I welcome the Minister of State, Deputy Dillon, to the House.
Planning and Development Bill 2023: Committee Stage
Amendments Nos. 1 to 16, inclusive, are related. Amendment No. 6 is a physical alternative to amendment No. 5. Amendments Nos. 1 to 16, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 1:
In page 27, between lines 21 and 22, to insert the following:
“(3) Without prejudice to subsection (2) the provisions of this Act relating to the repeal of the termination of the Office of Planning Regulator shall come into effect on the passing of this Act.”.
I welcome the Minister of State and his team to the House. It is my intention to keep debate on these amendments pretty brief and to the point. There was a substantial amount of debate at the Oireachtas joint committee. Many of the members of the committee are present and contributed substantially to that discussion. There was a very big debate in the Dáil on the Bill. We now are starting on Committee Stage of the Bill. I am conscious of the need for strategic planning.
I am conscious of the need for infrastructure to be catered for in our planning. We will not have success in the areas of our housing, health, education, enterprise, innovation, connectivity, water, waste and energy if we do not have a strategic overarching policy. There are criteria and an apex in that regard. I want this to be a constructive and respectful dialogue, because that is what is needed. This is not about any individual; it is about policy and an opportunity to contribute to that policy. I will touch on a number of the amendments in the grouping that comprises amendments Nos. 1 to 16, inclusive.. I will indicate which ones I am speaking to as I go.
It is not my intention at any point to scrap the Office of the Planning Regulator. I wish to speak about the office, not the individual who holds the post of regulator because the holder changes from time to time. I acknowledge the important work of the Office of the Planning Regulator, particularly in its engagement with and oversight of plans and their strategic nature. I have a number of concerns, however. In the context of the Office of the Planning Regulator, the county development plan, as the Minister of State and others know, is an important policy document that sets out the overall planning strategies and objectives for each of the local authorities. More than anybody else - it will not come as a surprise to any of us - I receive most of my representations from sitting county councillors, the practitioners of this planning system and the guardians of their city and county development plans. They take them seriously. They are strategic. They are reserved functions of the elected members, and I support them and their concerns. I am teeing up this particular amendment to touch on some of the concerns they have in relation to the Office of the Planning Regulator. I will wait for the Minister of State's response, but there are issues around governance of the Office of the Planning Regulator. It does not have a board. We are talking about An Bord Pleanála - An Coimisiún Pleanála - but it has a board. We will talk about that later. There is no governance structure. We know there has been litigation by a number of councils against the Office of the Planning Regulator, some of which has been successful. I do not want to comment on individual cases because that would be right or proper. I understand one or two may be outstanding, therefore it would not be appropriate or right on the floor to single out the particular planning authority or case. The Minister of State will be well aware of it and has been contacted by the Office of the Planning Regulator in relation to some of these issues.
The making of a development plan, as councillors see it, is a reserved function. They are absolutely right about that. Section 9 of the 2000 Act, with which we are familiar - and we are now bringing in new legislation - provides that a planning authority must make a development plan every six years; we will talk about that later. I emphasise that there are concerns about the Office of the Planning Regulator. My primary concern about the Bill relates to the proposals curtail certain rights. This Bill will reinforce the Office of the Planning Regulator, which from time to time has sought to undermine planning decisions made by elected city and county councillors in relation to their development. That is how they see it.
The Minister of State and his staff will be aware that the Association of Irish Local Government has made a number of submissions in relation to these matters. It is deeply concerned. The Bill gives me and my colleague Senator McDowell an opportunity to home in on the Office of the Planning Regulator. This not about scrapping the office; we have teed this up to give us an opportunity to make a contribution. I am interested in the Minister of State's feedback on what plans there are. The Minister for housing indicated that he had concerns or that he wished to see a strengthening of governance around the Office of the Planning Regulator. He may have; I do not know. The Minister of State may be able to share with us. There may be amendments in that regard. There are a substantial number in respect of the Office of the Planning Regulator in the plan. I touched on actions and the High Court issues relating to all of that. It is an important point. We are conscious of the need for infrastructure and for oversight of these issues.
What was going on before the OPR? This was all happening in-house and being done by the Department charged with that responsibility. This is an important point to make.
There must be management of the planning systems but there must also be accountability and transparency. I refer to a situation where the OPR must contact the Minister because it is feeling a bit jittery about litigation, needs to seek advice or needs to inform the Minister that it may be exposed. In this case, who is exposed? Is it the OPR in relation to the decisions it makes or is it the Minister? As the Minister of State will know, the OPR is ultimately under the aegis of the Department. There needs to be greater clarity and understanding around all these issues.
Much of this is just about teasing out the issues and I would have expected this to have been addressed in this legislation. Councillors must be able to realise the ambitions of their city and county councils and their respective plans. No one is there to frustrate others. There are genuine concerns. I am conscious of the reasons for the OPR being established in the first place following tribunals, and this is understandable. The point I am making is that we need to home in on, and have some sort of governance structure put in place for, the OPR. It is important to be open and fair and I acknowledge the OPR has done extraordinary work, especially in regard to its liaison with city and county councillors, its programmes and its outreach. However, there needs to be greater clarity concerning the respective roles and functions of the regulator and the parent Department, namely, the Department of Housing, Local Government and Heritage. This is also an important point. The Minister of State has got the gist of what I am saying in this context so I will move on.
Turning to amendment No. 2, this is not in my name but it addresses the Aarhus Convention. What is it? As the Minister of State will know, it is really about the right to have access to justice, the right to commentary and the right to engage in all of these issues. It is an important aspect and one we should continue. The Aarhus Convention is all about access to information, public participation in decision-making and access to justice in environmental matters. It is an international agreement that considers and bestows rights on citizens, including covering rights of access to justice in case of non-compliance with environmental law, and it does much more besides. I wish to hear from the Minister of State the view of his Department and his officials on compliance in this regard. Is this Bill fully, and I emphasise the word "fully", in compliance with the Aarhus Convention international agreement? I ask this question because this is a concern and one that needs to be addressed.
We have seen that many environmental bodies are worried and concerned about this issue. As a member of the Oireachtas Joint Committee on Housing, Local Government and Heritage, this matter was raised time and again with us.
I wish to speak briefly in support of amendment No. 13. I will not go into detail on it because the proposer of the amendment will have the details and be able to talk about it later. I also support amendments Nos. 14 to 16, inclusive, because they are worthy of support and of being covered.
I draw attention to the issues highlighted as a result of the joint committee's public consultation. The joint committee's report on the Pre-Legislative Scrutiny of the Draft Planning and Development Bill 2022" states:
The Law Society of Ireland informed the Committee that rules on standing which are too narrow could deprive people of their right to seek legal review of planning decisions and delay proceedings where the new standing requirements are challenged. Consequently, questions remain regarding the interpretation and compatibility of these standing rules with the Aarhus Convention and EU Law.
[...]
...the balance of Judicial Review set out in the 2000 Act is correct regarding equivalence of treatment, constitutional justice, fair procedures, and Ireland’s obligations under international law regarding access to justice. Given the stated concerns, the Committee believes it is necessary to retain the current legislative definition of standing, interest and grounds derived from relevant case law and as defined in the Aarhus Convention.
Those were the views expressed in that context. I very much respect the witnesses who contributed and I thank them again for their engagement with the joint committee's work because it was important.
I turn next to witnesses from the Bar Council.
The Bar Council made submissions. The Minister appeared at the committee and the Bar Council spoke about rights under the Aarhus Convention. In its submission, it stated:
The overarching intention of the Convention is to remove barriers and broaden access to justice on environmental issues. The Preamble to the Convention provides that the Parties are “[c]oncerned that effective judicial mechanisms should be accessible to the public, including organizations, so that its legitimate interests are protected and the law is enforced”. The Convention was ratified by Ireland in June 2012,1 with elements adopted into EU law via Directives 2003/4/EC and 2003/35/EC.
The Bar Council also made the following interesting point:
EU law requires – in summary - that Member States ensure that concerned members of the public who have a sufficient interest or whose rights are affected have access to an independent review procedure before a court of law or tribunal in relation to matters affecting the environment. While law gives significant discretion to Ireland with respect to procedural requirements, those procedures “… shall provide adequate and effective remedies … and be fair, equitable, timely and not prohibitively expensive.” It further provides that the Parties “shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”
These are key elements of what we are talking about today.
The Association of Irish Local Government, AILG, made a number of detailed submissions and raised concerns. It believes the office of the planning regulator could potentially curtail its reserve functions. I am here to make a case for the AILG. Quite simply, I made a commitment to the AILG and I am honouring it. Its members indicated they believe it may affect their reserve functions in respect of city and county developments. They talk about concerns about a number of recommendations by the Office of the Planning Regulator. That is it.
There is a lot in that but the important point is that we need clarity on the Aarhus Convention and the role of the Office of the Planning Regulator. We need a fully understood, consistent and transparent structure for the relationship between that office and the Department. We need greater clarity on circumstances where the Office of the Planning Regulator has a concern about a planning authority and that planning authority decides to mandate litigation. Should that litigation be taken against the planning regulator or the Minister? We need stronger arrangements to be put in place for the overall governance of the Office of the Planning Regulator. I understand the Minister is considering establishing a board, but we need to hear that.
There is nothing personal in this about any member of the staff. I acknowledge the enormous amount of work they have done. This is about strengthening the Office of the Planning Regulator. This craftily worded amendment gave us an opportunity to prioritise this as an issue to be raised today.
I welcome the Minister of State and thank him for attending.
I will make a number of preliminary observations. We have decided the Order of Business and I do not want to reopen that discussion. It is slightly old-fashioned to say the Bill is the size of an old telephone directory-----
I remember telephone books.
-----but there were such things inside the hall doors of most houses at one time and this could certainly keep the hall door open in a fairly substantial wind. Abridging the time for consideration of this legislation on Committee Stage is not a good idea. Even with the accelerated procedures for clearing the decks in respect of amendments for Report Stage, which are a concession because it was originally planned to steamroll this whole Bill through before the summer vacation, the Bill is not receiving adequate consideration in this House. The Members of this House have been confronted with a Bill coming from the Dáil, which, to anyone, is frightening in size.
Even insofar as it is a consolidation of existing planning law rather than new measures, it does not purport to be a consolidation Bill and, on the face of it, does not allow time for us to reconsider what elements of existing planning law are good, bad or need revision. We are being asked to consider this in the lump, so to speak, with very limited time resources made available to us and a false sense of urgency about it.
I fully accept the general principle the Attorney General recently argued for, namely, that housing is the priority and unreasonable obstacles to the implementation of housing policies, composed of the availability of judicial review and the like, and the unbridled access to judicial review by people who have the most tenuous interests in the matters under consideration, need the attention of these Houses. I accept that proposition. I am not arguing for the unbridled right of the need to object to something in County Wicklow or vice versa. Nobody is suggesting that is a legitimate state of affairs. I have seen cases involving people I know who applied for planning permission for a house in Blackrock who were opposed by somebody who lived at least five miles away in Dublin, with no visible or sensible connection to the development at all. That is before we get to all the controversies about people who are objecting on a commercial basis to planning applications and are using the existing structures to exact financial settlements from would-be developers. I fully accept all of that is wrong and must be remedied. These Houses owe themselves and the Irish people a duty to remedy those matters.
This Bill will effectively be a consolidation measure wrapped up with small amendments. There is a separate procedure in the Houses of the Oireachtas for consolidation laws, which is that they go through an accelerated process whereby, on certification that they are a consolidating measure, they are given a green light rather than a full line-by-line examination. It would have been more appropriate for the Minister to bring in an amending Bill where it would be clear what was new and what was old. He should have justified that and then said, "By the way, once this Bill is passed, we will enact a consolidating measure, but you can focus in the meantime on what is proposed to be changed here."
Having said that, the amendment we are now concerned with is one on which I take a slightly different view than my colleague Senator Boyhan. The Office of the Planning Regulator is something I regard with considerable suspicion. The reason for that is its origin and genesis. It originally came into being on foot of dissatisfaction with the powers, and the manner in which they were exercised, of local authority members as considered by various tribunals. Again, it is a legitimate cause of concern that there was an opportunity for abuse of the system simply by virtue of the fact that would-be developers and would-be landowners were in a position to influence the zoning, dezoning or deviation from zoning activities of county councillors in a manner that attracted allegations of corruption and, in some cases, proof of actual corruption. That was scandalous. I accept something had to be done about that but I do not accept the proposition that what we have ended up with, in the form of the Office of the Planning Regulator, is the solution to that problem.
I ask this House to remember, in particular, that we did amend our Constitution to introduce an Article 28A dealing with the whole area of local government. We did this because, at European level, it was pointed out that the Irish local government system was not at all considered by the Constitution save in one respect alone, that is, the right to nominate candidates for the office of President. Apart from that, I do not think local authorities featured at all in the 1937 Constitution up to the enactment of Article 28A. What was done regarding Article 28A looked plausible on the surface but was in fact largely illusory because it establishes at constitutional level the obligation of the State to have an effective system of local government and, at the same time, completely takes away from that right – a right vested, presumably, in the people whose communities are affected by local government – any power to determine what issues do and do not fall exclusively within the remit of local authorities. Article 28A is a blank cheque to the Legislature to take from or grant unto local authorities particular powers that may have profound effects on local communities.
It is in this context that I consider Article 28A to be somewhat fraudulent. No local authority really could ever litigate on the extent of its powers or the legitimacy of proposed legislative deprivation of its powers or functions under the Constitution because the terms of the article simply state the functions to be carried out by local authorities shall be those enacted by law. Therefore, no local authority can say what its exclusive business is or say to central government that something is for the local authority alone to decide. It is not for it alone to decide. Local authority members now have reserved functions to adopt development plans. I will come back to that shortly, if I can. I intend to be brief on this and am not in any sense filibustering, but I am articulating a view that I passionately hold. Local authority members have the right to determine the development plan for their local authority area, and this process requires publication, public consultation, revision and the like. The members of the public in Dublin city, Wexford or wherever have the right to see what is being proposed by their local authority members and the decisions they are about to make, and the right to comment on these, object to them, support them, vary them or whatever. That process is set out in an elaborate fashion but what happens then is that the role of the planning executive of every local authority is made central to the process of developing a local authority development plan. The local executive is given massive power in generating the proposals and also onerous duties relating to that by planning law. Duties are imposed on the local authority as a whole to conform to certain national criteria such as the ones mentioned by Senator Boyhan, including in respect of infrastructure and a national spatial strategy. While many of these are legitimate aims to impose on a local authority that wishes to consider adopting a development plan with a lifetime of so many years, a new body, the Office of the Planning Regulator, has come on the scene that is supposedly independent of the Minister but that has a most complex relationship with the Minister and effectively marks a local authority's homework.
I had experience on one occasion, and I think I can speak about it without breaking any professional rules, of a decision by local authority members in one local authority to authorise a variation of the local development plan to facilitate the building of a housing estate outside a developing town on the periphery of Dublin. The question that they ran into was that under guidelines issued by the Minister, the idea of sequential development was established as a criterion for granting or refusing planning permission or for making or not making decisions to vary the local authority's draft development plan. What happened in that context was that in that particular town there was land closer to the centre which could have been built on to provide housing but by the same token that land was not, for one reason or another, being developed. The local authority was not compulsorily purchasing that land but was saying to a person who was on the periphery of the town that his or her scheme could not be approved because there was available alternative land closer to the centre of the town which he or she did not own and which the owners did not propose to develop.
When one considers that problem, one then comes across the function and role of the Office of the Planning Regulator which said that such a variation of the draft plan was illegitimate because it violated the principle of sequential building out from the centre of the town, regardless of the fact that the lands which were being held up as more worthy of development were not going to be developed, in the opinion of the local authority members.
I noticed recently that there was a property in Monkstown in Dublin with 12 acres attached to it. It was a single private house in what would be considered a prime residential area. If I own that house but have no intention of developing it, even if I am taxed for failure to do so, the fact that I am not developing it is a rather odd reason to refuse somebody else in Dún Laoghaire-Rathdown who is further out or at a greater distance from population centres, the right to develop his or her property or to deprive the councillors of Dún Laoghaire-Rathdown the right to rezone or fail to dezone lands for residential development.
The example I gave earlier came to the courts in the context of the local authority wanting to vary the draft development plan for this particular conurbation in a particular way so as to ensure that the land would be developed and that open space to be provided for local clubs and the like would be taken up but the Office of the Planning Regulator said it violated the principle I mentioned earlier of sequential development. Therefore, it was either entirely premature or excluded, having regard to ministerial directives.
We have, therefore, a situation whereby the planning executive officers in the local authority, who know the situation on the ground and appreciate the likely demand for housing in an area, and in that case in particular with reference to outdated demographics for the greater Dublin and surrounding area legislation, are told by the Office of the Planning Regulator to refuse to implement the amendment to the development plan that they wanted to make in the interests of their own community. I have since come across many other examples across the country where county councils have been told that housing density should be used at a rate per acre that involves the building of duplexes in areas where there is no demand for such accommodation. That is demanded and imposed on a local authority because the housing density to be achieved under ministerial directives is not going to be achieved with lower density or different forms of housing estates. That is another example. In that case too, the Planning Regulator comes on the scene and tells an entire county council that it must conform with planning densities as determined by the Minister nationally to make a valid development plan, to vary the existing plan or even to propose a variation to the draft development plan as drafted by the local authority's planning department.
We then come to the question of what the Department of housing has done with regard to all of this. I do not withdraw for one minute what I am on the record as saying and it is not meant as a slur on any of the individual public servants in that Department. However, that Department has been a grotesque failure in meeting the housing needs of this country. We had a situation until the early 2000s whereby local authorities had a statutory duty under the Housing Acts to provide sufficient housing in their areas to satisfy anticipated local needs. That statutory duty was abolished and we have instead a much more relaxed system which does not compel, for example, Dublin City Council to assess how many people in its area require housing and to do something about supplying it, whether through compulsory purchase orders, CPOs, joint schemes or whatever other approach. That duty no longer exists because at the time it was considered too onerous.
The Office of the Planning Regulator was conceived in the Department of housing. It started as a proposal generated in response to the planning tribunals and has grown, even on the most rose-tinted view, to subvert totally the rights of local government in the context of the non-guarantees of Article 28A of the Constitution. It is in that context that I say the following. The Minister for housing is put in a very embarrassing position. If the Planning Regulator takes one view of the legitimacy or otherwise of a development plan, a proposal to vary a development plan or a proposal to vary the draft of a development plan, and the regulator issues a direction along those lines, what happens then? Unless the Minister is willing to come to the Houses of the Oireachtas and vote down the view of the Planning Regulator, it stands. The office effectively vetoes planning decisions by local authorities and the Minister either has to table a resolution in the Houses of the Oireachtas rejecting the decision of his or her own Planning Regulator or else it is deemed to be effective and binding on everybody, including the Minister, the elected members of the local authority and the unelected executive of the local authority.
What has happened in Ireland to local government is that we have created a prefecture of chief executives who used to be called county managers and city managers that is selected by an inner sanctum. It is not clear how it happens but as far as I can see, they all end up self-selecting to some extent. The process is far from transparent. The powers of local executive management compared with the powers of elected members are hugely tilted in favour of the executive, headed by a person appointed by the Department of housing in the last analysis. It is all very well to have a directly-elected mayor in Limerick-----
Is this Second Stage or is this Committee Stage?
It is all very well to do that. I am talking about the Office of the Planning Regulator.
Yes, which is dealt with in section 496. The Senator knows that.
Sorry, it is section 1, if the Senator would read the-----
It is section 1, amendment No.1, which relates to the Planning Regulator. If we could speak to the premise of the objectives, though, it is amendments Nos. 1 to 16, inclusive. Senator Cummins should speak through the Chair.
The Senator would not merely vote to guillotine the Committee Stage but then he started objecting to people who want to talk about what we are actually doing with this legislation.
Section 496 is on the Planning Regulator and the Senator knows that.
I know that and as the Senator is aware, I am talking about the amendment in section 1. I want to make the point that having done all of these things, we are now putting and cementing in place this rigid regime of control over local authority members. It is entirely wrong. The illusion of local democracy is entirely exposed by the Office of the Planning Regulator. That Department, in choosing to create this mechanism whereby it effectively can challenge its own Minister to either put up or shut up by putting a motion down before both Houses, is inherently undemocratic. There are political issues to be decided. There are areas of political responsibility. It is not some kind of science which only yields one result. There is a great need for genuine democracy in this area.
The last thing I want to say on this amendment at this point, as my colleague will be glad to hear, is that we trust local authority members to the minimum extent possible with any discretionary powers. The members of any local authority in England are given some input into how planning decisions in their areas are dealt with. Here, they are prohibited from deciding except through the development plan. Even when they seek to enforce that, they are limited hugely. Do we believe in local democracy? I do not think we do. We believe in local administration. We give an extremely limited set of rights to locally elected councillors that are not adequate to defend the interests of the community. They involve imposing criteria and guidelines on local authorities regionally and individually that are frequently out of date in terms of what is happening to our population. More importantly, it is a one-size-fits-all approach to planning right across the country.
On all of those grounds, I am happy to second amendment No. 1.
While the Government Members have said that the Planning Regulator is dealt with under section 496, this is the only real opportunity we are going to get to discuss it. There has been a form of institutional capture of this Bill by the Planning Regulator. While An Bord Pleanála is having its name and functions changed, it is being split up into those who are looking after planning and those who are looking after the executive function. The Planning Regulator has unchecked power when it comes to interpretation of national plans and what is a plan-led approach.
I put down an amendment proposing that there would, at the very least, be a board, like there is for every other semi-State agency. The Minister is responsible to this House. Every other semi-State body has an office and a board. Chief executives of local authorities are responsible to their elected members. Elected members are responsible to their constituents. However, for the Planning Regulator there is no accountability or responsibility. My amendment was ruled out of order on the basis that it would impose a charge on the Exchequer. This is the only way we can possibly talk about the Office of the Planning Regulator and the unmatched powers we are giving it over our plan-led approach. As other Members have referenced, it has told local authorities with well-connected, transport-linked housing that they have reached their maximum limit of population in terms of the plans and told them to dezone lands. The Office of the Planning Regulator is not accountable in any way, shape or form. It is a dereliction of duty on behalf of the Government to propose a 700-odd page document overhauling the planning system and then leave one person, no matter who that person is, and one office with untouched, unaccountable power.
This is particularly relevant when we are talking to something like the planning system because the Planning Regulator emerged out of the tribunals in respect of inappropriate rezoning. This Bill has emerged out of controversies with An Bord Pleanála and alleged conflicts of interests and yet in it, the most powerful office that we are providing for, the Office of the Planning Regulator, is absolutely untouched. The one amendment that would have at least made the Planning Regulator accountable in some way, shape or form has been ruled out of order on the basis that it would give rise to a charge on the Exchequer. We have been having briefings on this since 2022. Through all of this process, there was no effort to give the very basic, essential function of a board to the Planning Regulator. I make the point to Senator Cummins that we are discussing it now because we cannot discuss it at later stages. The powers and roles of the Office of the Planning Regulator are untouched and that is an absolutely fundamental flaw of this Bill. I ask the Minister of State to address it and to let us know if before the passing of this Bill that there will be a board appointed to the Office of the Planning Regulator which will allow some accountability in order that one person will not have total control and capture over our planning system.
Well said.
Senator McDowell referred to remarks made by way of preliminary comment. We have to have preliminary comment on the scale and size of what we are being asked to review and the absolutely inadequate time allotted to so do. We have heard the serious concern from right across the Opposition in the discussions relating to the Office of the Planning Regulator and this is part of a genuine concern in respect of democracy. The planning system is part of democracy. It is one of those fundamental areas. When I try to get people who might be jaded with politics or policy to become passionate about it, I often say these are the decisions we make about how we live together. That is all it is. It is not an esoteric thing; it is decisions we make about how we want to live together. Some of the most fundamental decisions we make about how we live together are decisions on planning and development and how the spaces we share are planned for and developed.
There are very serious concerns regarding the democracy of that process in this Bill. It sits inside a very serious concern about the lack of opportunity for this House to deliver full democratic oversight because a Bill ten times the size of a normal Bill is being put through Committee Stage in just three days. There is a fundamental issues of democracy in terms of the process for the planning Bill and there are fundamental issues of democracy within the planning Bill. Many of those issues relate to the very late section in question, which I hope we will reach. Let us be clear, however, that if we do not get to it, that will be the result of a decision made by the Government and its representatives here in the Seanad to guillotine the Bill. That was the decision made during the Order of Business this morning.
There are big issues with the Office of the Planning Regulator with regard to the absolute lack of oversight, as has been mentioned, and the extraordinary interpretive powers that reach into every plan and framework. We are giving unchecked interpretive power to an individual. There is also the power to absolutely override local authorities and local development plans. We speak about democracy and local development plans, on which we will have a more lengthy discussion later, are made by people in a place about that place.
Senator Moynihan spoke about the concerns we had in the past about potential conflicts of interest. Not only do we not have a governance structure with regard to the Office of the Planning Regulator but that public official does not come under the scope of the Regulation of Lobbying Act. We will have an individual with this extraordinary power to railroad past everything who will not be regulated in terms of lobbying in the same way as other public officials. This is extraordinarily dangerous and irresponsible, particularly given the scandals we have had in the past at local authority level and, more recently, at An Bord Pleanála. I hope we will get to discuss these issues further later as I would like to support the amendment tabled by Senators Boyhan and McDowell regarding the planning regulator.
I want to make some remarks about the size of the Bill and democracy. I also want to put on the record that I am concerned about the entire premise of the Bill and the reason we are being told it is being rushed. It is so big that we could get lost in the weeds, and no doubt we will get lost in the weeds of the many poor aspects of the Bill. In many places it is poorly drafted, in other places it is dangerously drafted and in other places again, it is drafted in direct non-compliance with international law. There is a premise about the Bill that I am worried about. It is the idea that we will have a big Bill so the Government can say it did something on housing. Let us be clear that the failures on housing and on delivering housing for the people of Ireland and for all who come to live in Ireland are failures of policy. They are multiple failures of policy in many areas and I hope we will be able to discuss points on them in some detail. As for the idea of ending 12, ten or multiple years in government, as is the case with Fine Gael, by stating the problem all along was planning and doing a big Bill and of thinking people will forget it failed on housing, that should not be the case. To be clear, last year the Department of Finance found more than 100,000 planning permissions for houses that went through the system and are not being held up are not being developed and are lying dormant.
Strategic housing developments were one of the first things to be fast-tracked and rushed when I came here in 2017. The idea was that they would be fast-tracked and skipped. Four years after the system was introduced, only 30% had broken ground. Many of the cases that were taken related to strategic housing developments because they skipped the planning process. The Government short-circuited the process and bypassed local authorities. It ended up with poor decisions. The cases were decided not on the point of principle that people did not want houses but because of failures on points of law, including international law. There were poor planning decisions. The Bill will further centralise planning functions and take decisions further from local authorities and local democracy. Public confidence in An Bord Pleanála is at an all-time low under the weight of scandals, including arrests, convictions and resignations.
All of these issues are not issues with the planning process or the planning legislation. These were issues arising from poor policies inserted by the last two Governments, which were effectively designed to skip bits of the planning process. They led to bad decisions that were challenged. On individuals appointed by Government, when we come to An Bord Pleanála we will see the same mechanisms of appointment that we had previously, even though there has been a re-brand on the name. We are again seeing in the Office of the Planning Regulator a clear danger - which we can flag here - being created in respect of extraordinary powers, with lack of oversight and proper accountability.
I want to go into some of my amendments. I apologise; this will be a long intervention because a number of core issues are only being addressed at this point. Maybe we will have an opportunity to address them later but they are addressed in these amendments Nos. 2 to 16, inclusive. Amendment No. 2 seeks to insert a new section into the Bill, which would effectively mirror what we previously had in section 1A of the Planning and Development Act 2000. This amendment would address the communication obligations in respect of EU directives where the Government needs to set out the legislation relied upon for the transposition of a directive into national law. Ireland has to complete its national implementation reports on the Aarhus Convention. I know on Committee Stage at the Dáil select committee, it was argued that it was specified in different sections but it is missing in others. There are sections, for example, Part 9, which, do not have clear reference to how the Aarhus Convention will be reflected. This could cause major issues with the European Commission, as it means that a de-communication of transposition is taking place, as opposed to what had been previously in place. The mechanisms for communication around EU directives on section 1A of the Planning and Development Act 2000 that were there already there, will vanish and equivalent measures are not put in place in all parts of this Bill. This will create a lacuna, which is one of the many problems here. This is why a full Committee Stage is important because it allows us to catch, straight up, mistakes - I certainly hope it is a mistake - and problems that are being created in the drafting.
Amendment No. 4 seeks to amend the definition of "State authority" in the legislation by removing the line which says that the definition is subject to section 155(8). We are concerned that the provision, as it is currently worded, would mean that within the scope of the Bill, sub-contractors would be construed to be State authorities. Section 155(8) talks about State bodies as being those that are working on behalf of the State. That is what is there and that is getting put. The next definition that we have in the Bill talks about "undertakings". The definition, by adding that line in, effectively says that those undertaking work on behalf of a State authority are a State authority. That is another dangerous ambiguity being created. It is hard to know what the rationale is for it and why it is there.
Amendment No. 6 is fixing a key issue within the definitions of "unauthorised structures", as drafted. This is a mistake that was made, or I hope it was a mistake, it is certainly a bizarre piece of drafting, which occurred in three or four places in the Bill and has been proposed to be fixed in three or four places in the Bill, but not everywhere. It is still there, where we have sought to fix it in amendment No. 6. It is still there on page 40, between lines 10 and 11. I will read this, because it is important, as it was a mistake that was in multiple places and is now still in some places, which could be quite consequential. We have a definition of "development" as being, "carried out in accordance with a licence under section 13 ... or, in respect of which a licence under section 13 is required". It is literally just inserting that it is a development in which a licence is needed but not in terms of if it has a licence.
Again, that is a strange choice and it creates further ambiguities.
We are not going to go through all the technical issues in the Bill. This is just to give a sense of some of those that need teasing out. I will focus on amendment No. 10, which is crucial. It states, "The Minister shall, within three months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining the specific manner in which this Act, and [crucially] any regulations or orders made thereunder, comply with the Aarhus Convention." The context is that we know that this legislation, as drafted, is not compliant with the Aarhus Convention. This alone was a reason to pause the Bill and delay Committee Stage until the autumn. The full independent review I am calling for, along with this report to be published subsequent to that, should be conducted prior to the passing of the Bill, in light of recent events. On the evening of 11 June, during the first hours of the Dáil Report Stage debate on this legislation, the Minister, Deputy Darragh O'Brien, stated, "As we said right the way through pre-legislative scrutiny, Second Stage and Committee Stage, every element of this Bill that we have worked through is Aarhus-compliant, unquestionably."
In fact, 24 hours before he made that statement about the complete and unquestionable compliance with Aarhus, Ireland had been sent a report by the Aarhus Convention compliance committee explicitly stating that Chapter 5 of Part 4 was not compliant with the convention. Ireland had been so misguided in its understanding of what the convention requires that on 11 December of last year, the Department sent a copy of that Chapter to the committee in the mistaken belief it would correct areas where Ireland had failed in the past to be compliant with the convention, relating to the crucial issues of participatory rights and permissions being changed or updated. Again, these are not technical issues. They are ones of public participation and, crucially, of people's rights to be part of the planning process.
We are not compliant with Article 6.10 of the convention, which states, "Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1 [in terms of planning], the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate." We have very few hours to debate the Bill but I am going to take a little time for this aspect because it is important. Again, 24 hours after the Government received the report stating it was not compliant, the Minister stated in the Dáil that every element of the Bill was unquestionably Aarhus-compliant. Twenty-four hours after that, Deputy Cian O'Callaghan tried to draw attention to the report and seek clarification on whether it was that the Minister had not been aware of the report or whether he was choosing to ignore and mislead in regard to it. In fact, I have to hand a copy of the report. It exists. It is a real, solid and clear report. It is not a draft report or discussion document. It is a direct, clear report that states Ireland is not compliant, written by the body that is allocated by all the parties to the Aarhus Convention to be the determining body in interpreting it, and the convention is, of course, law.
Despite the matter being raised also by Deputies Bacik, Cian O'Callaghan and others, no satisfactory response has been received to clarify the Minister's comments claiming compliance, wrongly and falsely. No clarification has been received as to whether the Minister was at that point or a subsequent point aware of this or whether the Minister, Deputy Ryan, who has responsibility for the Aarhus Convention had engaged with this Cabinet colleague on this matter. In a written response on 25 June the Minister, Deputy O'Brien, indicated consultation on the matter of the report was being conducted with the Attorney General. Again, this is something the Irish Examiner reported on 19 June.
These matters are of concern because they are the context for us rushing the Bill through without clarification. It is now a month since the report from the Aarhus compliance committee. There are no amendments proposed by the Minister to address the issues the committee has identified with Chapter 5, Part 4. The legislation we are being asked to let through Committee Stage is publicly known to be incompatible with international law. The Government is not even trying to fix it on Committee Stage; it is just rushing Committee Stage. One of the decisions of the compliance committee on Chapter 5, Part 4 on why it is not compliant reflected the advice on the similar issue that arose with decision VII/8m concerning the Netherlands. The Minister, Deputy O'Brien, had previously dismissed this by saying that the Dutch system is very different from ours, but the compliance committee was clear that decision is directly relevant and applicable to Ireland. The fact the Aarhus compliance committee has highlighted that advice to the Netherlands again and again and highlighted in public consultations concerns about Ireland's approach is something that has been flagged. The highest-level interpretation has been clear to the Government and should have been clear but that does not seem to be addressed in the proposition being made to us on Committee Stage of this legislation. To suggest this was all just sprung on the Government would be to give it too easy a time, because right the way through people have been telling it there are problems with the Bill. These issues have been flagged all the way through by the Irish Environmental Network and many others.
I am coming to the last two sections on Aarhus, but it is important to set it out so we are clear about the context in which we are proceeding. The consequence when we do not get Aarhus right is not a mere technical issue. When the Bill is not compliant with the convention it is likely to lead to serious and complex litigation. It is inevitable. That will not be the fault of anybody taking litigation, but of a failure to do planning right, follow the laws correctly and legislate correctly. The litigation that will almost certainly flow from very clear and public noncompliance with international law will lead to delays and cases being taken. These cases are completely avoidable if we get the legislation right. It will affect the delivery of homes and critical climate State infrastructure, it will lead to uncertainty for investors and increased costs and it will increase the burden and difficulties within our courts. It is worth reflecting on the opening paragraph of the Supreme Court judgment on the Heather Hill case, where Mr. Justice Brian Murray provided a salutary reflection on the extent of litigation generated to clarify just one issue, namely, costs not being "prohibitively expensive". This was under the previous legislation. Over a decade there were "... at least thirty-five reserved judgments of the High Court, four decisions of the Court of Appeal, three references to the Court of Justice of the European Union, one judgment of that Court ... and, now, this ... [ruling]".
That issue has effectively been resolved to a point where it is now operating. That was on one aspect of public participation and access to justice.
When we talk about some of the issues on access to justice, the Bill makes changes not only around the prohibitive cost issue on access to justice, but also around the standing of who can take cases, around the scope, and around what kind of effective remedies are or are not available. These are like almost the pillars of access to justice. They are non-prohibitive cost; that people have access in terms of standing to take the cases; that the scope is appropriate; and that the remedies are appropriate. All of those issues are being dealt with in ways that are problematic in this Bill and that have been flagged by many across civil society and, indeed, politically.
The potential risk is further compounded by the deficit in planning resources among planning authorities throughout the country and An Bord Pleanála. There are many resources issues. I will not go further into them here, but that is one of the issues. We cannot table amendments relating to the failure of resources but many of the problems with planning come down to a failure in resources. Of course, amendments by Senators in that respect will be ruled out of order.
It is expedient to ensure the courts can act in a co-operative, complementary and supportive way to the planning system. It is good to have errors caught and addressed quickly and effectively. Instead, the Bill will burden the courts with a range of further entirely avoidable issues around Aarhus compliance. It is a bit like an analogy that somebody suggested to me, which is interesting, of knowing that you are going on a very dangerous journey in a vehicle which you know not to be roadworthy with many passengers on board while also putting your accident and emergency department out of action. It is basically reckless in that context.
On the Aarhus Convention, I come to the last section where I detailed the specific aspects of the convention for this legislation that would need to be addressed in the report I am calling for in my amendment. The Aarhus Convention is responsible for a range of information, participation and access to justice rights. It drives many of the requirements in the planning system, in particular, the procedural rights, which are the tools the public rely on in terms of their public participation and their right to be heard on decisions that affect them.
We have also ratified this convention in full. We have no opt-outs or carve-outs. Many of its obligations come to us also as a function of EU membership. Not only is Ireland a full signatory to the Aarhus Convention - we are talking not about an aspirational document but about a law - but the EU is a signatory to the convention and many of the provisions in the convention are also translated into individual EU directives and reflected in them. When Ireland becomes non-compliant in respect of issues in this regard or when decisions are made through a poorly designed process that is non-compliant, it will not only be out of step with the convention but in many cases out of step with EU law that reflects the convention.
I will take a quick whistle-stop tour of some of the problems. Part 9 throws up issues regarding the standing of individuals, groups and environmental NGOs. It also throws up issues relating to the scope of the review, the adequacy of remedies, the fairness and the equity of the proceedings, a crucial issue I missed in my previous listing, the appropriateness of costs and the implications of removing the leave stage requirements in terms of injunctive relief, that is, the measures that would allow an injunction where that is necessary and relief on the costs of injunction. This is on top of a range of other requirements across the Bill around information and participation, not only on activities and development but across a range of plans and policies. This is, of course, putting aside the fundamental failure within the Bill of properly providing for public participation under it as a whole under Article 8 of the convention, including in circumstances where the Government's attempt to pretend consultation may have already happened through a planning advisory forum.
Again, this is an attempt to short-circuit or have a proxy for proper public participation and reminds me of the idea whereby "We will put one worker on the board but it will not be a union member", or something of that nature. It is kind of having pretend representation if we have a planning advisory forum. It absolutely is useful in terms of making good planning proposals, but it is not an adequate substitute for public participatory rights. Multiple members of those forums have been unusually united in their view that the Bill bears no resemblance to the matters discussed by the planning advisory forum and that there was no meaningful consultation or discussion on the Bill with them. To be very clear, not only is the planning advisory forum an adequate substitute for public consultation and participation but members of that advisory forum themselves have been explicitly clear that the Bill does not reflect anything they have been asked to discuss and that they have not been meaningfully consulted.
We have been afforded the benefit of a timely warning that all is not well. The further concerns are that the Minister is seeking extraordinary discretion around the commencement of the legislation, which given the many concerns and problems needs to be managed and looked at in terms of those commencement measures. The reports relating to compliance with the Bill in terms of regulations and orders made under it should be laid, and this is a major issue we will come to later. It is my final amendment in this grouping. There are real concerns that many of the regulations and orders made under this Bill will not go through a proper review process in the Oireachtas.
I wish to flag another serious concern about the major change in section 4 whereby most regulations made under it will not, as was the case with those made under the 2000 Act, require the approval of both Houses of the Oireachtas. That is a huge sliding back in the context of democracy. Instead of having approval of the regulations under this section, they will simply be laid before the Houses. The Houses will have to mobilise in order to seek to annul them but will not have the opportunity to discuss or impact them in any way.
There are many directions and orders provided for under this Bill which have policy implications, including appointments and removals and regarding a large number of plans in respect of which the Aarhus Convention should play a key role, and that should be specified.
There are too many points to list, but I have four really quick ones that I wish to make. I may bring forward Report Stage amendments in respect of all the issues to which I am referring here.
Part 2 of the Bill relates to policy decisions on exemptions and what exemptions mean for participation that we normally assign to planning. There are changes to those permissions and concerns about licensing under section 13.
Part 3 gives rise to problems regarding the framework of plans, policies and directions and the failure to see the provisions of the Aarhus Convention properly reflected in those.
There are major issues with Part 4 in the context of development consents where the core framework for our environmental decision-making is set out and which must be compliant with EU law and the Aarhus Convention. This is also the case with Part 6 and the concerns around environmental assessments as they are approached there.
Part 7 also gives rise to issues in terms of the Aarhus Convention in the context of policy, the Acts and decisions relating to the housing strategy.
Part 8 contains a range of diverse provisions in respect of taking in charge, control and protections for the environment including the issues of tree protection orders and special amenity area orders.
Part 17 relates to An Comisiún Pleanála. There are serious concerns regarding the policy matters prescribed to it by the Minister and extraordinary, excessive discretion for the Minister with regard to appointments, removals and extent of potential political interference provided for in what should be an independent body. There seems tor be a lack of learning from the issues that arose in respect of An Bord Pleanála.
Part 18 relates to the Office of the Planning Regulator, which others have spoken about. This is one of the most extraordinary poolings of power into a body that is unaccountable, not properly regulated in terms of governance and not even subject to lobbying laws. This is centralisation of power in a way that will lead to problems.
That concludes that amendment and speaking to that report. I am sorry it is quite lengthy but it is because the Bill is riddled with issues related to the Aarhus Convention. We should not even be having this discussion before the summer is completed. The Government should take the entire summer to go through the Bill section by section and find out exactly how it can be made genuinely compliant with Aarhus. That does not mean a Minister saying it is compliant; it means actually being compliant. This Bill should come to us on Committee Stage in the autumn with a pile of amendments from the Government fixing and addressing the issues. Given how important the legislation is, that is where we should be.
Amendment No. 11 seeks to delete the phrase "or expedient" from section 4(2). As drafted, the subsection allows for the regulations the Minister might make. People talked about the Office of the Planning Regulator and I am concerned about overreach in that regard but there is also a huge amount of overreach of powers for the Minister throughout this Bill. In this section, the Minister can make regulations on any matter with any incidental supplementary, consequential or other provisions that seem to be necessary or expedient. Surely "necessary" is the basic bar, that you would make regulations you think are necessary. They are very sweeping powers. Expedient simply means I want to make the regulation quickly. That in itself is the justification for making them, that you want to do it quickly. Expedient is not an appropriate bar. Bear in mind, every time we in the two Houses of the Oireachtas are asked to give a Minister the power to make regulations, no Minister just has the power to just make regulations. They are given the power to make regulations. Usually, in legislation, they say they should be given the power to make regulations for a reason or about a thing. Here, however, we are being asked to just give the Minister the power to make regulations whenever he thinks it would be handy or quick to do so. That is not an appropriate request to make of the Oireachtas. It is not an appropriate bar. How about necessary and expedient, if that is what is wanted? To have this wording as drafted as the bar is not appropriate. It is a lower bar. Will the Minister of State say why "necessary" is not sufficient and the choice was made to use the word "expedient"?
Amendment No. 12 seeks to insert a new subsection in section 4 which would require that the Minister would establish a list of prescribed bodies and consult them on the making of regulations in respect of heritage. These are all around the Minister's quite wide powers to make regulations. In the amendment, the Minister would set out a list of prescribed bodies and then, as appropriate, consult those required bodies - not all of them - connected with or related to the matters concerning the regulations and provide them with an opportunity to comment and participate. The Minister would still reserve the power under our amendment but it states the Minister would at least listen to and take due account of input from relevant prescribed bodies which have expertise in the areas in which the Minister is making regulations. These are the prescribed bodies the Minister himself sets out. It is areas like environmental protection, protection of built heritage and archaeological and historical or cultural heritage. There are expert bodies in these areas in the State which the Minister should at least consult or get input from when making regulations that address things like built heritage, artistic and cultural heritage and so forth. It should include organisations to do with heritage and culture, both built and natural.
Amendment No. 13 inserts a new subsection into section 4 which requires that the Minister would facilitate effective public participation at an appropriate stage concerning these regulations, while options are still open during the preparation of regulations which may have a significant effect on the environment.
This proposed amendment goes back directly to the Aarhus Convention. It proposes that if the Minister is making regulations that will have a significant impact in relation to the environment, there should be a public consultation on those regulations. This is again something required by Article 8 of the Aarhus Convention.
Amendment No. 14 seeks to insert a new subsection into section 4 that would specify a number of areas where regulations arise and specify they would require resolutions of both Houses of the Oireachtas in terms of the order to be made. This would mean that where regulations were made in respect of these particularly important areas, it would be done through the previous system whereby the approval of both Houses of the Oireachtas would arise. It would not have any effect on the interim things. We have seen issues arise when regulations are done poorly. For example, the provisions of the Airbnb statutory instruments had to be deactivated after they had been commenced because of failures in setting out the regulations properly. I am absolutely in favour of the regulation of Airbnb, but a statutory instrument done in a problematic way defeats the purpose.
I am not going to list all the areas where I think the current system should apply because it is a long one. To mention just a few that are crucial, these include regulations in relation to an coimisiún pleanála, the Office of the Planning Regulator, the powers of planning authorities, environmental assessment, development consents, plans, policies and related matters, strategic development zones and urban development zones. These are just some of the areas where the regulations will be significantly impactful and consequential and a proper process of scrutiny should be applied. In those cases, I suggest the draft of the regulations should be laid before both Houses and the regulations should not be made until a resolution of both Houses has been passed.
Amendment No. 15 seeks the deletion of section 4(6). I may submit a slightly different amendment because I may have included an extra line or two in this one. I may introduce a narrower and more focused version of this amendment on Report Stage. Section 4(6), which I am trying to address, is states:
If, in any respect, any difficulty arises in bringing any provision of this Act into operation or in relation to the operation of any such provision, the Minister may, by regulations, do anything which appears to him or her to be necessary or expedient for removing that difficulty.
This is another very sweeping power for the Minister to have if it turns out there are problems with any area of the Bill. I can tell the House now there are going to be problems with many areas and provisions of the legislation because it will not be properly and fully scrutinised. We know this and I have signalled some of the problems. It is not good enough to state the Minister will deal with these issues by regulations according to how he thinks it is "necessary or expedient". That is problematic.
Amendment No. 16 belongs to someone else and I will yield the floor.
I welcome the Minister of State to the Chamber. At this stage, I feel it is necessary to reply to some of the comments made about the public, independent Office of the Planning Regulator. I appreciate it is dealt with in a separate Part, namely, Part 18 and sections 496 onwards. The office is front and centre in the first amendment my colleagues are considering today. I believe the commentary so far in respect of the office was disproportionate and not balanced. With the utmost respect, it did not fully appreciate why the office was established. No mention was made of concerns for proper planning and sustainable development. No mention was made either of empowering an office to comply with national and regional policy guidelines at all stages in the planning process.
Instead, one anecdotal example was given of a segment of zoned land on which the owner decided not to build when he could have due to the high density zoning of land and that stopping the whole development of an urban area. I am not aware that one owner of one piece of land can stymie development by holding an entire area to ransom. It was disproportionate to focus on that as an example.
However, we have examples to illustrate why this office came into existence in 2019 following recommendations by the High Court judge, Mr. Justice Alan Mahon, who was in charge of the tribunal of inquiry into planning. There was good reason for it; it was due to corruption in local government. There is a need for checks and balances. Have we forgotten how planning worked in this country before Mr. Justice Mahon made his excellent recommendation, which I am grateful has now come into being? I recall local authorities before the establishment of that office zoning land in a haphazard and sporadic way. I recall our elected local representatives zoning land for housing against the expert wishes of the engineer planning experts in the local authorities when the senior planning officer said not to zone land or build on land or else houses would be flooded that are already there. I recall photographs being brandished in the Chamber showing swans and people on canoes. I recall swamps on which people wanted to build against proper planning guidelines. There was no office at the time. Instead, we had to rely on then Minister, Deputy Dick Roche, to invoke his powers under section 31 of the Act and, subsequently, his successor as Minister for the environment, then Deputy John Gormley, to invoke his powers to direct that it was not wise for the common good of the people for fellow democratically elected public representatives to zone land when they have been told by their own local authority it will causes existing houses to flood. Do Members not remember the award-winning RTÉ "Prime Time Investigates" programme produced by Mike Milotte called "The Pressure Zone", which listed farcical examples in different counties where county councillors got it wrong? There was no evidence of corruption. The currency of corruption was replaced by getting it very wrong. Maybe councillors could not say "No" to people. Thankfully, we now have an independent public body. We do not have to wait for some nameless official in the Minister's Department to make recommendations. There is now an expert, independent office, transparency and checks and balances. Are Members saying they do not want any checks and balances? I hope not. What is their proposition? His office has received stinging criticism in this debate so far, though I commend that the contributions were not personalised against anyone in the office. That is noted. The dark days of that kind of planning are over and the people of Ireland are grateful for that office.
What is wrong with an office having functions that have regard to the policies and objectives of the Government's national planning statements? I did not hear anyone praising the office for having the statutory power to consider and take into account the necessity of climate change adaptation and mitigation and to achieve the national climate objective. I did not hear Members commending the office's powers to act in the public interest. I have not heard any contribution to date stating that the office is our balance, check and safeguard to ensure that the national planning framework, the national marine planning framework, and any regional spatial and economic strategy for the time being, are taken into consideration by it as an oversight body. I did not hear anyone praise the office for having consideration of the environmental impact assessment directive, the strategic environmental assessment directive, the habitats directive, the boards directives, and the water framework directive, to name a few, which that office, in its statutory role and function, are obliged to consider on behalf of the people of Ireland.
The Office of the Planning Regulator considers it when local government fails the people of Ireland or when county councillors get it wrong for whatever reason. Many people in the Chamber are returned by the votes of county councillors. I am not making any blanket criticism of the hard-working people who are county councillors in this country, who are underpaid and under-resourced. However, they have got it shamefully wrong in parts of the country in the past, which caused Ministers to intervene. We now have a system that can consult, evaluate, assess and carry out, under obligation, much-needed education and training for our fellow public representatives who are at the coalface of the democratic process at local government level.
I thank the Acting Chair for her indulgence. We need to restore some balance to having a go at the Office of the Planning Regulator without looking at what it has achieved in a more holistic way. I hope we can have a more thorough discussion when the office, referenced as part 18 in the amendments, is considered in the House. If there is not, that is a shame on the part of the Government. I appeal to the leader of the Government to allow more time to discuss this office in more detail. It is to be hoped it will be possible we can reach this vital part of the Bill. In the meantime, I ask Members to do their utmost to consider the office more in the round, to be more balanced, and to consider the good of that office. Let us then discuss the balance and checks in due course.
There are checks, as one Senator said. It is not handy enough to get to them, but there is no usurpation of the Oireachtas. The Minister of the day is in charge at the end of the day. Let us come up with a better solution but not one that gives carte blanche to my fellow public representatives at local level. I saw what that was in the past. It is a recipe for disaster. It is the biggest power they have. By all means, they should have it. There are balances and checks on us, including the courts and the President. There should be balances and checks on local authority members, especially with their track record and how the signpost for the future-----
I caution the Senator.
Okay. I appreciate the time.
People are not in the Chamber to defend themselves. We need to be careful not to make general statements.
Of course.
We need to be very careful.
I welcome the Minister of State to the House. I will reflect on the fact that we want a planning system that makes good decisions in a timely manner with good public participation. We want a planning system that allows the public, and the semi-State and private sectors, to meet the social and economic needs of our country, one that delivers good-quality, affordable homes, renewable energy projects, improved public transport and critical infrastructure. It should be a planning system that ensures the development of all this at scale and pace but, crucially, in a manner that is consistent with climate targets and the need to protect and restore our natural environment as well as our built and natural heritage. I will come to heritage in a moment.
Unfortunately, that is not the planning system we have. For decades, we have under-resourced our planning system at both local authority and An Bord Pleanála level. That has been compounded by, in some cases, disaster planning legislation, which has often been rushed through by Fine Gael and Fianna Fáil. Here we are again today.
We have a planning system that is scarred by bad decisions, increased conflict, increased litigation and ever-greater delay. Therefore, to allow only two and half days to consider this Bill is farcical. During the Order Business this morning, we opposed for good reason the proposal to guillotine the Bill.
Amendment No. 16 reflects the calls of those bodies that protect much of our valued heritage alongside our communities, including Dublin Civic Trust, An Taisce, the Dublin Democratic Planning Alliance, the Institute of Archaeologists of Ireland, the International Council on Monuments and Sites Ireland and the Irish Georgian Society. Their concerns have been articulated on the public record, but I must state that heritage is fundamental to our well-being, community development and education, creativity, healthcare, welfare and citizenship. As republicans, we should understand that culture and heritage, and their expression through art, are intrinsic to our self-identity as a nation and self-worth. In addition, heritage has considerable economic value. There is also economic value in social capital. We should understand the value of heritage to tourism, foreign direct investment and local economic activity.
One problem with arts, culture and heritage is that the lack of research and data makes it almost impossible to analyse the current state of play. Maybe this speaks to the fact that we do not value them enough to track them regularly. In 2009, the heritage sector had a gross added value of €1.5 billion and created 24,000 full-time equivalent jobs and a total of 40,000 indirect and induced full-time-equivalent jobs.
I acknowledge the 12% increase that the Heritage Council got in funding this year, but I remind the House that the council was, for a period of five years, lingering with an allocation of around €1 million per annum. This led to a situation in which Fáilte Ireland was essentially funding heritage on behalf of the State. It followed that communities had to justify their heritage applications on the basis of tourist numbers and visitor and bed allocations. That is wrong. I am glad to see that heritage is a greater priority for the current Government. The Heritage Council is the State agency for heritage and it was established under the Heritage Act 1995. Community involvement is at the heart of its vision for national heritage and its work with local communities impacts upon jobs, education and heritage tourism, delivering a rich tourism experience and excellent practice in the care of our valuable heritage assets.
I will now come to the open letter from An Taisce, the Dublin Civic Trust, Dublin Democratic Planning Alliance, the Institute of Archaeologists of Ireland, the International Council on Monuments and Sites Ireland, and the Irish Georgian Society. It states:
- As heritage is generally valued on locality, identity, community and civic engagement, we are concerned that the thrust of much of the Bill towards centralisation of planning powers could pose a threat to that stewardship.
- Due to what we perceive as the emphasis on economic development, we think that the Bill might pose a threat to the built heritage, where it may be seen as an impediment to development, rather than a major economic asset that must be protected.
- This threat is exemplified in the ability for National Planning Policies and Measures to override Regional and Local Development Plans with very few safeguards or provisions for oversight in place, which could easily lead to development that undermines the integrity of heritage.
- Similarly, the provisions in the Bill relating to the use of protected structures for housing could devalue heritage. Bringing protected structures into sensitive reuse for housing is desirable, provided that the heritage and character of the building is maintained.
- We do not think that the Bill improves the Enforcement process, the lack of which has led to many heritage assets being lost or eroded. We do not see that it addresses the lack of resources for local authorities to engage successfully in enforcement action.
I will not go into everything in the letter as it is on the public record. The organisations are extremely important in the protection of our heritage.
The amendment provides that the Heritage Council would produce a report within six months outlining how to address concerns about the Bill's impact on heritage, as set out in this public letter. As I said earlier, heritage is absolutely instrumental for our well-being as a country, community development, education, healthcare, welfare and citizenship. This is a really important amendment and I hope the Minister will see the value of it.
I was not going to say anything on this until Senator Martin made a few comments with which I cannot agree. My first issue is with his generalisation that local authority members and local authorities themselves basically did nothing only zone land that was in flood zones or that would potentially cause flooding on housing estates further down the road. That is an inaccurate perception of our local authority members. I served on a local authority for 12 years. I have seen two full county development plans go through the process and have seen the start of a third one and what the Senator said is not factually correct. It might have happened in specific cases but it is not right to generalise in the way he did and I cannot agree with him.
I served on the housing committee in the previous Dáil, as did Senator Boyhan, when the Office of the Planning Regulator was established. Indeed, we all agreed with the establishment of that office but, in fairness, all that office is doing is enforcing the national planning framework document. That document was put on a statutory footing for the first time ever but to say that there were no checks and balances prior to the establishment of the OPR is also incorrect. The Minister signed off on every county development plan throughout country. That was part of the checks and balances. Zoning of land proposed in county development plans went on public display. It went to the Minister's office but the Minister came back and said, "Do not proceed", and members of the local authority did not proceed in most cases. Now we have an additional layer of scrutiny for our county development plans but, at the end of the day, if a decision has to be made on something that is controversial, the OPR does not make the decision. It is still the Minister who makes the decision, on foot of a recommendation of the regulator and he or she can either agree or disagree with that recommendation. That has happened in the case of a number of our county development plans that have gone through the process under the new regime. That has factually happened. Senator Martin went a little too far in the way he presented our councillors and how they carry out their duties on our behalf. Councillors only make a proposal that they believe will fundamentally improve their community but if that is proven to be wrong, that is why the process is there. The proposal must go through the checks and balances and go on public display so people can have their say on it. The Minister or the OPR can comment on it. It can go back to the chamber and if the councillors still want to proceed with it, they can agree again to put it forward and the Office of the Planning Regulator and the Minister can intervene again. We had these checks and balances prior to the establishment of the OPR. That office has simply brought an additional layer of scrutiny.
The other issue is that the national planning framework is a statutory document for the first time ever and every local authority must comply with it. Up to that point, the words used were "shall" or "may have regard to" the national spatial strategy. My colleague Senator Martin went a little too far in the way he presented our councillors who are doing incredibly hard work out there. Equally, there were checks and balances there previously. The Minister provided that function and still provides it on foot of a recommendation from the Office of the Planning Regulator.
I fully concur with Senator Casey. He has given a great overview on it and I agree with his commentary relating to our city and county councillors.
It is a little unfair to come into the House and cast aspersion on the work they do. There are processes.
I will finish off my contribution on the Office of the Planning Regulator. I thank the Library and Research Service for its pre-legislative scrutiny of, and commentary on the select principal provisions in, the Planning and Development Bill. The service always does excellent work and it is important we acknowledge that. I will make reference to, and share observations on, two issues relating to the Office of the Planning Regulator. The expansion of the office's oversight and the increase in the authority of the Minister to issue directives under the new provisions of the Planning and Development Bill could reduce the decision-making powers of county councils in specific areas. The Association of Irish Local Government, AILG, expressed concern that the Bill reinforces a centralised planning structure with the county development plan locked into a rigid national and regional planning framework. It argues that the increase in the authority of the Office of the Planning Regulator would curtail the discretion of councillors in shaping their local areas on the basis of their practical understanding of local needs and capabilities. That is just commentary, but I happen to share many of those concerns. Our sitting county councillors have that local context and awareness of local need and local understanding, which they have gained through years of experience. Most of them live in their own communities. Some 99% of councillors live in the community they represent, which is unique among local government in Europe. That is the case and it is worth pointing out.
The AILG has also stated that the limiting of local authority powers is not in line with the recommendations of the Congress of Local and Regional Assemblies of the Council of Europe. We discussed that issue at great length at the Committee on Housing, Local Government and Heritage, which is currently discussing its report. One of the recurring themes has been this view that local government is at an all-time low in Ireland in the European context. Much of that was dealt with in the European Charter of Local Self-Government.
I earlier failed to address the amendment of mine in this group, which is amendment No. 3. It was my fault that I did not get the chance to speak to it. The amendment contains a proposal for a chief planning officer, who may be referred to as the chief city planning officer or the chief county planning officer. That was my proposal. Where did I get that? It was not an idea I had myself. We picked that up from some of the joint committee's consultation. At the committee, we heard about the Scottish model and I will share a little bit about that model with the Seanad. There are a number of local authority directors of planning who are not planners and have no experience in planning. I am not going to single them out but some of us know who they are. That is not to cast aspersions on their ability. I understand the reform of local government. When directors of service were introduced, the chief executive was left to decide on the portfolios that were to be apportioned to the various members. It is absurd, however, that directors of planning have no qualification or experience in planning. We would not pick a director of finance for a local authority if he or she had no experience of finance. We would not ask people to be county architects if they had no knowledge of architecture, engineering or a similar discipline. It is one of the real shortcomings of this Bill that it does not address the issue by putting in place a city or county chief planner, depending on the local authority in question. I am not suggesting a chief planner would be below a chief executive. I am suggesting a chief planner would be parallel with a chief executive. It is not that the chief executive of an authority would direct the director of planning to do anything or respond to issues around planning. I know the chief executive has executive powers. It may not be appropriately included in this Bill, but I am looking for a favourable response from the Minister on the concept that each county and city would have a chief planner to make decisions. This is one of the missing links. As I said the other day, most councillors are not planners, architects or engineers.
This is why they need independent expert advice, guidance and assistance when required. They want to work in unison with people and they want to work with their executives. That is really important. I was a councillor myself, as were most people here. One of the key ways to get things done is to collaboratively work with the chief executive and the management team of the council.
I want to share some issues regarding the experience in Scotland. We heard these issues through the Oireachtas joint committee when we considered this Bill. The Town and Country Planning (Scotland) Act 1997, as amended, requires that each planning authority must appoint a chief planner. The appointment of the role of chief planner became a statutory requirement in April 2024 in order to advise authorities on the planning and other functions relating to the development. While I am citing the example of Scotland here, it is another jurisdiction very close by and it is a system that seems to be working. It was in a development stage for some years prior to April 2024. The chief planner is to help strengthen leadership, planning and corporate recognition of the importance of positive influence and planning within the relevant local authority. The legislation refers to the chief planner and how it contributes to the corporate ambitions and the wider aims of the national planning framework. It will have responsibility for that. There is a statutory requirement in the Planning (Scotland) Act 2019, which introduced new requirements that each planning authority would have a chief planner and the ministers would issue guidance. It is not us making guidance. It is still the power of the Minister to issue guidance and direction in legislation in this regard.
The chief planner's duties and responsibilities are that the chief planner would play a key role in the leadership of the local authority's vision, strategic direction of the planning authority and carrying out its strategic role that works to raise the profile of the planning authority's decisions. The chief planner is to be the ambassador for the profession, for the planning and advising of the authority, for carrying out the functions conferred on them by virtue of the planning Acts and relevant legislation and any functions conferred on him or her by the minister. They will be professional advisers to the local authority as a whole, on spatial and place-based implications, decisions and investments in the short, medium and long term. This entails providing relevant professional planning advice and support to the elected members of the council. The chief planner will work to deliver the current national priorities. I am in favour of delivering the national priorities. I do not think anyone in this Chamber is against that.
The chief planner will work on the strategies and will ensure that local and private priorities are aligned with the national level planning guidelines. This is really important. The chief planner will support place-making ambitions. We have talked about all of this. There are many synergies between what they are doing there and what we plan to do and have started to do already. Place-making ambitions of the authority and actions of the authority would be championed through the chief planner. The chief planner will be the head of the profession in the organisation of the local authority. This entails being at a point of contact with the stakeholders. Again, this is important. The chief planner will lead in ensuring planning authority embeds continuous improvement. In doing this, he or she will ensure that the planning authority undertakes its obligations to publish its annual reports and present them to the relevant departments and ministers. It is about advancing the science and the art of planning. It is a strong discipline and profession and we need them in our local authorities.
It talks about skills, etc. It talks about collaborative work with key stakeholders, particularly the elected members, to promote and achieve the authority's objectives. These are all important points. In conclusion, the chief planner should be able to demonstrate experience and leadership, develop and maintain relationships with the elected members, provide an interface between the elected members, officials and the planning authority and develop and maintain effective and productive working relationships with the internal and external stakeholders. In essence, it is a multidisciplinary team that is working collaboratively and in partnership with the council executive and the elected members to ensure that the objectives of their city and county development plans are achieved. That is what it is about; it is about achieving things.
I would like to think that we can support the concept. It may not be possible but I want to hear what the Minister of State has to say regarding incorporating this Bill. It is worthy of support and I will continue to try to champion it. Certainly, people who came through the Irish Planning Institute and other organisations told the Oireachtas joint committee when we discussed this Bill, that they favoured this type of measure and it is an important one. I will conclude on the point that we can no longer allow or permit non-qualified, untrained planners to be heading up our planning departments in local government.
I am conscious I am an hour in the Chair and the poor Minister of State has not had a moment to interject as yet. However, Senator Higgins has sought a moment to clarify something. Then it will be over to the Minister of State.
It is really important in terms of commenting on Senator Martin's intervention. We have to be clear when we ask whether we have learned nothing. That is exactly the question we are asking when looking at this legislation. There is a suggestion that the issue is the local authorities and that the problems we have had are with local authorities. To be clear, An Bord Pleanála was put in place originally as a check and balance and it was one that functioned for a period of time, but it is also a body with largely political appointees. We talk about councillors as if they are the poor decision-makers and about this new national high-level decision-making body. Let us be clear that An Bord Pleanála is the body that has had scandals, arrests and prosecutions. That is again a body where the lesson has not been learned because in this Bill, besides a rebranding, lots of the same problems are there with An Bord Pleanála. The new coimisiún na pleanála will be directly appointed by the Minister, without any checks and balances.
We talk about the Office of the Planning Regulator and this idea that it will ride to the rescue on the environment and protect us against flood plain building and so on. Let us be clear about the powers the Office of the Planning Regulator has here in terms of that issue of transparency. This is not about any individual in that role but about good legislation. It is not listed as a relevant body or person for the register of lobbying. That is a real gap and s massive hostage to fortune. That begs the question as to whether we have learned anything.
In terms of the powers it has, leaving aside how large those powers are, it is also excessively subject to political direction. We talk about this idea that it would to make sure we stay on track for the environment and climate targets. Let us remember when South Dublin County Council democratically voted against data centres. It was told it was not a matter of environmental concern but it was a matter of Government policy. It is not just the national planning framework or marine planning framework that the Office of the Planning Regulator will issue directions on. It will also issue directions based on national planning policies and measures which are basically the Minister's policies. The Office of the Planning Regulator overrode South Dublin County Council and said it needed to put in data centres on the basis of Government policy. That was a capturing of policy to the centre politically, which does not make it immune to inappropriate lobbying. It does not make it immune to the kinds of issues we all want to make sure are not part of planning.
We need to be really clear on that and when we talk about checks and balances, failing to comply with the Arhaus Convention is the essence of removing a check and balance. To be honest, it is not just about local authority members. I am not elected by local authority members and I will still champion their voice in relation to this. It is also about the public - actual people who live in local authority areas. When you talk about completely railroading over local development plans and their processes, you are not actually saying we have to have a check and balance on local authority members because you know how they are. You are actually saying we are railroading over local people who have a process of engagement with their local development plan and who collectively engage with it. That is the issue.
We absolutely need to have things like the national planning framework and our national targets. We need to have issues that we think about at each level and that are reflected at each level. It is not a matter not wanting checks and balances. We want functional checks and balances that are accountable, transparent and regulated the whole way up. That is not what this Bill does and it is disingenuous to ask where are our solutions because about 500 or 600 amendments of people's solutions have been put forward and I hope we get to all of them.
First, I want to thank all the Senators for raising the issues on Committee Stage of this Bill.
There has been criticism of the guillotine on Wednesday but we are offering up to 25 hours to debate the Bill between now and then. It does not undermine the role and responsibility that Seanad Éireann has in the legislative process.
The Bill is one of the most important pieces of legislation in recent times. Many have criticised it but it seeks to deliver greater clarity, consistency and confidence in our planning system through transparency, as well as more efficiency with regard to the final outcome. It is very important the decision-making process is considered to be fair, inclusive and, most important, timely. The introduction of statutory timelines in all consenting processes will mark a significant step forward in planning certainty.
All developers and applicants want certainty in the planning process. Our ambition in this regard is matched by unprecedented investment in resources in An Bord Pleanála. Every tier of our planning system, from the national planning framework, which has been mentioned, to development plans and more specialised plans for local areas, will be reviewed and refined to ensure we have consistent alignment throughout the planning process. With regard to judicial review, the process and parameters are very important in their own right. We have refined and expedited the process while maintaining and improving access to justice with the introduction of the environmental legal costs financial assistance mechanism. This will be available to contribute to the cost of such cases. There is also the introduction of scale fees to regulate overall costs. This is a very important process and I acknowledge the comments of many Senators this morning.
I will now discuss Opposition amendments Nos. 1 to 4, inclusive, 6 and 9 to 16, inclusive. I thank Senators Boyhan and McDowell for tabling amendment No. 1. I am unclear what the exact intention of this amendment is. It is not apparent whether the amendment seeks to bring Part 18 of the Bill, relating to the Office of the Planning Regulator, into effect on enactment, or whether there is an alternate intention. The Senators do not go so far as to say they seek to dilute the operations of the planning regulator. It is clear from what has been said this morning that it is more about the role and responsibilities of the Planning Regulator and governance. Various contributions were made, including by Senators Martin and Casey, on the role and responsibilities of the Office of the Planning Regulator. As many have said, it was established in April 2019 on foot of recommendations made by the Mahon tribunal, which was established in the Dáil in 1997 against the backdrop of significant historical deficiencies in decision-making on local authority development plans and other functions.
I remind Senators that the three statutory functions of the Office of the Planning Regulator are to independently assess all statutory forward planning of all local authorities, including development plans and local area plans; to carry out organisational reviews of the systems and procedures used by any planning authority, including An Bord Pleanála, in the performance of any of their planning functions; and to drive national research, training, education and public information programmes. Some of the commentary on the unchecked role of the Office of the Planning Regulator in its institutional capture does not account for an accurate description of what it does.
As I stated, the office does have a role in its statutory functions. While not a policymaking body, the role of the OPR is to ensure the implementation of planning policy and legislation by local authorities and An Bord Pleanála. It also supports Government policy and statutory requirements to ensure that effective programmes of research, training and public awareness in planning are in place to strengthen the planning process. It is important to emphasise that.
The Minister adjudicates on all local area development plans and in specific instances can agree or disagree with OPR directions. That is fed into the recommendations from elected members in local councils and from the chief executives in the local authorities. If the Minister disagrees, he or she has to give a sound justification and rationale for the decision and then seek to lay that before the Houses of the Oireachtas. There is a democratic function in relation to the role of the OPR in that regard. Furthermore, the OPR provides a fair and independent mechanism for the public to raise concerns.
For these reasons, I oppose the amendment. If it were accepted, it would have a negative impact on the planning system in its entirety. As I said, the OPR carries out significant functions which assist with the effective operation of the planning system as a whole.
Regarding Senator Higgins's comments about the OPR and the avoidance of lobbying, the Department of Public Expenditure, NDP Delivery and Reform is updating the list of roles covered by lobbying provisions and will include the planning regulator and his or her deputy on that list.
Senator Boyhan asked a question about the governance arrangements that should be in place for the Office of the Planning Regulator. It should be noted that the periodic, critical review, as mandated under the code of practice for the governance of State bodies, is due to be carried out for the OPR this year. This review will focus on the structure and functions of the OPR. Recommendations regarding the organisation of the office may arise from this report. Our officials are working with the Office of the Attorney General to ensure the appropriate governance structures are put in place.
Amendment No. 2, proposed by Senators Higgins, Ruane, Black and Flynn, relates to the insertion into the Bill of a table listing the EU law and international conventions that will be given effect under the enacted Bill. As I mentioned on Committee Stage in Dáil Eireann, where a provision of the Bill gives effect to an EU law, that provision includes a specific reference to the relevant EU law. For example, in relation to appropriate assessment, section 198 of the Bill states that the purpose of Chapter 2 of Part 6 is to give effect to the State’s obligations under paragraphs 3 and 4 of Article 6 of the habitats directive. Similarly, section 220 of the Bill states clearly that the purpose of Chapter 4 of Part 6 of the Bill is to give effect to the State’s obligations under the environmental impact assessment directive, EIAD. As such, not only are the required references already embedded within the Bill as drafted, but I do not consider it appropriate to insert a table in the manner proposed under this amendment, as it may be confusing as to what extent the Bill gives effect to any particular instrument specified therein. This is especially the case for those EU directives that are transposed across a range of enactments. For these reasons, unfortunately, I cannot accept the amendment.
Amendment No. 3, proposed by Senators Boyhan and McDowell, seeks to insert a new definition of "Chief Planning Officer" in the Bill.
The Senators also raised this on Second Stage. This term does not feature elsewhere in the Bill as drafted and no corresponding amendments will be moved in respect of this definition. The purposes, scope and functions of roles relating to planning should be set out clearly in legislation and not in a guidance document as proposed. It appears this matter relates primarily to the recruitment of staff within a local authority. It is a local authority function and, therefore, should be progressed by way of an amendment to the Local Government Act 2001. For these reasons, I cannot accept the amendment.
Amendment No. 4, as proposed by Senators Higgins, Ruane, Black and Flynn, would remove a reference to subsection (8) of section 155 from the definition of a “State authority”. This reference is necessary for the purposes of State authority development carried out under section 155 of the Bill by reason of an accident or emergency. Such development can be permitted only where an appropriate assessment or an environmental impact assessment is not required. Notably, a Minister proposing to make a State authority development emergency order must inform a State authority where the making of the order may affect the exercise of a function carried out by that State authority. Therefore, it is sensible to ensure that the definition of a State authority should include a statutory undertaker for the purposes of section 155, and given that this reference needs to be retained, I cannot accept the amendment.
I ask the Senators to consider withdrawing amendment No. 6. I will move corresponding amendments to the definitions of unauthorised structures, works and use and these will provide for what amendment No. 6 seeks to achieve.
Amendment No. 9, as proposed by Senators Moynihan, Hoey, Sherlock and Wall, would insert a new subsection (2) in section 2. This is not considered necessary because section 15 of the Climate Action and Low Carbon Development Act 2015 provides that relevant bodies must, insofar as is practicable, carry out their functions in a manner consistent with the plans, objectives and strategies put in place under that Act. Nothing in the Bill supersedes this. On the contrary, the Climate Action and Low Carbon Development Act is referenced throughout the Bill, specifically in respect of national planning statements, regional spatial and economic strategies and development plans, and specific provision is made regarding the integration of the national climate objective with the national planning framework. For these reasons, unfortunately, I am not in a position to accept the amendment.
Amendments Nos. 10 to 15, inclusive, are in the names of Senators Higgins, Ruane, Black and Flynn. Amendment No. 10 relates to a requirement to report on the Bill’s compliance with the Aarhus Convention within three months of the Bill’s enactment. This was raised by Senators Boyhan and Higgins. I am satisfied the Bill is compliant with the Aarhus Convention and, therefore, I cannot see the need to report on this matter in the manner suggested. In respect of previous commentary on the Aarhus Convention, the reforms contained in the Bill are designed to reduce costs and improve access to justice in what is a high-cost legal landscape in Ireland. As part of its drafting, the Bill has been extensively reviewed by the Office of the Attorney General to ensure full compliance and alignment with our relative international obligations, including the Aarhus Convention. On the matter of the draft compliance report from the Aarhus Convention compliance committee and its comments on the provisions of the Bill relating to the extension of duration and public participation, to which Senator Higgins referred, we are liaising with the Attorney General. The report refers only to provisions relating to public participation in applications for alterations to, or extensions of, permissions. It did not make any reference to the rest of the Bill. The Bill was drafted to ensure compliance with the convention. Moreover, the Aarhus Convention compliance committee does not rule on legislation.
Consequently, there is no reason to report further on this matter in the manner proposed by amendment No. 10 and so I am not in a position to accept this amendment.
Amendment No. 11 proposes to delete the words "or expedient" from section 4(2), which concerns regulation-making powers. The phrase "necessary or expedient" is commonplace and used in many enactments across the Statute Book. I cannot see any useful or effective reason to deviate from what I consider to be standardised wording used in legislation and therefore I am not in a position to accept this amendment.
Amendment No. 12 also relates to regulation-making powers. It proposes the creation of a predetermined list of consultees for the purposes of the preparation of draft regulations. Section 4(3) already places an obligation on the Minister to consult any State authority that carries out a function connected with any matter that will be provided for in any proposed regulations. Aside from this statutory obligation, the Minister of the day is of course permitted to consult any other body or organisation he or she considers appropriate. I should point out that consultation with various stakeholders and interest groups is an integral part of the operation of the Department. I acknowledge the rationale for the proposed amendment, but it is an overly prescriptive approach that could have adverse effects such as delaying urgently needed regulations, and we have had situations in recent times where urgent regulations were necessitated. My officials will of course continue their good engagement with interest groups and members of the public, including the bodies referenced in the proposed amendment, but for the reasons I have set out, unfortunately, I am not in a position to accept this amendment.
In a similar vein, I acknowledge the intention behind amendment No. 13 but do not consider it necessary. Sufficient provision has already been made throughout the Bill providing for public participation in matters that may have an effect on the environment. This includes provisions relating to consultation with members of the public with respect to exempted development regulations; national planning statements where a strategic environmental assessment or an appropriate assessment is required; preparation and review of development plans; consultation on Natura impact reports; and statements and consultation on environmental impact assessment reports. In addition, where regulations are screened for strategic environmental assessment and that is required, a public consultation takes place as part of that process. There will be consultation on regulations where necessary and appropriate, for example, on exempted development, but I do not consider it is appropriate that the requirement to do so is set out in the Bill. Many regulations are of a technical nature and it would not be appropriate or necessary to consult on them. Others are more substantial in nature, and when they are being drafted, it would be normal to have some consultation with relevant stakeholders on them. The Bill strikes a suitable balance between fulfilling the State’s obligations on public participation on matters concerning the environment while not overburdening administrative processes or procedures. I thank the Senators for their proposal but, unfortunately, I cannot accept this amendment for the reasons I have outlined.
Amendment No. 14 would require practically all regulations made under the enacted Bill to be laid before the Houses of the Oireachtas in draft form before being approved by resolution. As I have stated previously in Dáil Eireann, this proposed approach is highly impractical and it must be noted the regulations in question can only be introduced to give effect to the principles and policies contained in the enacted Bill. It is these principles and policies that are currently before the Houses. The proposed approach would radically slow down the making of secondary legislation and this could dramatically inhibit the Minister’s ability to provide for the matters to be prescribed under the enacted Bill. For these reasons I am not in a position to accept this amendment.
Amendment No. 15 proposes to delete a temporary enabling provision relating to the introduction of regulations to aid the operation and implementation of the enacted Bill. This enabling provision is only in effect for a three-year period following the Bill’s enactment and any regulations to be made under this provision must be laid before each House of the Oireachtas and shall not be made unless and until a resolution approving the draft regulation is passed by each House. This has been included purely as a precautionary measure and on the advice of the Office of the Attorney General. Any changes made to the enacted Bill under such regulations would subsequently be regularised through an amendment to the legislation at a later date. A similar provision was provided for under the current Act but was never used. I favour the retention of this provision and while I hope that, similar to the current Act, it will never be required, it is a sensible and worthwhile provision and, for this reason, I cannot accept this amendment
Amendment No. 16, as proposed by Senators Warfield, Boylan and Gavan, would require a report to issue to the Heritage Council within six months of the Bill’s enactment containing recommendations on the impact of the enacted Bill on built and cultural heritage and its consistency with the Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023.
Even if the proposed timeframe was lengthened, which it would surely have to be in order for the proposed amendment to be in any way workable, the need for a report as proposed is negligible and it would incorrectly place an obligation on the Heritage Council that falls outside of the Council’s remit, which is provided for under Part 2 of the Heritage Act 1995.
As I previously mentioned during the Bill’s passage through the Dáil, consultation has taken place with the National Monuments Service, especially with respect to the interaction of the Bill with the recently enacted Historic and Archaeological Heritage Act. Following those discussions, a range of amendments has been included, including updating section 15 of the Bill to take account of functions performed by a Minister under the Historic and Archaeological Heritage Act; amendments to section 50 of the Bill concerning development plan strategies for natural and built heritage; and amendments to section 87 of the Bill to ensure suitable planning permission conditions relating to archaeology are provided for.
I am satisfied that the enacted Bill will work in tandem with the Historic and Archaeological Heritage Act and for the reasons I have outlined, I am not in a position to accept this amendment.
I thank the Minister of State for his comprehensive response to all of those.
In relation to amendment No. 1, I welcome that the Minister of State confirmed here today, which we would not had known before coming in here, that there will be a review of the structures and the governance around the OPR. That is important. That is an acknowledgement that there needs to be one. Certainly, it is a scoping exercise. Clearly, they will see what they find there. I welcome that. I am disappointed that the Minister of State cannot go further but he confirmed that there is a process in play.
In relation to amendment No. 3, the Minister of State suggests that we progress this through the Local Government Act. I was hoping that the Minister of State might indicated some support for it. Clearly, there is another line. It is the Local Government Act, but it is rather strange when we are talking about one of the biggest pieces of legislation on which we are addressing planning that there seems to be no role for a chief planner despite what I have said that we have directors of planning in local authorities who have no qualifications in planning, geography or anything related to it and they are meant to be the lead person in a planning authority. It is a shame. It is a terrible indictment on the system.
I would have liked to have heard the Minister of State say that I raised some valid points. I am sure the Minister of State himself knows about them. One would not have to look too far in the west, where there are issues and problems. Surely we are not allowing people with no qualifications in planning to continue to run planning departments because somehow, in the mix of the chairs or the divvy-out of the portfolios in a local authority, the chief finds he has this spare vacancy and this is the only person left or the person that he thinks is best suited.
That is a story. If I was writing about planning tomorrow in any of the national newspapers, I would be talking about that because the public would be appalled at the idea. We would hardly have a non-surgeon carrying out surgery activities on someone in a hospital. Why would we have someone with no experience, no knowledge and no qualification in planning acting as a director of planning? The Minister of State makes the point it goes to the Local Government Act.
Perhaps the Minister of State, as Minister of State with responsibility for local government, might consider taking this up at some future date. I am happy to work with him on this to see if we can bring forward some sort of amendment. It makes absolute sense that we should have a planner, someone with a qualification. Planning is an amazing science and a very technical area of great expertise and competence. Therefore, we should have a planner. We could not have someone with no experience in accounting or finance heading up our finance unit. I wanted to comment on those two points. I thank the Minister of State for his considered response to those particular amendments.
I will speak to a couple of points. I note with regard to the Office of the Planning Regulator that there already was a review by the Department relating to the lobbying register and at that point it chose not to include the Office of the Planning Regulator. I am glad to hear there is another review, and we might get a very clear timeline for that. To be clear, this is not a simple procedural issue because a review already took place in which the Office of the Planning Regulator was not recognised as a party on the lobbying register. If there is to be a change of policy in that, it would be welcome but it would be a change from what we have had previously.
There are a number of other issues with regard to public participation. I hope we will come to those later but the Minister of State mentioned measures around a fund. To suggest that this fund with deep conflict of interest implications, whereby the Government might decide on the few people who it will allow to take cases and sponsor them to do so, is not a replacement for people's proper rights to be able to have access to justice. We need to be very clear on that.
When we talk about public participation, there are a number of areas of the Bill which are really significant and where there really is no provision for it. There is not a guarantee of public participation, including with the planning statements. Planning statements, which are politically and effectively done by the Government and Minister of the day, and which do not have a guarantee of public participation, carry intense power throughout the other areas of the Bill and are treated with the same weighting and seriousness as the national planning framework. I am glad to have a national planning framework which does have a proper process and some element of public consultation. Meanwhile, the planning statement, which is really the opinions of the Government and Minister, carries effectively just as much weight, including for the Office of the Planning Regulator. The Office of the Planning Regulator may be asked by the Minister to give direction to bodies, for example, local authorities, based on non-compliance with a national planning statement even though the public has had no input into it. Again, that is a situation where something the public has had no input into may be used to override something that has a public process, which are the local development plans. That is the difference between things like the planning statement versus the planning framework. There are huge holes with regard to public participation throughout the Bill and I regret the Minister of State is not accepting amendment No. 13, which addresses that.
I have a number of other issues with some of the comments the Minister of State made but I have to focus on the crucial one here because it is not correct. I know we have privilege in these Houses but we really should not say things that are not correct. In that regard, the Minister of State made the same statement as the senior Minister that the Bill is compliant with Aarhus. The Bill is not compliant with Aarhus. That is not my opinion but that is a direct statement from the body which is delegated by all of the parties who signed up to it and the body that has been allocated the task of interpreting the Aarhus Convention. I am reading paragraph 47 of the report. There was a somewhat disingenuous suggestion that there was a draft report. Let us be clear. The document I am holding up that came to the Government in early June is not a draft compliance report.
Ireland already failed in a compliance report; not a draft report but a finished compliance report found that Ireland was not compliant. We have here a progress review of how Ireland is doing at addressing the fact that it is not compliant with Aarhus. It is not a matter of opinion or general statements. It is not even some of the discussions before UN bodies which Ireland has come out of poorly. This is different. This is a progress report on Ireland's non-compliance with Aarhus, as decided and clearly determined by the compliance committee, and how Ireland is doing at addressing that gap. Ireland seems to literally be denying it. Will the Minister of State clarify why he thinks we are compliant when the Aarhus compliance committee does not? Does he believe the Aarhus compliance committee is wrong? Does he have access to some different legal opinion that somehow trumps the Aarhus compliance committee which was asked to interpret the convention by all of the countries and bodies such as the European Union which allocated that power to the compliance committee? Why does the Minister of State say it is compliant when paragraph 47, not of the draft report but of its progress review relating to a previous finding of non-compliance, says otherwise?
The reason it only spoke about this one Chapter is not that the rest of the Bill is fine; it is that it was only asked by the Irish Government to give an opinion in respect of this one Chapter. The committee was explicitly asked to look at this Chapter, which the Government thinks is great. The committee stated, "In the light of the above considerations, the Committee does not consider that, if enacted in their current form, proposed sections 133 and 135(2)(b) and (d) of the Planning and Development Bill 2023 would fulfil the requirements of paragraph 4(a)(i) of decision VII/8i", which is the decision on non-compliance. It is completely clear and names the sections of the Bill, saying they do not fulfil the requirements of compliance. It is really clear. It is one thing to say it will be fixed on Report Stage but to have the audacity to stand and say it is compliant when it is not is pretty poor, wrong and quite disrespectful, honestly, to the House. Will the Minister of State clarify if the Aarhus compliance committee is wrong? Will the Government be happy to stand over that? It will create significant issues internationally. I expected, although it is still not adequate, that we would hear from the Minister of State how the Government plans to fix it. Saying how the Government plans to fix it on Report Stage rather than fixing it when it is a known problem on Committee Stage is inadequate but that is different from actually denying it. This is not a draft or opinion; it is a direct progress report on a finding of non-compliance. I emphasise that the rest of the Bill was not checked; it checked this one Chapter and found it to be non-compliant. Many civil society actors such as the Irish Environmental Network, many others and, indeed, many Opposition Members in the other House told the Minister for months there were concerns about compliance yet the Government continued to believe it was compliant. It was found not to be.
The other issue around Aarhus throughout that Bill is that the Minister of State got it wrong on this one issue which has been tested by the compliance committee. Perhaps he needs to actually listen to those telling him they think he got it wrong in a number of other areas as well. When one gets it wrong, one does not get to bludgeon over it. It creates chaos.
It is doing exactly what we are claiming we do not want to do in the area of planning by creating legal chaos. The idea is that an attempt will be made to try to stop anyone from taking legal cases against the illegal thing being done that is breaking the law. That is not a solution. The solution is to get the legislation right, which will lead to fewer cases, rather than blundering ahead with a Bill that is wrong, while trying to run interference on anyone who might call the Government out on it in the courts. I ask the Minister of State to explicitly clarify why the Government believes the Bill is compliant with the Aarhus Convention when the committee responsible for compliance made it explicitly clear to the Government just a month ago that it is not.
I thank all the Senators. First, I will address the comments from Senator Boyhan in relation to the chief planning officer. While his suggestions have merits, the directors of services have strategic leadership responsibilities in each local authority and a management role. They are equipped with several different competencies and do not just have a single profession or area of expertise. In all local authorities, we have a senior grade planner who looks after the functions in this respect or be the lead planner in relation to how the local authority operates. We will certainly examine the merits of having a chief planning officer. It is important that we seek to establish whether the appetite is there in local authorities for such a role and we will respond to the Senator in this regard.
Senator Higgins referred to the review of the lobbying register. That is currently in progress. Regarding the Senator's comments on the Aarhus Convention compliance committee, the report, which focuses on one aspect of the Bill and is based on that committee's interpretation, is currently with the Office of the Attorney General, as I said. It is being interpreted and we must respond to the committee by September. We have given that commitment. We will consider all matters and be guided by the views of the Attorney General. The report is being actively reviewed and we await a final outcome in this regard.
In relation to the subject of the chief planning officer, I thank the Minister of State for his considered approach. All we are attempting to do here is stimulate debate. It is important. We heard about the idea of a chief planning officer in the joint committee. Clearly, there are other issues to be considered. The Minister of State touched on the Local Government Act 2001. I understand and am sympathetic to that point. I am also conscious of the role of a chief executive in local authorities as set down in legislation. I welcome the Minister of State's favourable response to the idea of looking at this idea again. He has special responsibility for local government and I know he will not be found wanting.
This proposal makes absolute sense. The Minister of State is correct that the directors of services have broad competencies but I am not aware of any local authority that has a director or chief of finance who has no knowledge or experience of that area or of any law agent or director of legal issues who would not be a professional lawyer or not have experience in this area. Planning is such a big issue now that it requires the expertise and leadership of someone with the requisite experience. Having a chief planning officer in a county or a city would help to bridge many of the misunderstandings and communication issues that arise in relation to the bigger role of economic planning and sustainable development. It would also be a great advantage to the elected members of the local authorities. It would be good to have such a chief planning officer in each city and county council area. I thank the Minister of State for his response.
I thank the Minister of State for his response. I note it is different from saying we are completely compliant.
We now know the Attorney General is looking at the matter in respect of the finding of non-compliance and the report on the continued non-compliance under this legislation. It is important to note that is quite different from saying the Bill is compliant.
I am a little concerned about the timelines. The Minister of State mentioned he is required to reply to the Aarhus committee by September. We have been told this Bill will also be pushed through Report Stage in September. Indeed, the deadline for amendments has been placed quite early in September. I would therefore like assurances that the Government's response, including any legislative response to address the concerns of the Aarhus committee in relation to this chapter, will be circulated and made available to all members of the Opposition who were right about this while the Government was wrong in the other House. Let us be clear about that. I ask that they be made available in good time to allow any Government response to the non-compliance issues to be reflected in the Report Stage debate. That is important. We need to have those assurances. That may mean the Bill needs to be taken in October rather than September, depending on the Government's timeline.
Crucially, the last thing I will ask of the Minister of State - it is important, even if he does not take on board my amendment - is to learn from the fact that the only piece sent to the compliance committee for testing, where concerns were flagged, failed. Based on that, the summer should be used to look at and have a full review of other areas where both civil society and Members of both Houses of the Oireachtas have signalled there are significant Aarhus-related concerns. This is part of the poor decision to hold Committee Stage when a clear issue is still up in the air and still to be solved. There is a danger of how these will be addressed on Report Stage. Given the Government was wrong about the original issue, where the Bill was found not to be compliant, and about the remedy it proposed to the Aarhus compliance committee, which rejected it as being inadequate, it would appropriate for the Attorney General not simply to look at the report on that one Chapter. He should thoroughly review the many other areas where serious red flags have been raised around the Aarhus Convention, not least in the area of access to justice, which is a hugely problematic area of the Bill.
Will the Minister of State clarify how he plans to engage with the Opposition in advance of Report Stage? He mentioned that the deadline for replying to the committee is September. I would also like to know the plans for using this as an opportunity to reflect on the other areas where potential Aarhus non-compliance has been signalled.
We will be guided by the advice of the Attorney General and his office on the response. We will be open and transparent on Report Stage about what has been presented to the Government on the Aarhus Convention. Until then, I do not have anything further to add.
What would Senator Boyhan like to do with the amendment?
I press it.
Tá
- Black, Frances.
- Boyhan, Victor.
- Clonan, Tom.
- Flynn, Eileen.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- McDowell, Michael.
- Moynihan, Rebecca.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Bradley, Nikki.
- Burke, Paddy.
- Byrne, Malcolm.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Hackett, Pippa.
- Kyne, Seán.
- Lombard, Tim.
- Martin, Vincent P.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Hara, Malachai.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- Seery Kearney, Mary.
I listened to the number of points made by Senator McDowell. He made some great points about the legislation. As a group of Senators, we met the regulator on one occasion. The regulator told us there is absolutely nothing that councillors cannot put into a county development plan. They can do everything. I would like clarity on that point. Councillors tell us they can do nothing and can put nothing into development plans because the managers will take it out. They cannot go against the advice of the manager or the regulator. The regulator told us that there is absolutely nothing that councillors cannot put into the plan, whether it is one-off housing, industrial zoning, zoning for housing or whatever. There seems to be a conflict as to what councillors can do, what the regulator says they can do and what the regulator does. That is what the regulator told us. When you speak to councillors, they say they cannot do it. I am sure that the training courses around the country must have addressed those issues at one stage or another but the councillors still say that what they can do in respect of planning and zoning is limited, as is their influence over the county development plan.
I did not realise we were having a debate on each section.
This is a debate on the section.
I do not know how this arises on the section as it now is, given that the amendment has been defeated, but in response to Senator Paddy Burke, it seems that to say there is no constraint on what councillors can or cannot propose by way of an amendment to a draft plan or insert into a plan is at variance with the experience of many councillors. Their experience is that the executive of a council advises them that any particular amendment would be in breach of the Government's guidelines, or whatever it may be. If they continue to make such an amendment by majority, the result, as I understand it, is that they receive a direction from the Planning Regulator to delete the amendment. Unless the Minister overrides the Office of the Planning Regulator, the result is that councillors cannot make an amendment to a part of the development plan. That is my view of the matter, and many people in the Chamber might share my view. I do not believe there is an unrestricted right on the part of councillors to have one-off housing wherever they want and I do not think that is the experience of county councillors around the country.
I will add to what my colleagues have already said. My experience in dealing with county development plans and councillors tells me that they regularly find that despite their intimate knowledge of communities and various growth patterns, they are restricted because the national development plan sets out certain strategic development criteria that talk about numbers based on censuses. Projections are often wholly out of date with the practical situation, based on various events that might have taken place, job creation opportunities or foreign investment that has taken place in certain areas. It is clear that there are additional building requirements but the councillors are informed by the chief executive that if they are to proceed on the basis of what they know to be the case, they will be at variance with the national plan, whatever the guise from which it might have emanated. In Clare, amendments that were made were, through the Department and on the advice of the Planning Regulator, later removed, making it virtually impossible for communities to grow in line with the demand that is there. If some clarity on the section was available from the Minister of State, it would be helpful.
I thank the Senator.
In general terms, we are stretching far outside section 1 of the Bill, which clearly outlines the Bill itself. I am not going to take any more contributions on this. Can I ask that section 1 stand-----
It is actually on that section. I note that within that section, it speaks around the Minister's dates and orders for the commencement of different sections of the Bill and for the repeal of different provisions of the Act of 2000. As will become apparent when we are discussing later sections, there are areas where I believe lacunas are going to be created, whereby certain provisions could be repealed and the replacement provisions or other provisions may not be commenced. There is a potential disjoin there and I may bring amendments on Report Stage.
I will bring the Minister of State back in on that if he wishes to speak.
Regarding Senator Burke's comment around local authority members and their engagement around development plans and the content, they must be in one sense consistent with the national plan and framework and policies of the Government but also with proper planning around sustainable development. At any stage, local authority members can make a variation to their local area plan or the country development plan. That will then be appropriately assessed by the Office of the Planning Regulator. Their input is important but again we have to re-emphasise the statutory functions of the OPR are to independently assess a local authority area and county development plans.
I move amendment No. 2:
In page 27, between lines 21 and 22, to insert the following:
“Legal acts of European Union and International Conventions given effect to by this Act
2. Effect or further effect, as the case may be, is given by this Act to—
(a) an act specified in Part 1 of the Table to this section, adopted by an institution of the European Union or, where appropriate, to part of such an act, and
(b) an International Convention specified in Part 2 of the Table to this section, ratified by either the European Union and/or the State, or, where appropriate to part of such a Convention.
TABLE
Part 1 |
Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States |
Birds Directive |
Environmental Impact Assessment Directive |
Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment |
Habitats Directive |
Major Accidents Directive |
Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy |
Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment |
Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EC |
Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to Jjustice Council Directives 85/337/EEC and 96/61/EC |
Directive 2006/11/EC of the European Parliament and of the Council of 15 February 2006 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community |
Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning |
Part 2 |
The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters done in the Danish city of Aarhus on 25 June 1998 |
Transboundary Convention |
European Landscape Convention done at Florence on 20 October 2000 |
I will withdraw the amendment while reserving the right to reintroduce it.
I move amendment No. 3:
In page 30, between lines 6 and 7, to insert the following:
“ “Chief Planning Officer” who may also be referred to as Chief City Planning Officer or Chief County Planning Officer means the person appointed to each planning authority and for the Minister to issue guidance. This guidance shall define the role of the officer.”.
In light of what the Minister of State said, I will withdraw amendment No. 3.
I move amendment No. 4:
In page 38, line 27, to delete “, subject to subsection (8) of section 155”.
Amendment No. 6 cannot be moved.
I move amendment No. 9:
In page 42, between lines 3 and 4, to insert the following:
“(2) Nothing in this Act shall be read as derogating in any way from or otherwise affecting the duties imposed on planning authorities, the Commission and the Minister by section 15 of the Climate Action and Low Carbon Development Act 2015.”.
Much as Senator Moynihan had tried to address the issues in respect of section 15 of the Climate Action and Low Carbon Development Act 2015, which is crucial. I will bring some amendments on Report Stage addressing the issues of climate, as well as the phrase, "sustainable development" that is getting used quite a lot in the debate already in order that we are clear where that sits in respect of the sustainable development goals and biodiversity. The amendments also will clarify and perhaps strengthen the provisions in section 2 on definitions in respect of climate action and the climate related provisions. I wanted to signal that in respect of definitions.
I also signal that I may bring amendments in respect of the issue regarding national planning policies and measures and the national planning statement on the definitions attached to those.
In light of the lecture we were given about how this system will be wonderful, it is particularly surprising that the application of section 15 of the Climate Action and Low Carbon Development Act was rejected. It may need to be strengthened through definition since the opportunity to accept Senator Moynihan's amendment was not taken by the Government.
I move amendment No. 10:
In page 42, between lines 3 and 4, to insert the following:
“Report on Aarhus Convention
3. The Minister shall, within three months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining the specific manner in which this Act, and any regulations or orders made thereunder, comply with the Aarhus Convention.”.
Tá
- Black, Frances.
- Boyhan, Victor.
- Clonan, Tom.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- McDowell, Michael.
- Moynihan, Rebecca.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Bradley, Nikki.
- Burke, Paddy.
- Byrne, Malcolm.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Hara, Malachai.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- Seery Kearney, Mary.
I move amendment No. 11:
In page 42, line 20, to delete “or expedient”.
I move amendment No. 12:
In page 42, between lines 23 and 24, to insert the following:
“(4) (a) The relevant Minister shall—
(i) establish a list of prescribed bodies for the purposes of consultation on regulations and other matters under this Act under their jurisdiction, and
(ii) before making regulations under this Act, consult with the existing set of prescribed bodies that are connected with or relate to the matters to which any proposed regulations the relevant Minister is preparing, and provide them with an effective opportunity to participate and comment on the proposed regulations, and take due account of the consultation input.
(b) The list prescribed under paragraph (a)(i), shall include organisations engaged in environmental protection, protection of built heritage, archaeological, historic or cultural heritage, and shall include independent organisations.”.
I move amendment No. 13:
In page 42, between lines 23 and 24, to insert the following:
“(4) The Minister shall facilitate effective public participation at an appropriate stage, and while options are still open, during the preparation of regulations which may have a significant effect on the environment, and shall take the following steps:
(a) set time-frames sufficient for effective participation;
(b) publish or otherwise make publicly available the draft regulation;
(c) provide the public the opportunity to comment, directly or through representative consultative bodies;
(d) take the input from the public participation into account as far as possible.”.
I move amendment No. 14:
In page 42, to delete lines 31 to 37 and substitute the following:
“(5) Notwithstanding anything elsewhere provided in this Act, including under subsection (1) of section 285, where regulations or an order are proposed to be made by a Minister under—
(a) Part 3 Plans, Policies and related Matters,
(b) Part 4 Development Consents,
(c) Part 6 Environmental Assessment,
(d) Part 7 Housing Strategy and Supply,
(e) Part 8 Miscellaneous powers of Planning Authorities,
(f) Part 9 Judicial Review and Decision-Making,
(g) Part 10 Architectural Heritage,
(h) Part 17 An Coimisiún Pleanála,
(i) Part 18 Office of the Planning Regulator,
(j) Part 19 Further Provisions Relating to Planning Bodies,
(k) Part 20 Financial and Miscellaneous Provisions,
(l) Part 21 Strategic Development Zones, and
(m) Part 22 Urban Development Zones,
a draft of the regulations or the draft order shall be laid before both Houses of the Oireachtas and the regulations or order as the case may be shall not be made unless a resolution approving the draft has been passed by each such House.
I move amendment No. 15:
In page 42, to delete lines 38 to 40, and in page 43, to delete lines 1 to 6.
I move amendment No. 16:
In page 43, between lines 13 and 14, to insert the following:
“Report on impact on heritage
7. An Chomhairle Oidhreachta shall, following consultation with experts on heritage, produce a report and submit it before both Houses of the Oireachtas not later than six months following the enactment of this Act, examining the impact of this Act on built and cultural heritage and the consistency of this Act with the Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023, and proposing recommendations to address any issues identified.”.
Tá
- Black, Frances.
- Boyhan, Victor.
- Clonan, Tom.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- McDowell, Michael.
- Moynihan, Rebecca.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Bradley, Nikki.
- Burke, Paddy.
- Byrne, Malcolm.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Hackett, Pippa.
- Kyne, Seán.
- Lombard, Tim.
- Martin, Vincent P.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Hara, Malachai.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- Seery Kearney, Mary.
Section 7(e) states that a material change of use includes "in respect of premises used for retail purposes, a change in use from a prescribed retail purpose to another prescribed retail purpose". Why does a change of use have to be from one prescribed use to another? For instance, if we do not want there to be an absolute right to run a fish and chip shop, why does it matter what kind of retail use it had in the first place? It could have been a shoe shop or a car rental agency. It seems this is a needless provision in the section whereby, first of all, the Minister has to prescribe uses and then has to decide that a change from one prescribed use to another requires planning permission. For example, if it were proposed to change a fish and chip shop back to a shoe shop, and both were prescribed, there would be a big problem. Maybe the Minister of State will explain why it is that a retail premises' first user has to be a prescribed user before the restriction on change of user comes into effect?
An interesting point has been raised. A premises could go from being a shoe shop to a chip shop. It might also go from being a shoe shop to a betting shop.
I am just saying whatever kind of thing-----
Sorry, through the Chair.
Through the Chair, I am suggesting that there probably are categories of things the Minister of the day will want to have a say on in this regard. If somebody wants to use a premises for a particular use, the Minister will make regulations stating that such an individual must get planning permission. I do not see how it matters what the premises were beforehand, however. That is the point I am making.
My concern is that I would like as many safeguards as possible on the high street so there is not an over-preponderance or proliferation of betting offices, coffee shops-----
Whatever, yes.
-----or whatever, and even, with the utmost respect, charity shops. They do great work but there can be a disproportionate number of them in one area. I would like some guidelines. It is an observation worth considering.
We will get an answer from the Minister of State now.
I take the Senator's point. The key word in the section is "prescribed". For example, a retail warehouse is very different from a convenience supermarket. In that context, "prescribed" determines where this fits into the Bill.
That is one example. I will take Senator Martin's point, however. For instance, a Minister may think that there should be planning permission for betting shops and fish and chip shops. Those are two things that a reasonable Minister might decide the residents of a road, or owners of neighbouring shops, have a right to be consulted on because the nature of those two businesses causes problems. That being the case, what does it matter what the premises were in the first place? I cannot understand why it would have to be in a prescribed category to attract this power of the Minister's. That is the point I am making.
The same applies to the example the Minister of State gave of a warehouse turning into a supermarket or vice versa. It does not really matter. To take Senator Martin's point, I see that a betting shop cannot become a fish and chip shop, but that will be very rare. The real thing is to control fish and chip shops or betting shops, not to ask what they were in the first place. That is the point I am making. The section seems to be badly drafted.
This is important. I will signal that what things are used for can matter. One area where that has been important relates to cultural activity, where there is a change of use from cultural activity, which may be a commercial cultural activity. When things are given planning permission, it is often because it involves a look to how they will contribute to the area and space. In San Francisco, London and elsewhere, for example, restrictions around change of use are being looked at where something has had a cultural purpose, even if it was a retail or commercial cultural purpose, so it is not simply a matter of making more money by selling something else. That affects the balance of amenities within an area. It is an issue that can be relevant.
One very significant aspect of change of use is referenced in section 7(d), which relates to change of use of houses in rent pressure zones from long-term to short-term lettings. We will discuss that issue in more detail under section 8.
It is very important. If we take commercial buildings, for example, there are different classes of such buildings. My understanding is that we are introducing the exemptions from planning for former public houses to be converted into residential units without the need to go for planning, as outlined in section 9, because there are different classes pertaining to each type of class of building in planning law. It is so the Bill is in compliance or is consistent with that premise as regards material change of use. That is obviously a very important element of the Bill.
Two sections, sections 7 and 8, deal with short-term lets. What is different in section 7 regarding short-term lets? Is it just because they are in the rent pressure zone area-----
Short-term lets come under section 8. We are dealing with section 7.
We are dealing with section 7 and short-term lets as they relate to rent pressure zones, which are included in section 7.
Sorry, Senator.
Section 7(d) deals with short-term lets. It references "short-term letting (within the meaning of section 8)" and rent pressure zones. Is it just short-term lets in rent pressure zone areas that section 7 deals with? Are such lets dealt with differently under this section than in section 8 or will section 7 deal with them in the same way?
It seems section 8 seeks to criminalise short-term lets in a rent pressure zone. It deals with the criminal aspect whereas section 7 deals with what amounts to a change of use. I do not think there is a conflict between the two.
Senators raised points on what is prescribed for one particular use, and various analogies around takeaways, retail units and betting shops were made. What is important here is that the type of use of a facility has an impact in various ways, whether it relates to traffic management, opening hours, noise disturbance or size. The important thing is that we specify a premises' prescribed use in that regard.
We will deal with short-term lets under section 8. Section 7(d) states, "a change in use of a house or part of a house situated in a rent pressure zone (within the meaning of section 8) to a use for short-term letting (within the meaning of section 8) purposes". I will come back to the Senator on that.
I want clarity on this. Why is the first use being prescribed in order that the second use be prescribed? I want clarity and some explanation of why we are doing this.
We are saying that a change from one prescribed use to another is a change of use, which will require planning permission. I want to know why it matters what it was before it becomes a settlement item. Maybe what we are saying is that in order to keep chippers open, they cannot be made into shoe shops. Maybe that is what we are at, but I just do not see the sense of this.
As I said previously to the Senator, it impacts on different types of originally prescribed planning that was previously granted in relation to that unit
Previously prescribed in relation to this?
Yes, and I think there are implications for traffic, size and scale, opening hours, etc. and these are all factored in.
Apart from opening hours and levels of anticipated pedestrian and vehicular traffic, the Senator makes a good point. It could be that it is a vital cultural and arts centre and we do not want to move that, explicitly, to a betting shop.
I hope we get an explanation on Report Stage
Amendment No. 17 is in the names of Senators Moynihan, Sherlock, Hoey and Wall. Amendments Nos. 17 to 28 inclusive, are related. Amendments Nos. 22 to 28, inclusive, are physical alternatives to Amendments No 21. Amendments Nos 25 and 26 are physical alternatives to Amendment No. 24. Amendments Nos. 17 to 28, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 17:
In page 44, between lines 4 and 5, to insert the following:
“Student accommodation units: restriction on change of use
8. (1) This section applies where student accommodation is developed pursuant to a permission granted under this Act or under Part 2 of the Planning and Development
(Housing) and Residential Tenancies Act 2016.
(2) Where this section applies, for a period of 15 years from the completion of the development no application shall be made or granted concerned for a change in use of the student accommodation concerned to—
(a) permanent residential accommodation, or
(b) a hotel, hostel, apart-hotel or similar type visitor or tourist accommodation.”.
Many of us who live in and represent urban areas think this amendment would be a good idea. It is for purpose-built student accommodation that goes through the planning Bill as purpose-built student accommodation and then in later years the owners try to change the use, either to residential accommodation, hotels, hostels or aparthotels. This amendment seeks to block that for 15 years. If it is purpose-built student accommodation and it has received permission for being purpose-built student accommodation, then it has to operate as student accommodation for 15 years. I have had situations where student accommodation providers have then switched over the building to aparthotel accommodation. Others put in applications, particularly during Covid, to try to change over the use to normal residential accommodation. The problem with this is that it undermines our other planning standards for apartment blocks. It means that there is an impact on the viability of building long-term, secure rental or to-buy, high-density accommodation in our cities. More money can be made from the purpose-built student accommodation and there are lower build standards. There is an argument that perhaps our planning regulations make some apartments unviable. This needs to be dealt with, but it could be done separately in terms of looking at the layers of standards that have been added on over the years. Developers get different accommodation standards by the back door by applying for student accommodation, build it under those terms and then in later years, change the use and it does not have the same storage facilities or childcare facilities. That is what this amendment seeks to address. I ask that the Minister of State look at that as part of some of the regulations that would be brought in after the planning Bill, if the amendment is not accepted
I am happy for the Minister of State to come back in to reply to this issue and I can then come back to the others.
Amendment No. 17, as proposed by Senators Moynihan, Hoey, Sherlock and Wall, seeks to place a ban on material change-in-use permissions for recently developed student accommodation for a period of 15 years following completion. While I acknowledge the good intent behind this amendment, the planning system as it currently exists, as well as the system envisaged under the Bill, requires permission in order for a material change in use to be authorised development. As such, a decision to permit a material change in use for student accommodation development is already required and it is rightly the responsibility of a planning authority. I do not see the need to supplant that responsibility by removing the limited flexibility that currently exists. It is imperative that we respect the expertise and decision-making capabilities of professional local authority planners when it comes to making decisions and recommendations with respect to planning applications, especially as this work must be carried out while taking into account all relevant considerations, including relevant development plans. While I do appreciate the intent behind this proposal, unfortunately, I am not in agreement with the approach proposed and, having full confidence in our planning authorities and their ability to correctly consider material change-in-use applications, unfortunately I am not in a position to accept this amendment.
I have a number of amendments in this section. Amendment No. 20 seeks to insert a new subsection into section 8. This would provide that the Minister should, following consultation with the Housing Commission and the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media, Údarás na Gaeltachta and Gaeltacht language planning officers, lay a report before both Houses of the Oireachtas, within six months of this Act, outlining the impact of short-term lettings on Gaeltacht communities, in particular, on the availability of affordable housing for Irish speakers and the associated impacts in long-term sustainability of these communities and their linguistic identity. Caithfear díriú ar inbhuanaitheacht fadtéarmach phobal na Gaeltachta agus ar a gcuid féiniúlachta teanga. Tá dochar á dhéanamh ag léasanna gearrthéarmacha ar seo agus níl muid tar éis tada cosúil le rialú ceart ar an earnáil a fheiceáil, ná bac le rialú a fhreastalaíonn ar riachtanas phobal na Gaeltachta.
The impact of short-term lets on housing provision for communities and city centres has been discussed extensively. When we talk about the Irish-language-speaking community, we are talking about one of particular importance and vulnerability. We have heard lots about one-off housing in areas where there may be a very limited housing provision available within some of the Gaeltacht areas. I acknowledge of course that there are areas in Dublin city, which would like to be Gaeltachts as well. We are talking about areas with communities where by their very nature, people need to be able to speak to each other in that language to keep the community alive. If there is a preponderance of short-term lets or holiday lets, that can really diminish the intergenerational sustainability of Irish language speaking communities. I really hope that the Minister of State would lay reports looking at the issue of short-term lets. I will move on to section 9 on exempted development.
The grouping is somewhat strange because these points are set aside each other. Section 9 looks at the problematic issue of exempted developments. These are developments proposed to be exempted from the planning process. We would not have even a part of the normal planning process applied to certain categories of development. That is problematic in general but specific aspects in the Bill are particularly concerning.
Amendment No. 23 seeks to amend section 9(3) by inserting a new subsection (4), which would add development which is environmentally significant to the list of developments in section 9(3) which are not exempted. There is a wide and concerning set of developments exempted from the planning process. However, section 9(3) states:
Development shall not be exempted development for the purposes of this Act if an environmental impact assessment or an appropriate assessment of the development is required.
This comes back to Aarhus. The requirement for proper public participation in terms of environmental decisions is not confined to the narrow and specific criteria of whether environmental impact assessment is required, or indeed appropriate assessment, which is really only asking if the development has a specific impact in relation to Natura 2000 sites and special areas of conservation. The bar in terms of the requirement for public participation in a development decision under Aarhus is something that is environmentally significant. Examples have been given. There may be a change of use. There may be a pig farm that gets imposed or there may be a development with implications not just in terms of its physical structure but in terms of an activity that takes place there that has significant environmental impacts. For example, a liquified natural gas terminal has very significant implications. There is a large range of developments that may not come under the environmental impact assessment requirement because it tends to relate to the structure itself. They may also not happen to be within a certain distance of a Natura 2000 site but may have significant environmental implications in terms of particular species, our shared environment, pollution or the purposes of the development.
Aarhus Article 6.1.(b) requires public participation when an activity has "a significant effect on the environment". Most situations may get captured by environmental impact assessment but there would be an insurance policy in the use of the language of the Aarhus Convention and compliance with it. Something that does not require an environmental impact assessment or appropriate assessment but is environmentally significant would be covered and not have an exemption from the planning process, which, to be clear, is an exemption from public participation and from the public having the opportunity to comment and engage in the process. It is clear that, under Aarhus Article 6.1.(b), public participation is required in any such situation. This is another point where I fear the Bill will be found less than compliant and the issue could be addressed easily through the amendment I have proposed.
Amendment No. 24 seeks the deletion of section 9(6), which gives the Minister the power to make regulations prescribing development or any class of development to be exempted development if such development is permitted by another enactment and, in line with another enactment, an appropriate assessment or environmental impact assessment is carried out.
I find my own notes confusing about this, so I will go back to talk about what that section says. It is really significant. The Minister can make a regulation that exempts not just an individual development but a whole class or category of development. For example, it could be data centres. That is a good example of where an environmental impact assessment may or may not be needed but the energy demands have significant environmental implications, as addressed in my previous amendment. The Minister can exempt a class of development, even though there would normally be an environmental impact assessment required, if such development is authorised or permitted or under any enactment - that is, any other law - in accordance with any kind of authorisation or permission. If there is another law that has addressed this issue, the Minister can say he will take a whole category of development out of play. There is significant concern about that because we could have a falling-between-two-stools situation. Any other enactment was probably created with the idea there would be a proper planning process but under this, the Minister can pull away the planning process because another piece of legislation refers to this development.
Amendments Nos. 25 and 26 are technical amendments.
Amendment No. 27 seeks to insert a new paragraph into section 9(6), which would require that a development or class of development can only be exempted by the Minister "where an environmental impact assessment or appropriate assessment has not been required under any ... enactment, but the activity may have a significant impact on the environment, [as long as] public participation has been provided for prior to the authorisation or permitting of the activity.” The amendment seeks to address the Aarhus Article 6.1.(b) requirement to secure participation on the development as it cannot be exempt from planning unless participation is provided for prior to authorising the activity. This tries to reach back to situations where the Minister is saying it is previously authorised by another enactment and to ensure that can only apply where there has been an appropriate opportunity for public participation.
Amendment No. 28 seeks the deletion of section 9(10), which provides that a:
Development to which—
(a) a declaration under subsection (4) or (4A) of section 181B of the Act of 2000 applies, or
(b) a declaration under subparagraph (i) of paragraph (ba) of subsection (2A) of section 181 of the Act of 2000 applies,
shall be exempted development for the purposes of this Act.
This means developments proposed to be carried out by or on behalf of a Minister of a Government, the commissioners or a statutory undertaker, or a development for national defence or civil emergencies would automatically be exempted. This is an extremely wide provision.
It is effectively saying that anything the Government wants to do, or anything anybody working for the Government wants to do in terms of statutory undertakers, would automatically become an exempted development. Given the restrictions in this legislation around who can seek a declaration as to whether or not a development is exempted, I am really concerned this could be abused. The Minister of State might comment in particular on amendment No. 28 and its very broad reach. It is unclear how that very wide exemption under section 9(10) even sits with some of the other pieces in terms of environmental implications.
I have focused on public participation in relation to environmental implications because that is an area where there is the concern legally under the Aarhus Convention. I also have a concern about the potential abuse or excessive use of the exempted development category in general in relation to good planning and public participation. I have focused on the aspect where there are potential issues around compliance with Article 6(1)(b) of the Aarhus Convention but I am concerned about a stretch in general around exempted development.
We have a planning process for a reason. The planning process is not just about the rights of individuals to make objections. The planning process is there because it catches a lot of things. It was why when we had strategic housing developments, for example, which leapfrogged over the local level planning process, we got worse decisions. We got decisions that ended up falling down when they came to the courts because they did not consider everything and they did not consider all of the relevant factors. In terms of exempted development, there is a danger here. It is a power that should be used very cautiously and very rarely. The Minister of State might comment on my points around Article 6(1)(b) of the Aarhus Convention in particular but also around the issue of section 9(10) and the potentially excessively wide scope of how this might be used.
The planning process is not just a series of obstacles; it is also a useful process for refining and improving development proposals. I worry we might lose out by having it skipped too often or easily.
I come from a different perspective than Senator Higgins, particularly in relation to section 9 because I have seen first hand the value of exempted development. I have seen the changes we have made to the classes of development, turning commercial development into residential development for housing. I have seen it in my city of Waterford play in conjunction with the repair and lease scheme. I have seen it in Dungarvan, where former pubs have been converted into residential units without the requirement to go for planning through exempted development. It has resulted, regardless of what anyone will argue here today, in the saving of at least 18 months in terms of the timeframe. Nobody here is going to convince me that exempted development is not appropriate in certain circumstances. I am assuming in the way the legislation has been drafted, it has removed the list per se. It is to give the flexibility in secondary legislation to be able adapt to circumstances. When the Minister visited Waterford two years ago, I pointed out to him a development which had been a former pub that had been vacant for ten years and that had been converted into a residential development after a two-year delay in the planning process and there were now people in those units. What did we do? Because we had the flexibility to do so, we changed the exempted development to include that class of commercial to residential.
I really support exempted development because I have seen first hand the value it has in terms of speeding up the process to deliver homes for individuals and families right across this country. We can get caught up in the technicalities and in debates about merits or demerits of certain things, but exempted development and the flexibility to adapt to deliver homes for people cannot be underestimated. We cannot just dismiss that. That is the purpose of having the ability to do this.
In the Minister of State's remarks, I ask for clarity that the exempted developments we have in place at the moment, such as the one I mentioned, will continue and will be in place in secondary legislation. We are giving the ability, which I support, to be able to have that flexibility through the legislation before us but I want some reassurance that the circumstances that exist today will continue when the Bill is enacted.
A number of things arise in relation to section 8 as it stands. I know we are not discussing the section at this stage, but it is worthwhile to point out that it refers to short-term lettings and it defines them as "the letting of a house or a part of a house for any period not exceeding 14 days, and includes a licence that permits the licensee to enter and reside in the house or part thereof for any such period in consideration of the making by any person, whether or not the licensee, of a payment or payments to the licensor." It strikes me there is a huge loophole in that the payment has to be made to the licensor. If Senator Burke had a house in Mayo, in a rent pressure zone or whatever, and I was the manager of the premises or I had a right to manage the premises separate from Senator Burke as owner of the premises, you could ride a coach and horses through that definition. I just wanted to point that out.
One would assume the payment should be made to any person, not just the licensor. If it is confined to cases where the licensor, in other words the person who says you may use the premises, has to be the person who receives the money, then it is easily evaded by simply providing that somebody else gets the money such as a caretaker, a manager or whatever for looking after the premises. You pay €100 a night for it and you get the services of cleaning and all the rest of it from that person who manages it and the person who owns that property, who could be a spouse or anybody else, would not be caught by it. I am just pointing that out as it leapt off the page at me. When you say the payment has to be made to the licensor, you exclude a lot of cases and it is so easily avoided by one spouse owning the property and giving a licence to use it and the other receiving remuneration for managing and cleaning and all the rest of it during the period.
There are all sorts of alternative ways of dealing with it but I can well imagine the mere fact the licence to occupy a premises is short term means it is not a letting. There are many circumstances in which you could easily provide that somebody else gets the money and that is the end of it.
I want to make a point about amendment No. 21, which is in my name and that of Senator Boyhan.
What we are doing is reciting the existing law as to what is and is not an exempted development. What the Bill is doing is saying to forget about all those cases that are the law of the land determined by the Oireachtas and the Minister will be able to make independent regulations to cover some, all or any of them and to repeal those regulations when he or she so decides. What we are actually doing is taking away from these Houses the provisions in question and handing it to the Minister, under the Act, to either make regulations or revoke regulations as when he or she decides to do so. That is part of a process of centralising legislative power in the hands of the Executive of the State. By any standards, if we say that exempted development means the series of things that it now means and then say that in future it does not mean any of those and it only means such of those as the Minister by regulation so prescribes, we are taking away the power of this House to determine whether a variation is a good idea or a bad idea.
Under subsection 9(6), as has been mentioned, there is an exemption that requires environmental impact statements. Where that is required, because such development requires an environmental impact assessment, the Minister can make regulations in those cases to say that it is not exempted development or that it is exempted development, or to vary it in and out of those categories. What I worry about is that environmental impacts are not only planning issues. There is a difference between the two. There are issues that would arise in the mind of a local authority as to whether or not to grant planning permission that might not be environmental impact assessment grounds. The mere fact that a body can permit something to happen in accordance with a licence that involves an environmental impact assessment does not mean that ordinary or different planning criteria are to be ignored or left out of the equation. It is not as if the regulations made under the subsection are a tiny technical class; they are fairly substantial. What they are saying is that the Minister can make regulations prescribing development or any class of development where that kind of EIA is required to be exempted development but the corollary of that is that he or she can say that it is not exempted development as well because the power to make a regulation saying it is exempted development implies the power to revoke it. The funny thing about that is section 4(4), which we have approved, requires that where regulations are to be made under section 9(1), a draft of the regulations shall be laid before the Houses, but not under section 9(6). The Minister can make or unmake regulations there without any requirement to invoke the authority of the Legislature. It is these kind of small things that concern me. It is not a niggly point. The policy behind that is not clear. Why should the Minister be able to make such a provision without coming back to the House, effectively removing the requirement for planning permission on the basis that an environmental impact assessment is required for some kind of statutory consent procedure by somebody else? EIAs are not the same as but overlap with - it is like a Venn diagram - planning concerns but they do not amount to an exhaustive statement of planning concerns. For example, if a development plan for an area specifies some kind of a development as to be discouraged in an area, the mere fact that it can be subject to an EIA does not mean that the policy aims of the development plan for the area enacted by the local authority are thereby satisfied and met.
We should be considering each bit of section 9, comparing it with what was the law, and asking ourselves: is section 9 satisfactory and does it diminish the involvement of these Houses in stating what the law is and give to the Minister the right to, by regulation, make something exempted development or cease to have it exempted development without the intervention of these Houses?
I want to get confirmation from the Minister of State as regards the flexibility to withdraw something from being exempted development. We need to be cautious with it. It states, under section 9(3), that it shall not be exempted if an appropriate assessment of the development, and that has to be listed as being, say, an SAC site, is required. Unfortunately, the appropriate assessment does not involve the public, which would normally be part of the planning process. If a change is being made and exempted development is being used or maybe abused in cases, the public's views will not be taken into account. We need to take them into account, particularly if the development that it has been looked for to be exempted is in an urban area, a private development or an estate development that will affect the fabric of those who are living there. We cannot allow exempted development in any case. There are people stretching exempted development to get around the planning process and changing it thereafter. We need to take that into consideration, particularly when it is in a residential estate. We have to look at the concerns, particularly of those who are living there.
Amendment No. 19 relates to rent pressure zones and short-term letting in these zones. It is well established that there are more short-term lets being advertised in RPZs than long-term rentals. The vast majority of those short-term listings are in breach of planning law, yet the owners and online platforms that facilitate them are profiting from what are clear breaches of planning law.
Sinn Féin proposed legislation in the Dáil two years ago, which the Government supported, but nothing has happened since and no action has been taken. The consequences is that properties that should be available for long-term tenancies are in the short-term letting market.
The amendment calls for a report within six months of the commencement of this section. This would complement the legislation and develop research in a report that shows what enforcement has taken place so that we have this information. Government guidelines and regulations were introduced for this area in 2019. At a time of rising homelessness and a shrinking private rental market, this is unacceptable. I hope the Government will accept this amendment.
Short-term lets are a result of the changes brought about by the Internet, such as people being able to do business online. They have been brilliant for tourism areas and I am sure some of those areas are in rent pressure zones. We have been lobbied by people who let their properties short term to supplement their wages and pay for children to go to third level education. It is a way of making some extra money. The changes were made, these houses may not be rented out on long-term leases. I worry about the provisions on having a licence and securing retrospective planning permission for short-term lets that people are using now. What will to happen to people who are involved in short-term lets as a result of this legislation being passed? Will they have to apply for planning permission to regularise what they are doing, regardless of whether they are in a rent pressure zone?
I support the point Senator Cummins made regarding the regulations that were introduced on changing shops and businesses into accommodation. Such properties were exempted them from planning permission. It is a great idea that should continue. There are a considerable number of those properties. Small wind turbines are also exempted from planning. Will that continue to be the case? Will all the current exemptions remain when this Bill is passed?
I agree with Senator McDowell. I have highlighted the inadequacies of the measures in this section as they relate to Article 6.1.(b) of the Aarhus Convention. The attempts to address that issue are inadequate. This is not the only issue, however. The wording in section 9(6) effectively provides that almost any class of development in which the issue of environmental impact assessments has been elsewhere addressed can be exempted. The bar for exempted development should be high. We need a clear list of what the exceptional circumstances are for developments exempted from the planning process, rather than this sweeping provision where the Minister will determine the categories of development.
I lived in a converted office building at one point. I know, however, that important things are added by the planning process when it comes to conversion. Someone seeking to convert an office building who goes through the proper planning process may, for example, get input on the importance of providing play spaces or that, given the demographics of the area, more family accommodation is needed and this should be reflected in the design. The kinds of conditions attached to planning permission make for better developments and better planning. A lot gets lost when we short-circuit the planning process. If there is a case for short-circuiting the planning process, it should be done in exceptional circumstances and the bar and burden of proof should show there is a reason for the exemption.
The measures we proposed on strategic housing development and the use it or lose it idea were not taken up, to the detriment of the housing supply. In the case of strategic housing development, we short-circuited the process and people were left with a greater asset, one that did not go through any of the constraints of the planning process and is potentially worth more on paper than it was as a site previously and then may or may not get built. We do not want either a development or a class of developments to benefit from the exempted development process, skip the planning process and then still not happen, and we have simply created assets.
Huge profits have been made from property in Ireland by speculative investment firms. I have the figure here. I will read it into the record later but some of these speculative retail entities almost doubled their profits. That has not been matched by all these things being built. In some cases, they just have a more valuable site with a different permission on it. While we want to see conversion of office buildings, pubs and so forth, skipping the planning process and public participation in it is legally problematic under the Aarhus Convention. It is also a serious and high stakes thing to do. I am concerned that it may be done in a way that the benefits will not outweigh the risks. The cost-benefit analysis should be built in for planning exemptions. They should be applied in a transparent way, rather than the power being simply delegated to the Minister.
I am concerned about the class of exemptions. Exempted development goes against the core principle that we previously had in planning legislation, where a Minister would not be involved in individual planning decisions. That was the fundamental principle in our planning legislation, whereas now we have a situation where the Minister may decide that the planning process will not apply for certain individual developments or categories of development. As I said, data centres are another area I have concerns about. That is one example of something that could end up falling under this category. The concerns expressed by others are valid and I hope the Minister can address them.
Let us suppose someone is a tenant of a house in Dublin and it is in a rent pressure zone. The individual and two others share the house and his two mates go off to the Continent for two months on holiday and that person is left with the house. As I read it, short-term letting means the letting of a house or part of a house or the licence of a part of a house. If that person takes in another person for a fortnight, he commits an offence. That is serious stuff. He commits an offence and is liable to a class A fine. I do not know what that is but I am sure it is punitive. Is that what is intended, that short-term letting "means the letting of a house or part of a house for any period not exceeding 14 days, and includes a licence that permits the licensee to enter and reside in the house or part thereof for any such period in consideration of the making by any person (whether or not the licensee) of a payment or payments to the licensor"?
We will resume on amendments Nos. 17 to 28, inclusive. These amendments are related. Amendments Nos. 22 to 28, inclusive, are physical alternatives to amendment No. 21 and amendments Nos. 25 and 26 are physical alternatives to amendment No. 24.
I will come in briefly on the short-term letting piece to which Senator McDowell referred before the break. I understand this section is exactly the same as the section in the current legislation. The background is that the Department of tourism has been trying to come up with guidance in this space and went to the European Union for an opinion. That has come back and negotiations are under way. Perhaps the Minister of State would clarify whether any rules that might be brought forward for short-term letting would supersede what is before us. Senator McDowell has raised some points that may need addressing on Report Stage.
Can I confirm that the Government amendments in the first group, namely, amendments Nos. 5, 7 and 8, were moved previously?
The Minister of State asked about amendments Nos. 5 and 7.
Amendment No. 8, too.
They have all been moved.
I previously addressed amendment No. 17, which deals with developed student accommodation. I propose now to speak to Opposition amendments Nos. 18 to 26, inclusive, and amendment No. 28. Amendments Nos. 18 to 20, inclusive, are all related to short-term letting and various Senators have made comments on that issue. We are awaiting the short-term letting Bill from the Department of tourism. I know this issue affects the tourism sector in Senator Cummins's region of Waterford. It is important this is done right and practically, without any unintended consequences. It is important we ensure there is a review of the wording in the current Bill. We will look at the word "licensee" in the context of the Bill and will review it as needed. We will also be publishing new planning guidelines for short-term lets to accompany the short-term letting Bill.
Amendment No. 18, as proposed by Senators Moynihan, Hoey, Sherlock and Wall, intends to amend section 8(3) by including a new penalty for a person who contravenes regulations made under subsection (2) of that section. When they come into operation, these regulations will require people to provide information to planning authorities on short-term lettings. While the withholding of information in respect of short-term lettings is potentially a serious matter, I am of the opinion that the current penalty on summary conviction, that being a maximum fine of €5,000, is appropriate. Given the scope of the offence in question, I do not see the need to expand this provision further to provide for conviction on indictment and for this reason I cannot accept this amendment.
Amendment No. 19 is proposed by Senators Warfield, Boylan and Gavan. It intends to place an obligation on the Minister to lay a report before both Houses of the Oireachtas relating to the enforcement of short-term letting in rent pressure zones. This is to be done within six months of the commencement of section 8. Amendment No. 20, as proposed by Senators Higgins, Ruane, Black and Flynn, is similar in that it relates to a report that must issue within six months of the enactment of the Bill but the report would cover the impact of short-term letting on Gaeltacht communities. The various issues relating to short-term lettings are, of course, significant, particularly for areas in our Gaeltacht regions. As the Senators are aware, significant work is currently under way on a revised version of the registration of short-term tourist letting Bill and my colleague, the Minister for tourism, Deputy Catherine Martin, is currently progressing that matter. I believe that Bill will be a far more appropriate vehicle for the further consideration of these matters and it is for this reason that, unfortunately, I am not in a position to accept these amendments.
That is not to take away from the issues about short-term letting that have been raised by various Senators. Senator McDowell has raised issues in respect of the licensee. We will take those issues away and report back on Report Stage.
Amendments Nos. 21 to 28, inclusive, relate to exempted development. Section 9 provides that all exempted development will be provided for in regulations rather than in the enacted Bill itself and the exempted status of any development that has been carried out under the Act of 2000 will be preserved. Unfortunately, I cannot accept amendment No. 21, as proposed by Senators Boyhan and McDowell, as it retains the approach that is currently taken under the Act of 2000, which I am in favour of moving away from. It is anticipated that the new approach to exempted development in the Bill will see increased expediency and flexibility. While the exempted status of any development carried out under the Act of 2000 is preserved, the Bill migrates these exemptions from the primary legislation to secondary legislation so that all exempted development is now to be provided for in regulations rather than in the Act itself. This will allow agility and future-proofing of the classes of exempted development, allowing the Minister to modify such provisions where necessity dictates.
In reply to a question asked by Senator Cummins, my Department is currently working on the new exempted development regulations and will undertake public consultation before they are finalised. We have public participation and environmental impact assessments, EIAs. They must take into account section 9(3). Senator McDowell referred to section 9. Anything that is exempt under the current Act will remain an exempted development. Regulations will be laid before the Oireachtas in a manner that is accommodated. Under section 9(1), powers to make exempted regulations are subject to subsection (6). Regulations under that subsection are also subject to being laid before the Houses of the Oireachtas.
Amendment No. 22, also in the names of Senators Boyhan and McDowell, if accepted, would remove necessary enabling provisions that are essential for the correct functioning of the envisaged exempted development regulations. For that reason, I am not in a position to accept this amendment.
Amendment No. 23, as proposed by Senators Higgins, Ruane, Black and Flynn, inserts a new subsection into section 9 relating to regulation-making powers that would see the introduction of prescribed screening criteria to determine if a given activity has a significant impact on the environment. Section 9(3) already provides that development cannot be exempted development where an environmental impact assessment or an appropriate assessment is required. In practical terms this will mean, subject to subsection (6), that where it is determined a development will have a significant impact on the environment, that development cannot be exempted development. This is a reasonable threshold, which in my opinion does not require further alteration in the manner suggested under amendment No. 23 and for this reason, unfortunately, I am not in a position to accept the Senators' position.
Amendment No. 24, as proposed by Senators Boyhan, McDowell, Higgins, Ruane, Black and Flynn, intends to delete section 9(6).
It is important to note that regulations under subsection (6) can only be made where the development in question is permitted under another enactment and all environmental requirements have been adhered to. The purpose of this subsection is to prevent or reduce any unnecessary duplication of administrative processes. This provision is needed and must be retained. For that reason, I am not in a position to accept the amendment.
Amendments No. 25 to 27, inclusive, are linked and are proposed by Senators Higgins, Ruane, Black and Flynn. The purpose of these amendments is to add a new paragraph (c) to subsection (6) to provide for additional requirements relating to development that does not require an environmental impact assessment or appropriate assessment. The proposed new paragraph will not work for the purposes of subsection (6). This is because, as per paragraph (b), subsection (6) can only come into effect where an environmental impact assessment or an appropriate assessment is required to be carried out. For this reason, I am not in a position to accept this amendment.
Amendment No. 28 is also proposed by Senators Higgins, Ruane, Black and Flynn. It relates to the deletion of transitional provisions provided under section 9(10). The latter is required to ensure development that is the subject of a declaration made under section 181(2A) of the Act of 2000 or the subject of a declaration made under section 181B(4) or (4A) of the Act of 2000 is deemed to be exempted development for the purposes of the enacted Bill.
Regarding amendments Nos. 27 and 23, the Minister is using the example of having the environmental impact assessment or appropriate assessment or the decision that they are not required or required as a proxy for environmental significance when they are not an adequate proxy. They are tools that are useful regarding considering environmental significance but they are not in themselves a complete and shorthand proxy. In amendments Nos. 23 and 27, I am seeking to make the legislation more robust by using the language that is in the Article 6(1)(b) of the Aarhus Convention, which is around activities that may have a significant impact on the environment. I gave examples whereby things that may not be captured by environmental impact assessment or appropriate assessment, which are necessarily quite narrow tools, may nonetheless have a significant environmental impact and which, because of that, may be subject to and require public participation regarding Article 6(1)(b). I do not believe that what the Minister of State has put forward is an adequate solution.
I also agree with the many others who for other reasons are concerned about the wide breadth of the kind of development or class of development that might be exempted under this. Terms like "greater flexibility" and "agility" are being used a lot. Even though this all sounds wonderfully athletic, what we actually saying is that there will be less accountability to the Oireachtas, less transparency in terms of us knowing exactly how these are used and less oversight regarding what might be considered an exempted development.
In the context of amendment No. 28, this is a particular concern in the context where, elsewhere in the Bill, restrictions are placed on whether members of the public want to seek declarations as to whether something is or is not an exempted development. This will be a constraint that needs to be looked at again. When it comes to the significant powers that are there, that the public's power to seek declarations is constrained and that things are moving from legislation to regulation that can be changed in an agile, flexible and mysterious way, I am disappointed. We will see issues arise in respect of exempted development. The issue with exempted development, particularly in the context of ministerial discretionary power regarding regulations relating to such development, really goes against the core principle we used to have in planning whereby the Minister would not intervene. Here, the Minister is effectively able to take whole categories of things, including individual developments, out of the planning process. My concerns remain.
I move amendment No. 18:
In page 44, to delete lines 20 to 22 and substitute the following:
“(3) A person who contravenes a provision of regulations under this section that is described in the regulations as a penal provision shall be guilty of an offence and shall
be liable—
(a) on summary conviction, to a class A fine, and
(b) on conviction on indictment, to a fine not exceeding €50,000.”
I move amendment No. 19:
In page 44, between lines 25 and 26, to insert the following:
“(5) Within 6 months of the commencement of this Section the Minister shall law before the Houses of the Oireachtas a report detailing the enforcement of the restrictions on
short-term letting in Rent Pressure Zones and further measures to ensure such enforcement.”.
Tá
- Black, Frances.
- Boyhan, Victor.
- Flynn, Eileen.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- Moynihan, Rebecca.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Burke, Paddy.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Mark.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Garvey, Róisín.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Hara, Malachai.
- O'Reilly, Joe.
- Seery Kearney, Mary.
I move amendment No. 20:
In page 44, between lines 25 and 26, to insert the following:
“(5) The Minister shall, following consultation with the Housing Commission, the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media, Údarás na Gaeltachta, and Gaeltacht Language Planning Officers, lay a report before both Houses of the Oireachtas within six months of the passing of this Act outlining the impact of short-term lettings on Gaeltacht communities, in particular on the availability of affordable housing for Irish speakers and the associated impacts in terms of the long-term sustainability of those communities and their linguistic identity.”.
I will withdraw the amendment and reserve the right to reintroduce it on Report Stage.
I move amendment No. 21:
In page 44, to delete lines 26 to 39, to delete page 45, and in page 46 to delete lines 1 to 26, and substitute the following:
“Exempted Development
9. (1) The following shall be exempted developments for the purposes of this Act—
(a) development consisting of the use of any land for the purpose of agriculture and development consisting of the use for that purpose of any building occupied together with land so used;
(b) development by the council of a county in its functional area, exclusive of any borough or urban district;
(c) development by the corporation of a county or other borough in that borough;
(d) development by the council of an urban district in that district;
(e) development consisting of the carrying out by the corporation of a county or other borough or the council of a county or an urban district of any works required for the construction of a new road or the maintenance or improvement of a road;
(f) development carried out on behalf of, or jointly or in partnership with, a local authority that is a planning authority, pursuant to a contract entered into by the local authority concerned, whether in its capacity as a planning authority or in any other capacity;
(g) development consisting of the carrying out by any local authority or statutory undertaker of any works for the purpose of inspecting, repairing, renewing, altering or removing any sewers, mains, pipes, cables, overhead wires, or other apparatus, including the excavation of any street or other land for that purpose;
(h) development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures;
(i) development consisting of the thinning, felling and replanting of trees, forests and woodlands, the construction, maintenance and improvement of non-public roads serving forests and woodlands and works ancillary to that development, not including the replacement of broadleaf high forest by conifer species;
(j) development consisting of the use of any structure or other land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such;
(k) development consisting of the use of land for the purposes of a casual trading area (within the meaning of the Casual Trading Act, 1995);
(l) development consisting of the carrying out of any of the works referred to in the Land Reclamation Act, 1949, not being works comprised in the fencing or enclosure of land which has been open to or used by the public within the ten years preceding the date on which the works are commenced.
(2) (a) The Minister may by regulations provide for any class of development to be exempted development for the purposes of this Act where he or she is of the opinion that—
(i) by reason of the size, nature or limited effect on its surroundings, of development belonging to that class, the carrying out of such development would not offend against principles of proper planning and sustainable development, or
(ii) the development is authorised, or is required to be authorised, by or under any enactment (whether the authorisation takes the form of the grant of a licence, consent, approval or any other type of authorisation) where the enactment concerned requires there to be consultation (howsoever described) with members of the public in relation to the proposed development prior to the granting of the authorisation (howsoever described).
(b) Regulations under paragraph (a) may be subject to conditions and be of general application or apply to such area or place as may be specified in the regulations.
(c) Regulations under this subsection may, in particular and without prejudice to the generality of paragraph (a), provide, in the case of structures or other land used for a purpose of any specified class, for the use thereof for any other purpose being exempted development for the purposes of this Act.
(3) A reference in this Act to exempted development shall be construed as a reference to development which is—
(a) any of the developments specified in subsection (1), or
(b) development which, having regard to any regulations under subsection (2), is exempted development for the purposes of this Act.
(4) The Minister may, in connection with the Council Directive, prescribe development or classes of development which, notwithstanding subsection (1)(a), shall not be exempted development.
(5) Before making regulations under this section, the Minister shall consult with any other State authority where he or she or that other State authority considers that any such regulation relates to the functions of that State authority.”.
I move amendment No. 22:
In page 45, to delete lines 11 to 17.
I move amendment No. 23:
In page 45, to delete line 21 and substitute the following:
“required, or where the activity may have a significant impact on the environment.
(4) (a) The Minister shall prescribe via regulation the screening criteria requirements to determine if an activity may still have a significant impact on the environment where screening determinations have determined that Environmental Impact Assessment or Appropriate Assessment requirements or both are not required.
(b) Development shall not be exempted development for the purposes of this Act unless it is determined not to have a significant impact on the environment in accordance with the process and criteria prescribed under paragraph (a).
(c) Any determination made under paragraph (a) or (b) shall be publicly available and published on the website of the planning authority or the Coimisiún responsible for the determination as appropriate.”.
I will let the Leas-Chathaoirleach take the Chair.
I move amendment No. 24:
In page 45, to delete line 39 and 40, and in page 46, to delete lines 1 to 10.
I move amendment No. 25:
In page 46, line 6, to delete “and”.
I will withdraw the amendment and reserve the right to reintroduce it.
I move amendment No. 26:
In page 46, line 10, to delete “permitted.” and substitute “permitted, and”.
I move amendment No. 27:
In page 46, between lines 10 and 11, to insert the following:
“(c) where an environmental impact assessment or appropriate assessment has not been required under any such enactment, but the activity may have a significant impact on the environment, public participation has been provided for prior to the authorisation or permitting of the activity.”.
I withdraw the amendment and reserve the right to reintroduce it.
I move amendment No. 28:
In page 46, to delete lines 21 to 26.
Amendments Nos. 29 to 48, inclusive, are related. Amendments Nos. 30 to 41, inclusive, are physical alternatives to amendment No. 29. Amendment No. 32 is a physical alternative to amendment No. 31. Amendments Nos. 44 and 45 are physical alternatives to amendment No. 43. Amendments Nos. 29 to 48, inclusive, may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 29:
In page 46, between lines 26 and 27, to insert the following:
“Declaration on development, exempted development, etc.
10. (1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(2) (a) Subject to paragraph (b), a planning authority shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.
(b) A planning authority may require any person who made a request under subsection (1) to submit further information with regard to the request in order to enable the authority to issue the declaration on the question and, where further information is received under this paragraph, the planning authority shall issue the declaration within 3 weeks of the date of the receipt of the further information.
(c) A planning authority may also request persons in addition to those referred to in paragraph (b) to submit information in order to enable the authority to issue the declaration on the question.
(3) (a) Where a declaration is issued under this section, any person issued with a declaration under subsection (2)(a) may, on payment to the Board of such fee as may be prescribed, refer a declaration for review by the Board within 4 weeks of the date of the issuing of the declaration.
(b) Without prejudice to subsection (2), in the event that no declaration is issued by the planning authority, any person who made a request under subsection (1) may, on payment to the Board of such fee as may be prescribed, refer the question for decision to the Board within 4 weeks of the date that a declaration was due to be issued under subsection (2).
(4) Notwithstanding subsection (1), a planning authority may, on payment to the Board of such fee as may be prescribed, refer any question as to what, in any particular case, is or is not development or is or is not exempted development to be decided by the Board.
(5) The details of any declaration issued by a planning authority or of a decision by the Board on a referral under this section shall be entered in the register.
(6) (a) The Board shall keep a record of any decision made by it on a referral under this section and the main reasons and considerations on which its decision is based and shall make it available for purchase and inspection.
(b) The Board may charge a specified fee, not exceeding the cost of making the copy, for the purchase of a copy of the record referred to in paragraph (a).
(c) The Board shall, from time to time and at least once a year, forward to each planning authority a copy of the record referred to in paragraph (a).
(d) A copy of the said record shall, at the request of a member of a planning authority, be given to that member by the manager of the planning authority concerned.
(7) A planning authority, before making a declaration under this section, shall consider the record forwarded to it in accordance with subsection (6)(c).”.
Amendment No. 29 seeks the deletion of section 10 of the Bill and its replacement with a new section. Section 10 concerns declarations on exempted development, and the provisions in that section represent an incredible step backwards from the 2000 Act. In his op-ed on the Bill, one of many critical opinion pieces relating to the Bill by people with a very long and established expertise, Frank McDonald rightly points out:
One of the bill's most retrograde provisions would strip citizens of their long-standing right to challenge unauthorised development by seeking a declaration from a local authority on whether any such development is, or is not, exempted from planning control.
This is what we mentioned. There will be less transparency and less accountability in declaring developments to be exempted. We may want to get a declaration that simply informs us whether a development is unauthorised or exempted. If we do not see a planning process in respect of a development, is that because it is an exempted development or is it simply a completely unauthorised development? That is basic. When we talk about environmental information, it is essential to know this. This also, on a basic level, would deprive citizens of the long-standing right to challenge unauthorised development by seeking a declaration from a local authority as to whether a development is or is not exempted from planning control. Frank McDonald continues "Instead, [under section 10 of the Bill, as it stands] only landowners or those wishing to carry out development would be able to do so." Our amendment would ensure that any person would be able to seek a declaration and that that right to seek a declaration would continue. Otherwise, we will have a further erosion of public participation, transparency and accountability in our planning process, and that will undermine confidence in the planning system as a whole.
Amendment No. 32 seeks to amend the definition of "relevant person" by modifying the criteria for those who qualify as relevant persons and broadening it to reflect genuine local groups. The amendment would remove the requirement of having existed for a period. This is a disgraceful requirement because quite a lot of groups will form to address specific environmental problems or specific issues which arise in their localities. It may be a group that has formed to save the Dodder or the local river or to protect children's play spaces if it wants to protect local playgrounds. Such groups often form only when something on which they may rely as a community is under threat. In the truncated planning process we have, people have only a really short period in which they are able to take actions and apply.
I am aware of some developments in Dublin in recent years in respect of which there were preplanning meetings with developers or consortia of different developers. There are other provisions in the legislation that allow developers to have a big, long lead-in. I am thinking even of retrospective consent whereby they can have a long chat in advance before they decide whether they want to apply for retrospective consent or have it extended. Developers know what they are planning to do for a long period but the public only gets to see it when the notice goes up. Of course, people will only form groups in response to, for example, a proposal that will take away all of the children’s amenities in their areas, that might pollute or destroy a local river or local woodland or that would decimate local businesses. Despite the fact that they did not form six or eight months or a year or two in advance, these groups are no less legitimate or genuine. The requirement that they must have existed for set periods intentionally creates an inequality and effectively blocks communities from taking collective action on these issues. That is in the context of where a group might wish to be a relevant person. Then you are down to individuals having to take action, which is extremely burdensome, particularly when there could be a pooled or collective response.
Amendments Nos. 34 and 35 both seek to amend section 10(2) to provide that any person can seek a declaration as to whether a development is an exempted development. This reverts to the long-standing right of any persons to seek such a declaration. I have spoken about the definition of a “relevant person”. It an issue here, but the same issue will be tracked right across the Bill. There are many attempts to narrow the pool. In this case, it is the definition of “relevant person” that limits who can seek a declaration in respect of a development.
Amendment No. 36 seeks to amend section 10(4), which was inserted by the Minister in the Dáil. This subsection provides:
Where a relevant person requests a declaration under subsection (2) in respect of land or a maritime site and the relevant person is not the owner of that land or maritime site, that relevant person shall, when making the request, notify the owner of the land or maritime site, as the case may be, in writing of the making of the request.
This is problematic because the name or contact details of a landowner will not always be available. The Minister needs to clarify that requests should not be deemed invalid without such a notification. I would appreciate if the Minister of State could clarify the circumstances where people meet the bar to be considered relevant persons, which is placed excessively high, and seek a declaration that is straightforward information as to whether a development taking place is exempted or not, their request will not be deemed invalid simply because they were not able to find out the detail of the contact details of a landowner or that site. These people are trying to find out what is happening. Our amendment would insert the phrase “make reasonable attempts to” before the notification requirement. It is a small and reasonable piece whereby if persons have made reasonable attempts to contact a landowner and inform them they are making inquiries about a development, that should be enough. Otherwise, simply, we have a situation where, effectively, a landowner can block the receipt of or simply refuse to receive that information and thereby block a request being made.
Amendment No. 37 seeks to broaden the right of appeal in respect of a declaration to any person, not just those involved in the original request or the owner, where other persons are able to say that they do not believe something should be declared an exempted development. This, again, is kind of a meta level of the exempted development. If there are exempted developments, and they are kind of happening not under primary law, with all its transparencies, but, rather, under regulations made by the Minister, there still needs to be some mechanism whereby if people feel that a development has been declared exempt and that it does not meet the criteria in those regulations, there has to be a process for any person – not just the owner of the site, who has an interest when a development is denied exempted status – who wishes to lodge an appeal. Any member of the public should be able to say that they do not believe a development should have been declared exempt. They should be able to challenge a decision if they so wish and set the declaration for exemption up against the test of whatever is in the regulations that the Minister lays down.
Amendment No. 37 is crucial. General members of the public are blocked from making the original request for a declaration. Effectively, they are being blocked from challenging the decision to declare a development exempt because they are excluded from making the original request. They cannot initiate the process of determining whether a development should be exempt. Because they cannot start the process and because they are not the owner of site, they cannot say that they think the wrong decision was made by the Minister or whomever has declared something to be an exempted development and that it does not meet the criteria for an exempted development. For example, perhaps there are environmental issues. There is an environmental impact assessment or there is something else that applies and makes it fall out of scope. The public are being cut out of the process in terms of exempted developments and they are being removed from any mechanism to challenge skipping of the planning process and putting everything in. There is no mechanism for them. They are excluded from both levels of the process.
Amendment No. 38 seeks to amend section 10 by replacing subsection (10)(c) with a new paragraph that shortens the decision publication time to three working days from five and ensure the inspection of the physical decision and the relevant documents will be free of charge. People should not be charged in terms of inspecting the decision on the relevant documents.
Amendments Nos. 39 to 41, inclusive, seek to amend section 10(15) to provide that any person can seek a declaration. This is to ensure consistency with amendments Nos. 34 and 35.
Amendment No. 45 seeks to amend section 11(2) by removing the word “not”, which would have the effect of making a relevant declaration admissible in evidence in any proceedings relating to the act, operation or change in use in respect of which a relevant declaration is made. A relevant declaration should, of course, be admissible in evidence in proceedings. It is wild that something would be declared an exempted development and yet the declaration would not be something one could use in court as evidence. In some cases, this declaration is the basis on which real physical things will be built. They will not be built on the basis of a paper trail through the planning process; they will be built on the basis of a declaration. However, there is kind of a suggestion that perhaps those declarations would not just be coming though the secretive regulatory process and not just be not accessible to the public or appealable by the public, but would not necessarily be admissible as evidence in proceedings in courts. That is wild.
Amendment No. 46 would extend the saver for declarations under section 5 of the Act of 2000 to include a “request for a declaration, request for information, further information, notice, request for a review or a referral under that section and made before that repeal”. The saver, as it stands, is inadequate. This amendment this is to ensure there is not a gap. A large part of the process around declarations in the existing legislation is not included in the bridging and transition provisions in the Bill.
Amendment No. 47 would also extend the saver for declarations under section 5 of the Act of 2000 in the areas where we are trying to ensure there is appropriate transition to include "any such matter may be concluded in accordance with the provisions of section 5 of the Act”.
Amendment No. 48 seeks to clarify an issue with the saver for declarations under section 5 of the Act of 2000.
The saver in section 12 is inadequate in terms of exempted development under the 2000 Act. It only allows continuation of certain aspects of the process, and it is not resolved by section 495 which provides for the continued application of the board's functions in respect of such matters caught in the pipeline, so to speak. Section 495 does not even include the full list of matters that could go to the board from section 5 in the Act of 2000. For example it omits reviews, which are appeals of a declaration made by a local authority as opposed to a referral where the local authority sends the matter to the board. In situations where a review is under way on a previous declaration that has been made, that is not carried forward. Referrals are carried forward but reviews are quite different.
Amendment No. 20 seeks to amend section 8 by increasing the timeframe for decisions relating to the licensing of appliances and cables on public roads from eight weeks to 12 weeks. This is because such decisions can often be very sensitive locally. Things get signed and an eight-week period is perhaps insufficient for public awareness to be generated in relation to such a decision. Again, that is not to block the licensing of appliances and cables on public roads but it is to ensure that there is appropriate sensitivity, for example, to the timing of local events and other such matters.
Amendment No. 51 seeks to amend section 13(8)(a) and increases the timeframes for decisions following receipt-----
Senator Higgins-----
Have I skipped one?
The Senator has gone too far.
That is great. I am happy to have a rest. That concludes my set of amendments within this grouping.
I want to deal with two amendments in this grouping, amendment No. 30 and amendment No. 44. Amendment No. 30 is a very long one so I will not read it all out. It is self-explanatory. I take it that everyone has read all of these amendments in great length. It goes on for many pages so I do not propose to read it out and cut in on any more time. This amendment deals with section 10 of the Bill, which is concerned with declarations on development and exempted development, and other areas. It states that only a "relevant person" may seek a declaration. This is different from the Planning and Development Act 2000, which allows any person to seek a declaration. The rationale for this amendment is that section 10 restricts the right of any person to seek a declaration. At the moment, any person can make a declaration under the Planning and Development Act 2000. If this Bill is passed unamended, if your neighbour, for instance, was to build something in certain circumstances, you may not have the right to question this under the Bill. Any person should be able to ask a planning authority to make a declaration in these matters and therefore that is the kernel and the rationale for this amendment.
Amendment No. 44 relates to section 11, which is entitled "supplemental provision". It is relevant to the section on the declaration of whether a development is an exempted development. The amendment states:
In page 56, to delete lines 28 to 30 and substitute the following:
“(2) Subject to subsection (1), a relevant declaration shall be admissible in evidence in any proceedings relating to the act, operation or change in use in respect of which the relevant declaration was made.".
The rationale for the amendment is that in this Bill a relevant declaration will be considered inadmissible in evidence in court. This amendment seeks to ensure that the relevant declaration will be admissible in court. That is a very important point.
I want to back up the points about the "relevant person" and the massive change it makes to the planning system from the 2000 Act. This is not just about the legislation, which is trying to limit people's right to make objections and take judicial reviews, this is a basic, simple thing, which is access to planning information. This is putting planning behind closed doors again. Those types of things are relied on by people up and down the country every single day as a very simple functioning of the planning process. Limiting the process from everybody simply to those who are "relevant", without broadening the definition of "relevant", is a huge change to how we do planning at the moment. This is one of the areas the Irish Planning Institute has identified as something that works very well at the moment. It does not have an impact on infrastructural delivery, but the change could have a massive impact and would almost certainly be challenged in the courts if it goes through. We are not going to complete this Bill here, as it must go back to Dáil Éireann to accept the amendments made on this Stage. The Minister is introducing an untested change for no good reason and messing up a very simple function of the planning process that is working at the moment. I appeal to him to change it before the Bill becomes law.
Hear, hear.
I thank the Senators for their contributions on sections 10 and 11. Section 10 deals with declarations on development and exempted development and section 11 provides that such declaration shall be conclusive evidence in relevant proceedings brought by an enforcement authority, a local authority or the DPP against a person who requested the declaration unless it is proved that the person knowingly provided false or misleading information or withheld information for the purposes of the making of the declaration and that the planning authority would not have made the relevant declaration if it had known that the information was false or misleading or that information had been withheld.
Sections 10 and 11 will replace section 5 of the Act of 2000, whereby a planning authority, or the commission on appeal or referral, may give a declaration as to whether the matter referred constitutes development, and if so, whether it is exempted development. Currently, "any person" may make a request for an exempted development declaration under section 5 of the current Act - the 2000 Act. The Bill provides that only a "relevant person" may make a request for such a declaration. A relevant person is the owner or occupier of land or a person who has their consent or an eNGO. It is important to emphasise that.
The original intention of section 5 of the 2000 Act was to function as a relatively simple mechanism by which to question whether a proposal is development or exempted development. The challenge that has arisen over time is that increasing numbers of third parties sought section 5 declarations from planning authorities. A number of problems arise from this practice, namely: the owner-occupier of the land might be unaware that a section 5 declaration had been sought in respect of their land; and the planning authority's consideration of the section 5 declaration is limited to the information put before it by the third party, which may involve incomplete information.
The Bill enables an owner to seek a declaration on development and, having been assessed and granted the same, to use this as a defence, subject to certain conditions, such as the requirement not to give misleading or false information. However, it does not allow for third parties to use such declarations against first parties. Rather, the extended relevant persons, which can be an eNGO, may use a declaration to seek the planning authority to pursue enforcement if relevant, which is the appropriate method for dealing with non-compliance. Alternatively, it may be utilised to form a basis for considering the taking of an injunction under section 345 of the Bill. In this regard it should be noted that under section 345(g) it is up to the respondent to prove the existence of a permission or that the development is exempt.
The Bill, as drafted, moves away from utilising this section as a form of enforcement by proxy without the necessary due process - it is important to stress that - and checks and balances while still allowing for certain bodies to have a basis for pursuing injunctions where they consider it necessary.
I am satisfied that the provisions relating to the use of exempted development declarations are sufficient and I must reject Senators' objections to section 11.
Amendments Nos. 29 and 30, proposed by Senators Higgins, Ruane, Black and Flynn, and Senators Boyhan and McDowell, respectively, seek to replace section 10 of the Bill as currently worded. This section deals with declarations on exempted development.
I must oppose amendment No. 29 on the basis that it proposes to revert to the provisions contained in the Act of 2000, whereby any third party can seek a declaration on any development. I have outlined the position in the drafted Bill. This is a matter that was discussed at length during pre-legislative scrutiny and in Dáil Éireann, where it was clarified that there are significant legal and policy imperatives for the changes in relation to section 10 declarations to be made under the enacted Bill.
Senator Boyhan outlined that amendment No. 30 amends the definition of a "relevant person" to enable a third party to seek a section 10 declaration. As I stated in the Dáil, this would give rise to two significant challenges, namely, permitting an enforcement-by-proxy system without the necessary due process, checks and balances, and giving legal effect to the third-party action on the property rights of the owner. For these reasons, I am not in a position to accept these amendments.
Amendment No. 31, proposed by Senators Moynihan, Hoey, Sherlock and Wall, also seeks to amend the definition of a "relevant person" to enable a third party to seek a section 10 declaration. Amendments Nos. 32, 34, 35, 37 and 39 to 41, inclusive, proposed by Senators Higgins, Ruane, Black, and Flynn, seek to broaden the scope of section 10 to include environmental NGOs and to allow third parties to seek a declaration. Similarly, amendment No. 33, proposed by Senators Warfield, Boylan and Gavan, also intends to bring third parties into scope. I am not in a position to accept these amendments for the reasons I have already outlined. However, I would point out, particularly to Senator Higgins, that I brought forward amendments on Report Stage in the Dáil to extend the definition of "relevant person" in this section to include environmental NGOs holding the relevant bone fides. This means that such organisations will still be able to seek a declaration.
I cannot accept amendment No. 37 as it is not appropriate to provide that any person could appeal a decision on exempted development. Such declarations can only be sought by relevant persons, owners or environmental NGOs. On this basis, it is not appropriate to accept the amendment.
Amendments Nos. 36 and 38 are proposed by Senators Higgins, Ruane, Black and Flynn. I acknowledge the intent behind amendment No. 36 but I consider the risks associated with the interpretation of "reasonable attempts" to be substantial. Amendment No. 38 proposes a number of changes to paragraph (c) of subsection (10). I do not agree with the need to reduce the number of days within which a planning authority or the commission must publish its decision from five days to three days. Subparagraph (ii) is clearly drafted so that members of the public can inspect the relevant documentation at a physical location if unable to avail of the option to view such documentation online. For these reasons, I am not in a position to accept these amendments.
Amendments Nos. 42, to 45, inclusive, relate to section 11. As currently drafted, an enforcement authority or the Director of Public Prosecutions can use a section 10 declaration as conclusive evidence in proceedings for an offence under sections 341 or 344, or for proceedings taken under section 345. These relate to offences for carrying out unauthorised development, non-compliance with an enforcement notice or proceedings for planning injunctions in relation to unauthorised development.
Amendments Nos. 42 and 43, in the names of Senators Moynihan, Hoey, Sherlock and Wall, would cause a section 10 declaration to be admissible as evidence in any proceedings. The Bill enables an owner to seek a declaration on development and, having been assessed and granted the same, to use the declaration as a defence. The Bill does not allow for third parties to use such declarations against first parties as therein lies the core legal issue of this matter. A relevant person may use a declaration to seek a planning authority to pursue enforcement action, if necessary, which is the appropriate method for dealing with suspected non-compliance. Therefore, I must oppose these amendments.
Amendments Nos. 44 and 45, proposed by Senators Boyhan and McDowell, and Senators Higgins, Ruane, Black and Flynn, respectively, also seek to have section 10 declarations made admissible as evidence in any proceedings. For the same reasons as I have outlined, I am not in a position to accept these amendments.
Amendments Nos. 46 and 47, proposed by Senators Higgins, Ruane, Black and Flynn, seek to amend section 12, which is a transitional provision for declarations, and requests for declarations, made under section 5 of the Act of 2000. Having reviewed amendments Nos. 46 and 47, I have determined that they are not necessary. The saving of any request, application or appeal is already provided for under section 12(2) and the Act of 2000 will continue to apply and have effect in relation to these requests, applications or appeals. Therefore, I see no reason for amendment No. 46, as it is a duplication of what has already been provided for. Similarly, amendment No. 47 is not required since section 12 as currently drafted already provides that the Act of 2000 continues to apply and have effect. For these reasons, I cannot accept these amendments.
Amendment No. 48 seeks to restate section 12. Having examined the proposed amendment, I am satisfied that this rephrasing would only serve to duplicate what is already provided for under section 12 as currently drafted, especially in relation to the applicability of specified sections and chapters. As I mentioned, subsection 12(2) provides that the Act of 2000 will continue to apply and have effect in relation to any outstanding request, application or appeal made under section 5 of the Act of 2000. Therefore, I am not in a position to accept the amendment.
I agree with the premise of the Minister of State's argument on the grouping. It was never intended that section 5 of the previous Act would be used as an enforcement mechanism. Rather, it was to facilitate development. This is the point I made during pre-legislative scrutiny, particularly regarding section 10(6), on the time it takes to get declaration. The new section 10, which was section 5, sets the time at eight weeks. The point I made during pre-legislative scrutiny was that the section 5 mechanism could facilitate the speedy delivery of housing units in our cities and town centre areas for regeneration. It is often the case that local authorities are not able to make a decision within an eight-week period. I believe it should be a six-week period because if we want to make it more streamlined to be able to facilitate the faster delivery of units through a mechanism such as this, it has to be more beneficial than going through the full planning permission process. Perhaps this is something that can be looked at on Report Stage. I know there would be some resistance to it but I have seen declarations under section 5, which will now be section 10, work very well.
The Minister of State's points are very well made with regard to what it is supposed to be and what it is not supposed to be. I am satisfied with what he said but I ask him to look at the timelines on decision-making to make it a more attractive process for quicker delivery in our city and town areas.
The more we hear, the more concerned I get. We have heard all about the issue of exempted development, whereby the Minister is now going to make these regulations, although we do not really know what will be in them or what categories will be exempted. When I say "exempted", we all want a lot of building to happen but that is skipping the planning process. Again, we might as well throw the Bill out the window, say there is no planning process and just let people go ahead and do whatever. That is what exempted development will mean.
As well as that very broad power, the scope for who can even talk about it is being made incredibly limited. Senator Martin gave us a lecture, asking whether we had learned nothing from previous problems in the planning process. If we want to pick an area where we are creating absolutely perverse incentives, hostages to fortune and a massive danger, it is in the form of these exempted developments. So much power is weighted to the property owner and, therefore, under this new version of section 10, only the property owner will matter. There will be no public in this world. It will be just a world of people with land who want to build things, and the Minister. There is no public. There is no planning process in the first instance - that has been put aside - but there is also no public. As a big concession, the Minister of State included an incredibly narrow version of environmental NGOs if they have been there for a year, but we know he has done that only because it would be illegal otherwise, and it may still be illegal because people have a right to environmental information, although that is separate. It is not the Aarhus Convention alone. We are now talking about the environmental information directive. To say members of the public are not entitled to know if the structure being built next door to them, which may look straight through their window, has any basis or is an exempted development, or to be able to access the declaration on that, is really wild. It is an extraordinary shift, but that is what the Bill currently provides for.
To be clear, when I was talking about groups that had not existed for a long time, it is not just groups. There are other issues, which are not environmental issues, that amount to reasons a local concerned group may wish to know if a development happening next to them has any basis for being there. They may wish to know whether it is happening as an exempted development, and if so, why so. Maybe they would want to be able to challenge it and say they do not think there is a strong case for it to be an exempted development, but they will be cut off from the entire process. The only members of the public with the ability to access this will be those who happen to be in an environmental NGO, with a set of constraints around it, that has been operating for 12 months in this area.
This is going to come back and bite us. I guarantee that Oireachtas Members and councillors throughout the country will give out about decisions relating to exempted developments that not one word could be said about, because they will not be able either to see whether it should be declared or to challenge whether it should be declared. That is a really significant erosion. For example, even if the local residents' association has been around for 50 years, and some local residents' associations in this country have been going for a long time, it cannot look for a declaration, under how this has been set out in the Bill. None of them can say they do not think a declaration fits whatever requirements may or may not have been put into the Minister's regulations when they are done. There will be very angry residents' associations, therefore, throughout the country. Indeed, the same is true of family groups, community groups and so on, and they are not people who are against development. They may be people who just have legitimate and useful points to make, such as whether the development relates to a playground area, whether a right of way applies, whether there is an overshadowing issue or whether, if the design of the development were slightly improved, it would work much better for everyone in the community - the kinds of issues that are picked up in the planning process but which will not happen on these developments. The public need to be alarmed that they are being cut out of this process.
The owners can look at the declarations or appeal. The landowner, the property owner or the person with a vested interest and money to make can engage in the process but the public cannot. Then there is the issue of the courts. There are very few things I have ever seen being taken out. If there is nothing wrong with these declarations, why on earth are they being made inadmissible as evidence in court, whereby they can be used only by the owner as a defence but whereby nobody can say this development in no way fitted the permission that was given? If somebody wishes to challenge a development and say the development is completely different from what a declaration was given for, they will not be able to use the declaration in that regard. That is really weird and secretive and it does not bode well. I urge the Minister of State to strongly think about this between now and Report Stage because it raises red flags all over the place.
The Minister of State might clarify something in his response. What is being referred to is the planning enforcement process, which is entirely separate from what we are talking about here. If I own a property in Waterford city centre and works are required to the internal fabric of that building to change it from one property to three properties to provide units for housing purposes, I may apply for a section 10 notice under this to say it requires an exemption under regulations that may apply. Likewise, it could be a former pub being converted into residential units within the fabric of that pub, and I can do so through these regulations.
In my opinion, it is inherently sensible that I would be able to do that through a section 10 notice. It is not impacting on anyone. In the case of former pubs, they were probably residential units before they were ever even pubs, or at least a combination of the two. We are talking about the ability to streamline, and if there are issues where something is found not to be in compliance with a section 10 notice, it is the local authority's job under law to pursue that because it would be an unauthorised development in those circumstances. That will not be taken away. To listen to the Senator for the past few minutes, you would think we were doing away with unauthorised development and that a local authority would never be able to pursue somebody if they had built something in contravention of planning law. That is a totally unreasonable suggestion regarding what is being put into the Bill.
If, at the moment, I have a concern that something is an unauthorised development and requires enforcement action, I am able to go to the local authority and check that. If this happens in the future and I check that with the local authority, and if the local authority, for whatever reason, does not come back to me or properly explain that to me, such that I am getting more stressed about it and wondering what is going on, what will be the remedies available to me? I will not have section 10 notices anymore and cannot get that declaration.
The only remedy available to me is to go to court. That is what people will do. It will slow down the process. A convincing case has not been made for this change. Many elements of our planning process are not working, but it has its good parts and this is one of the elements that is working. I do not understand the rationale for the change.
Senator Cummins is right, in that, if something is an unauthorised developed, it is an unauthorised development and the local authority has a responsibility to follow up on it, but the authority often does not. That is the problem. The local authority often does not have all of the information available to it and only gets its information about unauthorised developments when members of the public contact it.
Section 10 does not give people any power. Rather, it gives them information. If I cannot get that information and power as easily as I can now, I will go to court, as will others, and that will slow the process down. It seems to be pure stupidity to take an element of the planning process that works effectively and does not delay anything and change it in such a way that it complicates the matter. If this provision passes, Members on the Government side will begin getting complaints about it in the middle of the general election. This is our bread and butter. This is the work we do all of the time. I do not want to hear Government Members in two years' time speaking on the Order of Business about X happening, the local authority not following it up, not knowing about developments, enforcement issues, etc. That is what will happen. By all means, improve the planning process through this Bill, but please do not change the basic elements that work well for people and do not hinder development.
I will clarify some matters concerning exempted development declarations. The only answer to the question of whether a development is an exempted development is that this provision does not make the development exempted. This is important. A development will have to adhere to enforcement proceedings. Indeed, all planning decisions are on the planning register and publicly available. In essence, sections 10 and 11 are replacing section 5 of the 2000 Act on where the planning authority or the commission may give a declaration as to whether a matter referred to it constitutes development and, if so, whether it is exempted development. That is what we are doing with this change. What we have seen happening is a move away from utilising section 5 as a form of enforcement proxy – this is important – without the necessary due process and checks and balances. We are streamlining the process so that, as Senator Cummins said, the owner of a development can request an exempted development declaration. That is important. I am satisfied that the provisions we are introducing on the use of exempted development declarations are sufficient to allow our planning process to be more streamlined.
Senator Moynihan put it clearly that this is about the public having information. The public are the eyes, ears and watchdogs of development. Speaking as someone who was a councillor for many years, it was the public who brought planning issues to our attention for us to take to the planners. In many cases, people consistently went to their planning authorities but did not get any follow-up. I know this from personal experience, having been involved in various issues that needed to be challenged. There was a view that local authorities did not have the necessary resources. We could speak all day about resourcing local authorities, but the public at large are the most vigilant people. When we live in communities that we value, like and want to live in, we are eyes, we are ears and we are alert. Rightly so, and we should be encouraged to do it.
Does the Minister of State accept that, under this Bill, the relevant declaration will be considered inadmissible in evidence? That is what this provision amounts to. My amendment and other amendments seek to ensure that the relevant declaration will be admissible. The last thing people want to do is to go into litigation. We hear so much about litigation. I will not go into it in great length now, but we have 20,000 houses still with An Bord Pleanála because of various legal disputes over the fast-track planning process. When we bypass people and planning authorities and put walls up in front of them, they will kick back, and the only place left for them to do so after this may be through expensive litigation. One thing is for sure, though – citizens will mobilise. They will come together under associations or however else is necessary and litigate. Litigation is delay and no one wants delay in our planning process.
Tá
- Black, Frances.
- Boyhan, Victor.
- Flynn, Eileen.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- Moynihan, Rebecca.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Burke, Paddy.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Garvey, Róisín.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Hara, Malachai.
- O'Reilly, Joe.
- Seery Kearney, Mary.
I move amendment No. 30:
In page 46, to delete lines 27 to 39, to delete pages 47 to 55, and in page 56 to delete lines 1 to 7, and substitute the following:
“Declaration on development, exempted development, etc.
10. (1) In this section—
“relevant act or operation” means—
(a) in relation to the making of a request by a person referred to in paragraph (a) of the definition of “any person”, an act or operation carried out or proposed to be carried out on land owned by that person,
(b) in relation to the making of a request by a person referred to in paragraph (b) of the definition of “any person”, an act or operation carried out or proposed to be carried out on the maritime site concerned,
(c) in relation to the making of a request by a person referred to in paragraph (c) or (d) of the definition of “any person”, an act or operation carried out or proposed to be carried out on land by that person with the consent of the owner of the land,
(d) in relation to the making of a request by a person referred to in paragraph (f) of the definition of “any person”, an act or operation carried out or proposed to be carried out on the land or maritime site concerned, or
(e) in relation to the making of a request by a statutory undertaker, an act or operation carried out or proposed to be carried out on land or a maritime site by or on behalf of that statutory undertaker;
“relevant change in use” means—
(a) in relation to the making of a request by a person referred to in paragraph (a) of the definition of “any person”, a change in use or proposed change in use of land owned by that person,
(b) in relation to the making of a request by a person referred to in paragraph (b) of the definition of “any person”, a change in use or proposed change in use of the maritime site concerned,
(c) in relation to the making of a request by a person referred to in paragraph (c) or
(d) of the definition of “any person”, a change in use or proposed change in use of land by that person with the consent of the owner of the land, or
(e) in relation to the making of a request by a person referred to in paragraph (f) of the definition of “any person”, a change in use or proposed change in use of the land or maritime site concerned;
“any person” means—
(a) the owner of land,
(b) a person who, in accordance with subsection (2) of section 85, is eligible to make an application for permission for maritime development under Chapter 3 or 4 of Part 4,
(c) the occupier of land who—
(i) carries out or proposes to carry out an act or operation on the land, or
(ii) makes or proposes to make a change in use of the land, with the consent of the owner of the land,
(d) a person (other than the person referred to in paragraph (c)) who—
(i) carries out or proposes to carry out an act or operation on the land, or
(ii) makes or proposes to make a change in use of the land, with the consent of the owner of the land,
(e) a company within the meaning of the Companies Act 2014—
(i) formed and registered not later than one year before the making of the request concerned,
(ii) whose constitution includes objects that relate to the promotion of environmental protection of relevance to the request concerned,
(iii) that has pursued those objects for a period of not less than one year before the making of the request concerned,
(iv) that has not fewer than 10 members at the time of the making of the request concerned, and
(v) that has passed a resolution—
(I) in accordance with the constitution of the company, and
(II) before the making of the request concerned, authorising the company to make the request,
or
(f) a prescribed person.
(2) (a) Upon the payment of the prescribed fee, a any person or a statutory undertaker may, in relation to a relevant act or operation wholly outside the outer maritime area, make a request in writing to the planning authority within whose functional area the relevant act or operation is, or is proposed to be, carried out for a declaration on the question of—
(i) whether or not that act or operation constitutes or would constitute development, and
(ii) if it does or would constitute development, whether or not it constitutes or would constitute exempted development.
(b) Upon the payment of the prescribed fee, a any person may, in relation to a relevant change in use (wholly outside the outer maritime area), make a request in writing to the planning authority within whose functional area the relevant change in use is, or is proposed to be, made for a declaration on the question of—
(i) whether or not that change in use constitutes or would constitute development, and
(ii) if it does or would constitute development, whether or not it constitutes or would constitute exempted development.
(c) Upon the payment of the prescribed fee, a person who carries out or proposes to carry out development in accordance with a permission for such development granted under this Act or the Act of 2000 may, in relation to development (wholly outside the outer maritime area), make a request in writing to the planning authority within whose functional area the development is, or is proposed to be, situated for a declaration on any question relating to—
(i) the meaning or scope of the permission, or
(ii) any condition to which the permission is subject.
(3) (a) A request under subsection (2) shall be accompanied by all such information and documentation as is necessary to enable the planning authority to perform its functions under this section in relation to the request.
(b) For the purposes of the performance of its functions under this section, a planning authority may, by notice in writing, require a person who makes a request under subsection (2) to provide the planning authority with such further information and documentation as it may specify not later than 2 weeks (or such longer period as may be prescribed) from the date of the notice.
(c) A planning authority may, for the purpose of the performance of its functions under this section, request a person (other than the person who made the request under subsection (2)) by notice in writing to provide the planning authority with such information and documentation as is specified in the notice not later than 2 weeks (or such longer period as may be prescribed) from the date of the notice.
(4) Where a any person requests a declaration under subsection (2) in respect of land or a maritime site and the any person is not the owner of that land or maritime site, that any person shall, when making the request, notify the owner of the land or maritime site, as the case may be, in writing of the making of the request.
(5) A planning authority shall, when making a declaration under this section, have regard to the declarations contained in the copies of the records forwarded to it in accordance with paragraph (d) of subsection (10).
(6) A planning authority shall, not later than the period of—
(a) 8 weeks from its receiving a request under subsection (2), or
(b) 3 weeks from the expiration of the period or periods specified in a notice or notices under paragraph (b) or (c) of subsection (3), whichever occurs later, decide whether or not it has sufficient information to enable it to make a declaration under this section and, if it decides that it does have such sufficient information, it shall, within that period, make a declaration in relation to the request concerned and forward the declaration and the main reasons and considerations on which it is based—
(i) to the person who made that request, and
(ii) where that person is not the owner or occupier of land to which the request relates, to such owner or occupier.
(7) Where a planning authority decides under subsection (6) that it does not have sufficient information to make a declaration under this section—
(a) it shall, by notice in writing, inform the person who made the request under subsection (2), and
(b) the request shall be deemed to have been withdrawn on the date specified in that notice.
(8) (a) A person (in this subsection referred to as the “appellant”) to whom a declaration has been forwarded in accordance with subsection (6) may, not later than 4 weeks from the date of the declaration and on payment to the Commission of such fee as may be approved under section 375, appeal the declaration to the Commission.
(b) An appellant may withdraw an appeal under this subsection before the appeal is determined by the Commission.
(c) Subject to paragraphs (d), (e), (f), (g) and (h), this section shall apply to the Commission in relation to an appeal as it applies to a planning authority in relation to a request under subsection (2), and for the purposes of such appeal—
(i) references in that subsection to a request under that subsection shall be construed as references to an appeal under this section,
(ii) references in this section to a person who made such a request shall be construed as references to the appellant, and
(iii) references in this section to the planning authority shall be construed as references to the Commission, and a declaration of the Commission, or a decision of the Commission under subsection (6) that it does not have sufficient information to make a declaration under this section, in relation to an appeal under this section shall operate to annul the declaration of the planning authority from which the appeal was brought.
(d) For the purposes of the performance of its functions under this section in relation to an appeal, the Commission may, by notice in writing, require the appellant to provide it with such information and documentation as is specified in the notice within such period (which shall not be later than 2 weeks from the date of the service of the notice) as is so specified.
(e) Notwithstanding the failure of the appellant to comply with a requirement in a notice under paragraph (d), the Commission may give a declaration in relation to the request concerned under subsection (2) where it is satisfied that it has sufficient information in relation to the matter to enable it to do so.
(f) For the purposes of the performance of its functions under this section in relation to an appeal, the Commission may, by notice in writing, request a person (other than the person who made the request under subsection (2)) to provide it with such information and documentation as is specified in the notice not later than 2 weeks from the date of the notice.
(g) Notwithstanding the failure of a person to whom a notice has been given under paragraph (f) to accede to the request in the notice, the Commission may make a declaration in relation to the request concerned under subsection (2) where it is satisfied that it has sufficient information in relation to the matter to enable it to do so.
(h) The Commission shall determine an appeal under this section within the period specified under section 355.
(9) Particulars of every declaration under this section of a planning authority or the Commission in relation to a request under subsection (2) shall be entered in the register.
(10) (a) In this subsection—
“decision” means—
(i) in relation to the consideration by a planning authority of a request under subsection (2), the declaration made by the planning authority in relation to that request, and
(ii) in relation to the consideration by the Commission of an appeal under this section—
(I) a decision to dismiss the appeal, or
(II) a declaration under this section;
“relevant documents” means a copy of the question set out in the request under subsection (2) and any information, particulars, evidence, written study or further information received or obtained from—
(iii) the person who made the request under that subsection or the person who brought the appeal under subsection (8), as the case may be,
(iv) any other person,
(v) a copy of any report prepared by or on behalf of the planning authority or the Commission, as may be appropriate, in relation to the request or appeal, or
(vi) a copy of the decision.
(b) The Commission shall keep a record of each appeal under this section, including the main reasons and considerations on which the declaration made in such appeal is based.
(c) Where the planning authority or the Commission makes a decision it shall, not later than 5 working days thereafter, cause the relevant documents to—
(i) be published on its internet website, and
(ii) be made available for inspection and purchase by members of the public during normal office hours at its offices during such period (which shall not be less than 8 weeks from the date of the making of the decision) as it considers appropriate.
(d) The Commission shall, from time to time and at least once a year, forward to each planning authority a copy of all records to which paragraph (b) applies made since
(i) the commencement of this section, or
(ii) the most recent compliance by the Commission with this paragraph, as may be appropriate.
(e) The Commission shall give a copy of a record to which paragraph (b) applies to the planning authority in relation to whose functional area the appeal concerned relates.
(11) (a) A planning authority shall, in the case of a declaration made upon a request under paragraph (a) or (b) of subsection (2) that the act, operation or change in use or proposed act, operation or change in use concerned constitutes or would constitute development, state—
(i) whether or not the development or proposed development is likely to have significant effects on the environment (including by virtue of its nature, size and location) and requires the carrying out of an environmental impact assessment, and
(ii) whether or not the development or proposed development, either individually or in combination with any plan or project (within the meaning of the Habitats Directive), is likely to have significant effects on a European site and requires the carrying out of an appropriate assessment.
(b) The Commission shall, in the case of a declaration made on an appeal under subsection (8) that the act, operation or change in use or proposed act, operation or change in use concerned constitutes or would constitute development, state—
(i) whether or not the development or proposed development is likely to have significant effects on the environment (including by virtue of its nature, size and location) and requires the carrying out of an environmental impact assessment, and
(ii) whether or not the development or proposed development, either individually or in combination with any plan or project (within the meaning of the Habitats Directive), is likely to have significant effects on a European site and requires the carrying out of an appropriate assessment.
(12) A person is not entitled to make a request under subsection (2) for a declaration in relation to a question that is, in substance, the same as a question in respect of which the planning authority or the Commission has already made a declaration (“first declaration”), unless there has been a material change in circumstances since the making of the first declaration.
(13) The Minister may prescribe additional, consequential or supplementary matters as regards procedures in respect of a request under subsection (2) or an appeal under subsection (8), including matters relating to—
(a) the submission of information to the planning authority or the Commission for those purposes,
(b) notifications to persons concerned with the declaration or decision, as the case may be, referred to in that subsection, or
(c) steps to be taken (including matters to which regard shall be had) in the course of the making of such declaration or decision.
(14) (a) The Minister may apply to the Commission under this subsection, without charge, for a declaration as to whether an activity requiring his or her consent—
(i) pursuant to a notification under paragraph (2) of regulation 4 of the European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997),
(ii) pursuant to a direction under paragraph (1) of regulation 28 or paragraph (1) of regulation 29 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011),
(iii) under any enactment—
(I) designating a site as a special area of conservation for the purposes of paragraph 4 of Article 4 of the Habitats Directive, or
(II) classifying a site as a special protection area for the purposes of paragraph 1 or 2 of Article 4 of the Birds Directive, or
(iv) under section 19 of the Wildlife (Amendment) Act 2000, comprises development that is not exempted development, and the Commission shall, not later than 18 weeks from the application by the Minister, make such declaration and inform that Minister of the declaration and the reasons for the declaration.
(b) An application from the Minister under this subsection shall include—
(i) all other information and documentation submitted with that application for consent,
(ii) the reasons why he or she considers that the activity may not be exempted development,
(iii) the opinion of the Minister as to whether an appropriate assessment is required, and the reasons for that opinion, and
(iv) the opinion of the Minister as to whether the development is likely to have significant effects on a European site or an area designated as a Natural Heritage Area under section 18 of the Wildlife (Amendment) Act 2000 and the reasons for that opinion, having regard to the purposes for which the site was designated.
(c) The Commission may request additional information from the Minister.
(d) If the Minister fails to comply with a request under paragraph (c) within such period as is specified in the request or such further period as the Commission may agree, the application of the Minister under this subsection shall be deemed to be withdrawn, and the Commission shall inform the Minister accordingly.
(15) (a) Upon the payment of such fee as may be approved under section 375, a relevant person or a statutory undertaker may, in relation to a relevant act or operation wholly or partly in the outer maritime area, make a request in writing to the Commission for a declaration on the question of—
(i) whether or not that act or operation constitutes or would constitute development, and
(ii) if it does or would constitute development, whether or not it constitutes or would constitute exempted development.
(b) Upon the payment of such fee as may be approved under section 375, a relevant person may, in relation to a relevant change in use wholly or partly in the outer maritime area, make a request in writing to the Commission for a declaration on the question of—
(i) whether or not that change in use constitutes or would constitute development, and
(ii) if it does or would constitute development, whether or not it constitutes or would constitute exempted development.
(c) Upon the payment of such fee as may be approved under section 375, a person who carries out or proposes to carry out development in accordance with a permission for such development granted under this Act or the Act of 2000 may, in relation to development wholly or partly in the outer maritime area, make a request in writing to the Commission for a declaration on any question relating to—
(i) the meaning or scope of the permission, or
(ii) any condition to which the permission is subject.
(16) This section shall apply in relation to a request under subsection (15) as if—
(a) in paragraph (a) of subsection (3)—
(i) “subsection (15)” were substituted for “subsection (2)”,
(ii) “the Commission” were substituted for “the planning authority”,
(b) in paragraph (b) of subsection (3)—
(i) “the Commission” were substituted for “a planning authority”,
(ii) “subsection (15)” were substituted for “subsection (2)”, and
(iii) “the Commission” were substituted for “the planning authority”,
(c) in paragraph (c) of subsection (3)—
(i) “The Commission” were substituted for “A planning authority”,
(ii) “subsection (15)” were substituted for “subsection (2)”, and
(iii) “the Commission” were substituted for “the planning authority”,
(d) the following subsection were substituted for subsection (5):
“(5) The Commission shall, when making a declaration upon a request under subsection (15), have regard to all declarations contained in records to which paragraph (b) of subsection (10) applies.”,
(e) in subsection (6)—
(i) “The Commission” were substituted for “A planning authority”,
(ii) “subsection (15)” were substituted for “subsection (2)”, and
(iii) the following paragraph were substituted for subparagraph (ii):
“(ii) where that person is not the holder of a maritime area consent for the maritime site to which the request relates, the holder of such maritime area consent.”,
(f) in subsection (7)—
(i) “the Commission” were substituted for “a planning authority”, and
(ii) “subsection (15)” were substituted for “subsection (2)”,
(g) subsections (8) and (9) were deleted,
(h) the following subsection were substituted for subsection (10):
“(10) (a) In this subsection—
‘decision’ means in relation to the consideration by the Commission of a request under subsection (15), the declaration made by the Commission in relation to that request;
‘relevant documents’ means a copy of the question set out in the request under subsection (15) and any information, particulars, evidence, written study or further information received or obtained from—
(i) the person who made the request under that subsection,
(ii) any other person,
(iii) a copy of any report prepared by or on behalf of the Commission, or
(iv) a copy of the decision.
(b) The Commission shall keep a record of each declaration made in relation to a request under subsection (15), including the main reasons and considerations on which the declaration is based.
(c) Where the Commission makes a decision, it shall, not later than 3 working days thereafter, cause the relevant documents to—
(i) be published on its internet website, and
(ii) be made available for inspection and purchase by members of the public during normal office hours at its offices during such period (which shall not be less than 8 weeks from the date of the making of the decision) as it considers appropriate.”,
(i) the following subsection were substituted for subsection (11):
“(11) The Commission shall, in the case of a declaration made upon a request under paragraph (a) or (b) of subsection (15) that the act, operation or change in use or proposed act, operation or change in use concerned constitutes or would constitute development, state—
(a) whether or not the development or proposed development is likely to have significant effects on the environment (including by virtue of its nature, size and location) and requires the carrying out of an environmental impact assessment, and
(b) whether or not the development or proposed development, either individually or in combination with any plan or project (within the meaning of the Habitats Directive), is likely to have significant effects on a European site and requires the carrying out of an appropriate assessment.”,
(j) the following subsection were substituted for subsection (12):
“(12) A person is not entitled to make a request under subsection (15) for a declaration in relation to a question that is, in substance, the same as a question in respect of which the Commission has already made a declaration (‘first declaration’), unless there has been a material change in circumstances since the making of the first declaration.”,
and
(k) in subsection (13), “or (15),” were inserted after “(2)”.
Tá
- Black, Frances.
- Boyhan, Victor.
- Flynn, Eileen.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- McDowell, Michael.
- Moynihan, Rebecca.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Burke, Paddy.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Garvey, Róisín.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Hara, Malachai.
- O'Reilly, Joe.
- Seery Kearney, Mary.
I move amendment No. 31:
In page 47, to delete lines 20 to 37, and in page 48, to delete lines 1 to 10 and substitute the following:
“ “relevant person” means a person.”.
Tá
- Black, Frances.
- Boyhan, Victor.
- Flynn, Eileen.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- McDowell, Michael.
- Moynihan, Rebecca.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Burke, Paddy.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Garvey, Róisín.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Hara, Malachai.
- O'Reilly, Joe.
- Seery Kearney, Mary.
I move amendment No. 32
In page 47, to delete lines 33 to 37, and substitute the following:
“(e) an organisation, group or association—
(i) whose primary purpose, or whose constitution includes objects, which relate to the promotion of environmental protection of relevance to the request concerned, and
(ii) which shall additionally provide a simple written statement when requesting the declaration, review or referral, that it is credibly and reasonably pursuing those objectives, including in the context of a voluntary organisation.”
I move amendment No. 33:
In page 48, between lines 10 and 11, to insert the following:
“(g) or any other person why has a martial interest in the development.”.
Tá
- Black, Frances.
- Boyhan, Victor.
- Flynn, Eileen.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- McDowell, Michael.
- Moynihan, Rebecca.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Burke, Paddy.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Mark.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Garvey, Róisín.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- Murphy, Eugene.
- O'Hara, Malachai.
- O'Reilly, Joe.
- Seery Kearney, Mary.
I know I am cranky but it is hard to hear myself, the clerk and other people when I can hear a racket. It is in case anything is challenged. I know it is the end of term but let us get to the end of the day without making any mistakes.
I move amendment No. 34:
In page 48, line 11, after “fee,” to insert “any person,”.
I move Amendment No. 35:
In page 48, line 20 after “fee,” to insert “any person,”.
I move amendment No. 36:
In page 49, line 11 after “requests,” to insert “make reasonable attempts to”.
I move amendment No. 37:
In page 49, to delete lines 34 to 37 inclusive and substitute the following:
“(8) (a) Any person (in this subsection referred to as the “appellant”) may, not later than 5 weeks from the date of the publication of the declaration under subsection (6), and on payment to the Commission of such fee as may be approved under section 365, appeal the declaration to the Commission.”.
I move amendment No. 38:
In page 51, to delete lines 20 to 26, and substitute the following:
“(c) Where the planning authority or the Commission makes a decision it shall, as soon as possible and not later than 3 working days thereafter, cause the relevant documents to—
(i) be published on its internet website, and
(ii) be made available for inspection free of charge and purchase by members of the public at a reasonable cost, during normal office hours at its offices during such period which it considers appropriate (which shall not be less than 8 weeks from the date of the making of the decision).”.
I move amendment No. 39:
In page 53, line 28 after “section 375,” to insert “any person,”.
I move amendment No. 40:
In page 53, line 36, after “section 375,” to insert “any person,”.
I move amendment No. 41:
In page 54, line 3, after “section 375,” to insert “any person,”.
I move amendment No. 42:
In page 56, lines 10 and 11, to delete “by an enforcement authority (within the meaning of Part 11) or the Director of Public Prosecutions”.
I move amendment No. 43:
In page 56, to delete lines 28 to 30.
I move amendment No. 44:
In page 56, to delete lines 28 to 30 and substitute the following:
“(2) Subject to subsection (1), a relevant declaration shall be admissible in evidence in any proceedings relating to the act, operation or change in use in respect of which the relevant declaration was made.”.
Tá
- Black, Frances.
- Boyhan, Victor.
- Flynn, Eileen.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- McDowell, Michael.
- Moynihan, Rebecca.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Burke, Paddy.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Cassells, Shane.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Mark.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Garvey, Róisín.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- O'Hara, Malachai.
- O'Reilly, Joe.
- Seery Kearney, Mary.
I move amendment No. 45:
In page 56, line 28, to delete “not”.
Tá
- Black, Frances.
- Flynn, Eileen.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Hoey, Annie.
- McDowell, Michael.
- Moynihan, Rebecca.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Burke, Paddy.
- Byrne, Maria.
- Carrigy, Micheál.
- Casey, Pat.
- Chambers, Lisa.
- Conway, Martin.
- Crowe, Ollie.
- Cummins, John.
- Currie, Emer.
- Daly, Mark.
- Davitt, Aidan.
- Dolan, Aisling.
- Dooley, Timmy.
- Fitzpatrick, Mary.
- Garvey, Róisín.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- O'Hara, Malachai.
- O'Reilly, Joe.
- Seery Kearney, Mary.
I have problems with section 11 which I think the Minister of State should take on board and reconsider this provision. I say that because we are on Committee Stage. There may be Report Stage and the whole Bill has to go back to the Dáil. There is time and no urgency to say this section cannot be looked at. This section reads:
A relevant declaration shall be conclusive evidence of the matters stated therein in ... proceedings brought by an enforcement authority ... against a person who requested the relevant declaration under section 10, unless ... it is proved that ... [he] knowingly provided false or misleading information to the planning authority or the Commission ... [and that] the planning authority or the Commission, as the case may be, would not have made the ... [decision] had it been aware at the time ... that the information was ... misleading, or [second, that] it is proved that ... the person withheld information from the planning authority or the Commission, as the case may be, that he or she knew to be material to the question as to whether or not the act, operation or change in use concerned was development or exempted development, and ... the planning authority ... would not have made the ... [decision if that] information [had] not been ... withheld.
Just think about this for a second. That is all very well, but you have to look at what follows it. The relevant declaration is the declaration that a change of use is not development or is exempted development. Relevant proceedings are proceedings for an offence under sections 341, 344 or 345. That is fine, but supposing somebody gets a declaration having withheld information which it is later argued would have tipped the decision the other way, and a bona fide purchaser for value buys the development with the benefit of that declaration not knowing that the person who obtained the declaration had withheld information which might have tipped the issue. The purchaser had no reason to believe it and paid good money to buy the farm, quarry, building or whatever in good faith but is then told that what happens is the relevant declaration shall not be admissible in any proceedings other than a prosecution against the person who originally withheld the information. What about somebody who never withheld any information and bought a business, believing it to be bona fide, who understood, when his solicitors asked for evidence, that it was in conformity with the planning Acts, which evidence was produced, who paid good money for that business, and who then finds himself or herself in the situation where no prosecution is brought against the original person but he or she is now faced with a planning injunction or enforcement notice to say the whole thing is void, the declaration is void and he or she must close down the business immediately? That is a serious thing to do to somebody who has paid good money in good faith to buy a business with the benefit of such a declaration. I do not see a way out of this.
Section 12, which we are not yet discussing, states that this applies retrospectively. One of these declarations, subject to this right to revoke it, applies to declarations that have already been granted before we pass this Bill. Somebody afterwards is then told that it is all void, because the guy who sold them the business withheld information and the planning authority would not have made that decision. Some crowd, I do not know who - maybe some concerned locals, An Taisce or somebody else - says it should never have been given to that person's predecessor in title and the person must therefore discontinue that business.
I know we are coming up to 9.30 p.m., so for brevity's sake, I believe the Minister of State should consider this issue. It is fundamentally unfair to say to an innocent person that they can have their business or property wiped out because the guy who got a declaration on which they relied in good faith and for which they paid him good money withheld some information they had no idea he had withheld.
That is all I have got to say. I am against this section because I do not think it provides sufficient safeguards for people who, in good faith and without notice of any defect in a declaration, have laid out good money and capital to buy property and who effectively have the rug pulled from under them simply because the predecessor in title withheld information from the planning authority in circumstances where the purchaser had no idea that had happened. I am against this section, and I ask the Minister of State to take on board what I am saying and, between now and Report Stage, to do something to protect innocent people from the revocation of one of these declarations.
I concur fully with what Senator McDowell has identified. He is being fair-minded in his approach by asking the Minister of State to look at this before Report Stage. I believe we should. He has set out a situation many of us are aware of with regard to the politics and constituents we regularly deal with. From his sound legal mind, he does not see an opportunity for somebody who has already paid a significant amount of money for some undertaking to sue the person from whom they bought that property and this will now prevent them. That seems entirely unfair. It is probably a lot to ask the Minister of State to respond to that here in the Chamber without being appropriately briefed.
The House stands adjourned until 9.30 a.m. tomorrow in accordance with the orders of the Seanad today.