would appreciate that.

I happily support the amendment. I also support the recommendations made by the AILG and LAMA regarding the Bill. The amendment ensures the adherence to the relevant development plan or local area plan is carried over from the Planning and Development (Housing) and Residential Tenancy Act 2016, which established the SHD process and brought in the process for large-scale residential developments, LRDs. Noticeably absent is section 5(6) of the 2016 Act, which allows for the bypassing of this agreement. It is not appropriate to work outside the established development or local area plan. Many Senators understand the time and effort put into those plans by councillors to ensure the best outcome for the local area and prospective LRD applicants should be able to work within that framework.

The importance of development plans cannot be overstated. The High Court, in a recent judgment regarding Cork County Council, highlighted that such plans are the remit of the locally elected members and not centralised projects of the regulator or, indeed, the Minister. Councillors are well aware of the need for LRDs and would be more than happy to engage constructively with An Bord Pleanála or prospective applicants. Using local knowledge is imperative to ensure the LRDs are integrated sustainably into the environment from the perspective of public amenities, cultural spaces and social infrastructures.

I will speak first in support of amendment No. 7. I understand a large number of my amendments are grouped together with it. It is appropriate that we listen to local authority members and what they ask. They are not requesting this lightly. They are keenly aware of the process. Local area plans and local development plans are a crucial part of democracy. These are the decisions that people in all parts of the country make about how they want to live together, what their priorities are and the kinds of standards, infrastructure and intersections they want in their communities. These are important plans that reflect the public and which are driven forward by public representatives.

I was shocked at a recent report that proposed rezonings were included in the Dublin city development plan without consultation or engagement with city councillors. This was caught by councillors and is now being addressed. Officials proposed new zonings of land and changes of zoning in a development plan without having engaged with councillors. There is slippage here. Local authority officials engaging with proposed LRDs is not the same as local authority members or plans being specifically represented.

Senator Boyhan and others have tabled later amendments which seek specifically to strengthen the active engagement and role of local authority members. On the local area plans and local development plans, it is fundamental that one of the pieces of information to be brought into a meeting relates to how the proposed development will intersect with and forward the goals in such a plan.

I will make one final point on the power of local authority members. Something happened before the summer that was really regrettable. Senators Black, Ruane and Flynn supported me at the time. When land was being transferred to the Land Development Agency, we had the idea that local authority members would be able to ensure they could set conditionalities in relation to the land and its use. That was an example of a poor decision being made in relation to local authority voice. I hope a better decision is made in this instance.

Amendments Nos. 8 to 13, inclusive, relate to the clause, "such further information as maybe prescribed" by the Minister. I will reserve the right to seek to insert these directly as requirements on every project. For now, however, I have included them in the space where the Minister may prescribe rather than making them be a hard requirement on every project. I may reserve the right to include them as a harder requirement.

Amendment No. 8 provides that the Minister may prescribe information in respect of how a plan will intersect with obligations under the UN Convention on the Rights of Persons with a Disability and how it will have regard to the principles of universal design and Part M regulations, the relevant statutory instrument.

Amendment No. 9 is crucial in relation to our future development and the very ambitious climate targets we need to achieve. If we do not get this right on large-scale residential developments, we will not get it right anywhere and we will not achieve the carbon emission reduction targets we need in this sector. The amendment provides that the Minister pay prescribe information in respect of the estimation of the greenhouse gas emissions that are associated with the building, including the embodied energy released from potential demolition.

In the UK, there is increasing pressure to have re-use, refurbishment, reimagining or building on of existing buildings. With the amount of front-loaded carbon emissions that come from demolition, even if a new building is inserted afterwards that is covered in solar panels, it will take 200 or 300 years to make up for the amount of emissions released through demolition. I mention embodied energy and the wider issue of greenhouse gases in that context.

Again, I reserve the right to bring these amendments forward on Report Stage. The Minister will be aware that new regulations on building and climate are coming through from the European Union. It would be unfortunate if we had a large number of residential developments that were given planning permission without due regard to carbon emissions and the tracking of same, and if we tied ourselves in to a lot of development which would not comply with the new directives when they come into place. Similarly, on the United Nations Convention on the Rights of Persons with Disabilities, we know there needs to be a review of Part M and that it needs to be approved. We also know that the provision on universal design needs to be approved. Again it would be incredibly unfortunate if we carried out large-scale developments that tie us into the old model and that do not reflect new guidance in this area.

Amendment No. 10 is similar to Senator Boyhan's amendment in that it asks that information would be provided on how any proposal would intersect with, "the local development plan or county development plan of the local authority in which the site is located."

Amendment No. 11 inserts a new subsection such that, "in the prescription of information... [there would be] due regard to the public duty on equality and human rights." The public duty on equality and human rights applies to all functions of Government. It is not just about what the Government builds or does itself but it is also about how the Government approaches its engagement with others through procurement and in how it engages in the planning process or the guiding of development through planning and development policy. They also need to reflect the public duty on equality and human rights. One of the more practical ways in which it could be done is that where we have large-scale residential development it would reflect how it is furthering us in our positive and active duty to promote equality and human rights.

Amendment No. 12 is important. We do not want large-scale build-to-rent to necessarily be the approach we get from these large-scale residential developments. It is important that the need to prioritise the delivery of social housing in the State would be reflected. I read about a recent development where the developer said it was happy to engage with local authorities if they wanted to lease or buy units in a manner that was almost after the fact. That vision needs to be there from the beginning, not just in the percentage of social or affordable housing to be built but in the kind of social and affordable housing to be provided. This amendment is specifically on the need to prioritise social housing. For example, it may be that a development that is supported by a local authority and that will provide a large portion of social housing will be given precedence over another.

Amendment No. 13 relates to the clause in subsection (4). Under the new section 32B(4), "The planning authority may, prior to the LRD meeting taking place, consult with any person who may, in the opinion of the planning authority, have information that is relevant for the purposes of the LRD meeting in relation to a proposed development." This amendment is appropriate for the purposes of transparency. Provisions are made for taking notes at the LRD meeting but it would also be appropriate that there would be clarity and notes taken on any pre-consultation that is taking place. Where, prior to an LRD meeting taking place, a planning authority consults with a person who has information relevant to the purposes of the LRD meeting, a written record of that consultation should be taken. That written record should be kept by the planning authority and a copy of same should be placed and kept alongside the other documents related to the application.

It is hard to know who might be consulted with but one of the concerns the public have had is where we have pre-planning meetings where there are two, three or four different developers who have different projects. They have a lengthy meeting and they know about each other's projects as they sometimes cross-reference them in their planning applications. However, the public are given a narrow window in which to engage. This was particularly true during Covid, when meetings were still taking place between three or four different developers who were all having meetings, facilitated by planning authorities in this case, to discuss what they would like to do, to plan it out and to cross-reference and support each other, sometimes in a radical reimagining of an entire urban area. At the same time the public had that small window, which will be even smaller if it is facilitated through An Bord Pleanála rather than through the normal multi-stage planning process, to which to fit their concerns. It may be that under that section the public or local residents groups will be consulted and that is fine. We need to be clear on who is being consulted in advance of the LRD meeting and that if a judicial review is needed at a later stage, this would be one of the documents that sits alongside the minutes of the LRD meeting itself. I may bring an amendment to the effect that we should not have multiple projects discussed at the same LRD meeting because that can sometimes create a groupthink dynamic. I may bring amendments on the LRD meetings themselves.

My last amendment in this large grouping is amendment No. 17. This is an amendment to subsection (3) of the new section 32D. Section 32D allows the Minister to, "Make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient for the purposes of the planning authority providing an LRD opinion." I am a little concerned about that. If the LRD opinion is to be meaningful then it cannot be forced and local authorities should not feel under pressure to provide it. I am also concerned that this section will allow the Minister to prescribe the form of the LRD opinion. We do not want local authorities to get squeezed. This is not even the local authority members we are talking about, it is the local authority itself, which is a problem anyway.

My amendment is small but it makes it clear that the Minister shall make "appropriate" regulations. If there are appropriate regulations on good planning then so be it but the regulations made by the Minister cannot simply have, for example, expediency, speed or the fact that the Minister would like an LRD opinion to emerge as the priority. They must be appropriate and reflect the balance of different considerations that are there, including appropriate respect for the planning processes, environmental considerations and so forth. It comes down to what is "necessary or expedient". Under this section the Minister might be making regulations that are not even necessary and that are only expedient. It is concerning that this could become something which can be used to put pressure on planning authorities to deliver an LRD opinion in the form, and perhaps in the timescale, that the Minister requires and wants. We need to be careful about that and that needs to be balanced. That is why my amendment states that the Minister may make "appropriate" regulations.

I reserve the right to bring forth an amendment on Report Stage to the effect that "necessary" should be sufficient because if it is necessary for reasons of time, so be it, but "expedient" in itself could create concerns. We know that in many cases, it has been more haste and less speed in regard to some of the provisions that have come forward in planning. We should not replicate mistakes that have led to some of the decisions that were made, in particular in regard to SHDs, not being of the quality that they should be. We should certainly seek to avoid that in this new process.

I will be brief. Having served as a councillor for 12 years, I have some understanding of the role that councils play. If there is one thing they do not have much of, it is time. The Senator has proposed that there would be multiple meetings to deal with multiple projects. I do not agree. Councillors are asked to discuss and adopt a county development plan in one meeting. Councils have the ability to deal with multiple projects at any one time.

I have a lot of sympathy for the proposal put forward by Senators Boyhan and Keogan with regard to the councils' role in this and how they would feed into this process. In that regard, I am referring to amendments Nos. 15 and 16 rather than the other amendments we are discussing now. In regard to amendments Nos. 15 and 16, a reporting mechanism needs to be found, but in regard to amendments Nos. 7 and 10 and the local development plan having relevance, we all know that similar to an application for large-scale developments, an application for a one-off house must outline how it conforms with the local area plan and all of the policies within the county development plan. Anybody who has taken time to read these applications will know that they clearly identify how the project concurs with the local area plans and other plans within the relevant area, including the county development plan. On the back end of that, the planner submits a report outlining whether the development concurs with the local area plan or the county development plan. There is a clear line of communication there in regard to how any development conforms to local area or county development plans. That commentary is specifically in regard to amendments Nos. 7 and 8.

Senator Higgins raised the issue of a land zoning application which almost made its way through Dublin County Council without the councillors knowing about it. As a former councillor, as far as I am aware, land can only be zoned by councillors. No land can be zoned without councillors' approval. Where an application is made to for land to be zoned, be that as active open space, community, education, commercial or residential space, councillors have to vote on it. That is not done by the administration. I do not understand Senator Higgins's point that the application nearly went through. Anybody who has served on a local authority fully understands that the zoning of land is the remit of the public representatives of the county.

I thank Senators for the amendments. I will deal first with amendment No. 7, tabled by Senators Boyhan, Keogan and Craughwell. There is much merit in the amendment but, as highlighted by Senator Boyhan, there is an issue with the wording of it. I had intended to do what is proposed by way of regulations but I am happy to work with the Senators on a re-worded amendment for Report Stage. We need to get the wording correct. I respect where the amendment comes from. We need to make sure there is an appropriate role for local authority members. The purpose of the legislation is to return planning with regard to large-scale developments to the local authorities. Let us not lose sight that this is about planning applications, not development plans. Senator Casey has dealt with what would be required to be submitted by way of these applications. I will work with Senator Boyhan and his colleagues on a revised amendment which can be brought forward on Report Stage. I am unable to accept the amendment today owing to the structure of it. It contains an incomplete phrase and it is an incomplete provision. I am certain we can bring forth a revised amendment. I will accept the amendment on Report Stage, subject to us being able to agree the content of it.

I am happy to accept Senator Higgins' amendment No. 13. I agree that the information should be retained and made available at such time as a planning application in respect of the proposed development is made. I am happy to accept the amendment as drafted. As I said, I will accept a Report Stage amendment from Senators Boyhan and Keogan. We just need to work on the language therein. I cannot accept amendment No. 17. I do not believe that any Minister would bring forward inappropriate regulations. I do not intend to ever do that. We need to provide in legislation that it is done correctly and we will do that. In fairness, we could include that provision in all legislation, regulation and so on. I understand the Senator's point that it is not about expediency or anything else. Any regulations that we propose to bring in would have to be appropriate. That would only be done where the regulations are appropriate. I will not be accepting amendment No. 17.

Amendments Nos. 11 and 12 seek that we would have due regard to public duty on equality and human rights and the need to prioritise the delivery of social housing. I agree. The Land Development Agency Act 2021, which was passed by the Dáil and the Seanad, provides that in population centres of over 150,000, we provide 100% social and affordable housing. I note that the Senator did not support that legislation. I am in favour of social housing and affordable housing. It was on that basis the changes to the Part V provision were brought forward and the Affordable Housing Act 2021 was enacted. That legislation is in place now, along with the largest ever housing budget. We have a fully funded plan under Housing for All. The Senator spoke about the delivery of social housing and the State prescribing the documents that the developer must submit at the LRD meeting. These matters should be considered, and are considered, on a regular basis in terms of the overall policy of my Department and the overall effect of the legislation brought forward by my Department, rather than as new matters submitted for the purpose of an LRD meeting. We need to have an overarching policy and I have provided that. In terms of the Part V provision and protection of the 10% social requirement and allowing for the additional 10% to be affordable, that is a national policy. We cannot be prescribing that at a local level. I cannot see how I could accept amendments Nos. 11 and 12 and I will not be accepting them.

As I said, I will accept amendment No. 13. I appreciate Senator Higgins' tabling that amendment. Amendment No. 10 provides that the Minister may make regulations to require the developer to submit the local area plan as part of the documents required. This amendment is not considered necessary in this instance. I intend to regulate for that.

To return to Senator Boyhan, I am happy to work with him on a revised amendment for Report Stage. I understand the sentiment and the reasoning for that amendment. Amendments Nos. 8 and 9 provide that we prescribe that information related to the principal of universal design and the estimation of greenhouse gas associated with building, including embodied energy from demolition, must be submitted, again, as part of an LRD request. As the issues proposed by the Senators are already addressed - as they are by a cross-cutting combination of requirements and measures relating to building regulations and controls, universal design guidance, road and street design - are more relevant to construction waste standards than to planning legislation, it is not appropriate or necessary to include the provisions set out in those amendments in the Bill.

As I said, I will work on amendment No. 7 with Senators Boyhan and Keogan in advance of Report Stage on Thursday. I will accept amendment No. 13. I thank the Senators for tabling their amendments.

I thank the Minister for his response in regard to amendment No. 7. I understand Report Stage has been postponed until next week, which means we have a little more time to work on a revised amendment. I thank the Minister for listening and responding. During the debate there was some suggestion that all applications are consistent. We know that not all applications are consistent with county development plans. I thank the Minister for taking on board the spirit of the amendment. Hopefully, going forward, we can come up with a suitable amendment on Report Stage.

I would like to respond to the Senator's point. The purpose of bringing the planning back to the local authorities is to ensure we do not have a situation where planning permissions are granted that are contrary to development plans, local area plans or masterplans.

We had some instances of that. I take the point the Senator is making. Report Stage being next week gives us time to work through that. We will do that. I give that commitment. The Senator will retable it for Report Stage and we then will be able to accept it.

I thank the Minister for his willingness to engage with me, Senator Boyhan and others in relation to amendments Nos. 7 and 10 on the local development plans. I look forward to a positive outcome on those coming through on Report Stage. I also thank him for accepting amendment No. 13. It is important in terms of the transparency of the process.

I urge the Minister to consider amendments Nos. 7 and 8 between now and Report Stage because, while some of the other issues might relate to general planning policy, not all projects are the same. The reason that an entirely different route of planning is being proposed for these strategic residential developments is that they are large-scale residential developments and are playing a strategic role. I suggest the strategic role they need to play is not limited to complying with standards and regulations. If these are big building blocks in the future of our country, we should get them right when it comes to disability, climate and environment. We should look for these large unit decisions to reflect, not just compliance with regulations, but best practice. We cannot afford to sign off on lots of large-scale residential developments under the regulations we have now, which involve minimal requirements. We know Part M is inadequate and not exactly where it should be. Universal design has the scope to take us much further. Similarly, there is a question about whether building emissions will be part of the trading scheme and whether they will be accounted for nationally. As new regulations are coming, I suggest that if these large-scale residential developments are strategic and key and if they will constitute a large amount of the physical building that will happen in our State, let us get it better than right. Let us do it really well.

I will be coming back with new versions of amendments Nos. 8 and 9 on Report Stage. I urge the Minister to consider them, perhaps in consultation with the Minister for the Environment, Climate and Communications. The Minister's Department and his area, like all other areas, will have extremely high sectoral targets to fulfil and this is one place he can start to fulfil them. When we have in place the optional protocol to the UN Convention on the Rights of Persons with Disabilities, every part of the State will potentially be subject to legal action in respect of fulfilling their obligations. Let us get ahead of that and do it right. Sometimes we give negative warnings but, for once, this is signalling a positive opportunity.

On zoning, of course only councillors can rezone but, unfortunately, there was a situation whereby proposed rezonings were included in a zoning map that was to be attached to a draft development plan without proper consultation. Councillors recognised that, caught it and made sure it was addressed. I applaud them for that.

The key word the Senator said was "draft".

Exactly, but even in that regard it was-----

It had to go to public consultation and then be adopted by the members.

Absolutely, but it was important the members identified there should not be draft proposals on rezonings coming through directly from officials without engagement with members.

I withdraw the amendment with the right to re-enter it.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 6, between lines 35 and 36, to insert the following:

“(i) obligations under the United Nations Convention on the Rights of Persons with a Disability, with due regard to the principle of universal design and regulations under Statutory Instrument Number 513 of 2010;”.

Amendment put and declared lost.

I move amendment No. 9:

In page 6, between lines 37 and 38, to insert the following:

“(j) an estimation of greenhouse gas emissions associated with building, including embodied energy as may be released by demolition in the course of the development;”.

Amendment put and declared lost.

I move amendment No. 10:

In page 6, between lines 37 and 38, to insert the following:

“(k) the local development plan or county development plan of the local authority in which the site is located.”.

In light of the Minister's commitment to engage on this area on Report Stage, I withdraw amendment No. 10 on local area plans.

Amendment, by leave, withdrawn.

I move amendment No. 11:

In page 6, between lines 37 and 38, to insert the following:

“(3A) The Minister shall, in the prescription of information under subsection (3), have due regard to the public duty on equality and human rights.”

Amendment put and declared lost.

I move amendment No. 12:

In page 6, between lines 37 and 38, to insert the following:

“(3B) The Minister shall, in the prescription of information under subsection (3), have due regard to the need to prioritise the delivery of social housing in the State.”.

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 6, after line 41, to insert the following:

“(5) Where a planning authority consults with a person under subsection (4), a written record shall be taken of such a consultation and kept by the planning authority and a copy of such record shall be placed and kept with the documents to which any application in respect of that proposed development relates.

Amendment agreed to.

Amendments Nos. 14 and 19 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 14:

In page 6, after line 41, to insert the following:

(6) With respect to information provided under subsection (3)(a) with regard to student accommodation, the Minister shall provide for consultation with educational institutions, representative student bodies and local residents set out conditions in respect of student accommodation, which the planning authority must have due regard to in rendering an opinion under section 32D.”.

Amendments Nos. 14 and 19 come back to the issue of student accommodation. The Minister will be aware of the significant concerns in relation to student accommodation.

Amendment No. 14 inserts a new subsection into the proposed section 32B, to stipulate that the Minister would "provide for consultation with educational institutions, [with] representative student bodies and [with] local residents [in setting] out conditions in respect of student accommodation". Student accommodation is one of the controversial elements of large-scale residential developments because of the way it has been approached, the dilution of standards, the extortionate prices in many cases attached to student accommodation and because of the fear, justified in many cases, of a slippage into other usages of student accommodation. It becomes a dormitory-style working environment, which we do not want to become the norm for how people live their lies.

Amendment No. 14 would insert a new subsection to provide that the Minister would consult with the specified groups. The Minister mentioned earlier the question of those looking for developments. They want to be able to let them during holiday periods and that is what makes it an attractive investment for them. As much as consulting with potential developers or investors, the amendment provides for consultation with the crucial stakeholders who are local residents, educational institutions and representative student bodies representing the students who will potentially live in the accommodation. It further provides that the planning authority would have due regard to that consultation and its outcomes when it renders an opinion under section 32D.

The way I have tried to phrase the amendment is so that it relates to different local authorities, because I am conscious that it is a different situation for different planning authorities. I recognise it is not the same situation in every part of the country.

Amendment No. 14 is almost part of the pre-application process, if the Minister knows what I mean. Amendment No. 19 is a little bit more after the fact. It provides that where student accommodation has received large-scale residential development planning permission, the local authority in which the proposed development is located shall, in consultation with educational institutions, representative student bodies, student unions and local residents, set out conditions in respect of student accommodation, which the planning authority must be consistent with in the rendering of its decision.

Accommodation for students in one part of the country is different from other parts but there are parts of the country where, for example, a provision that allowed holiday letting would place students in an extremely detrimental situation if they are in a key area where it is not possible to get alternative accommodation. There are parts of the country as well where local educational institutions will have a sense of the demographic needs of students including, for example, needs in relation to disability and family type, that is, the kind of needs their students have. It is very important that these key stakeholders are part of how student accommodation is planned given that, as the Minister is aware, it is one of the most controversial and frustrating elements in planning to date. This is a chance to get it right earlier by having the right input at the right stages. I hope the Minister is in an position to accept either amendment No. 14 or amendment No. 19, or possibly both.

Unfortunately, I am not in a position to accept either amendment. What we are trying to do in this legislation, and what will work, is to streamline the planning process, to get it back to local authorities. Submitting an observation on a planning application is the correct and long-established way for anyone to make an observation on a planning application. The frustration there has been heretofore with SHDs is that one could not do that. If the board decision was granted, the next step was to the courts. We are trying to streamline the process. The pre-application stage is very important. Details are submitted pre-application. The meeting happens and then there are four weeks for a detailed response to go from the planning authority to enable it to deal with the good quality applications. It is not a consultation stage for all other interested or proposed stakeholders. I cannot see how we would even endeavour to manage that requirement for student accommodation or any other planning application. The appropriate stage for engagement is when an application is lodged, because it is back with the local authority. If a person is not happy with it, he or she makes a submission. An observation or objection can be made. What is proposed is a development consenting process for people to engage in. Even if we set aside student accommodation, which I know remains a serious issue, but we are dealing with it, if we allow this, then we would allow it for every single other application where someone who has an interest in it wants to be included in the pre-application stage. We could not simply stop it at student accommodation; we would have to do it for everything. I could say I have an interest in bus stations. I am not being flippant but if we accepted that principle, that is what would happen. First, we are trying to re-democratise the planning process and get it back to the local authorities and, second, we are trying to improve it and make it more efficient across the board. I have met many students. We need good, affordable student accommodation. We also need good, affordable homes and apartments for people to live in, to own and to rent. The only way we are going to do it is to increase the supply. I cannot accept amendments Nos. 14 and 19.

I do not think it is a consent process. There may be an argument in that regard to amendment No. 19. Amendment No. 14 relates to the powers the Minister is giving himself in the Bill. In section 32B(3)(a), the Minister already allows that he might prescribe information around, for example, "the proposed types of houses and student accommodation units and their design, including proposed internal floor areas, housing density" and so forth. Amendment No. 14 states that in relation to section 32B, given that the Minister may well be prescribing information on the design of student accommodation, it would be appropriate that the guidance in relation to prescribed information he might produce would be reflective of a consultation process.

Perhaps this is the kind of measure that might not even need to be in primary legislation. However, it is important that there would be an indication that the Minister intends to engage with educational institutions and with students' unions and have that engagement inform how he approaches the powers he is giving himself in the Bill under 32B(3)(a). Perhaps that is not clear enough in the way I have framed the amendment but I will come back to the issue on Report Stage. It is a chance to address the matter. Given that the Minister will be prescribing the kinds of information he wants for student accommodation, listening to students' unions and educational institutions could be useful in making sure he does that well. I am pleased that the Minister mentioned affordability in relation to student accommodation. Again, that is a matter on which I might reserve the right to raise the matter on Report Stage in that specific affordability measures on student accommodation might be appropriate in the Bill.

Amendment, by leave, withdrawn.

Amendments Nos. 15, 16 and 27 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 15:

In page 7, between lines 13 and 14, to insert the following:

“(4) The planning authority shall ensure that the elected members of the Local Authority, Area Committee or Area Committees (established under section 50(1) of the Local Government Act 2001) or municipal district in respect of the area or areas concerned, in which the proposed large-scale residential development would be situated are notified of the LRD meeting and provided with a copy of the documents set out in 32B(2).”.

I will speak on amendments Nos. 15 and 16 exclusively. I will not talk about amendment No. 27. This comes to the kernel of it all. I have never made any secret of the fact that I strongly advocate on behalf of city and county councillors. That is something on which I pride myself and I think I do reasonably well. I have a lot of engagement with councillors from all parties and none. This again goes back to the representations that the AILG and LAMA made to the Oireachtas joint committee. I wish to single out Councillor Anne Colgan, in particular, who made a very strong case on these two amendments. It is worth taking the time to go through them. Amendment No. 15 deals with the LRD meeting itself. It suggests the" planning authority shall ensure that the elected members of the Local Authority, Area Committee or Area Committees (established under section 50(1) of the Local Government Act 2001) or municipal district in respect of the area or areas concerned, in which the proposed large-scale residential development would be situated are notified of the LRD meeting and provided with a copy of the documents set out in 32B(2)".

Amendment No. 16 deals with the LRD opinion. This is an important aspect of the legislation. It proposes that the "planning authority shall include in its LRD opinion a summary of the views of the relevant elected members on that proposed development as expressed at any meetings of each Area Committee concerned, or of the municipal district members for each municipal district concerned, as appropriate”. The Minister and I know that city and county councillors are the custodians and guardians of their city and county development plans. They do an exceptional amount of hard work. We all know how the process works and we know the extensive public engagement in the process and the stakeholder engagement with all of that. We also know of the importance of the Aarhus Convention in terms of engagement with community groups, citizens' groups, residents' groups, environmental groups, educational groups, heritage advocates such as An Taisce, which I salute, the Irish Environmental Network and all the bodies that engage and provide support.

We have a really impressive set-up in terms of our public engagement and citizens’ engagement in this county development plan.

One of the great things about local government in Ireland is that it is accessible to everyone, and even national politics is accessible to people compared to the European model. People engaged very extensively. I have spoken to a number of local authorities and the public engagement in the county development plans has gone up and is amazing in some areas. People really believe in their areas. They are stakeholders. This is a legitimate expectation. People moving to a new community or who are going to buy a house in a new community check out their city and county development plans. They want to ascertain the degree of certainty within the lifetime of a county development plan in terms of provision for schools, which is becoming a more common practice now in our forward planning, sports, recreation and a whole range of infrastructures, rightly so. We encourage that, I know the Minister encourages that and everyone else here encourages that.

It is about the importance of local government and how we are going to strengthen local government. The Minister stated that he is committed to strengthening local government. He represents a party that has a huge number of seats in local government. The three parties of the coalition Government have a very substantial number of councillors across Fine Gael, the Green Party and Fianna Fáil. They are not tone deaf to the desire for change and to have meaningful engagement with public representatives at local and municipal level.

What these two amendments are seeking is to in some way copper-fasten one of the good things in the SHD process, although there were not too many of them, and that was the public meeting. I want to talk about the importance of the public meeting and of openness and transparency. The public are looking in. They are looking in here today and, no doubt, many of our city and county councillors are looking in also. The public are looking at their council meetings. They observe the conduct of their elected representatives and the manner in which representatives conduct business on their behalf. Councillors have a mandate but that is all that they or any of us have. We have a mandate from the people who elect us. It is about accountability, about transparency and about people being able to look in, with their own eyes, to see and to listen to what people are doing for them in representing their communities.

To come back to the amendment, we are seeking an open system. The Minister talked about streamlining the planning process and bringing it back to the local planning authorities. I fully agree. That is what this amendment will do. What I am suggesting is that the meetings will happen. People sometimes get mixed up between the planning authority, the council and the elected members. None of them can work in isolation, they all have to work together and they all have to respect each other. However, we know that many a plan has slipped out of a planning authority or out of a county hall and gone to the board, and it has not been compliant with the wishes of, or at least not fully compliant with the objectives of, a county development plan.

These plans are put together by the elected members with the professional advice of the planners and, no doubt, people in the Department who have that expertise. Councillors are not planners, but they are highly aware of and highly sensitive to the needs of their communities. They tease out these development plans. Many of their proposals are rejected as they are teased out through the county development plan process. I observed the Dún Laoghaire-Rathdown county development plan and it was great to see a councillor standing up to the management and saying, “No, we do not agree with you and we are calling a vote.” They voted and the planners were not particularly happy, but that is the process. It has not gone and the Office of the Planning Regulator, the Department and the Minister may wish at some point to take a decision, as would be their right given there is provision for that in certain circumstances, but at least there is engagement, which is the important thing.

We must empower our councillors. We talk about a mayor for Limerick. Think of that. Are we suggesting that a mayor and the councillors of Limerick in three years' time would not be able to have a meeting to discuss this type of application? Could we see a situation where, somehow, it is just said that they can put in an application. It was not that many years ago when I had to make a strong case in the Seanad to allow councillors to not have to pay. The Government of the day was in favour of charging them. I have no doubt someone will tell me here today, “Oh, they can scribble a note and they do not have to pay”, or that they can send it into the process. Yes, they can do that and I would not stop that either, but I like this collective input, this collective decision. I like the idea that they can do this, although within very tight time constraints, which I accept, and no one should be frustrating the process. City and county councillors should be facilitated to have this specific meeting and to have their views recorded and attached to the opinion.

That is what these two amendments are about. I hope the Minister can accept them. It is my intention to call a vote on them if he does not. I have given such a commitment. I engaged with Senators across all parties and was asked that I would please push these two simple amendments. They are two simple asks on behalf of the AILG and LAMA. I do not think the Minister has any major difficulty with them.

I know what the CCMA’s view is on this matter but the CCMA is not running local government - the Minister is. We all are, given we are the legislators. The CCMA has its meetings and its decisions and it has its views, which I respect, but we are making the legislation and Deputy Darragh O'Brien is the Minister. I am very keen that the Minister would find a way to support and embed these two amendments in the primary legislation.

I concur with Senator Boyhan. Amendment No. 15 is in the same vein as the previous amendment from the Independent Group. It would present the documents detailing an application for the LRD to the elected members of the local council. This will enable the members to have informed discussions regarding the LRD and the benefits it would bring to the area, as well as serving to highlight areas of possible concern. The considered views of local elected representatives must be present in any decision-making process whose outcome impacts local communities. This is especially the case when dealing with housing projects of the scale of LRDs.

To complement the previous amendment, amendment No. 16 incorporates the debate and discussion between local elected members into An Bord Pleanála’s opinion as to whether or not the documents submitted by the prospective applicant constitute a reasonable basis on which to make the application for permission for the proposed LRD. This inclusion accurately reflects the importance of such debate and it is fitting that discussions between councillors be included in the opinion.

These recommendations and amendments have been forwarded to us by the AILG and LAMA members. It is very important that we listen to local representatives. I implore the Minister to accept these two amendments.

I strongly support these amendments. In particular, the meeting as described will add immensely to the quality of the decisions being made and, crucially, to the outcome in terms of the quality of the residential developments that emerge from the process. It is not sufficient that individual representative members of the authority might be able to put in submissions. It is crucial that there would be, as Senator Boyhan has eloquently described, that kind of constructive discussion in public which allows things to be teased out and which allows sometimes very different but equally useful perspectives to be put alongside each other in regard to a project. Then, of course, there is the complementary amendment that it would be reflected in the LRD opinion and would enter the process.

These amendments would be very positive. First, they would lead to better outcomes and better decisions, and would lead to a more effective process with fewer challenges at the other end. I also think they would go a long way towards rebuilding the confidence of local authority members, who have felt very sidelined by the processes and who have felt at times pushed to the margins in regard to crucial decisions. When people do not have confidence in the local authority members they elect being able to really influence decisions that are very important and to express the local public's views in regard to issues and translate that upwards, it kind of diminishes confidence in democracy. We have seen a huge amount of this. It is a sad trend and there are many other issues that factor into it. We have seen that many local authority members are quitting. We are not retaining them.

People who are passionate and run for local election because they care about an area and they want to help shape it become frustrated for a number of different reasons. One such reason is that because they are not seen they are unable to have that input and that expression that inspired them to run for office. There are multiple benefits to accepting the amendments put forward by Senators Boyhan, Craughwell, Keogan and others. There are benefits in terms of confidence in our local electoral and political systems, transparency, local information and insight into the decisions that are made and, ultimately, for the very small amount of time that it might take to have that one meeting on a particular project, better outcomes and more likelihood of the project being successful in terms of it being built and moving forward and successful in terms of it genuinely contributing to the place in which it is located.

Everything I had intended to say has been already said. The basis of the amendment is the inclusion of local authorities, councillors and representatives in the process in order that they can keep up to date with regard to it. As a former councillor, I know that there are many ways to engage. This provision drives that home a little bit better. It gives more of a statutory basis to that engagement in that councillors and the local authorities will have to be informed. It is pretty straightforward. Previous speakers have already set out the importance of having local representatives included. The amendment provides a way for that to be formalised.

We must acknowledge what the Minister has done here. This Bill restores local democracy. It restores decision making to a local level. That must be acknowledged. We are restoring the county development plan adopted by the council and we are asking the professional planners to understand that and to make sure that their decisions conform with the local county development plans. An Bord Pleanála, with its specialist crew, does not have local knowledge. The people we are speaking about are local planners who, more than likely, will be living in the areas, interacting with the community groups we all recognise and understanding the local issues. That is important.

I am not 100% sure of this but I do not think the Minister is in a position to accept the amendments. The legislation triggers an official mechanism with regard to how each local authority member is informed that an application has been made for a large-scale residential development. Under the legislation, members have to be informed that an application has been made. It is because of the work and campaigning of Senator Boyhan over many years that councillors can now make an observation and offer their views on planning applications in this space free of charge. I fully understand the points the Senator makes and I have a lot of sympathy for his argument. However, the legislation makes provision for a councillor to be informed that an application has been made in his or her area. Following on from the good work of Senator Boyhan, such councillors can now make an observation free of charge on that planning application, when submitted. The planner in making a final decision must take cognisance in his or her report of the submission made by that councillor. While that does not go all the way in terms of what is being sought, it must be acknowledged that this legislation restores local democracy. It restores decision-making to a local authority area and provides an option for local councillors to make submissions in regard to each application which, thanks to the work of Senator Boyhan, they can do free of charge.

It would not be correct or fair of me to try to anticipate what the Minister is going to say. I do not propose to do that. Instead, I will read into the record a letter dated September 2021 to the Minister of State with responsibility for planning and local government, Deputy Burke. It states:

Dear Minister,

I have been asked by the AILG to respond to your Department's recent publication of the General Scheme of the Planning and Development (Amendment)(LSRD) Bill 2021.

The Association broadly welcomes this measure in that it brings an end to the Strategic Housing Development process, dating from the Planning & Development (Housing) & Residential Tenancies Act 2016, which by-passed local authorities in the case of large scale housing planning applications. The 2021 Bill - properly - returns this function to the local authorities.

It is noted that the briefing material accompanying the new Bill refers to the fact that the Bill incorporates some of the features of the SHD process such as the mandatory pre-application consultations and the accelerated decision times.

A feature of the 2016 procedure that was commendable was the explicit provision for consultation of elected members in open council in relation to large scale residential development and that their views would be recorded and formally communicated to An Bord Pleanala.

Such consultation of elected members is not included in the current Bill as published.

The Association strongly believes that there is merit in continuing with such a structured consultation of the elected members given the large scale of the development involved, it's likely benefits and impacts for an area, and the desirability of the Councillors having an input for their local knowledge into the consideration of the application....

The letter is not much longer. It continues:

Therefore, it is the Association's view that the Bill needs to include explicit provision prohibiting the inclusion in the plan of features that are unacceptable to the Development/Local Area Plan of the authority in question.

In summary, the Association requests that the Bill be amended to include:

1. A mandatory consultation channel for the elected council similar to that in the outgoing Act of 2016 Section 8 (4) & (5).

2. A prohibition on characteristics conflicting with the planning authority development plan being included by applicants at the primary application stage.

That is what they have asked for. They appeared before the committee and they actively engaged. We questioned them. It was a very thorough engagement. People valued their contribution. They affirmed in positive questioning. I will not go far as to say they affirmed an absolute commitment, but they did. I cannot understand why the Minister would not consider the inclusion of this provision. He might confirm to the Seanad what engagement he has had with the CCMA, its views and its reasons for opposing this legislation. It is on record as opposing it. It has been in touch with the Department of Housing, Local Government and Heritage about it. There is active engagement with the CCMA. I would be somewhat surprised if the Minister was not able to share that information with us. I will come back to that when the Minister has responded.

We should send out a clear signal about this. There is nothing to stop the Minister doing this if he believes in strengthening the power of city and county councillors in their city and county halls in an open and transparent manner. One of the things that the tribunals constantly stated was that there was a suggestion all along that elected members were engaging with planners and developers off-side. There was a lot of criticism of that, and rightly so.

The amendment seeks "a meeting" where the city and county councillors who wish to engage - there is nothing compulsory about this suggestion - with the planners can do so. They are the professional planners but clearly they have to take advice. It is about mutual respect for the professional planners and the elected members who are on the ground, who represent their communities and who, in many cases, know best the lie of the land in an area. I ask the Minister to consider these amendments, which were proposed by city and county councillors. I am a conduit here tonight, but I believe in what they are doing. I do not stand here and advocate and pursue something that I do not believe in. This is the right decision. We should stand by them and show our solidarity with them. All of the statements about better local government, better democracy and bringing it local mean nothing if we cannot respond in a meaningful way to the two simple requests that these associations, with which the Minister is very familiar, have asked for.

I understand why the amendments are tabled but I will not be accepting them. I will explain why. Fundamentally, what we are doing here is returning LRD-type developments to the local level. The importance and emphasis on the development plan is being restored.

That is an important reserved function of our councillors.

Regarding everything the Minister of State, Deputy Burke, and I set out to do to date in local government, going back to the terms and conditions for councillors, to which we gave a commitment, and to giving powers to local councillors to pause development plans, which some people said could not be done, we have done. I have done everything I can to strike a balance and to ensure local councillors have powers appropriate to the jobs they do. Senator Casey was right in saying our councillors need to be au fait with what is happening in the areas in which they were elected. Most of them are not professional planners. We do not want any of our public representatives to get involved in specific planning applications and recommendations. What we want is development plan-led, local area plan-led and masterplan-led planning, The County and City Management Association raised the issue of pre-application consultation in advance of strategic housing development applications going to An Bord Pleanála. That was something of a sop back at that time because the decision on it was above and beyond the role of the council and went straight to An Bord Pleanála. At that time there was a process where the views of the councillors were noted in a written statement included in a strategic housing development application or in the submission made by the council. I and the Government want to do more than that. It was agreed by me, the Minister of State, Deputy Burke, and others to get large-scale residential developments back under the decision-making process of the councils and the planners in the context of what all of our councillors are dealing with on a daily basis.

Importantly, the Bill includes a provision in section 5 which states, "Where a planning authority receives an application for permission to which section 32A(1) applies it shall notify the elected members of the planning authority of the making of the application, of where the application is available for inspection, and of such other information as may be prescribed." Planning authorities must do that. We have included that provision in the Bill. In addition, we want to balance the role of councillors, whom I highly regard and respect. I was a councillor. I value local government and councillors. Everything I and the Government have done in the short time we have been in office proves that.

We must also must make sure we have a streamlined planning system. Let us not forget what this legislation is about. It seeks to streamline our planning system to deliver, on average, 33,000 good quality homes for our people across the country. We have had issues in planning, not of our councillors making I might add. Much more reform in planning is required such as reform of the judicial review process and the work under way by the Attorney General and my Department of a full planning review involving our officials. There are matters that need to be amended.

We need to make sure we have a planning process for large-scale residential developments that is timebound. I draw attention to the turnaround times set in the legislation to ensure there are pre-planning meetings that are transparent. We accepted an amendment this evening to further underpin that. Transparency is being provided. When a planning application is lodged it must be responded to, further information can only be requested in certain specific cases and we will have a conclusion to the process in a 16-week period. Also, importantly, with respect to observations, be they from elected members or residents, we are rightly allowing recourse to An Bord Pleanála. The board is not the first port of call, as it was in the case of strategic housing developments. The Bill restores planning back to our local authorities but with an emphasis on the development plan. That is what this is about. Our councillors have a reserved function and they are the people who are elected to put development plans together, obviously in co-operation and consultation with the executive in each of the local authorities. This Bill restores the primacy of development plans. There were instances with respect to some decisions under the strategic housing development process, the most contentious of which were ones where people rightly raised their concerns and development plans were set aside and disregarded. That will not happen any more with the passing of this Bill, and rightly so.

While I completely understand what the Senators are trying to achieve I put it to them that we are achieving that and more. Planning has been restored to the local authorities. The primacy of the development plan is restored. We have a specific section, section 5(a), which ensures the elected members are, as a matter of law, informed of any application tabled. In addition, thanks to the work Senator Boyhan and others did at the time, elected members, should they wish to make a written submission to a planning application, can do so without it involving any cost for them. We must also make sure we do not have a planning system that will tie up local planning authorities in many different stages of planning along the line that will delay the provision of much-needed homes and facilities for our people. It is about striking that balance. In fairness, the Senators understand that. In order to strike that balance, I am not in a position to accept amendments Nos. 15, 16 or 27. The Department advised previously that this has been done by way of circular, and that is important. The facility already exists for elected members to seek information or factual matters relating to particular planning applications as they deem fit on a case-by-case basis. That is only right where a councillor has a particular interest in a application that has gone forward.

We know what this legislation is about. It restores the primacy of the development plan. We are providing in law that elected members must be informed of any application that is lodged. They can make submissions to it and seek factual information on those matters. That is appropriate in balancing the process and having a streamlined planning system that will deliver homes, facilities and infrastructure for our people and, in this instance, in large-scale residential developments. We need to get moving with those. In my view it is a better process than the strategic housing development process.

I hear what the Minister is saying but I do not agree with him. He has more or less the same officials in his Department as were there under the previous Administration. We heard all this previously with the strategic housing development process. They made a great glowing impression on us that the strategic housing development systems would involve power for the councils and that there would be meetings. It was to be brilliant, they were all going to have engagement, the public would be looking in on the process and everything was great. Most of the boys are still down in the Custom House and now it is a different ball game. The goalposts are being moved again. What was not envisaged at that time was that it was actually a very good system. Everyone was critical of it but the councillors engaged with it and it worked.

(Interruptions).

I advise the Minister the councillors engaged with the process. He is not councillor and neither am I. It is no big deal for councillors to be informed of planning. It is a statutory obligation of the planning authority to notify everybody of a planning application. There are planning listings. The planning authorities have that statutory obligation. That is nothing new. It was always the case.

No it was not.

I am not arguing with anybody. I am just making the point. My understanding is that it was always the case. I receive a list of planning from my planning authority every Thursday. I receive it every single week as a citizen. It has nothing to do with my status as a politician and I see all the planning applications. It is about public participation and engagement. This is critically important. The Minister has a different view from me. That is fair enough and I respect that. This issue is important. I will pursue both of our amendments today.

I will be brief. The amendments tabled collectively by me and Senators Keogan and Boyhan have been requested by the Association of Irish Local Government which is a cross-party group. It involves all parties and none. I must bow to its members' knowledge. They are the people on the ground who must oversee planning in their areas.

I accept the Minister's bona fides and I do understand the difficulties he has in some areas in getting planning through. However, I find it deeply disturbing that amendments being brought forward by the people on the ground through their representatives in this House are rejected. I will leave it at that. There is nothing more I can say.

We need to stop trying to make a virtue of past mistakes. There were mistakes on the strategic housing developments. We highlighted exactly what would go wrong and it went wrong. There is the headline item here that we are bringing back planning. However, let us be clear: the Minister is partially bringing back planning but what happened with the strategic housing developments created many problems. The Minister says we need to look at judicial review. Let us be clear about the elephant in the room: it is not judicial reviews existing, it is An Bord Pleanála making bad quality decisions that do not satisfy appropriate process and being found wrong time and again by our courts because it has failed to apply European law, local law and due process. The problem is with An Bord Pleanála. That is the part of the system that needs reform. It is not a matter of getting rid of anything that might get in the way of what it wants to do. One cannot dispose of all of the elements of democracy, due legal process and European legislation, which it has been found to have flouted in the past so conveniently. That is a separate day's argument. It relates here because we were told that councillors are the problem, that councils slow everything down and that is why nothing is getting built, regarding the strategic housing developments yet -----

Senator, regarding these amendments -----

This relates directly to this question. Many strategic housing developments were badly planned which led to judicial reviews because they were badly designed because they did not go through the proper scrutiny at local authority level. Many projects that did get planning permission were not commenced. Over half were not commenced. Councillors were not holding them up. They had planning permission but the developers were not starting to build. If we are in such a rush, there are many other elements to look at. I will table amendments later on "use it or lose it" for those who get strategic planning permission or permission for future large-scale residential developments. The part that should be regarded as disposable in the haste to development should not be the voice of elected members. With absolute respect to the CCMA, it is not the sole and only representative or champion of local area and local development plans. The development of local area and local development plans is a key responsibility for councillors and one which they take very seriously. That is why the example I gave earlier does matter because there was a city manager, Owen Keegan, who said he had dropped the ball by proposing rezonings in a map to the public without having checked with councillors. That has now been remedied but it is an example of where a local development plan, which is supposed to be a core competence of local councillors, where the city manager took a different approach.

It is very important that we have the useful and constructive engagement not just in the development of the local area and local development plan but that local members, council members and local authority members would have some opportunity. The single meeting described by Senator Boyhan, where people can choose to attend or not, is not a very long addition to a process. That single meeting would have the value of those who had championed and developed the local area and local development plan being in a position to champion and reflect on it and bring their insight to bear. The process is not an additional consent mechanism but simply a meeting. It adds a lot to the process without considerable delay. I urge the Minister to reconsider this between now and Report Stage. It would be highly regrettable were we to miss this opportunity to bring that insight to the process.

I raise two things. Senator Boyhan raises something that is a hit and miss scenario. Each local authority treats this differently. Some do send out a weekly planning list to members, others do not. Weekly planning lists are available to any member of the public. I know the one in Wicklow, other counties may have a different system. This puts it into legislation that the council in the local area must be informed of an application being made under this legislation. It puts it in law where it is not in law now. Instead it is up to every local authority whether they send the public representatives the planning application list or not. There is no obligation to send it out. Under this legislation, they would have.

Senator Higgins has spoken of this zoning thing. I am a bit confused at this stage. It is my understanding that a chief executive must recommend a proposed zoning to the members by way of a report. That report is discussed at a meeting. If councillors approve it, then it goes on public display for adoption. I believe the council was doing its work and it copped it because the only way a zoning can be proposed is through local councillors.

I want to be clear because as we talk here, others are listening outside. Amendments Nos. 15 and 16 are in response to the AILG and LAMA request of myself and our group. They seek to put in place a guarantee that there will be a meeting in public of the council or the municipal authority or the area committee of which an LRD, this application, will be discussed, at which a planner will be there to take the elected members through the proposal. The elected members will be able to set out on the public record their views in relation to this large-scale development. Those views will then be embodied and incorporated into the planner's opinion which would be subsequently sent into the board. That is all I am asking to do here regarding these two amendments. The amendments speak for themselves but I want to be crystal clear. I am not particularly interested in who is going to be informed of what. This is about the elected members sitting in their council chambers in an open and transparent way, making a contribution in their municipal or local authorities. It is where local democracy should take place and where people should be listened to and engage. It is about a mutual respect for the professional planners and the councillors to engage and to share their knowledge. That is what I am attempting to do and why I will put the amendment to a vote today so that we will have a record of where people stand on this.

Amendment put:
The Committee divided: Tá, 10; Níl, 21.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • Mullen, Rónán.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Dolan, Aisling.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Sharon Keogan and Victor Boyhan; Níl, Senators Lisa Chambers and Seán Kyne.
Amendment declared lost.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.

I move amendment No. 16:

In page 7, after line 42, to insert the following:

“(2)The planning authority shall include in its LRD opinion a summary of the views of the relevant elected members on that proposed development as expressed at any meetings of each Area Committee concerned, or of the municipal district members for each municipal district concerned, as appropriate.”.

Amendment put:
The Committee divided: Tá, 10; Níl, 21.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Keogan, Sharon.
  • Mullen, Rónán.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Dolan, Aisling.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • Martin, Vincent P.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Sharon Keogan and Victor Boyhan; Níl, Senators Lisa Chambers and Seán Kyne.
Amendment declared lost.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.

I move amendment No. 17:

In page 8, line 11, after “make” to insert “appropriate”.

Amendment put and declared lost.
Amendment No. 18 not moved.

I move amendment No. 19:

In page 8, between lines 37 and 38, to insert the following:

"Insertion of section 32I into Principal Act

32I. In respect of student accommodation which receives LRD planning permission, the local authority in which the proposed development is located shall in consultation with educational institutions, representative student bodies and local residents set out conditions in respect of student accommodation, which the planning authority must be consistent with in the rendering of their decision.".

Amendment put and declared lost.

Amendment No. 20 in the names of Senators Higgins and Black. Amendments Nos. 20 and 21 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 20:

In page 8, between lines 37 and 38, to insert the following:

"Insertion of Section 32J into Principal Act

32J. Within 18 months of the commencement of sections 32A to 32G inclusive, a review shall be conducted by An Bord Pleanála and where new regulations with regard to planning, including regulation in respect of the environment and disability, supplementary documentation must be submitted to the planning authority by applications not yet granted permission which demonstrate incorporation of any new regulations.".

Both of these amendments address a similar scenario. It is somewhat similar to the issues that I suggested we should address in the pre-meeting stages. I believe they could be worded in a stronger way and I will consider rewording these and producing reworded versions of them on Report Stage. For now, I will highlight the core policy intent of these amendments Nos. 20 and 21.

Amendment No. 20 inserts a new section into the principal Act, which would require that within 18 months of the commencement of the new sections that are being inserted, namely, sections 32A to 32G, inclusive, there would be a review conducted by An Bord Pleanála which would identify new regulations in relation to planning, including regulation in respect of the environment and disability, and where appropriate, in relation to applications that are in process but have not yet been granted permission, supplementary documentation would be submitted which demonstrate the incorporation of any new regulations.

This relates to the fact I highlighted previously. There will be a strengthening of disability regulations and of disability access regulations, both in terms of Part M in terms of universal access and in terms of the rights of persons with a disability in relation to shared public spaces and, indeed, other amenities. There is planned to be new directives coming from Europe in respect of planning, particularly in terms of planning in environment. A core element of the Fit for 55 package of new law coming from the EU in respect of climate includes new measures and new directives in respect of environment and climate emissions. That will change building standards. Amendment No. 20 is giving the responsibility to An Bord Pleanála to almost assess what are these new measures and to ask that supplementary documentation would be submitted in relation to applications which are in train with it.

Amendment No. 21 relates more to planning applicants who may have received the permission and seeks that they would provide supplementary documentation demonstrating how they have incorporated the new directives into their development. We do not want a situation whereby applicants for large-scale residential development either make an application or are granted permission and before they effectively commence work - that is the key element and the word "commencement" or a commencement clause should be included in these amendments, the regulations, that is, the European directives and laws change but because they have been granted permission previously or because they made their application before the new change in directives and the new change in standards, those standards will not necessarily be reflected in the development.

This is that core point I made earlier where these are big building blocks in the future residential development, the future building and the future capital infrastructure of the State and it is important that we get them right. I am open to rewordings of my amendments Nos. 20 and 21, as I believe they are imperfectly worded and I may refine them further on Report Stage. However, the core policy intent I hope the Minister can address is the question of how do we ensure that the new and best standards - this is not hypothetical as these are new standards we know are coming, particularly in respect of environment, as well as in respect of disability - are reflected. For example, if we have 627 new residences being built, we want to make sure they are up to the best new standards and that we have not effectively committed ourselves with a hostage to fortune to a lesser standard. Perhaps the Minister might engage in terms of that question of the core policy intent here, which is the new European directives and building regulations. At different points, if a project has already made an application or has been granted planning permission but has not yet commenced, can the Minister confirm that there will be measures to ensure and indicate how those projects will comply with the best of standards and regulations if they have changed in that interim period?

Amendment No. 20 relates to the updating of LRD requirements in light of new planning regulations. The Senator said that she might explore the wording further for Report Stage, but as it stands, this amendment is not necessary as under section 34(1) of the Planning and Development Act 2000 the planning authority may only grant permissions where all the requirements of existing regulations have been complied with. Regarding the idea that An Bord Pleanála would review regulations, that body must comply with regulations and it does not review them. The board complies with the planning regulations that we set down because it is a planning authority. I do not think, therefore, that what is being suggested would be appropriate. It might cross over the area of responsibility of An Bord Pleanála, which is an independent planning authority. The Senator mentioned that she may wish to have a look at the wording of this amendment and tighten it up, but I cannot accept it now.

Turning to amendment No. 21, in real terms this would be retrospectively applying EU directives to LRD developments. Under this legislation, that permission would already have been granted. Planning legislation cannot impose obligations retrospectively, and that is one of the things we have discussed here often. In a situation where an application has gone through or is going through a process in the planning system which was in place at the time the application was lodged, then it must also conclude in that process. It is not possible to retrospectively change it. Furthermore, EU directives do not have retrospective effect. I take the point the Senator made about standards. We have exacting and good building standards, and rightly so, and they are applied, as are good planning standards. I am not, therefore, in a position to accept either amendment No. 20 or amendment No. 21.

I accept the Minister's point regarding the wording of amendment No. 20. I share that concern. There is a point that is in between, however, that is not necessarily retrospective. I am referring to the point in between the granting of planning permission and the commencement of a project. That is the point that I want to get at in the context of amendment No. 21. I again appreciate that I could word this more tightly. In that context, however, I do not know if what is being suggested is retrospective. It is a matter of good planning.

In the case of strategic housing developments, unfortunately, when many such projects received planning permission, that was subsequently sat on, traded, sold or likewise treated as a commodity. We do not want to have that type of situation in respect of large-scale developments granted in certain periods of time. If there was no engagement during the time between the granting of planning permission and commencement, and then further requirements or supplementary processes could be put in place, that in itself would be a good imperative to encourage speedy and early action to be taken in that time between the granting of planning permission and the commencement. Some of my other amendments concern the length of time that may exist between the granting of planning permission and commencement, and how acceptable that is.

We are in a housing crisis and we need to provide housing, but we are also in a climate crisis and we have substantial targets for the reduction of emissions that we must meet. That is an existential crisis and a matter of survival. In that context, we have committed to those targets and they are enshrined in law. Some of them relate to construction. It is a key area and that is why it is a core part of European law. I hate to have amendments, but they may be necessary if we cannot guarantee that there will be some mechanism, or that we will look towards some mechanism, in respect of anticipating these standards and making them part of this process. It would not need to be applied retrospectively, but there would be a need for an understanding that the planning permission granted would be conditional on an expectation that if standards change between the granting of planning permission and the commencement, those new standards would then be expected to be met. That may be another way around it.

If we do not do that, then I will have to submit amendments on Report Stage to state that we should not be going ahead with the granting of large-scale residential developments that do not meet the new standards that are on the way. They are not far off and come into effect in three or four months. Perhaps, therefore, we should not be granting any planning permissions while knowing that the standards are about to go up. We should not be slipping anything under a lower bar. I appreciate that we have standards in place now, but they are not fit for purpose in respect of the environmental impact. They are not at the standard and the level that we need, and that is why they are being reviewed at EU level. It is also why this is a key point in respect of materials and embodied emissions and why it is one of the core areas of policy change which has been identified as necessary in this context.

Again, I am not saying this because I want to delay things. That is why I am trying to think of ways in which we can build real world facts into this legislation and into the proposed process. If we cannot do that, then perhaps we cannot start this process. I say that because we do not want to commit to the development of 10,000 residential units that will be built to lower standards than those we need to meet our emissions reduction targets. I am not trying to create difficulties, and that is why this is a little bit awkward. I am trying to find two or three ways of addressing this issue and I would appreciate engagement from the Minister's Department on how he wishes to tackle it. This is not an abstract or separate issue; it is going to be back on our table in just a few months' time. We may as well get ahead of it and try to have this legislation fit for purpose in this regard.

I cannot accept the amendments, but it is open to the Senator to table amendments on Report Stage and we will look at each amendment on its merit.

Amendment, by leave, withdrawn.

I move amendment No. 21:

In page 8, between lines 37 and 38, to insert the following:

“Insertion of section 32K into Principal Act

32K. (1) Where new European Union Directives are issued in respect of building standards or planning, applicants who have received LRD permission must provide supplementary documentation to the planning authority demonstrating how the applicant has incorporated the new Directives into their development.

(2) Where a new LRD application must be made in respect of subsection (1) the State shall not be liable for any costs incurred by the applicant.”.

Amendment, by leave, withdrawn.

Amendment No. 22 is in the names of Senators Higgins and Black. Amendments Nos. 22 and 42 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 22:

In page 8, between lines 37 and 38, to insert the following:

“Insertion of section 32L into Principal Act

32L. Where an application for planning permission to which section 32A(1) applies has been granted but construction has not commenced on that site within a period of 48 months following the decision of the planning authority, such planning permission shall be revoked.”.

Both of these amendments are, effectively, "use it or lose it" clauses. I had sought stronger use it or lose it provisions in respect of SHDs when we had that debate. If we had put in stronger provisions, then we would not have ended up with the situation where such a large number of the SHDs received their fast-track planning permission and then did not commence and did not build. The impact of Covid-19 is not responsible for all of that, because in many cases planning permission was received before the virus struck. I was here when that legislation passed in 2017, and many developments were granted planning permission in 2017, 2018 and 2019. The developers continued to not commence the works associated with those grants of planning permission. In several cases, indeed, the site with planning permission effectively became a commodity that could change hands and, in that way, became an asset.

Use it or lose it is, therefore, a concept that is important in ensuring that we come out of these processes with housing and not simply with commodities, assets and value products that are sites with planning permission or proposed building units that can be moved around within portfolios. If we want to emerge from these processes with developments and residences, then we must be clear that the planning permissions we grant require projects to be commenced and to be built.

Amendment No. 22 refers to, "Where an application for planning permission [...] has been granted but construction has not commenced on that site within a period of 48 months, [which is just over two years], following the decision of the planning authority, such planning permission shall be revoked". Again, if we are creating a streamlined or fast-tracked process, then it must be followed by streamlined action. It is not appropriate that there would be a bypassing of the normal processes of engagement in respect of a local authority planning permission and then an An Bord Pleanála planning permission process, if the applicants do not intend to deliver an additional benefit to the State, that is, speedier delivery of residential development. We must be clear that we are giving something to applicants for planning permission in this legislation. It will be much harder for some individual to go and build three houses than it will be for somebody to build a large-scale residential development.

We do that and make this process streamlined as well because we are ensuring that there is a priority, so it has to deliver.

Amendment No. 42 relates to the strategic housing development Act of 2016 and provides that: "Where an application under section 16 in respect of the Act of 2016 is proceeded with and planning permission has been granted, such planning permission shall be revoked 12 months after it has been granted in respect of scenarios where construction of the proposed development has not commenced". This relates to the further clause where there may still be applications - other Members have proposed amendments on this - which have begun and which may continue until June in terms of being fully granted. If they are granted, then the use-it-or-lose it clause of 12 months should apply.

The amendment also provides that where applications have been granted planning permission prior to this enactment under the Act of 2016 and if construction of the proposed developments has not commenced 12 months subsequent to the passing of this Bill, which is effectively 12 months from now, such fast-tracked planning permission given to those SHDs should be revoked. We need a fire to move forward on this. We have heard a great deal about how apparently having one meeting of councillors is somehow going to delay the process, so it is quite reasonable that we should not then give more than 12 months in the case of strategic housing developments or more than 48 months in the case of these new large-scale residential developments for the developers to take action, commence the projects and start delivering.

Just to anticipate, the Minister might mention something such as the Covid emergency. If we face another health emergency, there are provisions for emergency legislation, such as we brought forward in respect of planning and various other matters during the Covid emergency. If the Minister accepts these use-it-or-lose-it amendments, there is nothing to stop a pause being put on that ticking clock of 12 or 18 months. If there is an emergency, that can be provided for in emergency legislation. However, this legislation on housing has to deliver for what we believe to be a trajectory of urgency and a trajectory of good practice and expectation. In that case, I hope the Minister will accept these use-it-or-lose-it clauses. If he cannot accept them, he might indicate what use-it-or-lose-it clauses he intends to bring forward in respect of both the strategic housing development planning permissions that are still with us and the new large-scale residential developments.

I did not think I would ever hear the Senator say that we need to light or start a fire, but she did on this occasion.

All of us want to ensure that where good permissions are granted they are activated. There are 80,000 planning permissions across the country that are yet to be activated. All have various different timeframes, but they have been granted permission. One of the jobs we have to do is to ensure they are activated where we can, particularly in the cities. In Dublin there are about 40,000 planning permissions that have yet to be effected and moved on. A serious objective in Housing for All is the introduction of a new tax to activate vacant land. We need to do that, and that is the zoned land tax which is being introduced in the Finance Bill. Senators will have a role in that. It is a very significant change as a land activation measure. There is also the croí cónaithe cities fund, which will assist with viability for owner-occupier developments over four storeys and get those permissions moving. There are also other measures such as the urban development zones and the land value sharing, which is a long-standing Kenny-style report measure which we are introducing for future zoned lands in respect of how the State will capture the uplift in the value there.

I am genuinely not sure how amendment No. 42 will actually work. It is something we will have to examine. The use-it-or-lose-it principle is something I understand at a personal level because we want to see things moving. We also have to see viable permissions get to breaking ground and delivering the homes we need. The measures that I and the Minister for Finance, Deputy Donohoe, are bringing forward both on the planning side, including owner-occupier guarantees and the other measures I have mentioned, and the zoned land tax piece, in particular, from the Minister for Finance will operate as use-it-or-lose-it measures for residential development land which remains vacant and unactivated. We need to do that. I will keep that under review also with regard to whether there are any other measures we can take on the planning side by way of our planning review.

I do not believe the amendment is appropriate in this legislation because this is about replacing SHDs for new applications that are going to come in with a new streamlined process for large-scale residential developments of over 100 units. For the first time, owner-occupiers will be taken into account. This is a forward-looking legislative measure. While I understand where the Senator is coming from with the use-it-or-lose-it piece and the frustration with some of those and wanting to get applications that are viable activated, I do not believe this legislation is the right place for it. I am not sure how we could even start to make amendment No. 42 work because it refers to permissions granted under the 2016 Act and tries to put a provision in this Bill that would flow into this legislation. This legislation is forward looking for new applications, not for existing permissions that have been granted.

I ask the Minister to comment on amendment No. 22, which relates to these proposals in terms of where an application has been granted but construction has not commenced in a period of 48 months. That is these large-scale residential developments. We sought a use-it-or-lose-it clause for strategic housing developments but we did not get an effective clause. That is one of the reasons we have a lot of these. They did use it, but it was used as a commodity. That is the difference; it is between housing as something one delivers or sites with permission as something one can sell and move about.

The Minister spoke about amendment No. 42, which is an attempt to address the point we raised at the time the 2016 Act on strategic housing development was being brought through. We highlighted that if we did not put it in, it could lead to lots of projects and valid planning permissions of high quality that are granted not being commenced. There is no reason for them not commencing except that they are not commencing. They already have the planning permission and everything that goes with that. That was an attempt to address a problem that was signalled then. Even if amendment No. 42 is looking backwards and even if the Minister cannot address it in terms of then, we can certainly learn from it and we should learn from it.

With respect, I will not go into the debate on the zoned land tax. It is effectively a cut. Yes, local authorities were not delivering in imposing the vacant site tax, but it is down from 7% to 3%. To be clear, the value of assets in the housing area is increasing at a great deal more than 3% per year. Housing and property as an area of speculative investment are delivering dividends of far more than 3% per year, so it is a small amount to carry. The really meaningful piece that matters is vacant property tax, and the opportunity was constrained in the recent property tax review. The Minister inserted a clause to state that it would be gathered on a statistical basis. Vacant property tax is what will really matter if we are talking about that aspect of the issue, and I say that as somebody who lives in the city centre and sees vacant apartments for wild prices being kept empty because it keeps the asset price.

However, leaving aside all those measures, we are just talking about large-scale residential developments here. If we give planning permission for 500 or 600 houses or 800 apartments and if that planning permission is not used within 48 months, is it not reasonable to have a use-it-or-lose-it clause? This is something we can do. This is the planning process.

This is not about zoned land or anything else. If someone is given permission for 800 houses, it is about ensuring they use it to build them and not simply have a useful asset of a site with planning permission to trade with portfolio managers. That is the difference. Let us learn from the mistakes of the strategic housing development plan and insert a use-it-or-lose-it clause. The Minister does not need to accept my wording, but I believe amendments should be tabled on Report Stage. It may have been a mistake for the previous Minister not to have inserted it when we signalled it. It would be an unforgivable mistake for the Minister, having seen what happened then, to consciously choose not to insert a use-it-or-lose-it clause into this legislation.

Amendment put and declared lost.

I move amendment No. 23:

In page 8, between lines 37 and 38, to insert the following:

“Insertion of section 32M into Principal Act

32M. Where more than seven successful judicial reviews have been taken in respect of an applicant under section 32A(1), the applicant shall not be eligible to apply for permission under section 32A(1) for a period of 10 years subsequent to the final judicial review.”.

This amendment is about raising the standards in the process, getting better quality plans and better quality developments that actually come to fruition. The amendment provides that where more than seven successful judicial reviews have been taken in respect of an applicant, that applicant should not be eligible to apply for planning permission under this process of large-scale residential development for ten years subsequent to that final judicial review.

In the past people have applied for multiple strategic housing developments and, under the new legislation, may apply repeatedly for large-scale residential planning permission. I think the framing here should be the lost judicial reviews. The amendment refers to where successful reviews have been taken in respect of the applicant. I think the word should be "application" rather than "applicant" in that regard.

If bad quality proposals are being made, it should not only be those in wealthy areas, who can afford to take a judicial review, who get to overturn it. If cookie-cutter or similar developments are proposed in several areas, and have been overturned and found to be of a poor quality with insufficient regard, for example, to a local area development plan or to EU directives and laws, they should not be able to continue to avail of this planning process simply in the hope that not every community would be able to take a judicial review. Not every community will have the knowledge, the information or the finances to be able to challenge it. If it is a bad idea that does not stand up to legal scrutiny in one place, we should not have them trying to bring bad ideas in other places.

I accept the wording on this should be clarified because the second line of my amendment should probably state "in respect of an application under section 32A" rather than "applicant". I will table a revised version on Report Stage.

It would make a significant difference if it were in respect of an application as opposed to an applicant. If an applicant had had seven different successful judicial reviews taken against them, that would suggest an issue with the planning system rather than the applicant, unless it was an applicant who wantonly cast aside the normal practices there. Changing the wording from "applicant" to "application" makes a fundamental difference to the amendment the Senator tabled.

As the Senator knows, judicial reviews are generally taken against a decision of a planning authority or the board in respect of a specific case - so it would be an application - or against the State potentially over something like transposition of EU law or the constitutionality of national legislation, and not against the particular applicant of a proposed development who may be just listed as a notice party in any case. On that basis, I could not accept the amendment. I know what the Senator is trying to achieve. Someone consistently lodging poor planning applications will be refused.

Going back to my original point, were someone lodging applications that are granted permission but then were continually losing judicial reviews, that would indicate a problem with the planning system. We are carrying out a review to reform judicial reviews. We are carrying out a full time-bound review of the planning system to report back next September.

I cannot accept amendment No. 23 for the reasons I have outlined.

I will withdraw the amendment because I want to reword it. It is not simply with judicial reviews. The core issue is partly with An Bord Pleanála. A proposed development may get planning permission from An Bord Pleanála and get built. A very similar proposal may be challenged in a judicial review and be rightly overturned as not being compliant with the laws. There is an issue of inequity here. I was trying to deal with the question of precedent. I will look to find other ways to address that point.

Amendment, by leave, withdrawn.

Amendments Nos. 24, 28 and 29 are related and may be discussed together by agreement.

I move amendment No. 24:

In page 8, between lines 37 and 38, to insert the following:

“Insertion of section 32N into Principal Act

32N. In the rendering of decisions in respect of applications under section 32A(1), the planning authority shall act in a manner consistent with the local development plan and county development plan of the local\authority area in which permission is being sought.”.

I will not speak much about these amendments because they relate quite closely to issues we have discussed. Amendment No. 24 requires the planning authority to act in a manner consistent with the local development plan and county development plan. Those points relate back to the previous amendments Nos. 7 and 10. The Minister has indicated an intention to try to find appropriate wording for those amendments. This is a similar matter.

Amendments Nos. 28 and 29 are a bit wider and I reserve the right to come back with further amendments on Report Stage. I was contacted by some interested residents' groups and community groups after the deadline for amendments. They have some proposals that might strengthen these amendments.

Amendment No. 28 inserts a new subsection into the principal Act stating, "Where a planning authority receives an application for permission to which section 32A(1) applies, observations shall be sought and recorded from individuals and groups and the planning authority shall have due regard to such observations". The concern here is the public and how we get it in. I know there is the submission process per se relating to objections. Something more proactive is required. This amendment deals with the health of our planning system in general.

There is a concern with these new different processes. Many people may have lodged an objection or observation with a local authority at some point in their life. However, An Bord Pleanála is quite difficult to navigate. It is quite different to lodge objections to that body. There is also a level of community consultation. Regarding the strategic housing development, it was notable that one or two very large-scale residential developments chose to bypass the strategic housing development process and go through a different process, with more active community and public engagement, leading to a better outcome.

That is an example of what I was trying to get at. I had some really useful input and feedback from local residents' groups and community groups. I am going to produce a version of amendment No. 28 which reflects that more closely.

Amendment No. 29 would insert a new subsection (1D) into section 34 of the principal Act. It stipulates that where a planning authority receives an LRD application, the application shall be published on its website. Maybe the Minister will clarify whether this is already the case. I am aware that there have been major difficulties over the ability to gain access to information. Senator Boyhan referred to the difficulties that sometimes arise in respect of being able to access information. There are even issues over the ability to gain access to appropriately coloured materials and other materials. This issue has also arisen when applications have gone from the local authority area planning process to An Bord Pleanála. It can sometimes be quite difficult to get proper planning permission information from An Bord Pleanála.

May I comment on that briefly? I do not want to prolong the debate. Having dealt with many files, I believe the information is available. It is certainly available in my local authority area in Waterford. I expect it is the exact same across the whole country. One can look at the information on the website. All the files are scanned and readily available to the public. Where there is an appeal to An Bord Pleanála, there is a specific reference to the planning file within the relevant local authority. All the information is readily available for anybody to view. Therefore, I do not see the necessity of the amendments of the Senator, especially amendment No. 29.

There are a couple of points to be made. On the subject of publication, within five days of an application being lodged it has to be on the planning authority's website. We should not forget-----

An Bord Pleanála as well.

We are bringing this back to a two-stage process. Regarding the LRD, it is going to the council. If someone objects to the original decision because he or she is not happy with it - it would be an objection at that stage - it then goes to the board. Every LRD application does not go to the board. An application goes to the board only if somebody decides to take it there. What we are doing is giving the public an opportunity to make an observation at the right stage. My view, which was the Seanad's view on Second Stage considering that there was no dissent, is that the principle involves bringing these matters back into the rest of the planning system, as is normally the case - like a two-stage process. That is what we want it to be. We do not want one stage and then the courts. This is not about going to the board. If applications are lodged, be it with Waterford County Council, Dublin City Council or another council, they are put on the system. If an application is taken to the board, the individual who takes it will be the one who objected at the initial stage. That individual is advised by the board. The individual will be the one who has made the objection. Such individuals are in the process then. We are reinstituting that right now.

On the other provisions concerning the making of planning applications under section 34 of the Planning and Development Act, all the requirements are already provided for. I refer to the taking into account of acting in a manner consistent with the local development plan and county plan. That is exactly what we are doing. I agree with what the Senator is saying but this legislation restores the primacy of the development plan. That is it in a nutshell. While I understand what the Senator is saying, all of these things are provided for already.

Let me refer to the only thing that is not provided for. I am trying to streamline the process. In circumstances where nobody has made any submission on an application, the Senator, in amendment No. 28, wants the planning authority to ask everyone what they think and ask interest groups whether they like what is proposed. That is about public participation, which is important, but I believe we have a transparent planning system at local level. That is what we need. I do not believe we can ask the planning authority to seek observations from individuals and groups. Who would those groups be, and who would decide what we do? It is in this regard that the transparency of the system is really important. That is what we all want and it is what the Senator wants, I have no doubt. Obviously, I cannot accept these amendments. Amendments Nos. 24 and 29 are provided for already. Amendment No. 28 requires the proactive seeking of submissions, which is more appropriate in respect of a development plan. In fairness, this is done by way of the publication of draft plans and the seeking of submissions and written statements. All of these are done, but probably not at a planning permission stage. Is that acceptable?

I propose to withdraw amendment No. 24. Amendment No. 28 involves a longer conversation but a question does arise. These are big-ticket items, of 500, 800 or 1,000 units. They can change an entire town or area, often very much for the better, but it is a matter of having the arrangement I describe. It is a little different when talking about very large moving pieces or an LRD, potentially with attached developments that make up 30% of the overall project, because such developments can absolutely change the tenor of an area. The local area development plan is one part of the process but, instead of being afraid of the public, as we sometimes are, we need more proactive and positive engagement. It is good if people engage with the planning process. It is good to have checking in and consultation, including on what is meant for local schooling, for example. While planners in the council may have some insight, there are times when it is appropriate to have the consultation I advocate.

Amendment, by leave, withdrawn.

I move amendment No. 25:

In page 8, between lines 37 and 38, to insert the following:

"Insertion of section 32O into Principal Act

32O. Where an applicant has received LRD planning permission and wishes to sell the site, the applicant shall not do so with the LRD planning permission attached to it. Thus, the LRD planning permission is granted exclusively to the applicant, on the basis that they are seeking permission with intent to develop the site.".

In a way, this is another use-it-or-lose-it clause. It is somewhat different in that it is a use-it-or-lose-it clause for housing and development. Effectively, it would insert a new section into the principal Act. It is an important amendment that makes an important point, namely that the LRD planning permission granted should be granted exclusively to the applicant for the specific site rather than just for the site. It stipulates that if the site is resold, the LRD planning permission is not attached and that the new owner must restart the process if he or she wishes to seek planning permission for an LRD.

It is unfortunate to have to table this amendment. I am aware that there are many valid circumstances where planning permission may be sought and a project may need to be sold, but we need provisions to tackle the issue that arises. If we allow planning permission to be a speculative product that can be sold to portfolios and investors, such that they can trade it, and if we allow it to work as a commodity, it is already regarded as delivering and the project for which it has been sought does not actually have to be developed and built. I recognise that the amendment is quite hard-hitting in that it stipulates that if you get planning permission because you have stated that you are going to build so many brilliant apartments and houses, you must build them.

You do not get planning permission and then take that product, which is land with planning permission for 500 units attached, and sell it. The land may then be sold on to another person and sold again to someone else afterwards. That does happen. The Minister needs to do something to send a clear signal that, for him, the output is housing rather than simply property values or property commodity space.

I recognise that the amendment proposes a hard measure. It states that the person who got permission needs to deliver. We need something to be done. I have suggested use-it-or-lose-it clauses in terms of time. That is another way to deal with it. If such clauses in terms of time - such that there is, at least, a ticking clock on beginning development attached to products - are not being inserted, then we need such a clause relating to whether something actually gets built.

We always have to think of the unintended consequences of what is proposed. If I understand the Senator correctly, what she is actually suggesting is that if a person gets planning permission for a site he or she owns, the person will not be able to enter a partnership or sell the site on to another party. The Government is committed to introducing a tax on vacant sites. If one takes the example of a farmer on the edge of Waterford city who has a site that has been zoned for residential development, he or she is being forced to apply for planning permission for that site. That is fine, and it is right and proper. However, he or she may not have the wherewithal to develop that site because his or her expertise lies in farming, not in development. The consequence of the amendment would be that he or she is unable to sell that site to another party for development. Although I appreciate what the Senator is trying to do, we must always be mindful of the unintended consequences of what we are trying to do. It really bothers me that the amendment proposes putting such a restriction on people who have development land but may not have the ability to develop it.

As regards the example of the farmer, let us be clear that the amendment would not apply to all planning permission. This is about large-scale residential development. It is planning permission for 500 units or 400 units.

It relates to developments of more than 100 units.

More than 100 units. That is substantial. With respect, if a person is applying for planning permission and asking that the planning process to trust them-----

-----then that person should know what they are doing with it. If you are looking for planning permission to build more than 100 housing units and asking the apparatus of the State to support you in a streamlined process to get planning permission to build 100 units, you should mean it. You should be planning to build 100 units.

The Senator is trying to force people to sell their land.

I am trying to say that they need to deliver. If we talk about the law of unintended consequences, let us be clear-----

The Senator is trying to take land out of people's hands.

I am not taking land off anybody. They are free to sell or not to sell. I am not taking land from anybody. What I am saying is that if you apply for planning permission for a large-scale residential development, you should be doing so with the intention of building. As the Senator pointed out, this is not one, two or five houses; it is more than 100 units. This is not my preferred option, by the way. My preferred option is to have a time clause such that after planning permission is granted, building must start within two years. That is one version of a use-it-or-lose-it clause and it is my preferred version. However, if it is not the case that we put a time limit on the planning permission to stipulate that it must be used within two years, then we need some form of limit to guard against another consequence, which, I hope, is unintended, that certainly came through in the context of strategic housing developments and other development, whereby planning permission is sought and granted and then the property or asset changes hands. We do not want sites with planning permission for large-scale housing developments of more than 100 units being sold repeatedly. They are useful to people as assets but they never get built. We want houses. We want places for people to live in to come out of this process. That is the purpose of the amendment. There is an unintended consequence of the current legislation whereby far more value than the 3% per year site valuation tax is added to the asset every year. The indirect and advertent or inadvertent consequence is that people are incentivised to keep trading these properties. This is not my preferred use-it-or-lose-it clause, but it is another such clause if we do not go with a time constraint.

We all want permissions activated. We have said that. We can have that discussion again. Everything we are doing aims to do that. That is the way the funding is provided under Housing for All. That is why we are bringing about planning changes. This is probably getting conflated with strategic housing development, SHD. The SHD process, in the context of the conversion of permissions to development, was not as intended and it was not as successful as was intended. However, we are moving away from that now. This is not SHD. This is back to local authorities. If the amendment were to be accepted, it would actually turn the fundamentals of the planning system on its head because it would involve the granting of permission on a person or entity rather than on a site. What it is actually saying is that the permission is not on the land. That being the case, where would we go with forward planning and plan-led development, which is what we should have? Under what the Senator is proposing, if Senator Boyhan, for example, applies for planning permission for 500 apartments, that permission sits on his head but not on the land in Palmerstown. It cannot be done. I do not know of any other jurisdiction where that is done. I take the Senator's point that this is not her preferred option, so I will not labour the point. It certainly is not my preferred option either, and that is why I cannot accept the amendment.

The amendment has been well debated.

I will be clear on this. The issue is that we have not learned from the SHDs. The Minister stated that this is a completely different process and that there are various incentives. We hear a lot about the incentives and the many carrots for developers but there needs to be a stick somewhere. That stick needs to be a use-it-or-lose-it clause. It is simply not enough to say we have done all these things to get applicants to the point where they have planning permission. I am not conflating the issue with SHDs but we need to know what happens if an applicant does not use the planning permission for the purpose for which it was granted, that is, the building of houses. That is where some measure needs to come in. As I stated, this is not my preferred option. I will come back with other options. I am urging the Minister to please come back with some form of use-it-or-lose-it clause. With respect, the zoned land valuation tax is not sufficient. It needs to be a specific conditionality attached to planning permission for large-scale residential development in order to be meaningful.

Amendment, by leave, withdrawn.
Section 3, as amended, agreed to.
SECTION 4

I move amendment No. 26:

In page 9, line 3, to delete “made;”.” and substitute the following:

“made;

(gb) nothing in (ga) should prevent a planning authority from requesting further information where in the opinion of the planning authority such information is required to make a decision;”.”

The amendment relates to the Minister being able to limit the ability of a council to request further information.

We are concerned that the restrictions could be too restrictive. We want to see the regulations the Minister was going to publish. In the debate on Second Stage, I asked him to publish the regulations-----

We will publish it.

-----before this Bill moves through the Houses in order that we can see the regulations before we support the Bill. We cannot sign up to something when we do not know what it will be. This is about further information. Nothing should prevent a planning authority from requesting further information if it is of the view that it needs such information in order to make a decision. As I said, we are concerned that the restrictions will be too restrictive. We would like to see the regulations.

In this Bill, for example, a developer applies to a local authority. Before the local authority makes up its mind it can request additional information. I am under the impression that the Minister will restrict that very heavily. I want to put this to a full vote, but I will not do so if the Minister will give us a commitment that the regulations will be published. Have they been written? If the Minister could publish the regulations before we pass the Bill through the Houses, I certainly would not put this to a full vote.

This is an important amendment. Where I have advocated strongly for city and county councillors, I now do so for planners. I have spoken to planners up and down the country who are very concerned about this proposal. We are dealing, in principle, with primary legislation. I do not know why everything has to be done by regulation. This Bill is setting things out clearly and there are concerns. The Minister spoke, and rightly so, about the importance of the process being planning led at a local level with local knowledge. I want to salute our planners, who work under very difficult circumstances and do not have the resources or manpower they require.

I know a lot of planners. Developers will say this mechanism is being used to delay the process and as a way of kicking things to touch and deferring decisions, and that is not right either. I have engaged with professional planners in local authorities up and down the country. They have told me that this is an important aspect of the Bill. They believe they should be able to maintain the requirement to request further information if they are not satisfied or are not of the opinion that they have all the facts or information and require greater clarity regarding aspects of a planning application. I think that is fair, prudent and reasonable.

We should support the planners. I engaged with some of them today. They are aware of this issue. I am fully supportive of this. It is an important decision. We should make a decision and go on the record regarding making this decision in support of planners around the country.

This is a very finely balanced measure. The points Senator Boyhan made are valid. Sometimes further information requests enable a development to get approval and planning. Oftentimes, however, such requests are used to extend the process, an issue I raised on Second Stage when I said that further information requests were being made by local authorities around the country to request information that was already in files. That was a result of what I think is a lack of resources in terms of personnel within local authority planning sections.

I appreciate what is being done here in terms of trying to restrict that further information element. To counter that, the pre-planning approach in the Bill is extensive and involves a two-stage process. If done right and properly, that should flag any issue in a development. That is different to any other process. We have to consider this in the context of what we are trying to do at that stage in order to pre-empt anything that will come subsequently. While I am reluctant to restrict, I also see the benefit of doing so on the basis of what has been raised extensively at the pre-planning stage.

I always looked on a request for further information as an opportunity to secure planning permission rather than the other way around. We have to consider this Bill holistically, however. It involves significant pre-planning consultation that would probably not otherwise happen. The level of additional further information required should be significantly less than if planning had gone through the normal channels.

Councillors do not use planning conditions, which could be used rather than seeking further information. It is a tough balance. I would hate to see a planning permission lost because of a requirement for further information. On Second Stage I said that we should take into account submissions that councils cannot deal with except by way of further information. People do not know what submissions will come in via the pre-planning process. Something that is unknown to a planner or developer could come in by way of a submission, and suddenly permission cannot be granted and instead further information is sought

I can understand trying to find the right balance. We have all seen further information comprising three or four pages in length with 25 items, and we wonder why we are here. It is a tough one to balance, but I wish the Minister good luck with that. I always looked on a request for further information as a way of securing planning, rather than slowing down the process.

I thank Senator Warfield and colleagues for tabling the amendment. It gives us an opportunity to explain this in a little more detail. There is no question but that this is about striking a balance.

I would like to clarify what amendments we are proposing regarding further information requests. The ability to request further information regarding an LRD application and appeal were not provided for under the SHD legislation. There was no ability to do that, so we are bringing that back in.

I propose to publish regulations clarifying when it is appropriate to request further information, as well as limiting the number of times that can be done. That is important and I will explain why, in respect of when further information requests can be sought. The pre-application consultation period is important. It is more formal. It is taking one of the very good things from SHD and perhaps shrinking it a bit.

The time involved is four weeks. If people know what information they have and request a pre-planning meeting with the local authority, it will accede to that request within four weeks. That meeting is held and there is then a detailed response to what was brought forward in the pre-planning process four weeks after that. The total time involved for the application and anything else is eight weeks, allowing for public submissions. It is a much tighter process with very strict timelines around it.

We will have a much better pre-application stage. We should reduce the number of local authority requests for further information. I have seen, as I am sure have the Senators, instances where further information or clarifications of further information have been sought eight, nine or ten times. That has been documented. That delays the streamlined delivery of good developments. We will make sure they are good because planners in local authorities will be involved at the very start of a robust pre-planning stage.

I want to give Senators an idea of the limitations I am considering. The limitations on further information would purely relate to matters that would reasonably have been expected to have been included in applications generally or as a result of issues raised or discussed as part of the pre-application consultation stage. It is not my intention to limit further information altogether.

It will be possible to address matters raised by third parties during the five-week public consultation stage of a planning application, material issues which legitimately could not have been foreseen or raised at a pre-application stage, material errors in documentation or faults or deficiencies in environmental impact assessments or Natura impact statements, or other relevant environmental documentation, among other things, by way of further information, as deemed appropriate. That is right. The further information requirements seek to strike a balance between clarifying issues, where necessary, without reverting to a process whereby further information was, effectively, used by applicants as almost a second stage of the planning application process or sometimes by the local authorities, as Senator Casey mentioned, to simply buy more time to move it through the system. I believe the conditions should be used more extensively and we can deal with many things that fall under "further information" through the planning conditions.

We are bringing in these new arrangements to provide for better and more streamlined planning to provide homes for our people. I do not want us to revert to the situation that pertained in the case of previous strategic housing developments, where planning authorities overly used the further information process, resulting in significant delays. This is trying to address that issue. I am, therefore, proposing in the Bill that while some flexibility should be given to planning authorities on further information requests, and I will do that, it should be limited to specific scenarios in order to provide greater certainty around planning timelines under these new arrangements. These planning timelines must be met. I am comfortable with the further information provisions in the Bill. It is balanced and reasonable. We will also publish the regulations. Senator Boyhan asked why we do this by way of regulation. We do that because should there be some changes required in the future, it is a much more flexible and efficient way of making those changes. I believe in a proper and detailed pre-application stage that details what is needed through engagement with the planning authority at an early stage. If issues arise where further information is genuinely required, it will be permitted. I am not in a position to accept the amendment. I hope I have explained the thrust of my thinking on the issue.

We do not want local authorities to unnecessarily delay the process either but if they do need more information that is critical to their ability to make a decision, they should be able to get it. In the absence of published regulations, we are being asked to sign up to something on which we do not have detail. Without those regulations, I will press the amendment to a vote.

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

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Cassells, Shane.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Davitt, Aidan.
  • Dolan, Aisling.
  • Dooley, Timmy.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Fintan Warfield and Lynn Boylan; Níl, Senators Lisa Chambers and Seán Kyne.
Amendment declared lost.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.
Section 4 agreed to.
SECTION 5

I move amendment No. 27:

In page 9, to delete lines 7 to 11 and substitute the following:

“ “(1B) Where a planning authority receives an application for permission to which section 32A(1) applies it shall—

(a) notify the elected members of the planning authority of the making of the application, of where the application is available for inspection, and of such other information as may be prescribed, and

(b) at the next meeting of each Area Committee concerned, or of the municipal district members for each municipal district concerned, as appropriate, inform the relevant elected members of—

(i) the details of the application, and

(ii) the consultations and meetings that have taken place in relation to the proposed development.”.”.

Amendment put and declared lost.

I move amendment No. 28:

In page 9, between lines 11 and 12, to insert the following:

“(b) by the insertion of the following subsection after subsection (1A):

“(1C) Where a planning authority receives an application for permission to which section 32A(1) applies, observations shall be sought and recorded from individuals and groups and the planning authority shall have due regard to such observations in the rendering of its decision.”.”.

Amendment, by leave, withdrawn.

I move amendment No. 29:

In page 9, between lines 11 and 12, to insert the following:

“(c) by the insertion of the following subsection after subsection (1A):

“(1D) Where a planning authority receives an application for permission to which section 32A(1) applies it shall publish such an application on its website.”.”.

Amendment, by leave, withdrawn.

Amendments Nos. 30, 31, 36 and 37 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 30:

In page 9, to delete lines 19 to 27.

This amendment seeks to delete page 9, lines 19 to 27. Those lines provide:

[...] the planning authority concerned shall, notwithstanding section 34(2)(a), be restricted in its determination of the application, other than in respect of any assessment of the effects of the proposed development on the environment, to considering the modifications proposed by the applicant to the previously permitted development and for the purposes of determining such an application [...]

Amendment No. 30 relates to existing planning permissions that are still in the process.

It suggests the planning authority would be restricted in its determination to consider modifications proposed to a previously permitted development except in regard to the effect of the proposed development on the environment, which, in fairness, is because there is a lot of EU law on this. If planning permission for a development is resubmitted to be renewed, it is not appropriate that in determining the application the planning authority is constrained in being able to consider only the impact on the environment or the modifications in the renewed application. Other requirements may have emerged, such as major demographic change in the area or major changes in areas such as the UN Convention on the Rights of Persons with Disabilities. It is unduly restrictive on planning authorities. It means they cannot give proper, holistic or fully thoughtful consideration to their determination of renewed applications.

Amendment No. 31 seeks to insert criteria in the determination of an application by a planning authority. I am coming back to the issue of disability again and again. It is like with just transition. A massive change has occurred that affects 14% of the population who have a disability. They have rights under new law. We will have the optional protocol soon which will, I hope, in the next six months allow them to vindicate these rights and demand that they be reflected. Obligations under the UN Convention on the Rights of Persons with Disabilities should be taken very seriously. Other issues may have arisen as part of an area development planning process. For example, the original planning permission may have been granted before the new local area development plan was produced. If there is a revision or a modified planning application, it should be reflected. The modifications proposed to a previously permitted development should reflect such factors as may have emerged during a new planning development process that happened in the interim.

Amendment No. 36 proposes a new subsection (7). I suggest that subsection (7) in section 247 of the principal Act be deleted. It provides that no consultation would be required where a planning authority receives a request under the section in respect of a proposed development where permission has already been granted and further development is proposed that is substantially the same as the permitted development, and the nature, scale and effect of any alterations are not such that require a consultation process to be repeated. I am concerned that planning permission having been given once to a project should not mean bypassing the consultation process. I am concerned at anything that bypasses the consultation process. It may be more of the same but more of the same can make a difference. The considerations and factors that may be at play may have changed in the interim period. I am concerned about the bypassing of consultation. What people agree to for 100 units may be different from what consultation is required for 150 or 200 units.

Amendment No. 37 seeks to delete the proposed subsection (8) in section 247 of the principal Act. This subsection I propose to delete provides that a determination under subsection (7) would not prejudice the performance of the planning authority in its function and may not be used in the formal planning process or legal proceedings. It is a little bit ambiguous to say it cannot be used in legal proceedings. I am not sure what is intended by this. Could a decision that has a real impact be constrained from being used in the planning process? It is not clear whether it reflects judicial review or judicial challenge. Perhaps the Minister will clarify. I am asking for clarification about what is happening with subsection (8). It is not clear to me. I am concerned that we may have a bit of a backdoor in subsections (7) and (8) whereby planning permission may be sought for one thing and a lot of add-ons might happen that might not be subject to proper consultation, a proper formal planning process or legal proceedings. Is it the case they cannot be used as precedent? Is this what is intended? Is it the case they cannot be challenged? It is not clear. Perhaps the Minister will clarify the policy intent of subsection (8).

I thank the Senator for these amendments that relate to the process surrounding applications for modification of permission. I hope this will clarify matters for the Senator. The inclusion of provisions for the modification of previously permitted developments under the large-scale residential development legislation seeks to provide legal clarity in respect of such applications.

I will explain further. Under the strategic housing development process, which, with the passing of the Bill, is to cease, applications for modification under the process are submitted directly to An Bórd Pleanála. To avoid any type of gap or lacuna in the legislation in respect of strategic housing development permission, given the proposal to reinstate the role of the planning authority as the consenting authority for large-scale residential developments through the Bill and to get back to what we are doing here which is fundamental, it was deemed appropriate that applications for modifications to strategic housing developments as well as large-scale residential developments would be made directly to the relevant planning authority in the first instance. This must be a good thing.

Where modifications proposed to a previously permitted development are deemed by the planning authority to be minor in nature, there is a provision in the Bill for the planning authority to determine that pre-application consultation is not required and that the planning authority need only consider the proposed alterations in determining the application. This is a common sense provision. It reflects the minor nature of some modifications proposed that will have been subject already to initial pre-application consultation. It will allow for a more efficient use of what is a finite and valuable resource in the local authorities, which is the planners themselves, so they do not spend time doing things they should not be doing.

As mentioned previously, the proposed amendments relate to building regulations that are already addressed under a separate legislative code and have not, therefore, been included in the Bill. They are very important, as are standards, access and design for life, but the Bill is not the place for them. The regulations are in place. For these reasons, I will oppose amendments Nos. 30, 31, 36 and 37.

While it is good that the application will go back to the planning authority, the authority is then constrained in what it can do with it. I noted the exception to environmental factors and I imagine it is due to the Aarhus Convention and the rights in respect of environmental planning and the rights of the public to consultation, which is a core issue. This is a second pass. It is a pass in terms of whether there has been a strengthening. We cannot be retrospective but if people are coming back again looking for permission for modifications, it is an opportunity to raise the bar a little. It is a pity not to use it if, in the interim period, improvements have been made in something such as Part M of the building regulations on disability access. I will indicate that I might come in with specific amendments on Part M that address this. Similar to the environmental exemption, it should be an exemption that is used and addressed.

Amendment, by leave, withdrawn.

I move amendment No. 31:

In page 9, line 22, after “environment” to insert the following:

“, changes in building and planning guidelines, obligations under the United Nations Convention on the Rights of Persons with a Disability or other such issues that may have arisen as part of an area development planning process”.

Amendment, by leave, withdrawn.
Section 5 agreed to.
NEW SECTION

I move amendment No. 32:

In page 9, after line 38, to insert the following:

“Limit of duration of permission

6. Section 40 of the Principal Act is amended by the insertion of the following subsection after subsection (3):

“(4) Notwithstanding subsection (3), where a planning authority grants a permission to which section 32A(1) applies—

(a) ‘the appropriate period’ means the period of 12 months beginning on the date of the grant of permission, and

(b) section 41 shall not apply in relation to the permission.”.”.

We have talked at length about the use it or lose it idea around being fast-tracked. The basic principle is that if a person is fast-tracked, he or she should expedite his or her own building, otherwise what is the point of the whole thing? One can see based on the following amendments from Opposition Members that it is in opposition to the entirety of section 6. We put forward our amendment in an attempt to make the section better. There is a sense, certainly on this side of the House, that the whole section is not as fit for purpose as it could be. Whatever will happen with our amendment, will happen. Skipping the Court of Appeal and so on and so forth is probably a bit far reaching. The other Opposition Members will speak to the deletion of the whole section.

I have a lot of concerns about section 6, and it is important for the Minister to clarify them. These are significant changes that do not relate solely to large-scale residential developments. They are changes in respect of the principal Act and its functioning. They are changes in respect of our planning system and, indeed, our legal system and its operation. It is, therefore, quite a significant proposal. It would be useful and, in fact, necessary to provide clarification as to what the intentions are here. I understand there would be provision under this new section for a skipping of the Court of Appeal to go to the Supreme Court. There may have been provisions previously-----

Is the Senator speaking to the amendment or the section?

Do I speak to the amendments to the section now? I can come back in. The Minister can reply to the amendment and then I will speak to the section.

Yes, and then we can deal with that afterwards.

There will be a chance to speak to the section.

I thank the Labour Party Senators for their amendments. This amendment, in effect, proposes that an LRD permission should be granted for a period of one year and removes the right for this period to be varied under section 41 of the Act of 2000. I strongly oppose this amendment. I understand we are all trying to get to that place where we make sure viable applications are effected promptly. This amendment seeks to provide that a large-scale residential development permission should be carried out within a year of granting permission. I take the manner and spirit in which this amendment was put down, but one year would be totally unrealistic for the scale of these types of developments, considering everything that needs to go into them, including post-planning and commencement. One year would be far too restrictive for all those matters. It may be that this amendment intended to provide that LRD permissions would have to commence within a 12-month period or that LRD permissions could only be extended by a 12-month period. Let us think about what we are doing here. We are looking at developments of more than 100 units. They could include between 500 and 1,000 units or more. Such a restriction would make some of these badly needed developments untenable, certainly within the timeframes that would be set.

The proposed amendment would also discriminate against LRD permissions versus other permissions. That would be problematic and would be open to challenge. This is compared with smaller-scale developments. One might apply for 99 units and then this provision would not apply. It would pose difficulties with that. If a development was smaller than 100 units, one could avail of the standard five-year grant of permission.

I will not labour the point. I understand where the Senators are trying to get to. I thank the Labour Party Senators for tabling that amendment, but due to the reasons outlined I do not think it is workable right now. Obviously, we keep any legislation passed under review. This is an important step in getting what we all want: giving these significant decisions back to our local authorities to make. I cannot accept the amendment.

Amendment, by leave, withdrawn.
SECTION 6

Amendment No. 33 is out of order.

Amendment No. 33 not moved.

I move amendment No. 34:

In page 10, to delete lines 24 to 27.

This amendment cuts to one of the problems with this section. The concern of amendment No. 34 is the deletion of the new subsection (15) which it is proposed to insert into section 50A of the principal Act. I am concerned that the language in this section is inappropriate. I will speak to subsection 15 and then outline my overall problems with the section. The new subsection (15) proposed in this Bill states, "The Supreme Court shall act as expeditiously as possible". The Oireachtas is on shaky ground by producing legislation telling the Supreme Court how to do its job in that regard and, indeed, how quickly and at what pace. It does not seem appropriate to state that the Supreme Court should act as "expeditiously as possible consistent with the administration ... in determining any application". The Oireachtas telling the Supreme Court to speed up a particular area of appeal is a bit questionable.

I will come back to my overall concerns with this entire section. It is not clear what the purpose of this section is and why it is in this Bill, because it does not directly relate to long-term, large-scale residential development. It is a change in the principal Act. It is a change in the normal flow of events in regard to appeals. As I understand it, there were already some provisions for leapfrogging. However, I am not clear on what the change is. Is it being changed from being a situation whereby an applicant, for example, in the case of a judicial review can leapfrog? Rather than it being the case that an applicant can request to move from the High Court to the Supreme Court, any party can request to move to the Supreme Court. What are the purposes and drivers of this? I refer to the skipping of the Court of Appeal. The Court of Appeal has not really been a major feature in the judicial reviews we have seen. Only one strategic housing development has been taken to the Court of Appeal. Most have been dealt with in the High Court.

Is the intention to create a dynamic whereby it becomes prohibitively expensive for applicants? If they lose in the High Court, they may be told that they cannot go to the Court of Appeal, but they must go because the other party, against whom a judicial review is being sought, may say that it wants to take it to the Supreme Court. Taking it to the Supreme Court, of course, comes with considerable extra costs and expense. It is also a question of the appropriateness of moving it directly to the Supreme Court.

Coming back to my amendment, we are concerned specifically with the appropriateness of creating a new channel of additional work for the Supreme Court and telling the court that it needs to act expeditiously on that specific matter.

This section rings alarm bells and I am speaking to both the section and amendment, but they are integrated. I ask the Minister to clarify two points. Is the major change being made around any party to the appeal? Is it anticipated that this leapfrog mechanism will be used much more than it has been because it has not been used very often? Why is it being used in respect of these large-scale residential developments, given that the Court of Appeal has not been a major feature in relation to strategic housing developments? Crucially, is the language in subsection (15) appropriate? Should it be revised?

It is appropriate.

As I mentioned in the Second Stage debate, Sinn Féin is opposed to section 6 and seeks to delete it. We do not know why it is in the Bill. It has nothing to do with large-scale residential developments or SHDs. It is just a change in the procedures for appealing a judicial review decision of the High Court. We wonder why it is in the Bill and who asked for it. It was not in the general scheme on which the Oireachtas committee carried out pre-legislative scrutiny.

Of the 50 strategic housing development judicial reviews, only two went to the Court of Appeal. As I said on Second Stage, this does not seem to be about housing and it has nothing to do with large-scale developments. It is to do with the reform of the judicial review process. I wonder where this has come from, who drafted it and who asked for it. Why is this not being done in the judicial review legislation? As Senator Higgins said, in what circumstances can this leapfrog mechanism be used and in what kind of developments? Does the Attorney General or Department anticipate that it will be used before the judicial review legislation comes into effect?

I will deal with amendment No. 34, after which I will deal with the questions asked on section 50A, which is an important part of the legislation. I assure Senator Higgins that the language in subsection (15) is appropriate. It has come through the Office of the Attorney General. The legislation was drafted in consultation with that office and has gone through the parliamentary draftspersons. It is, therefore, completely appropriate. That is an opinion the Senator may not agree with but the language does not in any way infer or raise any type of issue with regard to the Department and the Supreme Court or anything like that.

Amendment No. 34 relates to section 6, which amends section 50A of the Planning and Development Act 2000. There is a good reason for this in that it provides that any party to a planning appeal may apply to have a High Court judicial review judgment referred directly to the Supreme Court, thereby bypassing the Court of Appeal. I explained the reason for that in the context of this Bill.

We are talking about bringing about the streamlining of significant planning applications. At present, if a planning authority, including An Bord Pleanála, or, where relevant, the State, succeeds in defending a judicial review challenge and the High Court certifies that it might be appealed, the appeal goes to the Court of Appeal. If the planning authority and the State succeed again in the Court of Appeal, the applicant or objector can then apply to the Supreme Court for leave to appeal, creating another stage in the process. Given that the criteria for allowing an appeal from the High Court in the first place are very similar to the criteria that must be met for an appeal to the Supreme Court, leave to appeal is normally granted by the Supreme Court in these cases and would only be refused in very exceptional circumstances. This means that, notwithstanding having succeeded at the High Court level in defeating a judicial review application, the ultimate resolution of the case may take another two or three years. This is happening in the Court of Appeal and Supreme Court and this has obvious adverse delay consequences for the proposed development in question.

The amendment to section 50A makes provision for the planning authority and-or the State or any party to the appeal to apply directly to the Supreme Court in the event that the High Court gives an applicant leave for a leapfrog appeal. This would mean that the Supreme Court would then hear the appeal directly, bypassing the Court of Appeal. The introduction of this change, as I have proposed in the Bill, will have the effect of significantly reducing the time for ultimate disposal of litigation if the judicial review is refused. This would enable projects to proceed more expeditiously than would otherwise be the case. The proposal deals with delay and an area where we could see significant delays in the planning process. We will also come back to this matter in the judicial reform review. This is an appropriate Bill in which to put this provision. That is the rationale for this section. I oppose the amendment.

I will echo the questions put by Senator Warfield. What projects are involved? This change does not only apply to residential developments but allows for all kinds of judicial reviews to be pushed directly from the High Court to the Supreme Court. If there is a judicial review, a process that is currently being reviewed, the appropriate place to deal with the matter is in the review of judicial review. The measure can be brought through as part of the judicial review legislation. It is not enough to simply say we will have projects in the future and we will want to use a leapfrog mechanism to make them move faster, for whatever kind of projects because the mechanism is not limited, constrained or tied back to large-scale residential development.

As we have heard, in the case of the equivalent policy, which was strategic housing developments, these have been dealt with in the High Court in most cases and An Bord Pleanála lost those cases in that court because of the poor decision making process employed. I mentioned one such case but I stand corrected by Senator Warfield who pointed out that only two strategic housing developments cases reached the Court of Appeal. There is no major backlog in the Court of Appeal that is delaying housing developments.

What projects does the Minister have in mind for this leapfrog mechanism if it is not large-scale housing developments? Why are we using this mechanism? Why on earth would we, as legislators, agree to allow the planning authorities, the State or others to use a leapfrog mechanism to skip straight from the High Court to the Supreme Court for purposes unknown, as is effectively happening here? This is for projects which we need to move quickly. That is for the review of the judicial review process.

The Minister is jumping the gun in trying to insert this section in this Bill. I strongly urge him to answer Senator Warfield’s questions on where this is coming from, why it is being pushed for now and why it relates specifically to this legislation? I urge him to consider pulling back on this section and deal with the matter properly? We cannot have a drip, drip approach chipping away at our judicial process, which is part of our democratic system. We have the High Court, Court of Appeal and Supreme Court for a reason. If we are going to make it easier to leapfrog one of these courts, we need to hear a very good case for doing so, not simply that it may be used or be useful in the future.

I am very concerned about section 6 and would have thought it would have been opposed. It raises very serious issues. I do not want to keep harping back to the SHDs but the Minister should consider the number of cases people in his constituency - I am familiar with a number of them - took to An Bord Pleanála at great personal expense and risk.

The Minister talked about local authorities and organs of the State. They have substantial sums of money, although it is ultimately the taxpayer's money. I have seen cases where individuals have collected funding by putting their homes on the line - I am thinking of one case in Goatstown - and they have been successful. In that case, a lay litigant represented themselves in the court against the might of the State and everybody else and they won, having taken great risk.

I keep scratching my head about this. We provided for all this in the SHD and today we are being told we are saving the process from the SHD. It was a Fine Gael minority Government on the previous occasion but, effectively, the same Government was in place. I have serious concerns. This legislation will fall on this section. There will be litigation, a review and a legal challenge on this. I hope I do not have to tell the Minister, "I told you so.". Sometimes we need to be listened to. I am putting down a marker that this legislation will fall because of this section. The constitutionality of this legislation is going to be challenged. We have a bit to go until the Bill makes its way through the Oireachtas. We are not yet out of the woods and many people will have to cross a few t's and dot a few i's, but the legislation will fall on this section because of what it is attempting to do. The Minister talked about citizen engagement in a planning process but he should bear in mind the costs involved. It is grand for certain individuals, large companies and developers.

I think we should drop the section. I expect the Minister will say "No" and we will back here in a few months telling him we told him so. It is important to listen.

I know he knows. I heard the other day that the Minister gets everything done, and that is great, but-----

I have been here for hours listening to Senators.

I know, and is the Minister not very privileged to be in that position? I am privileged to be in the position to talk to him.

I am not complaining.

To wrap up, I think this section is a flaw. As the Tánaiste said on his previous visit to the House a year or two ago, the Seanad exists to tidy up, improve and polish legislation. That is all we are trying to do. The Minister has a job to do, as do I. I am nailing my colours to the mast. This section is flawed and it will unwind and bring down the legislation. The Minister should remember I told him so.

I assure Senators I have listened to them throughout the debate and have taken on board a couple of their amendments, as I have done in the case of previous legislation.

Tá mé ag éisteach, bí cinnte. As I have said, there are two issues. There is the amendment, moved by the Opposition, which I will oppose, and I have explained the rationale for the amendment to section 50A of the principal Act. We are conducting a detailed review of judicial reviews and we will publish the legislation shortly. There was legislation in the previous Oireachtas. It could take a year, with the best will in the world, to get that legislation through, but I am not willing to wait a year while there is a national development plan and there is housing we need to deliver for our people. Let us bear in mind why we are doing all this. Judicial reviews have a role and people have a right. I am bringing back the process to local authorities.

It is also the case, however, that applications for judicial reviews and challenges are made at every stage of the planning process, and that delays the delivery of badly needed homes for people. That is our reasoning for streamlining the appeal and judicial processes. I am using the opportunity, and rightly so, given it is relevant when we talk about large-scale residential developments, to do it in this section. That is the rationale for it.

Amendment put and declared lost.
Question proposed: "That section 6 stand part of the Bill."

The section just does not stand up. There is not so great a backlog of judicial reviews in the Court of Appeal that we cannot wait one year to deal with judicial review properly through legislation. We do not need immediately to get the Court of Appeal out of the way in regard to judicial reviews. This is not housing specific; it relates to judicial reviews in general. There are many types of judicial reviews, including on environmental issues, that may need to be taken. Leapfrogging from the High Court to the Supreme Court, with the additional costs that represents, as Senator Boyhan eloquently outlined, and the additional intimidation that can present for applicants and individuals who may seek to exercise their rights under, for example, the Aarhus Convention, their rights to environmental decision making and so forth, is a poor and wrong decision. Creating the idea that waiting eight or 12 months in that regard will have an effect does not make sense.

There is not a bottleneck in the Court of Appeal in respect of strategic housing developments. There will not be many large-scale residential developments that have gone through the process, secured permission and been challenged with judicial review, and will then seek a Court of Appeal ruling. I do not think we will see an awful lot of that within a 12-month period. To suggest we are in such a hurry on this that we cannot do it properly or as part of the judicial review legislation does not stand up. Instead, it looks a bit like that all-the-time chipping away at the bits and pieces that go into good planning and judicial oversight.

I will join other Senators in opposing the section. I urge the Minister to remove this unnecessary, irrelevant section, which seeks to erode judicial review practices.

Question put:
The Committee divided: Tá, 21; Níl, 8.

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Davitt, Aidan.
  • Dolan, Aisling.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.

Níl

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Wall, Mark.
  • Warfield, Fintan.
Tellers: Tá, Senators Lisa Chambers and Seán Kyne; Níl, Senators Alice-Mary Higgins and Fintan Warfield.
Question declared carried.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.
NEW SECTION
Government amendment No. 35:
In page 10, between lines 27 and 28, to insert the following:
“Amendment of Part V of Principal Act
7. The Principal Act is amended—
(a) in section 94—
(i) in subsection (3)—
(I) in paragraph (c), by the deletion of “and”,
(II) in paragraph (d), by the substitution of “, and” for “.”, and
(III) by the insertion of the following paragraph after paragraph (d):
“(e) the existing need and the likely future need for housing, in particular houses and duplexes, for purchase by intending owner-occupiers.”,
(ii) by the insertion of the following subsection after subsection (7):
“(8) Where on the date on which this subsection comes into operation a development plan includes a housing strategy—
(a) the chief executive of the planning authority shall, for the purpose of the performance by a planning authority of its functions under this Part, make an estimate of the amount of housing referred to in subsection 3(e) required in the area of the development plan during the period of the development plan,
(b) such estimate may state the different requirements for housing for different areas within the area of the development plan, and
(c) such estimate shall be deemed to be included in the housing strategy concerned.”,
and
(b) in section 95(1)(b), by the insertion of “section 94(3)(e) and” after “housing referred to in”.”.

Amendments Nos. 35 and 43 are related. Amendment No. 43 is consequential on amendment No. 35. Amendments Nos. 35 and 43 may be discussed together by agreement. Is that agreed? Agreed.

Amendment No. 35 is significant and relates to section 94 of the Planning and Development Act 2000. I wish to signal to Senators and, indeed, Deputies that I will table an amendment that integrates for the first time the consideration of homeownership as already set out in the guidelines I brought forward in May 2021 under the Regulation of Commercial Institutional Investment in Housing for certain types of housing development, whereby we banned bulk-buying. Section 94 now sets out provisions related to the preparation and content of housing strategies by each local authority, undertaken as part of the development plan process. While the Act already specifies the tenure type in section 94(4) in respect of social and affordable housing for inclusion in a housing strategy, heretofore there has been no mention of homeownership. This amendment will ensure that the proportion of homeownership is also estimated within a local authority's housing strategy. That is significant. I propose to insert in this Bill the commitment we have made in Housing for All in respect of the owner-occupier guarantee. The amendment relates section 69(3), which specifies what the new housing strategy shall take account of and provides for the insertion of a new paragraph (e), which specifies that the housing strategy shall take account of existing need and the likely future need for housing, especially houses in duplexes, for purchase by intending owner-occupiers.

In section 94, it is proposed to include a new subsection (8) requiring the chief executive of a planning authority to make an estimate of the amount of housing referred to in that subsection required in the area of the development plan during the period of that plan. In section 95(1)(b), it is proposed to provide that a planning authority shall include objectives in the development plan in order to secure the implementation of the housing strategy, particularly any of the matters referred to in section 94(3), including objectives requiring that a specified percentage of land zoned solely for residential use or for a mixture of residential and other uses be made available for the provision of owner-occupier housing, as detailed in section 94(3)(e). The latter two amendments relating to these sections, in section 94(1)(b), are reliant on amendment to section 94(3)(e) being made.

Amendment No. 43 is a consequential alteration to the Long Title of the Bill, which reflects the need to amend Part V of the Planning and Development Act 2000 in order that the need for housing for owner-occupiers can be taken into account for housing strategies. The Government and I, as Minister for Housing, Planning and Local Government, have consistently said - and it is this Government's priority - that we should level the playing pitch for potential first-time buyers. That is why we moved with the Affordable Housing Act, brought it in and have passed it. That is why we have amended the Land Development Agency legislation to provide for a much greater level of affordable housing to give hope back to people who feel that they have been disenfranchised and that, whereas they are working, they will never be able to buy their own homes. Under this Government, they will be able to do so. This is a further provision we are bringing in whereby, for the first time in planning law, homeownership be recognised as a specific tenure. Then we will bring forward measures whereby a local authority will be able to designate under a given planning permission the percentage of a given estate above the Part 5 requirement for owner-occupier, first-time buyers. I know it is late in the evening - or, rather, early in the morning - but this is a significant change. It is one we, the three parties in this Government, committed to doing and which we have done. It is another part of a suite of affordability measures, protections and levelling the pitch for those young and not-so-young people who are out there working, paying their taxes, doing their thing and paying rents at too high a level. They want to see homes for them. I am absolutely determined, and this Government is determined, that we will do that. That is why it is appropriate for these amendments to be in this Bill.

The Bill speaks to delivering streamlined housing. Let us remember what we are about here because we have had some disagreements and good debate right through the evening on various things. Fundamentally, this is about improving our planning system, and I do not think any Senator will make an argument to me that the planning process for large-scale developments as it stands cannot be improved on. That is why, on Second Stage, in fairness, there was no dissent on this. We now have a real opportunity with this owner-occupier guarantee to show that we are setting out in the guidelines that we are now putting homeownership into primary legislation as a form of housing tenure. That is very significant. I would therefore be grateful for the support of Senators from all sides of the House for these two amendments.

I will be brief because it is the early hours of the morning. The Minister is bringing in a significant amendment. As he said, it is restoring the hope of owning one's own home and putting it into primary legislation. It is also making the chief executive of each local authority calculate the number of affordable homes that will be required and ensuring that forms part of the county development plan. I would like to say a lot more on the amendment but I am conscious of the time. I must recognise that since we went into government, we have made the restoration of the hope of home ownership a priority for a generation of people who can now aspire to own their own homes. I thank the Minister for the amendment.

Like Senator Casey, I commend the Minister on this legislation. It is productive, constructive and exceptionally brave legislation. I give credit where it is due. It is easy to knock things and to look at the negatives. Many people comment on things they are not happy with and are not as happy to give credit where it is due. Well done, Minister.

I join in saying that I very much support these amendments. It is important that we are making improvements on what has existed in the past. The Minister will find there is much support for what he is doing, even in the early hours of the morning.

Looking at the amendment, it is good to see references to owner-occupiers, as long as that is additional to social housing. The Minister has been clear that this is an addition to Part V. I, of course, reserve the right to amend this new amended section on Report Stage but it is positive to be referencing owner-occupiers. There is a question of carrot or stick involved here. I understand that the intention is that there might be supportive provisions to follow, although they are not here. That means not only that there would be a supply of housing that we hope owner-occupiers will take, but that the planning permission provisions and planning permissions may specify the numbers of houses reserved for owner-occupiers. It will be important to see how that intersects with the build-to-rent problem at the moment because there is an abundance of large block built-to-rent apartments, which has an effect on the ability of communities to form. Not everyone needs to be an owner-occupier. People with long-term secure rent can, of course, also be crucial parts of communities, but people must have some security of tenure and there must be a diversity of ownership and engagement to ensure people can build a life in an area or within a development.

I note that this must be a challenge to build-to-rent; it cannot be parallel to it. I also note the question of the balancing of carrots and sticks. As well as measures to encourage owner-occupiers, we also need to look to further measures to constrain their competition, which is large-scale speculative investors. We cannot encourage both in the same way. We need to make our priorities clear. I thank the Minister for bringing forward amendments in that regard.

I am not against this but would it not be better to let local authorities decide on the tenure mix, based on local need?

I will happily deal with that question. The Senator may not have had a chance to look into this, but that is exactly what this will do. Local authorities will have to submit that as part of their housing strategies. This is about tenure mix because home ownership is a tenure mix. Social housing is a tenure mix. Affordable housing is home ownership and we have got to make provision for that and prioritise it within the housing plans of all our local authorities and, indeed, the Land Development Agency, LDA. That is being reinforced within the legislation. We will have owner-occupier home ownership. I said I would bring in the owner-occupier guarantee. We have a little bit more work to do on that with regard to the specific planning permissions.

What percentage will be involved?

We will allow the local authority to decide that. It will be above the Part V requirement. From 1 August onwards, any development that comes forward for planning will need to include 10% social housing and 10% affordable housing. We are saying the new thresholds will be above that. Our LDA legislation prescribes that in Dublin, Cork and other areas with population centres of more than 150,000, all developments from the LDA may comprise 100% social and affordable housing. People said that was not possible and we could not do it. There is a minimum requirement for 50% affordable housing in those developments. We are doing what we said we would do. The Senator and I can tease this out further on Report Stage. I thought it appropriate to bring this in under this legislation.

Local authorities are now in the process of putting together their housing delivery plans which they must submit to me next month for sign-off. They know what their capital budgets will be between now and 2026. They have certainty around their budget and we want to give them certainty around social housing, which they have. I want them to be able to tell me what percentages and proportions in a given area should be affordable housing, owner-occupier housing, private rental housing and cost rental. The private rental market is still required. We, as a Government, introduced cost rental. It did not exist 12 months ago and there are now families in cost-rental homes. The rents average 50% below market rents. That is happening. Next year will be a year of delivery.

I appreciate the positive comments in this regard. I do not intend to detain the House any further. We can talk about these issues as we move through the other Stages. I thank the Senators for their input.

Amendment put and declared carried.
Sections 7 to 13, inclusive, agreed to.
SECTION 14

I move amendment No. 36:

In page 15, to delete lines 10 to 28.

Amendment, by leave, withdrawn.

I move amendment No. 37:

In page 15, to delete lines 29 to 32.

Amendment, by leave, withdrawn.
Section 14 agreed to.
Section 15 agreed to.
SECTION 16

Amendments Nos. 38 and 39 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 38:

In page 16, line 18, to delete “16 weeks” and substitute “8 weeks”.

I know it is late. I did not expect us to get to this point. This amendment deals with a big part of what we discussed on Second Stage in terms of the transitional arrangements. The strategic housing development, SHD, scheme was obviously due to expire in December of this year but now it looks as if we will, in reality, be living with the SHD legislation until June 2022 and beyond. Legal action may take that well into October or late 2022. This is a proposal to reduce the length of time that the SHD transition period remains in situ after the SHD legislation has been replaced. Our amendment halves the amount of time developers have to progress through the different planning stages once they have submitted a planning application under the old SHD process. For applications already in the pre-planning process, if they get approval to proceed to full planning before 17 December, when the replacement legislation is due to be enacted, developers will have until April to apply.

For applications not yet in pre-planning but for which developers submit pre-planning applications before 17 December, they will now have until June 2022 to get their applications in. That allows for a nine-week An Bord Pleanála pre-planning process and, if successful, a 16-week full planning timeline, bringing us into June 2022. That means it is feasible that SHD applications would continue to be decided upon until October 2022. Our alternative under amendment No. 39 is that if the board approves a pre-planning application, the applicant should be redirected into the large-scale residential development process. I would welcome the Minister responding on this issue. I hope we will not be living with this legislation, with legal reviews, well into October or late 2022.

The Minister acknowledged the flaws in the SHD system. He has stated that this is a better system. This is about ensuring we move to a new system as soon and as expeditiously as possible, with all the benefits of better planning that might bring, but also ensuring that applications in the pre-planning process are rerouted into the new large-scale residential development process. It just seems to make sense. It is a reasonable and good proposal from Sinn Féin and I support it.

I thank the Senators. We discussed this issue on Second Stage, at which point Senator Warfield suggested we would not have any transitional arrangements. We want to get rid of SHDs and that is what we are doing, but we require a transition. SHDs exist right now and if people have made their applications under the current planning law and are in pre-planning or in planning, one cannot just tell them they will be redirected into a new process even though they have entered into the existing process. That would leave us open to all sorts of challenges.

We are ending SHDs early. They were to continue up to the end of next February and there would then have been a transition phase that would have continued past that date. I decided to end them early. They did not operate as intended. I am not saying they were not brought in with the best of intentions in the context of speeding up the provision of planning. I have been clear on what I wanted. That was negotiated with colleagues in Fine Gael and the Green Party with regard to not extending SHDs. They could have been extended further but we are not doing that. We are ending them.

To be fair, the amendments proposed by Senator Warfield recognise that a transitional arrangement is required. That was not recognised on Second Stage. Transitional arrangements are required when we make changes to planning because if people are engaged in a system, they cannot legally be ripped out of it and told they are going into a new one. Much as one may want to do that, we have to be cognisant of the law. In fairness, the Senator is proposing to reduce it collectively to eight weeks but, based on experience with SHD arrangements to date and the scale and technical nature of large SHD planning applications, 16 weeks is considered an appropriate and realistic timeframe to have between receipt of an SHD opinion and the subsequent submission of the SHD application. It is a strict timeframe of four months that will allow applicants to appropriately address any issues raised in the SHD opinion they received. The Senator is proposing to reduce that to eight weeks but he is acknowledging that transition arrangements are required. That is fair. As SHD arrangements involve a two-stage process that spans a minimum of 25 weeks, there will be several applicants who have already undertaken a significant amount of work with the aim of submitting an SHD application. It will be necessary for them to have been engaged in the process at pre-planning.

I am satisfied that what we have done now in transitional arrangements provides for a reasonably prompt wind-up of SHDs while simultaneously being practical and fair, as we must be because we want these applications that come through to deliver homes. What we are bringing forward strikes a balance. In fairness to the Senators who tabled the amendment, they now recognise there is a need for transitional arrangements. That was not recognised by some on Second Stage, but that is fine. That is what the legislative process is for. We bring people along with us as best we can. I cannot accept amendments Nos. 38 and 39.

There is a difference between being cognisant of the law and issuing an invitation for everyone to get their applications in before SHDs are banned. I have drawn parallels with co-living and the botched ban on co-living. I do not need to do so again at this hour of the night. This is another long goodbye to bad policy. It is an invitation to get applications in. Primarily, we do not accept that developers should be able to continue with SHD applications until the middle of next year. We can end them sooner. These amendments are good proposals that would do just that.

I assure Senators that this is not a long goodbye and it is not a signal at all. This is about bringing in legislation that will endure, improve on what was there before and end a planning process that has been in place since 2016. One does not just rip it up, throw it in the bin and say that it is done. It is more legally complex than that. We are going in the right direction. This will be in place. It will be a new streamlined planning system for large-scale residential developments. There will be a transition and decisions will be made on SHDs in the interim. We have to take a slightly longer-term view than a couple of months. We have to look at what is good for the system itself in the context of improving delivery. It is strong and robust legislation. I thank the Senators for tabling their amendments and for recognising the fact that we need transitional arrangements.

Amendment put:
The Committee divided: Tá, 8; Níl, 21.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Davitt, Aidan.
  • Dolan, Aisling.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Fintan Warfield and Lynn Boylan; Níl, Senators Lisa Chambers and Seán Kyne.
Amendment declared lost.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.

I move amendment No. 39:

In page 16, line 33, to delete “within the period of 16 weeks” and substitute “to the planning authority within the period of 8 weeks”.

Amendment put:
The Committee divided: Tá, 8; Níl, 21.

  • Boyhan, Victor.
  • Boylan, Lynn.
  • Craughwell, Gerard P.
  • Gavan, Paul.
  • Higgins, Alice-Mary.
  • Hoey, Annie.
  • Wall, Mark.
  • Warfield, Fintan.

Níl

  • Ahearn, Garret.
  • Ardagh, Catherine.
  • Blaney, Niall.
  • Buttimer, Jerry.
  • Byrne, Maria.
  • Carrigy, Micheál.
  • Casey, Pat.
  • Chambers, Lisa.
  • Conway, Martin.
  • Crowe, Ollie.
  • Cummins, John.
  • Daly, Paul.
  • Davitt, Aidan.
  • Dolan, Aisling.
  • Horkan, Gerry.
  • Kyne, Seán.
  • Lombard, Tim.
  • O'Reilly, Pauline.
  • O'Sullivan, Ned.
  • Seery Kearney, Mary.
  • Ward, Barry.
Tellers: Tá, Senators Fintan Warfield and Lynn Boylan; Níl, Senators Lisa Chambers and Seán Kyne.
Amendment declared lost.
Senator Lorraine Clifford-Lee has advised the Cathaoirleach that she has entered into a voting pairing arrangement with Senator Eileen Flynn for the duration of Senator Flynn’s maternity leave and accordingly has not voted in this division.
Section 16 agreed to.
NEW SECTIONS

Amendment No. 40 is in the names of Senators Higgins and Black. Amendments Nos. 40 and 41 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 40:

In page 17, between lines 8 and 9, to insert the following:

“Report on vacant units in LRD development

17. The Minister shall, within 18 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining the number of completed housing units under the LRD process which remain vacant.”.

This amendment and amendment No. 41 relate to the same issue and the fear I have that is derived from and grounded in what we have seen emerge in respect of previous measures. I refer to the fact that we may not see development happening at the required scale and that we may not see large-scale developments being built. My other concern is the issue I mentioned earlier in respect of the possibility of residential units being left vacant. I have specified 18 months in this amendment, but I am open to a different length of time being cited. Amendment No. 40 proposes that "within 18 months of the passing of this Act", and it could be 24 months if more time is needed, a report would be laid before the Houses of the Oireachtas outlining how many of the completed housing units emerging from the LRD process remain vacant. I put in 18 months to give some time for the building to happen. I do realise, however, that few developments will have been completed in 18 months. Apparently, as well, they are all going to be taken to the High Court and the Court of Appeal in the next 18 months.

What I am trying to get to is the issue of vacant units. If we are to have large-scale residential developments, the first thing we need is for them to be built. That is where a lot of our "use it or lose it" clauses come in. In addition, however, units in such developments must be occupied. The reality is that we have housing developments and apartment buildings in the city centre with large numbers of units vacant. That issue is not being addressed by a vacant property tax, so I wish to ensure that we have some measure or signal from the Government in the Bill which is a form of stick in this context, because those units are needed. It would be made it clear that not only do we want developers to build residential units but also to take action to ensure those units are occupied. I refer to ensuring that they are homes and not investment products.

In that regard, amendment No. 41 is intended to go further in trying to tackle the dangers in this area. I would refer to inadvertent dangers, except that warnings have been given in this regard but not acted on. I hope that these would, in fact, be inadvertent dangers in the context of planning permission becoming a commodity rather than a mandate to build homes. In that context, in this amendment I have asked that within 12 months, and it could also be either 18 months or 24 months, of the passing of this Bill - and I reserve the right to bring a new version of the amendment forward on Report Stage if the Minister is not minded to accept this one - that the Minister would lay a report before the Houses of the Oireachtas to tell us what proportions of the sites granted planning permission for large-scale residential developments have not had construction commenced on them. We do not want to replicate the situation with the SHD process, where years later we ended up with less than 50% of what was envisaged commenced. It was one third at one stage, but I think it has reached close to the half-way mark now. Amendment No. 41 also refers to the report detailing the proportion of those sites granted large-scale residential development planning permission that have subsequently been sold. I refer to them having been sold as a product in the form of a site with planning permission. Equally, the amendment seeks that the report to be laid before the Houses of the Oireachtas would also detail "the proportion of land, expressed in hectares, which is the subject of LRD planning permission and is owned by real estate investment trusts".

Regarding housing and property, and future interest in and prospects for property, as commodities contradicts our aims in many regards. I say that because it works on the logic of scarcity, of added value and of keeping demand constantly at a point of desperation. In many cases, that is what adds value. We need active measures to track where housing is becoming a commodity rather than, crucially, homes. The housing market and the speculative property market are, therefore, often at odds. Amendment No. 41, in particular, gives the Minister the chance to track for us what is happening with these LRDs. I refer to finding out if these planning permissions are becoming commodities or if they are going to translate into real homes.

I agree with Senator Higgins in this regard. She mentioned possible flexibility around whether the time specified in amendment No. 41 would be 12 or 18 months. Let us say it will be 18 months for the provisions of amendments Nos. 40 and 41. I genuinely hope that the Minister will be in this role in 18 months' time and that he will be coming back here to tell us about his great successes and achievements in this regard. I mean that sincerely. I look forward to seeing what will have happened in 18 months. Hopefully, the Minister will be there and the Government will still be in play. I hope he will still be the Minister, if he has not moved up higher by then, and that he will come back with reports on these aspects. I look forward to that and I am in favour of it.

In wrapping up, because I will not be speaking any more on this legislation, I genuinely wish the Minister well. He has put his best foot forward. He is brave and courageous, and what is more important is that he believes. I am looking at a man who believes in what he is about and who believes in what he wants to do. While we might have differences, he is the Minister and it is his prerogative to get on with the job. He will be held to account, and housing will be one of the biggest issues that will decide the future of this Government, invariably, and that of the Minister himself. I genuinely wish him well and the best of luck.

I thank Senator Boyhan for his kind words. Turning to these two amendments, vacancy in residential units is an issue, there is no question about that. One of the four pathways in Housing for All policy is concerned with how we can tackle vacancy. It applies to existing and new stock. We discussed the zoned land tax. It is going to be significant and a major change from what exists now. In addition, the other aspect that will be significant in this regard is the vacant property tax that I and the Minister for Finance, Deputy Donohoe, will be bringing forward. It will be assessed through the local property tax, LPT, returns and it will be significant in itself. I do not want to see new properties, or any properties, vacant around the place.

I understand the thrust of the Senator's arguments in these amendments and what she is seeking to achieve. Realistically speaking, however, I do not envisage that there will be many LRD applications in this timeframe. If we can get this legislation enacted by the end of the year and it then becomes law, I expect that 17 December will be the date for these new arrangements to take effect. We will be then be watching what happens in this regard closely and gathering data on vacancy. The Housing for All policy has several serious actions that we must undertake in this context. Therefore, we will track this data, but I do not think that this legislation is the right place to have tight timescales of 18 months, or even 12 months, from the passing of the Bill into law, necessitating the laying of a report before the Houses on the three aspects specified in amendment No. 41.

I want homes for people to live in, as we all do. We want people to be able to buy them, and in that regard we have already brought in the owner-occupier guarantee, as well as all the other things we have discussed. Therefore, I do not think that these amendments are appropriate for inclusion in this legislation. The Senator makes a good point in the sense that one of my, and the Government's, priorities is to tackle the whole area of vacancy, and we will do that. We certainly cannot have a situation where a sizeable proportion of new developments are being left empty.

That will be tackled through the vacant property tax as well as the zoned land tax, which will replace the vacant site levy which did not collect the money that it should have because it was a levy. The tax will be administered by the Revenue Commissioners. It is very significant even at 3%, which some have said is not significant. For a site valued at €1 million it is a €30,000 fine per annum. It will not be long before that builds up to a sizeable portion of the value of the site. We are doing that. In addition, we have put our money where our mouth is on this. We brought forward the legislation to replace the SHDs. The Government has done very significant things with regard to planning and housing.

I am conscious of the time for ourselves and, more importantly, for the staff and my officials, so I take the point. It might be something we might potentially return to on Report Stage. The Senator's timelines are far too tight. There could be a mechanism whereby a report would go to the Oireachtas joint committee. That could happen anyway because the Oireachtas joint committee can seek it. It is a new system of planning where we want to see what the throughput is. That was done in SHDs, by the way, so I do not see any difficulty with collating those data. We might have a look at that again on Report Stage and as it moves to the Dáil.

With regard to amendment No. 41, I am getting a signal from the Minister that he is willing to engage between now and Report Stage. That would be useful. Those data are crucial, whether they are put in a report laid before both Houses of the Oireachtas or before the Oireachtas joint committee. There is a piece the Minister did not address but he said there was no problem in providing information. I expect he will engage with the part of that information on issues where there are sales and resales. They are the specific pieces I am seeking in amendment No. 41. First there is the question of when things are being commenced, then there is the question of whether they are being sold on and the other question specifically relates to the role of real estate investment trusts, REITs, because REITs are one of the signals whereby we can know what is happening. It may be that the information comes with a caveat and that perhaps REITs own it, they have full occupancy and they are not being sold on, but it is still important and useful information because it tells us what is happening in the market.

As regards the vacant property tax, I am glad the Minister mentioned the intention in that regard. However, an opportunity was missed, and consciously missed, because I proposed an amendment to the Minister for Finance, Deputy Donohoe, for the local property tax legislation when it went through. There was a specific clause inserted which provided that while information was being gathered in respect of vacant properties it would only be used for statistical analysis and not for any other purposes. That set the clock back on us being able to use that information appropriately for instituting a vacant property tax. It appears that a vacant property tax will require a new process of going around. We need to start building it in now. We must have a timeline on the vacant property tax and we should not be missing opportunities such as a local property tax review. That was the opportunity to introduce proper measurements that could be used to follow with a vacant property tax in the new year. However, the way it was framed was very much about using this round of the local property tax as the gathering of general statistical information as to whether there are vacant properties. Frankly, we know there are vacant properties, and the Minister has acknowledged it, so it is a pity that we are not further along on the vacant property tax. Until we have something like a hard timeline for a vacant property tax being introduced, and it needs to be in the next six to 12 months, we must press for specific measures on vacant properties in any large-scale housing developments that are going through.

I will withdraw amendment No. 40. I will table it again with a 24-month timeline. Let us hope we have a vacant property tax by then.

Amendment, by leave, withdrawn.

I move amendment No. 41:

In page 17, between lines 8 and 9, to insert the following:

“Report on the operation of the provisions of this Act

17. The Minister shall, within 12 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining—

(a) the proportion of sites, expressed as a percentage, which have been granted LRD planning permission where construction has not commenced,

(b) the proportion of sites, expressed as a percentage, which have been granted LRD planning permission and have subsequently been sold, and

(c) the proportion of land, expressed in hectares, which is the subject of LRD planning permission and is owned by real estate investment trusts.”.

Amendment put and declared lost.

I move amendment No. 42:

In page 17, between lines 8 and 9, to insert the following:

“Further transitional measures

17. (1) Where an application under section 16 in respect of the Act of 2016 is proceeded with and planning permission has been granted, such planning permission shall be revoked 12 months after it has been granted in respect of scenarios where construction of the proposed development has not commenced.

(2) Any applications which have been granted planning permission prior to this enactment under the Act of 2016 shall be revoked where construction of the proposed development has not commenced 12 months subsequent to the passing of this Act.”.

Amendment, by leave, withdrawn.
Section 17 agreed to.
TITLE
Government amendment No. 43:
In page 3, line 9, after “development,” to insert the following:
“to amend Part V of the Planning and Development Act 2000 so that the need for housing for owner-occupiers can be taken into account in housing strategies,”.
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Next Tuesday.

Is that agreed? Agreed.

Report Stage ordered for Tuesday, 23 November 2021.

When is it proposed to sit again?

At 10.30 a.m. today.

The Seanad adjourned at 1.07 a.m. until 10.30 a.m. on Wednesday, 17 November 2021.