Planning and Development (Strategic Infrastructure) Bill 2006 [Seanad]: Committee Stage (Resumed).

This meeting has been convened for the purpose of the continued consideration by the committee of the Planning and Development (Strategic Infrastructure) Bill 2006 which was referred to it by order of the Dáil on 14 June. I welcome the Minister of State at the Department of the Environment, Heritage and Local Government, Deputy Batt O'Keeffe, and his official. The meeting is scheduled to conclude at 8.30 p.m. I suggest we consider the Bill until that time, unless we conclude Committee Stage before then. Members should be aware that the debate must conclude tonight to allow sufficient time for the preparation of Report Stage amendments and reprinting of the Bill. Is that agreed? Agreed.

At what time will we conclude our discussion?

I hope we will conclude before 8.30 p.m. but we will sit later, if necessary. The amendments we are discussing, amendments Nos. 227 to 231, inclusive, were grouped with amendment No. 226.

SECTION 15.

I move amendment No. 227:

In page 45, to delete lines 3 to 10 and substitute the following:

"(b) 2 members shall be appointed from—

(i) amongst persons nominated for such appointment by such organisations that, in the Minister's opinion, are concerned with—

(I) economic development,

(II) the promotion of and carrying out of development,

(III) the provision of infrastructure or the development of land, or

(IV) otherwise connected with the construction industry as may be prescribed,

or

(ii) bodies that, in the Minister's opinion, have a special interest or expertise in matters relating to rural and local community development, the promotion of the Irish language or the promotion of heritage, the arts and culture;".

One of the effects of the Bill is that it will remove the first phase of the current two phase planning process, in which an application is decided by the local authority and is then referred to An Bord Pleanála. It is important, therefore, that we specify that two members be nominated to An Bord Pleanála who would have specific and clear knowledge of local government. I know the current regulation is slightly different and that they are not excluded from An Bord Pleanála but in amendment No. 228 we propose that they be appointed.

I understand the Minister discussed this amendment yesterday afternoon and gave a commitment that he would prepare a briefing note on the composition of nominees. That is being photocopied and will be circulated as soon as it is available.

When will this issue be discussed?

It was discussed last night.

My apologies for not being here. However, I would like to see the Minister's response before we conclude our discussion on the section.

The Deputy has the option of resubmitting the amendment on Report Stage.

If necessary, I will call a vote on the issue. It is a fundamental issue in my view.

Unfortunately, the matter was discussed last night and, as such, the Minister has responded on it.

It is, in my view, a fundamental issue.

I refer the matter to the Minister.

It is unfortunate Deputy O'Dowd had to leave the meeting yesterday before this matter was discussed. The correct course for him now would be to revisit the matter on Report Stage at which time we can debate it further.

Is the amendment being pressed?

Amendment put and declared lost.

Deputy Gilmore has informed me of what happened. The Minister of State referred to my not being at the meeting when the matter was discussed but he was not present either.

I apologise on behalf of the Minister for the Environment, Heritage and Local Government, Deputy Roche, who is delayed at a Cabinet meeting.

I understand that. May I also make the following point on the record. The Minister stated last night that he was paired for today. However, my party Whip has told me no such pairing has been requested and as such the Minister is not paired and this debate could have taken place earlier.

I understand the Minister has to perform a specific duty on which he had given a commitment some time ago. He rang me this morning——

The Minister of State reflected on my absence at the meeting last night. I am reflecting on the Minister's reason——

The Minister is on his way.

We will now deal with amendment No. 228 in the name of Deputy O'Dowd.

I move amendment No. 228:

In page 45, to delete lines 11 to 18 and substitute the following:

"(c) 2 members shall be appointed from among persons nominated for such appointment by such organisations that, in the Minister’s opinion, are representative of the interests of local government as may be prescribed;”.

I take it an undertaking was given to revisit this matter on Report Stage.

The debate revolved around the new method of selection for members of An Bord Pleanála. My understanding is that we are to be given a list of the organisations who will make nominations under the proposed new categories. I indicated my intention to resubmit the amendment on Report Stage when it could be debated in light of the information received.

I wish to press the amendment.

Amendment put.
The Select Committee divided: Tá, 3; Níl, 7.

  • Cuffe, Ciarán.
  • Gilmore, Eamon.
  • O’Dowd, Fergus.

Níl

  • Blaney, Niall.
  • Brady, Martin.
  • Haughey, Seán.
  • Kelleher, Billy.
  • Moloney, John.
  • Moynihan, Donal.
  • O’Keeffe, Batt.
Amendment declared lost.
Amendment No. 229 not moved.

I move amendment No. 230:

In page 45, line 26, after "objects," to insert the following:

"the aims or objectives of which relate to the promotion of environmental protection and the natural and built heritage,".

This is an important amendment. Its objective is to ensure that voluntary bodies will be deemed to have an interest or involvement in environmental protection. Not just any voluntary body should be included. It relates to the list referred to earlier.

We discussed the amendment already with amendment No. 226.

Amendment put and declared lost.
Amendment No. 231 not moved.
Section 15 agreed to.
Sections 16 to 18, inclusive, agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."

This issue was discussed previously. The chairman can direct a decision to the whole board if he wishes, notwithstanding the views of the strategic infrastructure board, with which he or she may differ.

Deputy O'Dowd can table an amendment on Report Stage and we can consider the matter then. I refer him to section 30, which clearly provides for circumstances in which the chairman may consider a matter to be of particular complexity and significance. Our view is that he or she cannot achieve that within the text of the Bill as it stands.

It is my job to test the wording to ensure that the Government's intent is clearly understood. I am trying to understand why the power is being provided to the chairman.

It is similar to what happens in the courts. It is an opportunity to obtain, if the chairman so desires, a full range of views from the members of the board. There is nothing unusual in the provision.

The strategic infrastructure board will deal with these applications. If a quorum of the board meets and if a majority of the members present disagree with the chairman on whether the infrastructure in question is strategic in nature or if he or she decides that the matter does not come within the board's competence, he or she will be in a position to refer it to An Bord Pleanála without it being determined or voted upon by the board. I am concerned about the legal issues which arise in that regard. Why establish a board to do a specific job if the chairman can overrule the members and take the matter out of their domain?

If the chairman tried to bypass a decision of the board, it would be an abuse of his or her position. However, there is nothing out of the ordinary in allowing the chairman to seek the views of the complete board. We can draft a note of explanation taking into account the arguments Deputy O'Dowd has made.

Yes. We can return to this matter on Report Stage.

Question put and agreed to.
SECTION 20.

Amendments Nos. 232, 241 and 245 to 248, inclusive, are related and may be discussed together by agreement.

I move amendment No. 232:

In page 47, line 47, after "37E" to insert the following:

"and any other matter with which the Board may be concerned".

These amendments seek to expand the provisions of Part VI of the Act to ensure that the procedures for appeals and referrals will also apply, where specified, to the board's new areas of responsibility. Amendment No. 232 is a technical amendment to section 20 of the Bill. This section amends section 125 of the 2000 Act which provides for the technical procedures for appeals and referrals within Chapter III of Part VI of the Act. The effect of the amendment is to allow procedures such as oral hearings, the withdrawal of appeals, applications and referrals and fees payable to the board to apply to the new types of application to the board and applications under section 37E where that is specified in the amendment.

Amendment No. 241 is an amendment to section 140 of the 2000 Act which enables people to withdraw appeals or applications before a determination is made by the board. Persons applying for strategic infrastructure consent should be also able to withdraw their applications and the board should be able to declare that an application has been withdrawn in a similar way. The power of the board to declare applications withdrawn will ensure persons who do not pursue applications that have no realistic prospect of being approved do not clog up the system. Alternatively, an infrastructural provider may want to make substantial changes to a proposal following discussions with local residents and so on. This, therefore, ensures they have the flexibility to do so without enormous bureaucratic difficulties.

Amendments Nos. 245 and 246 relate to section 146 of the 2000 Act which relates to the reports and documents of the board and is being amended in section 24 to impose certain requirements on the board in regard to the publication of information, including by electronic means. I am putting forward these new amendments to extend those requirements to all the functions of the board, including their new functions in regard to electricity, transmission lines and gas pipelines and, under the Transport (Railway Infrastructure) Act 2001, by applying more general language encompassing all of the functions performed by the board.

Amendments Nos. 247 and 248 are consequential to amendments Nos. 245 and 246.

Amendment agreed to.
NEW SECTION.

I move amendment No. 233:

In page 48, before section 21, to insert the following new section:

"21.—The following section is substituted for section 128 of the Principal Act:

"128.—(1) Where an appeal or referral is made to the Board the planning authority concerned shall, within a period of 2 weeks beginning on the day on which a copy of the appeal or referral is sent to it by the Board, submit to the Board—

(a) in the case of an appeal under section 37—

(i) a copy of the planning application concerned and of any drawings, maps, particulars, evidence,environmental impact statement, other written study or further information received or obtained by it from the applicant in accordance with regulations under this Act,

(ii) a copy of any submission or observation made in accordance with regulations under this Act in respect of the planning application,

(iii) a copy of any report prepared by or for the planning authority in relation to the planning application, and

(iv) a copy of the decision of the planning authority in respect of the planning application and a copy of the notification of the decision given to the applicant,

(b) in the case of any other appeal or referral, any information or documents in its possession which is or are relevant to that matter.

(2) The Board, in determining an appeal or referral, may take into account any fact, submission or observation mentioned, made or comprised in any document or other information submitted under subsection (1).".".

This amendment to section 128 of the 2000 Act again underlines the Minister's commitment to ensuring the open and transparent operation of our planning and appeals processes and to ensuring decisions taken by our competent authorities are fully informed. Section 128 of the Act sets out the requirement on planning authorities to forward relevant papers when an appeal or referral is made to the board in the context of a normal planning application. The section currently provides that only the information provided by the applicant or generated by the planning authority must be sent on. However, the High Court ruled recently that where an appeal is made to the board a planning authority should forward copies of submissions or observations received from prescribed bodies to the board to be taken into account by them during the appeal process. We should go further than the High Court recommendation and require that all submissions should be forwarded to the board to be taken into account and not just those received from prescribed bodies. This would mean any person who makes a submission regarding an application could be certain that submission also ultimately will be considered by the board if an appeal is made. If an appeal were then lodged by another party it would not then be necessary for the person to make a further submission or to resubmit an earlier submission to the board to have his or her views considered. This is the effect of this amendment.

Will the information sent to the board be placed automatically in the public domain? It is not clear from this amendment whether this composite batch of information will be made available to the general public. Perhaps that could be clarified.

Under the planning authority's files, this information will already have been made available to the public.

If an appeal is ongoing and, having been considered initially by the strategic infrastructure board which has documents relevant to it, there is a full hearing by An Board Pleanála and further reports are commissioned, will the minutes of the strategic infrastructure board be made available to the public? Are we talking about a one-stop-shop? Will the applicant be a notice party?

My understanding is that any submissions made to the board will have to be made public three days after the decision. The decision made and the reasons for it will have to be made available as well.

If a decision is made by the whole board rather than the strategic infrastructure board and if reports are prepared, all reports will be made available within three days of the decision. Will the minutes of meetings be available under the Freedom of Information Act?

I understand the board does not keep minutes but it gives decisions and the reasons for them.

It may not publish but would it not have to record decisions? I can check that.

Amendment agreed to.
Amendment No. 234 not moved.

Amendments Nos. 236 to 239, inclusive, and amendment No. 291 are related to amendment No. 235 and may be discussed together.

I move amendment No. 235:

In page 48, line 7, after "section 37E" to insert the following:

"but shall hold such an oral hearing where any person making submissions or observations under section 37E, or the planning authority in whose functional area the proposed development would take place, or the applicant under this section, requests such an oral hearing".

Those of us in the world of politics know there is nothing like face time when it comes to interacting with their constituents. People want to meet their public representatives and talk to them face to face. That is as true in the sphere of planning as anywhere else. The public want to be able to get their views across in a face-to-face situation. It handicaps the public if they are reduced to simply putting their view in writing. Many people find it difficult to put their concerns in writing. That is why public representatives meet constituents and sit down with them and listen to their concerns. When it comes to the planning process many people are bewildered by the complexity of the legislation, the procedures and the bureaucracy with which they must deal. That is why they are well served by the oral hearing process, in particular in terms of An Bord Pleanála.

An Bord Pleanála currently deals with both minor and major applications. The general trend to date in the context of major applications is that where an oral hearing is requested by the applicant it is generally granted. Any application that follows the strategic infrastructural route will of its nature be significant and somewhat complex. Anyone who wants to make his or her views known would probably wish to have an oral hearing. He or she would want to tell the board his or her concerns face to face. This should not be discretionary on the part of the board but an option for the person making his or her views known. My amendment seeks to ensure the views of each side would be heard and that the public would not be unduly handicapped on foot of being forced to put its views in writing rather than in any other way. It is entirely appropriate that those who want to make their views known should be able to do so at an oral hearing.

On amendments Nos. 235 and 236, we strongly believe the board must be given absolute discretion in deciding when to hold an oral hearing. The amendments would reintroduce mandatory oral hearings in all cases. This would not represent an acceptable use of the board's time or resources. Therefore, we do not propose to accept the amendments. The new provision will allow the board to rebalance circumstances, whereby more and more oral hearings are being held on relatively minor CPO matters, in respect of which oral hearings are currently mandatory. Many of the 60 or so oral hearings held annually by the board relate to CPOs objected to by one landowner or a very small number thereof. These cases could be settled, more sensibly and cost-effectively for all, through written arguments. There is no reason in law a public hearing should be held regarding a compulsory purchase order. The hearings are time-consuming and very expensive. Ultimately, it is the lawyers and experts recruited to argue the case who are the main individuals who gain.

As a consequence of mandatory hearings, fewer are being held regarding large and controversial projects, in respect of which such hearings are not mandatory but more clearly in the public interest. The board must have discretion to exercise its judgment in respect of oral hearings to ensure the most appropriate cases are subject to a public hearing. Amendment No. 237 in my name involves a simple deletion of words which are unnecessary, given the removal of the provision relating to mandatory oral hearings in regard to CPOs. The amendment deletes the words "Subject to section 218" as they are no longer necessary. They were necessary previously because oral hearings were mandatory in the case of opposed CPOs. Since we are modifying section 218 to make oral hearings non-obligatory in all cases, this qualifier is no longer needed.

I do not propose to accept amendments Nos. 238 and 239. It is right that the board should be able to request, in the interests of clarity, a written submission of comments to be made at an oral hearing and that it should be able to ensure the discussions at the oral hearing relate to the points specified in advance. The person empowered by the board to conduct an oral hearing needs to have the power to ensure it is carried out fairly and openly without undue formality to ensure all the necessary issues are covered, but such that individuals cannot disrupt or delay proceedings by introducing new and extraneous issues on the day. The new provisions will give the inspector the powers needed to ensure the most effective running of the hearing. This is not unfair and I do not see how it could be regarded as such, given that the European Court of Justice, for example, believes it is the best way to conduct its own hearings. As long as all the participants must abide by the same rules, it cannot be regarded as unfair.

Amendment No. 291 seeks to require oral hearings on CPOs for railway works. I will not accept it for the aforementioned reasons.

On amendment No. 239, it is absolutely Kafkaesque that the Minister of State would stifle debate to the point provided for in the Bill. He is suggesting the inspector can stop someone making a point at an oral hearing because he or she has not made it in writing in advance. Even the best barrister in the country often has a moment of insight in the middle of making a point to a jury. The same applies to oral hearings. Whatever about the brightest and best legal brains in the country, it very often occurs that a member of the public realises the impact of a development on his or her circumstances mid-way through an oral hearing in looking at a map or reading between the lines of submissions made. He or she may realise he or she will have to drive for an extra ten minutes to get to his or her own front door, or that a tower block will overshadow his or her premises. He or she may suddenly realise something on the day of the hearing while another member is speaking. To try to stifle such debate is the equivalent of putting a sticking plaster over the witness and I am appalled that the Minister of State intends to do so to this extent. I am deeply disturbed by his proposal.

On the Minister of State's response to my first amendment in the group, I take his point on not having mandatory oral hearings. However, I very much agree with Deputy Cuffe.

The Minister of State is not listening and I am not being rude in saying this.

He is taking advice on what the Deputy is asking.

I have not asked anything yet.

I am amazed at the Deputy's attitude to this meeting.

This is the most important Bill we have dealt with all year.

It is a pity the Deputy was not present for all of it.

I have been present for all of it.

If the Minister of State wants to take advice from his officials, we should not stop him from doing so.

I cannot make my point if he cannot hear it.

How does the Deputy know he cannot hear with his other ear?

He is all ears.

Correct.

I said initially that I accepted the point the Minister of State had made on my amendment. I also agree with what Deputy Cuffe said. In the period before one's oral hearing one may not see eye to eye on the written argument with one's legal adviser or independent expert, for professional reasons or otherwise. On the day of the hearing, however, one might have a different legal or technical adviser, or new, special or unusual scientific knowledge might have come into the public domain some days previously. In this context, it is unreasonable not to accept my amendment. Not doing so would exclude unusual but possibly sensible developments. Just as a barrister may be replaced by another in a court case, thus giving rise to a totally different point of view, legal advisers may change in an oral hearing, thus resulting in a change of perspective. In the Bill the Minister of State is excluding the possibility of such an event. I agree with Deputy Cuffe on the matter.

Two issues arise, the first of which is whether an oral hearing should be mandatory in the case of special strategic infrastructure projects covered by this legislation. I believe it should. By definition, the projects being fast-tracked are of national interest and major social and economic importance. If they were not, they would not be regarded as strategic. Under existing legislation, some of these projects, including road projects, require the holding of a public inquiry. There is a public process, whereby they are assessed and considered. That should remain the case. As regards strategic infrastructure projects, there should be an oral hearing to give all those who have an interest in the issue an opportunity to state their case. There is a world of difference between an oral hearing and written submissions. The second set of circumstances——

Is the Deputy saying he believes it should be mandatory, that there should be an oral hearing with regard to all compulsory purchase orders? Is he stressing the importance of the strategic infrastructure Bill and the necessity for an oral hearing to be held in that regard?

Let me deal with CPOs. I want to raise the question as to whether what the Government proposes to do in the Bill is constitutional in the case of CPOs. There is a very fine balance in the Constitution as regards the constitutional right to private property and its qualification by reference to the common or public good. If the legislation sets out to deny to a landowner the right to be heard on a proposed compulsory purchase order, or if that right is to be restricted unreasonably, due process is being denied. The restrictions the Minister of State proposes to include in the Bill are unreasonable. The Bill states the board can decide that it will only consider written submissions, or that it will disallow considerations not submitted in writing in advance. I question whether what is being proposed in the Bill transgresses constitutional rights. There is a fine line between the constitutional right to private property and the public good qualification. If circumstances are such that a landowner faced with a CPO is denied the right to be heard and consideration is restricted purely to written arguments, a constitutional issue arises. This is unwise because there is a denial of an individual's rights. It is also unwise in terms of the public good. In his rush to have projects moved through the process, the Minister of State may well end up with a mess in the courts.

I want to tell Deputy O'Dowd that my official is in serous trouble. She is afraid to whisper in my ear. I was quite enjoying it——

I would not deny the Minister of State the privilege. I do not wish to be argumentative, but I will go over the matter again. I understand exactly what is happening but in getting the business done, it is important to get it right. It is also important when somebody is speaking that he or she can be heard. I appreciate what everybody is trying to do.

Oral hearings are normally held in the case of strategic infrastructure projects. However, I strongly believe the board should decide, based on the criteria applied. This is not unconstitutional. The purpose is not to limit the number of points that can be made. One might recall the words we used, "new and extraneous matters". If there is a written comment and the points made are pertinent, they are neither extraneous nor new. It is legitimate to introduce them at the hearing. Ultimately, what we are trying to achieve is to ensure the inspector can stop people disrupting proceedings by introducing substantial material on the day of the hearing. On the other side of the coin, this is very unfair to the other parties involved and leads to long delays. This has been the experience.

We all have experience of the oral hearing process. I was recently involved in an oral hearing in respect of a controversial road project in my constituency. Those who had made submissions had various concerns related to architectural, archaeological and environmental issues, including noise levels, water and air quality, habitats, etc. In the course of the hearing it suddenly became apparent that the Monkstown ring road which was to pass through a quiet cul-de-sac would carry twice as many vehicles as the proposed Gorey bypass. It would carry almost the same number as the Newry bypass. Everyone at the hearing was gobsmacked by this because we had not made the comparison. Those who had made submissions and raised concerns suddenly homed in on this issue and quizzed the local authority. What the Minister of State is saying in the Bill is that the inspector will eventually be able to stop people from making their views known on issues which they have not raised in writing in advance. This will stifle the democratic planning process and is a sign of the arrogance shown by the Minister of State's party and current Government thinking. I am deeply disturbed by the degree to which he is trying to influence the planning process.

It is only the first part with which we have a problem. Perhaps the Minister of State might look at it again and provide for exceptional circumstances; in other words, he would not rule it out forever. As matters stand, he is excluding it completely in the section.

It is important to point out to Deputy Cuffe that the inspector must have a right to stop a debate on absolutely new and extraneous matters to the issues under consideration as it amounts to time-wasting. It is the experience that this tactic has been employed. There is an opportunity to expand on items included in written submissions. In such instances, there is no reason for the inspector to stop such a debate. Let us take the example of a road project, as raised by the Deputy. There is no doubt that one issue will be constant — traffic. If further information is gleaned in the interim period that is obviously pertinent and cogent, it must be taken into account in expanding on the written submission on the projected level of traffic. I wonder why we are being so pernickety on this. Under the Bill, if someone is determined to ensure an issue will not be dealt with in the most effective and efficient manner and there is blatant abuse on the day of an oral hearing, the inspector will have the right to rule it out.

The Minister of State is saying that, but that is not what is written in the Bill. That is my difficulty with the section.

Amendment put.
The Committee divided: Tá, 3; Nil, 8.

  • Cuffe, Ciarán.
  • Gilmore, Éamon.
  • O’Dowd, Fergus.

Níl

  • Cregan, John.
  • Grealish, Noel.
  • Haughey, Seán.
  • Healy-Rae, Jackie.
  • Kelleher, Billy.
  • Moloney, John.
  • Moynihan, Donal.
  • O’Keeffe, Batt.
Amendment declared lost.
Amendment No. 236 not moved.

I move amendment No. 237:

In page 50, to delete line 10 and substitute the following:

"134A.—(1) Where the".

Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
Amendment No. 238 not moved.

I move amendment No. 239:

In page 51, to delete lines 8 to 12.

Amendment put and declared lost.
Section 22 agreed to.

Amendments Nos. 240 and 244 are related and may be discussed together.

NEW SECTIONS.

I move amendment No. 240:

In page 51, before section 23, to insert the following new section:

"23.—Section 138(1) of the Principal Act is amended by substituting the following paragraph for paragraph (a):

"(a) where, having considered the grounds of appeal or referral or any other matter to which, by virtue of this Act, the Board may have regard in dealing with or determining the appeal or referral, the Board is of the opinion that the appeal or referral—

(i) is vexatious, frivolous or without substance or foundation, or

(ii) is made with the sole intention of delaying the development or the intention of securing the payment of money, gifts, consideration or other inducement by any person,".".

This amendment inserts a new section to amend section 138, while amendment No. 244 inserts a new section to amend section 145 of the Planning and Development Act 2000. Occasional spurious and groundless appeals are an unfortunate feature of our system. They pervert the democratic process and divert time and resources from dealing with authentic and justified appeals. It is important that the board be equipped to deal appropriately with appeals made primarily or solely with the intention of extorting money from an applicant. I do not believe its current powers are sufficient since costs are not allowed to be awarded where an appeal has been withdrawn, as has occurred. Section 138 of the 2000 Act restricts the issues that it can take into account. The amendments will address the situation and ensure the board will be suitably equipped to prevent spurious or fraudulent appeals.

Amendment No. 240 will amend section 138 to permit the board to take into account any matter other than the grounds of an appeal in deciding whether to dismiss an appeal for vexatiousness. If an appeal is made that on the face of it looks substantive but the developers then present evidence to the board showing that the appellant is looking for cash to withdraw an appeal, the board should be able to dismiss an appeal in these circumstances. Amendment No. 244 which will amend section 145 will allow the board to award costs against a blackguard appellant, not only where it decides against him or her but also if he or she has withdrawn the appeal or the appeal has been dismissed. It has happened that the board has become aware of a vexatious appeal only to have it withdrawn. In these circumstances the appellant should have to pay costs as a deterrent.

The amendments bear reflection. I do not have a problem with their import when somebody is looking for money, but where money is not an issue and yet the appeal is considered vexatious, costs are awarded against the person who lodged an appeal. Awarding costs is a serious issue. The person lodging the appeal may not be particularly capable but may not want the development beside him or her to go ahead. It may not be a fine objection but it is what is in the heart and mind of the person concerned. How will the members of the board decide that an objection which may not be germane to the development but reflects the genuine concerns of the objector is vexatious and that the person concerned should be liable for costs? The board has discretionary powers but we need to know the criteria it will use in reaching such a decision.

The general provision of allowing the board to dismiss appeals or to dismiss them where there is an attempt to extort money is already provided in the Planning and Development Act 2000. There is also a provision that the board can order that compensation be paid, although I am not entirely clear on how it is worked out. How often has the board exercised its existing powers?

I think the board dismisses appeals it regards as having no substance, but this happens rarely. It has never, as far as I am aware, chased an objector for compensation. There are habitual objectors who will make an objection and at the same time look for money from the developer. If the money is forthcoming, the appeal will be withdrawn. There is no appeal decision on file and there is no provision whereby one can follow the people concerned for costs under the current system.

I have no problem with this but it is appropriate that it be dealt with. What about the classic example of a person who objects to his neighbour's extension because it will overlook his or her garden? If the neighbours get into a discussion and it is decided that the person who lodged the application will build up the boundary wall — the appellant will stand to gain materially from a deal struck with the developer, which is a perfectly reasonable way to resolve the problem — will the appellant find himself or herself in the position where the person who lodged the application goes to the board with the evidence, that because he or she will build a boundary wall, the objector will withdraw the appeal? Will the appellant's appeal then be dismissed and will he or she be exposed to paying compensation? How is an appellant to be protected in such a situation?

In the case cited by the Deputy it is agreed there will be a significant impact on the neighbour's property. The board would consider that it was in order for two parties who are neighbours to come to an arrangement. What we are talking about is blatant extortion, where somebody habitually seeks money to withdraw an appeal. Even though the board may be made aware by the developer that the objector has demanded money to withdraw the appeal, the person concerned being sensible and knowledgeable of the law decides to withdraw it before a decision is made on the appeal, thereby ensuring the board cannot impose costs on the appellant. This is one of the serious issues most commonly faced by the board.

What criteria will be applied where a person submits a poorly drafted appeal? Will account be taken of poorly argued but genuine appeals?

In fairness to the board, it would not rule out an appeal which was badly drafted. It will accept any legitimate appeal which sets out clearly the perceived impact of a proposed development on his or her property or the general environment.

What criteria will be used in that regard?

The criteria will always be what is in keeping with good planning policy.

Amendment agreed to.

I move amendment No. 241:

In page 51, before section 23, to insert the following new section:

"23.—Section 140 of the Principal Act is amended—

(a) by substituting the following subsection for subsection (1):

"(1) (a) A person who has made—

(i) an appeal,

(ii) a planning application to which an appeal relates,

(iii) a referral,

(iv) an application for permission or approval (as may be appropriate) in respect of a strategic infrastructure development, may withdraw, in writing, the appeal, application or referral at any time before that appeal, application, or referral is determined by the Board.

(b) as soon as maybe after receipt of a withdrawal, the Board shall notify each other party or person who has made submissions or observations on the appeal, application or referral of the withdrawal.”,

and

(b) in subsection (2)(a), by inserting “an application for permission or approval (as may be appropriate) in respect of a strategic infrastructure development,”after “a planning application to which an appeal relates,”.”.

Is this separate from what has been discussed?

We discussed this amendment with amendment No. 232.

Amendment agreed to.
Amendment No. 242 not moved.
Section 23 agreed to.
NEW SECTIONS.

I move amendment No. 243:

In page 52, before section 24, to insert the following new section:

"24.—Section 144(1) of the Principal Act is amended—

(a) by inserting “or in respect of a strategic infrastructure development (including an application under section 146B or the submission of an environmental impact statement under 146C)” after “under section 37(5)”, and

(b) by substituting “appeals, referrals and applications” for “appeals and referrals”.”.

Amendment agreed to.

I move amendment No. 244:

In page 52, before section 24, to insert the following new section:

"25.—Section 145(1) of the Principal Act is amended by substituting the following paragraph for paragraph (b):

"(b) in case—

(i) the decision of the planning authority in relation to an appeal or referral is confirmed or varied and the Board, in determining the appeal or referral, does not accede in substance to the grounds of appeal or referral, or

(ii) the appeal or referral is decided, dismissed under section 138 or withdrawn under section 140 and the Board, in any of those cases, considers that the appeal or referral was made with the intention of delaying the development or securing a monetary gain by a party to the appeal or referral or any other person, the Board may, if it so thinks proper, direct the appellant or person making the referral to pay—

(I) to the planning authority, such sum as the Board, in its absolute discretion, specifies as compensation to the planning authority for the expense occasioned to it in relation to the appeal or referral,

(II) to any of the other parties to the appeal or referral, such sum as the Board, in its absolute discretion, specifies as compensation to the party for the expense occasioned to him or her in relation to the appeal or referral, and

(III) to the Board, such sum as the Board, in its absolute discretion, specifies as compensation to the Board towards the expense incurred by the Board in relation to the appeal or referral.".".

Amendment agreed to.
SECTION 24.

I move amendment No. 245:

In page 52, to delete lines 11 to 22 and substitute the following:

""(3) Where, during the consideration by it of any matter falling to be decided by it in performance of a function under or transferred by this Act or any other enactment, the Board either—

(a) is required by or under this Act or that other enactment to supply to any person documents, maps, particulars or other information in relation to the matter, or

(b) considers it appropriate, in the exercise of its discretion,”.

Amendment agreed to.

I move amendment No. 246:

In page 52, to delete lines 40 to 42 and in page 53, to delete lines 1 to 11 and substitute the following:

"(5) Within 3 days following the making of a decision on any matter falling to be decided by it in performance of a function under or transferred by this Act or under any other enactment, the documents relating to the matter—

(a) shall be made available by the Board for inspection at the offices of the Board by members of the public, and

(b) may be made available by the Board for such inspection—

(i) at any other place, or

(ii) by electronic means,

as the Board considers appropriate.".

Amendment agreed to.

I move amendment No. 247:

In page 53, line 18, to delete "paragraph (i)” and substitute “paragraph (a)”.

Amendment agreed to.

I move amendment No. 248:

In page 53, lines 20 and 21, to delete all words from and including "decision" in line 20 down to and including "concerned" in line 21 and substitute "decision on the matter concerned".

Amendment agreed to.
Section 24, as amended, agreed to.
SECTION 25.

Amendment No. 250 is an alternative to amendment No. 249. Amendments Nos. 251 to 253, inclusive, are related. Therefore, amendments. Nos. 249 to 253, inclusive, will be discussed together.

I move amendment No. 249:

In page 53, to delete lines 27 to 42 and in page 54, to delete lines 1 to 28 and substitute the following:

"146A.—(1) Subject to subsection (2)—

(a) a planning authority or the Board, as may be appropriate, may amend a planning permission granted by it, or

(b) the Board may amend any decision made by it in performance of a function under or transferred by this Act or under any other enactment,

for the purposes of—

(i) correcting any clerical error therein,

(ii) facilitating the doing of any thing pursuant to the permission or decision where the doing of that thing may reasonably be regarded as having been contemplated by a particular provision of the permission or decision or the terms of the permission or decision taken as a whole but which was not expressly provided for in the permission or decision, or

(iii) otherwise facilitating the operation of the permission or decision.

(2) A planning authority or the Board shall not exercise the powers under subsection (1) if to do so would, in its opinion, result in a material alteration of the terms of the development, the subject of the permission or decision concerned.

(3) A planning authority or the Board, before it decides whether to exercise the powers under subsection (1) in a particular case, may invite submissions in relation to the matter to be made to it by any person who made submissions or observations to the Board in relation to the permission or other matter concerned, and shall have regard to any submissions made to it on foot of that invitation.".

The Bill, as drafted, inserts a new section 146A into the 2000 Act to allow the board to correct its own decisions. The Environmental Protection Agency has similar powers in licensing. The amendment takes account of the Ombudsman's recommendations that planning authorities should be able to correct clerical or inconsequential errors made in planning permissions. I am happy to respond to the Ombudsman's request on this matter. The change should also offer some relief to individuals who may have had a problem due to an administrative oversight. In addition, the amendment seeks to widen the language of the section to capture all decisions of the board made in the performance of its functions.

On amendment No. 250, there remains no question of any amendment of substance being made to a decision in this way. If a person wishes to make a material alteration to a permission, he or she must either submit an appeal to the board or apply for an amended permission. It will not be possible for a planning authority or the board to make more than minor corrections to permissions under this section.

On amendments Nos. 251 and 252, section 146B enables the board to alter the terms of a strategic infrastructure development where requested by the person carrying it out, having regard to the nature of the proposed alteration. The amendments are tabled to ensure a relevant planning authority is informed of a decision by the board to amend a consent. As planning authorities will continue to carry out their enforcement functions in respect of all developments, it is particularly important that they be aware of such alterations. There are a number of outstanding issues in regard to the points of detail of this amendment, particularly in terms of overall consultations, that may need to be resolved on Report Stage. I am awaiting the advice of the Attorney General's office in this respect.

On amendment No. 253, section 146B deals with material alterations to strategic infrastructure projects which would not have significant effects necessitating the preparation and publication of an environmental impact statement. Even though proposed alterations of this kind may not have significant environmental effects, they may be important locally to certain landowners. For that reason, it is important to ensure the board is required to obtain the public's view on the requested alteration to a development. The proposed amendment to section 146B provides for a requirement on the board to ensure information is made available to the public or by the person making a request for an alteration and to ensure views on the request are sought. The board will then have to take the submissions into account. This is fully in line with my wish to ensure the board's decision-making process is transparent and inclusive.

This is an important provision in the legislation which will provide An Bord Pleanála with the power to rewrite planning permissions granted by it. Would omission of one of the conditions constitute a clerical error? Where there are three conditions attached to a permission and one is omitted, is this considered to be a clerical error?

It is important to note that the board will not make an alteration where a material change is requested.

Even if a clerical error has been made.

If, for instance, during a board meeting a decision is made to apply a particular condition to a planning application, a clerical error will be deemed to have been made if such a condition is omitted in drafting the report.

May the board exercise this right to amend planning permission following the commencement of legal action? Can it amend an application after the commencement of legal proceedings challenging a decision made by it?

While I am not a legal expert, if the change is material, the board will not be able to effect it under any circumstances.

That was not my question. Legal proceedings may be initiated in respect of a project where the board subsequently realises there has been an error or omission in the decision issued. It may be a minor technical error such as an incorrectly registered date, of the type a lawyer may pick up on and go after. Will the board be able to correct the error after legal proceedings have commenced?

While I am not an expert in the field, it appears reasonable to say that where the board in its deliberations signals that it wants a certain condition attached but the person typing the report omits to include it, such condition will be deemed to form part of the decision of the board. Logic implies that it would not constitute a material change; it would be a clerical error. The condition could be attached to clarify the decision. If the Deputy wishes, we can seek advice on thesub judice rules which would apply if someone was taking a case. Any person taking a case should know what the full decision of the board was in the first instance. Any court would demand that the decision of the board be accurately recorded.

While reason applies to a certain degree, cases are arising in which the courts will dismiss appeals on a technicality. If one records the wrong date, makes a slight mistake in recording a reference number or produces a receipt from a local authority rather than a letter of acknowledgement, one's appeal will be dismissed. I am not hung up on the correcting of clerical errors where that is the right thing to do, but what is sauce for the goose must be sauce for the gander also. The board must allow the same reasonable approach in respect of those who make appeals to it. People are in a state of terror where they have to submit an appeal to An Bord Pleanála. Every little item must be correct and the board states it has no discretion if an error is made. The same discretion should be allowed to those making submissions to the board.

These are two different issues. The Deputy has now raised the matter of the acceptance of appeals. We are addressing the matter of decisions on appeals. While the issue the Deputy raises is important, it is one for another day. The issue raised by the amendment is that where there is an obvious clerical error, whether the board should have the right to correct it. I note for the Deputy that the current state of play is that the board must go to the courts to have a change made, which is a cumbersome process. In the circumstances, our proposal is in the best interests of appellants and the public interest.

Amendment agreed to.

I thank the Minister of State for attending today at short notice and fielding questions so brilliantly. I welcome the Minister for the Environment, Heritage and Local Government, Deputy Roche.

I thank members for their co-operation.

I apologise for being late, but I was delayed. I note that the committee has made good progress.

Amendment No. 250 in the name of Deputy Gilmore cannot be moved owing to the ruling on amendment No. 249.

Amendment No. 250 not moved.

I move amendment No. 251:

In page 55, line 3, to delete "section of the alteration," and substitute the following:

"section, and the planning authority or each planning authority for the area or areas concerned, of the alteration,".

Amendment agreed to.

I move amendment No. 252:

In page 55, line 46, to delete "the request under this section of the alteration." and substitute the following:

"the request under this section, and the planning authority or each planning authority for the area or areas concerned, of the alteration.".

Amendment agreed to.

I move amendment No. 253:

In page 56, to delete lines 3 to 17 and substitute the following:

"(8)(a) Before making a determination under subsection (3)(b) or (4), the Board shall—

(i) make, or require the person who made the request concerned under subsection (1) to make, such information relating to that request available for inspection for such period,

(ii) notify, or require that person to notify, such person, such class of person or the public (as the Board considers appropriate) that the information is so available, and

(iii) invite, or require that person to invite, submissions or observations (from any foregoing person or, as appropriate, members of the public) to be made to it in relation to that request within such period, as the Board determines and, in the case of a requirement under any of the preceding subparagraphs, specifies in the requirement; such a requirement may specify the means by which the thing to which it relates is to be done.

(b) The Board shall have regard to any submissions or observations made to it in accordance with an invitation referred to in paragraph (a).

(c) The Board shall notify any person who made a submission or observation to it in accordance with that invitation of its determination under subsection (3)(b) or (4).”.

Amendment agreed to.
Amendment No. 254 not moved.

I move amendment No. 255:

In page 59, to delete line 51 and in page 60, to delete lines 1 to 18, to delete paragraphs (g) to (l) and substitute the following:

"(g) the matters referred to in section 143;

(h) any social or economic benefit that would accrue to the State, a region of the State or the area were the development concerned to be carried out in the terms as they are proposed to be altered;

(i) commitments entered into and the stage at which the development concerned has progressed under the permission, approval or other consent in the terms as originally granted; and

(j) any relevant provisions of this Act and of any regulations made under this Act.”.

Amendment agreed to.

Amendments Nos. 256 and 257 are related and may be discussed together.

I move amendment No. 256:

In page 61, line 3, after "2001" to insert the following:

"(whether made before or after the amendment of that Act by thePlanning and Development (Strategic Infrastructure) Act 2006)”.

These amendments will permit material alterations to be made to future and existing railway orders. A number of railway order proposals are before the relevant Minister, but construction is unlikely to have begun before the board takes over the function of deciding on such orders. While it is not intended to transfer cases in hand when the board takes over the function, it would be remiss of me to fail to provide for the possibility of necessary material alterations to existing consents. The amendments constitute a precautionary measure to ensure the board will have the powers, if necessary.

Amendment agreed to.

I move amendment No. 257:

In page 61, line 21, to delete "Board" and substitute the following:

"Minister for Transport or the Board, as the case may be,".

Amendment agreed to.
Section 25, as amended, agreed to.
Sections 26 and 27 agreed to.
SECTION 28.

I move amendment No. 258:

In page 62, lines 22 and 23, to delete paragraph (b) and substitute the following:

"(b) in subsection (2), by substituting “sections 34(3), 37G(2), 146C(6), 173(1), 181C(1), 182B(1) and 182D(1)” for “sections 173(1) and 34(3)”, and”.

Amendment agreed to.
Section 28, as amended, agreed to.
Amendments Nos. 259 to 261, inclusive, not moved.
Section 29 agreed to.
NEW SECTIONS.

I move amendment No. 262:

In page 65, before section 30, to insert the following new section:

"30.—Section 181(1) of the Principal Act is amended—

(a) in paragraph (a), by inserting “and sections 181A to 181C” after “except for this section”, and

(b) in paragraph (b), by deleting subparagraph (iv).”.

Amendment agreed to.

I move amendment No. 263:

In page 65, before section 30, to insert the following new section:

"31.—The following sections are inserted after section 181 of the Principal Act:

"181A.—(1) Subject to section 181B(4), where a State authority proposes to carry out or have carried out development—

(a) of a class specified in regulations made under section 181(1)(a), and

(b) identified as likely to have significant effects on the environment in accordance with section 176,

(hereafter referred to in this section and sections 181B and 181Cas ‘proposed development'), the authority shall prepare, or cause to be prepared, an application for approval of the development under section 181B and an environmental impact statement in respect of the development and shall apply to the Board for such approval accordingly.

(2) Subject to section 181B(4), the proposed development shall not be carried out unless the Board has approved it with or without modifications.

(3) before a State authority makes an application for approval under subsection (1), it shall—

(a) publish in one or more newspapers circulating in the area or areas in which it is proposed to carry out the development a notice indicating the nature and location of the proposed development and—

(i) stating that—

(I) it proposes to seek the approval of the Board for the proposed development,

(II) an environmental impact statement has been prepared in respect of the proposed development,

(III) where relevant, the proposed development is likely to have significant effects on the environment in another Member State of the European Communities or other party to the Transboundary Convention,

(ii) specifying the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the application and the environmental impact statement may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy),

(iii) inviting the making, during such period, of submissions and observations to the Board relating to—

(I) the implications of the proposed development for proper planning and sustainable development in the area or areas concerned, and

(II) the likely effects on the environment of the proposed development, if carried out, and

(iv) specifying the types of decision the Board may make, under section 181B, in relation to the application,

(b) send a copy of the application and the environmental impact statement to the local authority or each local authority in whose functional area the proposed development would be situate and to any prescribed bodies, together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board in relation to—

(i) the implications of the proposed development for proper planning and sustainable development in the area concerned, and

(ii) the likely effects on the environment of the proposed development, if carried out, and

(c) where the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or a state which is a party to the Transboundary Convention, send a prescribed number of copies of the application and the environmental impact statement to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board.

(4) The Board may—

(a) if it considers it necessary to do so, require a State authority that has applied for approval for a proposed development to furnish to the Board such further information in relation to the effects on proper planning and sustainable development or the environment of the proposed development as the Board may specify, or

(b) if it is provisionally of the view that it would be appropriate to approve the proposed development were certain alterations (specified in the notification referred to in this paragraph) to be made to the terms of it, notify the State authority that it is of that view and invite the State authority to make to the terms of the proposed development alterations specified in the notification and, if the State authority makes those alterations, to furnish to it such information (if any) as it may specify in relation to the development, in the terms as so altered, or, where necessary, a revised environmental impact statement in respect of it.

(5) If a State authority makes the alterations to the terms of the proposed development specified in a notification given to it under subsection (4), the terms of the development as so altered shall be deemed to be the proposed development for the purposes of this section and section 181B.

(6) The Board shall—

(a) where it considers that any further information received pursuant to a requirement made under subsection (4)(a) contains significant additional data relating to—

(i) the likely effects on the environment of the proposed development, and

(ii) the likely consequences for proper planning and sustainable development in the area or areas in which it is proposed to situate the said development of such development,

or

(b) where the State authority has made the alterations to the terms of the proposed development specified in a notification given to it under subsection (4)(b), require the State authority to do the things referred to in subsection (7).

(7) The things which a State authority shall be required to do as aforesaid are—

(a) to publish in one or more newspapers circulating in the area or areas in which the proposed development would be situate a notice stating that, as appropriate—

(i) further information in relation to the proposed development has been furnished to the Board, or

(ii) the State authority has, pursuant to an invitation of the Board, made alterations to the terms of the proposed development (and the nature of those alterations shall be indicated) and, if it be the case, that information in relation to the terms of the development as so altered or a revised environmental impact statement in respect of the development has been furnished to the Board, indicating the times at which, the period (which shall not be less than 3 weeks) during which and the place, or places, where a copy of the information or the environmental impact statement referred to in subparagraph (i) or (ii) may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy) and that submissions or observations in relation to that information or statement may be made to the Board before the expiration of the indicated period, and

(b) to send to each prescribed authority to which a notice was given pursuant to subsection (3)(b) or (c)—

(i) a notice of the furnishing to the Board of, as appropriate, the further information referred to in paragraph (a)(i) or the information or statement referred to in paragraph (a)(ii), and

(ii) a copy of that further information, information or statement, and to indicate to the authority that submissions or observations in relation to that further information, information or statement may be made to the Board before the expiration of a period (which shall be not less than 3 weeks) beginning on the day on which the notice is sent to the prescribed authority by the State authority.

181B.—(1) Before making a decision in respect of a proposed development the subject of an application under section 181A, the Board shall consider—

(a) the environmental impact statement submitted pursuant to section 181A(1) or (4), any submissions or observations made in accordance with section 181A(3) or (7) and any other information furnished in accordance with section 181A(4) relating to—

(i) the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the proposed development of such development, and

(ii) the likely effects on the environment of the proposed development,

and

(b) the report and any recommendations of a person conducting any oral hearing relating to the proposed development.

(2) The Board may, where it is satisfied that exceptional circumstances so warrant, grant an exemption in respect of proposed development from a requirement under section 181A(1) to prepare an environmental impact statement except that no exemption may be granted in respect of proposed development where another Member State of the European Communities or a state which is a party to the Transboundary Convention has indicated that it wishes to furnish views on the effects on the environment in that Member State or state of the proposed development.

(3) The Board shall, in granting an exemption under subsection (2), consider whether—

(a) the effects, if any, of the proposed development on the environment should be assessed in some other manner, and

(b) the information arising from such an assessment should be made available to the members of the public,

and it may apply such requirements regarding these matters in relation to the application for approval as it considers necessary or appropriate.

(4) The Minister for Defence may, in the case of proposed development in connection with, or for the purposes of, national defence, grant an exemption in respect of the development from a requirement under section 181A(1) to apply for approval and prepare an environmental impact statement if he or she is satisfied that the application of section 181A or 181C would have adverse effects on those purposes.

(5) Notice of any exemption granted under subsection (2) or (4), of the reasons for granting the exemption and, where appropriate, of any requirements applied under subsection (3) shall, as soon as may be—

(a) be published in Iris Oifigiúil and in at least one daily newspaper published in the State, and

(b) be given, together with a copy of the information, if any, made available to the members of the public in accordance with subsection (3), to the Commission of the European Communities.

(6) The Board may, in respect of an application under section 181A for approval of proposed development—

(a) approve the proposed development,

(b) make such modifications to the proposed development as it specifies in the approval and approve the proposed development as so modified,

(c) approve, in part only, the proposed development (with or without specified modifications of it of the foregoing kind), or

(d) refuse to approve the proposed development,

and may attach to an approval under paragraph (a), (b) or (c) such conditions as it considers appropriate.

(7) Without prejudice to the generality of the foregoing power to attach conditions, the Board may attach to an approval under subsection (6)(a), (b) or (c) a condition requiring—

(a) the construction or the financing, in whole or in part, of the construction of a facility, or

(b) the provision or the financing, in whole or in part, of the provision of a service,

in the area in which the proposed development would be situated, being a facility or service that, in the opinion of the Board, would constitute a gain to the community.

(8) A condition attached pursuant to subsection (7) shall not require such an amount of financial resources to be committed for the purposes of the condition being complied with as would substantially deprive the person in whose favour the approval under this section operates of the benefits likely to accrue from the grant of the approval.

(9) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of consultations under section 181C or applications for approval under section 181A.

(10) Without prejudice to the generality of subsection (9), regulations under that subsection may make provision for requiring the Board to give information in respect of its decision regarding the proposed development for which approval is sought.

(11) In considering under subsection (1) information furnished relating to the likely consequences for proper planning and sustainable development of a proposed development in the area in which it is proposed to situate such development, or on the environment, the Board shall have regard to—

(a) the provisions of the development plan for the area,

(b) the provisions of any special amenity area order relating to the area,

(c) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact,

(d) if the proposed development would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c), that fact,

(e) where relevant, the matters referred to in section 143, and

(f) the provisions of this Act and regulations under this Act where relevant.

(12) Regulations made under section 181(1)(b) shall not apply to any development which is approved under this section.

(13) Nothing in this section or section 181A or 181C shall require the disclosure by a State authority or the Board of details of the internal arrangements of a development which might prejudice the internal or external security of the development or facilitate any unauthorised entrance to, or exit from, the development of any person when it is completed.

(14) Without prejudice to the generality of section 18(a) of the Interpretation Act 2005, a reference, however expressed, in this section to the area in which the proposed development would be situated includes, if the context admits, a reference to the 2 or more areas in which the proposed development would be situated and cognate references shall be construed accordingly.

181C.—(1) A State authority (a ‘prospective applicant') which proposes to apply for approval under section 181B shall, before making the application, enter into consultations with the Board in relation to the proposed development.

(2) In any consultations under subsection (1), the Board may give advice to the prospective applicant regarding the proposed application and, in particular, regarding—

(a) the procedures involved in making the application, and

(b) what considerations, related to proper planning and sustainable development or the environment, may, in the opinion of the Board, have a bearing on its decision in relation to the application.

(3) A prospective applicant may request the Board—

(a) to make a determination of whether a development of a class specified in regulations made under section 181(1)(a) which it proposes to carry out or have carried out is likely to have significant effects on the environment in accordance with section 176 (and inform the applicant of the determination), or

(b) to give to the applicant an opinion in writing prepared by the Board on what information will be required to be contained in an environmental impact statement in relation to the proposed development.

(4) On receipt of such a request, the Board shall comply with it as soon as is practicable.

(5) A prospective applicant shall, for the purposes of—

(a) consultations under subsection (1), and

(b) the Board’s complying with a request under subsection (3),

supply to the Board sufficient information in relation to the proposed development so as to enable the Board to assess the proposed development.

(6) Neither—

(a) the holding of consultations under subsection (1), nor

(b) the provision of an opinion under subsection (3),

shall prejudice the performance by the Board of any other of its functions under this Act or regulations under this Act, or any other enactment and cannot be relied upon in the formal planning process or in legal proceedings.

(7) The Board shall keep a record in writing of any consultations under this section in relation to a proposed development, including the names of those who participated in the consultations, and a copy of such record shall be placed and kept with the documents to which any application in respect of the proposed development relates.".".

Amendment agreed to.

I move amendment No. 264:

In page 65, before section 30, to insert the following new section:

"32.—Section 215 of the Principal Act is amended by inserting the following subsections after subsection (2):

"(3) A road authority which proposes to submit a scheme under section 49 of the Roads Act 1993 or to make an application for approval under section 51 of that Act may, before making the submission or application, enter into consultations with the Board in relation to the proposed scheme or proposed road development.

(4) In any consultations under subsection (3), the Board may give advice to the authority regarding the proposed scheme or road development and, in particular, regarding—

(a) the procedures involved in submitting a scheme or making an application in respect of such a development and in considering such a scheme or application, and

(b) what considerations, related to proper planning and sustainable development,may,in the opinion of the Board, have a bearing on its decision in relation to the proposed scheme or road development.

(5) An authority shall, for the purposes of consultations under subsection (3), supply to the Board sufficient information in relation to the proposed scheme or road development so as to enable the Board to assess the scheme or development.

(6) The Board may, at its absolute discretion, consult with any person who may,in the opinion of the Board, have information which is relevant for the purposes of consultations under subsection (3) in relation to a proposed scheme or road development.

(7) The holding of consultations under subsection (3) shall not prejudice the performance by the Board of any other of its functions under this Act or transferred under this section or any regulations under this Act or the enactments referred to in subsection (1) and cannot be relied upon in the formal planning process or in legal proceedings.

(8) The Board shall keep a record in writing of any consultations under subsection (3) in relation to a proposed scheme or road development,including the names of those who participated in the consultations, and a copy of such record shall be placed and kept with the documents to which any scheme or application for approval of a road development subsequently submitted or made relates.".".

The purpose of this amendment is to apply some of the same procedural powers and requirements that the board will have for strategic infrastructural projects to CPOs generally and also to road and motorway projects. It will amend section 215 of the principal Act in regard to road and motorway projects. It proposes to allow for the power to seek information, including revised environmental impact statements, to hold meetings and to indicate that the board is disposed to granting permission subject to revised plans being submitted. It is further proposed to insert an additional section 217B to provide for the power to seek information and invite changes to a proposal. The language used is based on the related sections in the Bill, in particular, sections 37F and 182A(5) to (8).

Amendment No. 267 relates to CPOs. It will amend section 31 of the Bill to insert a new section 217A into the Act. Section 217A generally proposes to enable the board to seek information from any person on the CPO and hold meetings to resolve issues, particularly in advance of oral hearings. It effectively puts the entire system on a more coherent basis. There is a question regarding the application of compensation rules to substrata or sub-surface land, on which I am awaiting advice. I want to revisit this issue on Report Stage.

Are we dealing with section 30 or 31?

We are dealing with section 30.

I have one question. If this is not the appropriate time to raise it, I will accept it. Currently Bord Gáis does not require planning permission to put infrastructure in place. It has been brought to my attention that under section 30 it will now require planning permission. How does this section affect Bord Gáis?

That is not dealt with in this section. Section 182C provides for a consent process in respect of strategic gas infrastructure. I assume that is what the Deputy has in mind, that he is not talking about individual householders.

I am not happy with these amendments. A newmodus operandi is being written for new development. Major road schemes proposed by the National Roads Authority must go through a certain process, including a public inquiry that used to be ordered by the Minister but which is now done by An Bord Pleanála. Under this new procedure, deals will be done in private. If a road scheme is proposed, the National Roads Authority will talk to An Bord Pleanála privately and have pre-application or pre-consent consultations. An Bord Pleanála will inform the National Roads Authority that the scheme qualifies under the legislation and that it should provide an EIS. The authority will then consult An Bord Pleanála about what should be included in the EIS. The scheme will be submitted to An Bord Pleanála which will not be required under this legislation to hold an oral hearing on the application.

Many controversies regarding infrastructural development have centred on roads. Some of the difficulties related to the environment and the disturbance of the peace and quiet of people's lives. Others related to land acquisition but in all cases the problems were very real. However, there was a public process in which the difficulties could be ventilated. This legislation will result in everything being dealt with in private discussions between the National Roads Authority and An Bord Pleanála. There will not necessarily be a public inquiry and there will be no political accountability. We have come from a situation where 12 or 13 years ago road proposals were in the domain of the local authorities. They were then transferred to that of the Minister.

It would be helpful if I made a point. The Deputy may be labouring under a misapprehension. He is generally correct in saying this is cross-applying the procedures in the case of road and motorway schemes but it is not cross-applying the pre-application process. Roads authorities are planning authorities in their own right. The approach adopted elsewhere with regard to preliminary meetings is not being transferred.

The amendment states: "A road authority which proposes to submit a scheme under section 49 of the Roads Act 1993 or to make an application for approval under section 51 of that Act may, before making the submission or application, enter into consultations with the Board in relation to the proposed scheme or proposed road development". What is that but pre-consultation?

I will examine the matter between now and Report Stage. I see the Deputy's point. There was previously a discussion of some sort at local level about roads issues. The Deputy is concerned that this will not now take place in the way it previously did.

My concern is——

I am trying to be helpful. I am not trying to catch the Deputy out or to be smart. His concern is that on the issue of roads previously there was at least some discussion at local level, that this will be obliterated by this process and that councillors will be excluded from it. Is that his concern?

Yes. There were two things that took place, discussion at local level and also a public inquiry. Under the old regime, when a motorway scheme was designed by the roads authority, it was sent to the Minister for approval and the Minister appointed an inspector to hold an inquiry. That power was transferred to An Bord Pleanála.

The Deputy is correct.

There is no longer a mandatory requirement to hold an oral hearing. There will not necessarily be a public hearing.

The Deputy's point has validity. It arises from amendment No. 264. As I do not want to close off any opportunity for local councillors to participate in the process, I will examine the matter between now and Report Stage. I will take the unusual step of withdrawing the amendment. If it does violence elsewhere, I may have to reintroduce it on Report Stage when we can discuss it in detail.

Amendment No. 267 is somewhat different. I do not believe it has the same impact in that it deals with CPOs. I want to avoid shutting out the opportunity for elected local authority members to have their say. I will take on board the Deputy's point in this regard and consider it overnight and will return to it on Report Stage, if necessary. If what I am now doing does general violence, the Deputy will appreciate I am not in any way trying to delude or trick him. I will not press the amendment today but, if required, will do so on Report Stage on which we can debate it. However, I will not withdraw amendment No. 267 which deals with CPOs and does not raise the same issue.

Amendment, by leave, withdrawn.
SECTION 30.

Amendments Nos. 265, 266, 269, 271, 273, 274 and 276 to 279, inclusive, are related. Amendment No. 270 is an alternative to amendment No. 269. They may all be discussed together.

I move amendment No. 265:

In page 66, line 1, to delete "section is" and substitute "sections are".

Amendment No. 266 will amend the Planning and Development Act by inserting a new section 215B and have the effect of transferring the Minister for Transport's legal functions in determining applications from the Dublin Airport Authority for CPOs under the provisions of the Air Navigation and Transport (Amendment) Act 1998. Effectively, it is a cross-transfer. I am making the amendment on the basis that the board is to become a determining body in respect of planning consents for strategic infrastructure at airports generally. Amendments Nos. 265, 270, 271, 273, 274 and 276 to 279, inclusive, are consequential.

I am not in a position to accept amendment No. 269, proposed by Deputy O'Dowd, because it would remove the provision that gives the board absolute discretion to hold oral hearings on CPOs. I have mentioned this elsewhere and do not want to labour the point, nor do I want to fetter the board unduly. The Deputy has kindly withdrawn or not moved similar amendments.

Amendment agreed to.

I move amendment No. 266:

In page 66, between lines 36 and 37, to insert the following new section:

"215B.—(1) The functions of the Minister for Transport under section 17 of, and the Second Schedule to, the Air Navigation and Transport (Amendment) Act 1998, as amended, in relation to the compulsory acquisition of land for the purposes set out in section 18 of that Act, are transferred to, and vested in, the Board, and relevant references in that Act to the Minister for Transport shall be construed as references to the Board and any connected references shall be construed accordingly.

(2) The transfer of the functions of the Minister for Transport in relation to the compulsory acquisition of land in accordance with subsection (1) shall include the transfer of all necessary ancillary powers in relation to substrata of land, easements, rights over land (including wayleaves and public rights of way), rights over land or water or other such functions as may be necessary in order to ensure that the Board can fully carry out its functions in relation to the enactments referred to in subsection (1).".".

Many functions held by Ministers are being transferred to An Bord Pleanála and there will be no political accountability for any of them hereafter. In the case in question, the functions of the Minister for Transport regarding airport development are to be transferred. What will Ministers have to do other than have their photograph taken at openings and functions? In the lifetime of the Government we have seen the most dramatic transfer of Executive functions from Ministers to bodies such as An Bord Pleanála, the Health Service Executive, the Irish Aviation Authority, etc., and there is no accountability for any of the decisions pertaining thereto.

The further development of Dublin Airport will be a political issue at the next general election. We are being told a head of steam is building up in some north Dublin constituencies regarding its prospective development. Political parties, Deputies and election candidates are rightly being lobbied about the issue but it is now proposed, at a stroke, to transfer the functions regarding its development to An Bord Pleanála. Everyone in political circles will be telling people what they want to hear, safe in the knowledge that no Government will have to make a decision on the matter. Responsibility will transfer to An Bord Pleanála; everyone will criticise it and nobody will take responsibility.

The provision does not refer to the planning aspects, responsibility for which already rests with An Bord Pleanála. We could have a very interesting discussion on quangos and I suspect my views would be even more extreme than those of the Deputy. However, I will return to this issue on another day.

This section deals with CPOs which I believe should be taken out of political hands. We have done this in a series of areas and it is generally agreed that CPOs should not be determined solely by a political figure. It is proper that they should be determined in a manner that is not potentially political. I am not saying Ministers of any Administration have abused their powers regarding CPOs.

Some years ago a Dutch sociologist wrote an extraordinary book on the political culture in Ireland in which he stated everybody in the country believed life was a zero-sum game, such that one could not win without others losing. He contended there was no concept of win-win or general benefits for all. There is a lot of truth in this.

The provision is not determining the general planning process but the CPO issue. We would probably agree that, of the range of issues involved, this should not be within the political gift. The changes being made in regard to Dublin Airport have been welcomed elsewhere. The general issue of planning at the airport is already determined by An Bord Pleanála.

I have a general philosophical problem with quangos. As I said recently, I got into difficulty in this regard in respect of fire services. The Deputy's general philosophical point that political decisions should appropriately lie with politicians at local or national level, with which I agree, does not apply in this case. I have queried academically many of the decisions made in non-commercial State-sponsored bodies and their assumption of responsibility for the functions of sections of Departments during the years.

Will the Minister for Transport have any function regarding Dublin Airport?

The Minister has responsibility for general policies on airport development and will still retain responsibility for general funding and capital injections made available to the airport. The Dáil would have control over these issues.

I probably agree in general with many of the philosophical points the Deputy is making but the issue of CPOs should be depoliticised. This matter is analogous to that concerning planning appeals which were depoliticised in the 1970s for very good reasons. Politically, they were extremely burdensome for any officeholder. The late Jim Tully would have been the last Minister who had responsibility for planning and he made decisions on the last applicable day of the planning regime that obtained before the legislation of 1976. He and other Ministers and Ministers of State who were in office before him told me they faced the problem of having to examine sites. As politicians, they knew that no matter what decision they made, it would be regarded as politically tainted by opponents. It was right to remove that matter from the political arena. This is similar because it deals with the CPO aspects. If a politician is making a decision and he or she is as white as driven snow and possesses the wisdom of Solomon, someone somewhere will inevitably say, "We know what happened there."

Absolutely.

I concede the argument.

Deputy Gilmore should not worry. He has had several successes.

Amendment agreed to.
Section 30, as amended, agreed to.
SECTION 31.

I move amendment No. 267:

In page 66, to delete lines 37 to 47 and substitute the following:

"31.—The following sections are inserted after section 217 of the Principal Act:

"217A.—(1) The Board may, in respect of any of the functions transferred under this Part concerning the confirming or otherwise of any compulsory acquisition, at its absolute discretion and at any time before making a decision in respect of the matter—

(a) request submissions or observations from any person who may, in the opinion of the Board, have information which is relevant to its decision concerning the confirming or otherwise of such compulsory acquisition (and may have regard to any submission or observation so made in the making of its decision), or

(b) hold meetings with the local authority, or in the case of section 215A the person who applied for the acquisition order, or any other person where it appears to the Board to be necessary or expedient for the purpose of—

(i) making a decision concerning the confirming or otherwise of such compulsory acquisition, or

(ii) resolving any issue with the local authority or the applicant, as may be appropriate, or any disagreement between the authority or the applicant, as may be appropriate, and any other person, including resolving any issue or disagreement in advance of an oral hearing.

(2) Where the Board holds a meeting in accordance with subsection (1)(b), it shall keep a written record of the meeting and make that record available for inspection.

(3) The Board, or an employee of the Board duly authorised by the Board, may appoint any person to hold a meeting referred to in subsection (1)(b).

217B.—(1) The Board may, at its absolute discretion and at any time before making a decision on a scheme or proposed road development referred to in section 215(3)—

(a) request further submissions or observations from any person who made submissions or observations in relation to the scheme or proposed road development, or any other person who may, in the opinion of the Board, have information which is relevant to its decision on the scheme or proposed road development, or

(b) hold meetings with the road authority or any other person where it appears to the Board to be necessary or expedient for the purpose of—

(i) making a decision on the scheme or proposed road development, or

(ii) resolving any issue with the road authority or any disagreement between the authority and any other person, including resolving any issue or disagreement in advance of an oral hearing.

(2) Where the Board holds a meeting in accordance with subsection (1)(b), it shall keep a written record of the meeting and make that record available for inspection.

(3) The Board, or an employee of the Board duly authorised by the Board, may appoint any person to hold a meeting referred to in subsection (1)(b).

(4) The Board may—

(a) if it considers it necessary to do so, require a road authority that has submitted a scheme under section 49 of the Roads Act 1993 or made an application for approval under section 51 of that Act to furnish to the Board such further information in relation to—

(i) the effects on the environment of the proposed scheme or road development, or

(ii) the consequences for proper planning and sustainable development in the area or areas in which it is proposed to situate the said scheme or road development of such scheme or road development, as the Board may specify, or

(b) if it is provisionally of the view that it would be appropriate to approve the scheme or proposed road development were certain alterations (specified in the notification referred to in this paragraph) to be made to the terms of it, notify the road authority that it is of that view and invite the authority to make to the terms of the scheme or proposed road development alterations specified in the notification and, if the authority makes those alterations, to furnish to it such information (if any) as it may specify in relation to the scheme or road development, in the terms as so altered, or, where necessary, a revised environmental impact statement in respect of it.

(5) If a road authority makes the alterations to the terms of the scheme or proposed road development specified in a notification given to it under subsection (4), the terms of the scheme or road development as so altered shall be deemed to be the scheme or proposed road development for the purposes of sections 49, 50 and 51 of the Roads Act 1993.

(6) The Board shall—

(a) where it considers that any further information received pursuant to a requirement made under subsection (4)(a) contains significant additional data relating to—

(i) the likely effects on the environment of the scheme or proposed road development, and

(ii) the likely consequences for proper planning and sustainable development in the area or areas in which it is proposed to situate the said scheme or road development of such scheme or road development,

or

(b) where the road authority has made the alterations to the terms of the proposed development specified in a notification given to it under subsection (4)(b), require the authority to do the things referred to in subsection (7).

(7) The things which a road authority shall be required to do as aforesaid are—

(a) to publish in one or more newspapers circulating in the area or areas in which the development to which the scheme relates or, as the case may be, the proposed road development would be situate a notice stating that, as appropriate—

(i) further information in relation to the scheme or proposed road development has been furnished to the Board, or

(ii) the road authority has, pursuant to an invitation of the Board, made alterations to the terms of the scheme or proposed road development (and the nature of those alterations shall be indicated) and, if it be the case, that information in relation to the terms of the scheme or road development as so altered or a revised environmental impact statement in respect of the scheme or development has been furnished to the Board, indicating the times at which, the period (which shall not be less than 3 weeks) during which and the place,or places, where a copy of the information or the environmental impact statement referred to in subparagraph (i) or (ii) may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy) and that submissions or observations in relation to that information or statement may be made to the Board before the expiration of the indicated period, and

(b) to send to each body or prescribed authority to which a notice was given pursuant to section 51(3)(b) or (c) of the Roads Act 1993—

(i) a notice of the furnishing to the Board of, as appropriate, the further information referred to in paragraph (a)(i) or the information or statement referred to in paragraph (a)(ii), and

(ii) a copy of that further information, information or statement, and to indicate to the body or authority that submissions or observations in relation to that further information, information or statement may be made to the Board before the expiration of a period (which shall be not less than 3 weeks) beginning on the day on which the notice is sent to the prescribed authority by the road authority.

(8) The Board shall, in making its decision in respect of a scheme or proposed road development, have regard to any information submitted on foot of a notice under subsection (4), including any revised environmental impact statement or any submissions or observations made on foot of a request under subsection (1) or a notice under subsection (7).

217C.—(1) Notwithstanding any provision of any of the enactments referred to in section 214, 215A or 215B concerning the confirming or otherwise of any compulsory acquisition, the Board shall, in relation to any of the functions transferred under this Part respecting those matters, have the power to confirm a compulsory acquisition or any part thereof, with or without conditions or modifications, or to annul an acquisition or any part thereof.".

This is the amendment I was not withdrawing. It deals with CPOs.

Amendment agreed to.

I move amendment No. 268:

In page 67, line 7, after "of" to insert "the".

This is simply a drafting amendment.

Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.
Amendment No. 269 not moved.

Amendment No. 270, in the name of the Minister, was discussed with amendment No. 265.

I move amendment No. 270:

In page 67, paragraph (a), line 31 to delete “section 214, 215 or 215A” and substitute “section 214, 215, 215A or 215B”.

Amendment agreed to.

Amendment No. 271, in the name of the Minister, was also discussed with amendment No. 265.

I move amendment No. 271:

In page 67, paragraph (b), line 38, to delete ““sections 214, 215 and 215A”” and substitute ““sections 214 to 215B””.

Amendment agreed to.

Amendment No. 272, in the name of the Minister, was discussed with amendment No. 11.

I move amendment No. 272:

In page 67, paragraph (b), to delete line 39 and substitute “for “sections 214 and 215”.”.

I remind the committee that this is purely a drafting issue, a formula.

Amendment agreed to.
Question proposed: "That section 32, as amended, stand part of the Bill."

Is the section agreed?

We had a debate earlier on the issue of the holding of mandatory oral hearings. I do not wish to repeat what I said but to formally record my opposition to the section.

Question put and declared carried.
SECTION 33.

Amendment No. 273, in the name of the Minister, was discussed with amendment No. 265.

I move amendment No. 273:

In page 67, line 44, to delete "section 214, 215 or 215A" and substitute "section 214, 215, 215A or 215B".

Amendment agreed to.

Amendment No. 274, in the name of the Minister, was also discussed with amendment No. 265.

I move amendment No. 274:

In page 67, line 47, after "215A" to insert "or 215B".

Again, this has to do with CPOs.

Amendment agreed to.
Amendment No. 275 not moved.
Section 33, as amended, agreed to.
SECTION 34.

Amendment No. 276, in the name of the Minister, was discussed with amendment No. 265.

I move amendment No. 276:

In page 68, paragraph (a), lines 37 and 38, to delete ““section 214, 215 or 215A”” and substitute ““section 214, 215, 215A or 215B””.

Amendment agreed to.

Amendment No. 277, in the name of the Minister, was also discussed with amendment No. 265.

I move amendment No. 277:

In page 68, paragraph (b), lines 39 and 40, to delete ““section 214, 215 or 215A”” and substitute ““section 214, 215, 215A or 215B””.

Amendment agreed to.
Section 34, as amended, agreed to.
SECTION 35.

Amendment No. 278, in the name of the Minister, was discussed with amendment No. 265.

I move amendment No. 278:

In page 68, paragraph (a), line 42, to delete “section 214, 215 or 215A” and substitute “section 214, 215, 215A or 215B”.

Amendment agreed to.

Amendment No. 279, in the name of the Minister, was also discussed with amendment No. 265.

I move amendment No. 279:

In page 68, paragraph (b), lines 46, to delete “section 214, 215 or 215A” and substitute “section 214, 215, 215A or 215B”.

Amendment agreed to.
Section 35, as amended, agreed to.
NEW SECTION.

Amendment No. 280 is in the name of the Minister. Amendments Nos. 281 and 282 are related. Amendments Nos. 280 to 282, inclusive, will be discussed together. Is that agreed? Agreed.

I move amendment No. 280:

In page 68, before section 36, to insert the following new section:

"36.—Section 226 of the Principal Act is amended—

(a) by substituting the following subsection for subsection (2):

"(2) (a) The Board may approve, approve subject to conditions, or refuse to approve a proposed development.

(b) Without prejudice to the generality of paragraph (a), the Board may attach to an approval under this section conditions for or in connection with the protection of the marine environment (including the protection of fisheries) or, if the subject of a recommendation by the Minister for Transport to the Board with regard to the exercise of the power under this subsection in the particular case (which recommendation that Minister of the Government may, by virtue of this subsection, make), the safety of navigation.”,

(b) by substituting the following subsection for subsection (6):

"(6) (a) In the following case:

(i) the local authority concerned, if it is of the opinion that the development concerned would be likely to have significant effects on the environment, shall refer; or

(ii) the Minister for Communications, Marine and Natural Resources may refer; to the Board for its determination the question of whether the following development would be likely to have significant effects on the environment.

(b) That case is one of development that is identified for the purposes of section 176 (other than development falling within a class of development identified for the purposes of that section) and which is proposed to be carried out wholly or partly on the foreshore—

(i) by a local authority that is a planning authority, whether in its capacity as a planning authority or otherwise, or

(ii) by some other person on behalf of, or jointly or in partnership with a local authority that is a planning authority, pursuant to an agreement entered into by that authority, whether in its capacity as a planning authority or otherwise.

(c) Where required by the Board, the local authority or the Minister for Communications, Marine and Natural Resources shall provide to the Board such information as may be specified by the Board in respect of the effects on the environment of the proposed development, the subject of the question referred to it under this subsection.

(7) (a) The Board shall consider and determine the question referred to it under subsection (6) and, where it determines that the development concerned would be likely to have significant effects on the environment, it shall—

(i) notify the local authority concerned (and, where the question has been referred by the Minister for Communications, Marine and Natural Resources, that Minister of the Government) that it has determined that the development would be likely to have those effects, and

(ii) specify, in that notification, that any application by the local authority concerned for approval under subsection (1) in respect of the development shall be accompanied by an environmental impact statement prepared or caused to be prepared by the authority in respect of the development, and, where that notification so specifies, any such application shall be accompanied by such a statement accordingly.

(b) In making that determination, the Board shall have regard to the criteria for the purposes of determining which classes of development are likely to have significant effects on the environment set out in any regulations made under section 176.

(c) Notwithstanding any other enactment, the determination of the Board of a question referred to it under subsection (6) shall be final.

(8) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister, after consultation with the Minister for Communications, Marine and Natural Resources, to be necessary or expedient in respect of referring a question under subsection (6) or of making a determination under subsection (7).

(9) This section shall apply to proposed development—

(a) that, if carried out wholly within the functional area of a local authority that is a planning authority, would be subject to the provisions of section 175,

(b) that a local authority has been notified under paragraph (a)(i) of subsection (7) is one which the Board has determined under that subsection would be likely to have significant effects on the environment, or

(c) that is prescribed for the purposes of this section.”.”.

These are technical amendments which touch on the issue of the foreshore. They amend sections 226, 227 and 228, respectively, of the principal Act and relate to approvals for local authority developments on the foreshore and related CPOs. They are intended to improve and clarify the existing system. I do not believe they are controversial.

Deputies will recall that in Part 15 of the 2000 Act the board was given powers to grant approvals for major local authority developments and CPOs that crossed onto the foreshore. They do not need to be major developments either. Increasingly, for example, foreshore issues arise as regards relatively small sewerage schemes. In these cases a separate application does not have to be made for a foreshore licence to the Department of Communications, Marine and Natural Resources.

In summary, the amendments I am proposing will provide for powers for the board to attach conditions to a local development requiring an environment impact assessment, EIA; the possibility of an EIS where a sub-threshold local authority development is proposed for the foreshore and the deletion of section 229A of the Act. These are highly technical measures. I can deal with matters further, if Deputies wish.

This is a highly technical area but one that gives rise to very considerable concerns at local level when talking about developments on the foreshore. The old arrangement, as I understood it, was that, first, planning permission was required for physical development and, second, a foreshore licence for that part of the development in the water. It is proposed to replace that arrangement with a single permission, whereby the board will be able to attach conditions relating to the foreshore issues. Where a local authority carries out the development, the matter will be referred directly to the board. That is my understanding. Is that correct?

This is, in fact, mending existing sections which deal, as the Deputy has said, with the foreshore. The difference is that amendment No. 280 is intended to provide specifically that the board can attach conditions, something not provided for in the existing arrangement. It is not creating a new arrangement but clarifying what the powers of the board arevis-à-vis the existing position. In the case of the amendment to section 226 of the principal Act, it does not change this. Rather it extends it in a way, but it gives the power to the board to attach conditions to a local authority development that requires an EIA or crosses onto the foreshore.

In practical terms, how will the amendments affect the Greystones marina?

That issue will not arise under this arrangement. That project is going through the planning process currently in place. It would arise, however, were An Bord Pleanála to think there should be some protection for fisheries. I will not go into detail but there is an issue in respect of the west coast, where a need for sewage treatment exists. The failure to install treatment facilities there is having a detrimental impact, not on fish-farming but on offshore fisheries and molluscs.

Although this matter will not touch on that directly, since it will be too small, depending on the funding arrangements, it will provide that the protection of the marine environment, if it is a matter of concern to the board, could include the protection of fisheries and deal with issues such as navigational safety. It is not mentioned in my notes but I suspect that it could also deal with marine heritage. I refer, for example, to an historic wreck.

It is prudent to allow the board to attach conditions because those arrangements were not in place. The board may have felt that it could have done so, but it had no specific authorisation. I could not imagine a situation where, if the board attached conditions, there would be a challenge. However, one could find oneself dealing with a litigious or cantankerous local authority that thought itself the better arbiter of the public good. This provision gives the board powers to attach conditions. It is a good and empowering provision and it will allow conditions to be attached where the existing law does not allow specific insertions.

What would be the position as regards an offshore wind farm?

Such a wind farm would be off shore. The foreshore is that space between the low and high tides, which is relatively confined. I am informed that it is unlikely that local authorities would build such wind farms.

What if someone else were developing such a farm?

There would have to be a recognition that they were part of the consent process. An offshore wind farm will not affect the foreshore. The departmental adviser is giving me advice with which I do not agree. Foreshore licensing does not arise in respect of an offshore farm, which is outside the area normally regarded as foreshore. I administered the Foreshore Act 1933 for a short and inglorious period when I worked in the Department of Transport and Power. I am informed by one of my officials that I am wrong because, when I was not paying attention last year, the Foreshore Act was sneakily amended so that it now extends further. The issue of planning then arises. From where does planning consent come? If one is not issued with a foreshore licence, one must ask what would be the position regarding, for example, planning consent in respect of a large wind farm project off the Kish Bank.

This matter is infinitely more complex than when I worked as an executive officer in the Department of Transport and Power many years ago. For installations far offshore, because of the extension of the foreshore in last year's amending legislation, one will require a foreshore licence. Planning permission will arise because the plans stretch from the sea inland. The Deputy asked whether that would arise under the Bill. The answer is that, depending on the issue, it would do so. Would it be encompassed by the Bill? If someone decides to build a 250 MW wind farm on the Kish Bank off Dún Laoghaire, the question is how planning permission should be handled. Is that what the Deputy is asking?

In effect, yes.

Only a foreshore licence is needed in that case and it would not be affected by this legislation. I was of the opinion that the foreshore is the area between high and low tide. However, it is apparently the distance between high tide and the territorial limit, meaning that it has been extended significantly but not by this legislation.

Speaking as someone who represents a coastal constituency, that is good to know.

Amendment agreed to.

I move amendment No. 281:

In page 68, before section 36, to insert the following new section:

"37.—Section 227 of the Principal Act is amended—

(a) in subsection (5), by substituting “Minister for Communications, Marine and Natural Resources and the Minister for Transport” for “Minister for the Marine and Natural Resources”,

(b) by substituting the following subsection for subsection (8):

"(8) (a) Subject to paragraph (b), the Foreshore Acts 1933 to 2005 shall not apply in relation to any application to the Board under section 226, or matters to which subsection (5)(b) applies or a scheme submitted under section 49 of the Roads Act 1993.

(b) In any case where a local authority that is a planning authority applies for an approval for proposed development under section 226 or has been granted such an approval by the Board, but has not sought the compulsory acquisition of any foreshore on which the proposed development would be carried out under an enactment specified in section 214, the authority may apply for a lease or licence under section 2 or 3 of the Foreshore Act 1933 in respect of that proposed development; in such cases, it shall not, notwithstanding the provisions of any other enactment, be necessary for—

(i) the local authority to submit an environmental impact statement in connection with its application for such lease or licence, or

(ii) the Minister for Communications, Marine and Natural Resources to consider the likely effects on the environment of the proposed development.",

and

(c) by deleting subsection (9).”.

Amendment agreed to.

I move amendment No. 282:

In page 68, before section 36, to insert the following new section:

"38.—Section 228 of the Principal Act is amended by adding the following subsection:

"(5) No licence shall be required under the Foreshore Act 1933 in respect of any such entry or any site investigations carried out in accordance with this section.".".

Had Deputy Gilmore asked his earlier question at this stage, I would have been able to answer it more clearly. This amendment clarifies the position in respect of the foreshore.

Amendment agreed to.
Sections 36 and 37 agreed to.
SECTION 38.

I move amendment No. 283:

In page 69, to delete lines 13 to 15 and substitute the following:

"38.—The Transport (Railway Infrastructure) Act 2001 is amended—

(a) in section 2—

(i) in the definition of "environmental impact statement", by substituting "section 37(3)(e)” for “section 37(2)(d)”,

(ii) by inserting after the definition of "planning authority" the following definition:

"‘prescribed', in Part 3, means prescribed by regulations made by the Minister for the Environment, Heritage and Local Government;", and

(iii) in the definition of "railway undertaking", by substituting "section 43(5)" for "section 43(6)", and

(b) by substituting the following sections for sections 37 to 47 (as amended by the Railway Safety Act 2005):”.

This amendment deals with rail infrastructure. It is a relatively minor amendment to the sections of the Transport (Railway Infrastructure) Act 2001. Its intention is to ensure that all sections reflect the revisions proposed in this Bill. Subparagraphs (i) and (ii) alter references to the Transport (Railway Infrastructure) Act 2001 to reflect numbering changes. The latter ensures that it is clear that the Minister for the Environment, Heritage and Local Government, as opposed to the Minister for Transport, is the regulatory power in respect of orders going before the board. The amendment is purely technical.

Amendment agreed to.

I move amendment No. 284:

In page 70, line 32, to delete "date" and substitute "data".

Amendment agreed to.
Amendment No. 285 not moved.

I move amendment No. 286:

In page 72, line 54, to delete "and".

Amendment agreed to.

I move amendment No. 287:

In page 73, line 6, to delete "copy or extract" and substitute the following:

"copy or extract, and

(v) stating, if it be the case, that the proposed railway works are likely to have significant effects on the environment in Northern Ireland,".

Amendment agreed to.

I move amendment No. 288:

In page 73, line 14, to delete "and".

Amendment agreed to.

I move amendment No. 289:

In page 73, line 20, to delete "referred to in the draft order." and substitute the following:

"referred to in the draft order, and

(e) in a case where—

(i) the proposed railway works are likely to have significant effects on the environment in Northern Ireland, or

(ii) the authority referred to subsequently in this paragraph requests that such a copy be so sent to it, send a copy of the environmental impact statement to the prescribed authority in Northern Ireland, together with a notice, in such form as may be prescribed, stating that an application for approval of the said works has been made and that submissions may be made in writing to the Board (during the period specified in the notice referred to in subsection (1)(b)) in relation to the likely effects on the environment of the said works.”.

Amendment agreed to.

I move amendment No. 290:

In page 73, between lines 34 and 35, to insert the following:

"(4) Where the environmental impact statement and a notice referred to in subsection (1)(e) has been sent to the prescribed authority in Northern Ireland pursuant to that provision, the Agency, CIE, or the Board, in the case of any other applicant, as appropriate, shall enter into consultations with that authority regarding the potential effects on the environment of the proposed railway works and the measures envisaged to reduce or eliminate such effects.”.

Amendment agreed to.

I move amendment No. 291:

In page 74, to delete lines 53 to 55 and substitute the following:

"(1) The Board may, in its absolute discretion, hold an oral hearing into an application for a railway order, but shall hold such an oral hearing where—

(a) the order involves or includes the compulsory acquisition of land, and

(b) the owner of such land requests that an oral hearing be held.”.

Amendment put and declared lost.

I move amendment No. 292:

In page 75, to delete lines 18 to 20 and substitute the following:

"(e) any submission duly made to it by an authority referred to in section 40(1)(c) or (e);”.

Amendment agreed to.

I move amendment No. 293:

In page 75, to delete lines 22 and 23 and substitute the following:

"under section 41;

(g) the likely consequences for proper planning and sustainable development in the area in which it is proposed to carry out the railway works and for the environment of such works; and

(h) the matters referred to in section 143”.

Amendment agreed to.

I move amendment No. 294:

In page 75, to delete lines 38 to 46 and substitute the following:

"(3) (a) As soon as may be after the making of a railway order, the Board shall—

(i) publish a notice in at least 2 newspapers circulating in the area to which the order relates of the making of the railway order and of the places where, the period during which and the times at which copies thereof and any plan referred to therein may be inspected or purchased at a cost not exceeding the reasonable cost of making such copies, and

(ii) give notice to the prescribed authority in Northern Ireland of its decision in a case where a copy of the environmental statement has been sent to that authority in accordance with section 40(1)(e).

(b) A notice referred to in paragraph (a) shall state—

(i) the content and nature of the Board's decision including any conditions attached thereto,

(ii) that, in deciding whether to grant a railway order, the Board has had regard to the matters referred to in subsection 43(1), and

(iii) a description where necessary of the main measures to avoid any adverse effects of the proposed railway works.".

Amendment agreed to.

Amendments Nos. 295 to 299, inclusive, and 303 will be taken together by agreement.

I move amendment No. 295:

In page 76, to delete line 47, to delete "The" and substitute "Notwithstanding section 47(1), the".

These amendments relate to railway infrastructure and railway orders. They are relatively minor amendments to the new section 43(8) being inserted into the Transport (Railway Infrastructure) Act 2001, which currently provides that a railway undertaking can appeal the decision of the board to revoke a railway order under powers conferred in the new section 43(6). Amendment No. 295 clarifies that this is notwithstanding the judicial review available under the new section 47(1) in respect of other decisions of the board with regard to railway orders.

Amendment No. 296 clarifies that the appeal referred to relates only to the revocation of railway orders and not to other provisions of the section.

Amendment No. 297 seeks to correct an error made on Report Stage in the Seanad. Senator Bannon used a great deal of charm on me on a number of occasions and made a very valuable contribution to the debate. I took on board a number of his amendments, which, on the whole, were constructive and well considered. However, one particular amendment with which I did not agree found its way into the Bill. I must have been nodding while the Senator was being mellifluous. I am now removing that provision.

Is the Minister removing the change made by the insertion of Senator Bannon's amendment?

Yes. My officials brought the matter to my attention when we returned to the Department. I then decided that discretion was a better option than valour. I am compelled to table amendment No. 297 to restore the original wording to the Bill. It would not be appropriate to include a reference to the Minister for the Environment, Heritage and Local Government and the board as proposed in Senator Bannon's amendment. I do not believe either of us understood that at the time.

Amendment No. 298 seeks to require the Railway Procurement Agency or CIE to engage in bona fide reasonable efforts to acquire land by agreement before seeking compulsory purchase orders. I think we are all agreed this is what should happen.

Amendment No. 299 proposes that an eight-week period for the making of an application for leave to apply for a judicial review will begin on the date of the making of the railway order or the date on which a copy of the relevant extracts from the railway order and plan referred to therein were served on every owner-occupier of the land. I explained in the Seanad and elsewhere that it is sometimes incredibly difficult to locate owners of land and, as such, we must have a finite way to deal with these matters. This amendment seeks to do just that. The various amendments are largely technical in nature.

Amendment agreed to.

I move amendment No. 296:

In page 76, line 49, to delete "this section" and substitute "subsection (6)".

Amendment agreed to.

I move amendment No. 297:

In page 78 to delete lines 37 to 39 and substitute "the Board,".

Amendment agreed to.

I move amendment No. 298:

In page 78, between lines 45 and 46, to insert the following:

"(2) The Agency or CIE shall not acquire land compulsorily under this section without first engaging in bona fide reasonable efforts to acquire the land by agreement.".

I ask that the Minister accept this amendment, which is reasonable and self-explanatory.

I understand what the Deputy is trying to achieve, namely, thatforce majeure situations should not arise. I am assured by Department of Transport officials that CIE engages in bona fide efforts to acquire land because it is easier to go through the routes of negotiated acquisition than to take the CPO route. While I understand the point the Deputy is making, a problem arises in that inclusion of the words “bona fide reasonable efforts” could result in our being tied up in a great deal of litigation. We have an intuitive grasp of what constitutes bona fide efforts. Perhaps the Deputy will withdraw the amendment and resubmit it on Report Stage. In the meantime, I will investigate whether something can be done in this regard.

I will withdraw the amendment and resubmit it on Report Stage.

I will consider the matter further before Report Stage. There is strong advice against accepting this amendment because if it were included, the floodgates will open. However, I am seldom convinced by arguments relating to floodgates.

The provisions in this section will be used extensively in terms of future development, particularly in Dublin, in terms of railway development and the introduction of the metro. It is reasonable to provide that compulsory acquisition orders only be used after an attempt has been made to acquire land by agreement.

I concede that the Deputy makes a strong point. However, the counterpoint is that we are trying to standardise procedures. The insertion into the Bill of the words "bona fide reasonable efforts" would result in a non-standardised process. Decisions would then be determined by previous decisions. There is within any bureaucracy a propensity to make decisions by classification. The safest way to classify any decision process in a bureaucracy is to provide yes and no options. I will make a genuine effort to accommodate what the Deputy is attempting to achieve. If, however, there are compelling arguments regarding why this should not be done, I will oppose it on Report Stage.

Amendment, by leave, withdrawn.
Amendment No. 299 not moved.

I move amendment No. 300:

In page 80, to delete lines 26 to 32 and substitute the following:

"(2) An application for section 47 leave shall be made by motion on notice (grounded in the manner specified in the Order in respect of anex parte motion for leave) to the Board, to the applicant for the railway order, where he or she is not the applicant for leave, and to any other person specified for that purpose by order of the High Court, and the Court shall not grant section 47 leave unless it is satisfied that—”.

Amendment agreed to.

I move amendment No. 301:

In page 81, line 28, to delete "the High Court, that Court" and substitute "the Court, the Court".

Amendment agreed to.

I move amendment No. 302:

In page 81, line 31, to delete "court" and substitute "Court".

Amendment agreed to.
Section 38, as amended, agreed to.
NEW SECTIONS.

I move amendment No. 303:

In page 82, after line 27, to insert the following new section:

"39.—The Transport (Railway Infrastructure ) Act 2001 is further amended by inserting the following sections after section 47A (inserted bysection 38):

"47B.—(1) The Agency, CIE or any other person who proposes to apply for a railway order in accordance with section 37(1) shall, before making the application, enter into consultations with the Board in relation to the proposed railway works.

(2) Such a person is referred to subsequently in this section and in section 47C as a ‘prospective applicant'.

(3) In any consultations under subsection (1), the Board may give advice to the prospective applicant regarding the proposed application and, in particular, regarding—

(a) the procedures involved in making an application under this Part and in considering such an application, and

(b) what considerations, related to proper planning and sustainable development or the environment, may, in the opinion of the Board, have a bearing on its decision in relation to the application.

47C.—(1) A prospective applicant shall, for the purposes of consultations under section 47B, supply to the Board sufficient information in relation to the proposed railway works so as to enable the Board to assess those works.

(2) The Board may, at its absolute discretion, consult with any other person who may, in the opinion of the Board, have information which is relevant for the purposes of consultations under section 47B in relation to the proposed railway works.

(3) The holding of consultations under section 47B shall not prejudice the performance by the Board of any other of its functions under this Act or the Planning and Development Act 2000 or regulations under either of those Acts and cannot be relied upon in the formal planning process or in legal proceedings.

(4) The Board shall keep a record in writing of any consultations under section 47B in relation to proposed railway works, including the names of those who participated in the consultations, and a copy of such record shall be placed and kept with the documents to which any application in respect of the proposed railway works relates.

47D.—(1) Before determining an application for a railway order, the Board may, at its absolute discretion and at any time—

(a) request further submissions or observations from the applicant, any person who made submissions or observations in relation to the application or any other person who may, in the opinion of the Board, have information which is relevant to the determination of the application,

(b) without prejudice to section 41, make any information relating to the application available for inspection, notify any person or the public that the information is so available and, if it considers appropriate, invite further submissions or observations to be made to it within such period as it may specify, or

(c) hold meetings with the applicant or any other person where it appears to the Board to be necessary or expedient for the purpose of—

(i) determining the application, or

(ii) resolving any issue with the applicant or any disagreement between the applicant and any other party, including resolving any issue or disagreement in advance of an oral hearing.

(2) Where the Board holds a meeting in accordance with subsection (1)(c), it shall keep a written record of the meeting and make that record available for inspection.

(3) The Board, or an employee of the Board duly authorised by the Board, may appoint any person to hold a meeting referred to in subsection (1)(c).

(4) The Board may, if it is provisionally of the view that it would be appropriate to grant the railway order concerned were certain alterations (specified in the notification referred to in this subsection) to be made to the terms of the application in respect of it or the proposed order, notify the applicant that it is of that view and invite the applicant to make to the terms of the application or the proposed order alterations specified in the notification and, if the applicant makes those alterations, to furnish to it such information (if any) as it may specify in relation to the proposed application or order, in the terms as so altered, or, where necessary, a revised environmental impact statement in respect of it.

(5) If the applicant makes the alterations to the terms of the application or proposed order specified in a notification given to the applicant under subsection (4), the terms of the application or order as so altered shall be deemed to be the application or order for the purposes of this Part.

(6) The Board shall, where the applicant has made the alterations to the terms of the application or proposed order specified in a notification given to the applicant under subsection (4), require the applicant—

(a) to publish in one or more newspapers circulating in the area or areas in which the proposed railway works would be situate a notice stating that the applicant has, pursuant to an invitation of the Board, made alterations to the terms of the application or order (and the nature of those alterations shall be indicated) and, if it be the case, that information in relation to the terms of the application or order as so altered or a revised environmental impact statement in respect of the development has been furnished to the Board, indicating the times at which, the period (which shall not be less than 3 weeks) during which and the place, or places, where a copy of the information or the environmental impact statement may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy) and that submissions or observations in relation to that information or statement may be made to the Board before the expiration of the indicated period, and

(b) to send to the planning authority and each person to which a notice was served pursuant to section 40(1)(c) or (e), and to every (if any) occupier and every (if any) owner of land referred to in the order (being, if the terms of it have been so altered, the order as so altered)—

(i) a notice of the furnishing to the Board of the information or statement referred to in paragraph (a), and

(ii) a copy of that information or statement, and to indicate to that authority or other person that submissions or observations in relation to that information or statement may be made to the Board before the expiration of a period (which shall be not less than 3 weeks) beginning on the day on which the notice is sent to the authority or other person by the applicant.

(7) The Board shall, in deciding whether to grant the railway order to which the application concerned relates, have regard to any information submitted on foot of a notice under subsection (4), including any revised environmental impact statement, or any submissions or observations made on foot of a request under subsection (1) or a notice under subsection (6).

47E.—(1) It shall be the duty of the Board to ensure that—

(a) consultations held under section 47B are completed, and

(b) a decision under section 43 on an application for a railway order is made, as expeditiously as is consistent with proper planning and sustainable development and, for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the holding of those consultations or the making of that decision.

(2) Without prejudice to the generality of subsection (1) and subject to subsections (3) to (6), it shall be the objective of the Board to ensure that a decision under section 43 on an application for a railway order is made—

(a) within a period of 18 weeks beginning on the last day for making submissions or observations in accordance with the notice referred to in section 40(1)(b), or

(b) within such other period as the Minister for the Environment, Heritage and Local Government, having consulted with the Minister, may prescribe by regulations either generally or in respect of a particular class or classes of matter.

(3) Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of the matter with which the Board is concerned, to determine the matter within the period referred to in paragraph (a) or (b) of subsection (2) as the case may be, the Board shall, by notice in writing served on the applicant, the Minister, any planning authority involved and any other person who submitted submissions or observations in relation to the matter before the expiration of that period, inform the Minister, the authority and those persons of the reasons why it would not be possible or appropriate to determine the matter within that period and shall specify the date before which the Board intends that the matter shall be determined.

(4) Where a notice has been served under subsection (3), the Board shall take all such steps as are open to it to ensure that the matter is determined before the date specified in the notice.

(5) The Minister for the Environment, Heritage and Local Government, having consulted the Minister, may by regulations vary the period referred to in subsection (2)(a) either generally or in respect of a particular class or classes of applications for railway orders, where it appears to him or her to be necessary, by virtue of exceptional circumstances, to do so and, for so long as the regulations are in force, this section shall be construed and have effect in accordance therewith.

(6) Where the Minister for the Environment, Heritage and Local Government, having consulted with the Minister, considers it to be necessary or expedient that a certain class or classes of application for a railway order that are of special strategic, economic or social importance to the State be determined as expeditiously as is consistent with proper planning and sustainable development, he or she may give a direction to the Board that priority be given to the determination of applications of the class or classes concerned, and the Board shall comply with such a direction.

(7) The Board shall include in each report made under section 118 of the Planning and Development Act 2000 a statement of the number of matters which the Board has determined within a period referred to in paragraph (a) or (b) of subsection (2) and such other information as to the time taken to determine such matters as the Minister for the Environment, Heritage and Local Government may direct.

47F.—(1) References to the Minister in a railway order, being an order made before the amendment of this Act by thePlanning and Development (Strategic Infrastructure) Act 2006, shall be construed as references to the Board.

(2) Notwithstanding the amendments of this Act made by the Planning and Development (Strategic Infrastructure) Act 2006, any thing commenced under this Part but not completed before the commencement of those amendments may be carried on and completed after the commencement of those amendments as if those amendments had not been made.

(3) The reference in subsection (2) to any thing commenced under this Part includes a reference to—

(a) an application that has been made under section 37 (being that section in the terms as it stood before the commencement of the amendments referred to in that subsection),

(b) an application that has been made under subsection (7) of section 47 (being that section in the terms as it stood before the commencement of those amendments), and

(c) any step (including the holding of a public inquiry) that has been taken in the making of a decision in relation to an application referred to in paragraph (a) or (b) or any step that has been taken on foot of the making of such a decision.

(4) For the avoidance of doubt, any questioning, after the commencement of the amendments referred to in subsection (2), by the procedures of judicial review under the Order (within the meaning of section 47) of the validity of any thing referred to in subsection (2) completed after that commencement, or being carried on after that commencement, shall be done in accordance with the provisions of this Part as amended by thePlanning and Development (Strategic Infrastructure) Act 2006.”.”.

This amendment proposes the insertion of a number of new sections into the Transport (Rail Infrastructure) Act. I flagged my intention to introduce it on Second Stage.

What is the purpose of the amendment?

The intention is to amend the Transport (Railway Infrastructure) Act to bring the decision-making process for railways into line with the new strategic consent process contained in the Bill. This provision will ensure the provisions of this Bill encompass all we wish them to encompass. It is important to ensure that the board has the power to deliver the right decisions for local communities. For example, the powers to hold community games are transposed by this provision. I believe this is what Deputies would like to see happen.

Amendment agreed to.

I move amendment No. 304:

In page 82, after line 27, to insert the following new section:

"40.—(1) In this section "Act of 1993" means the Roads Act 1993.

(2) Section 48 of the Act of 1993 is amended—

(a) in paragraph (a)(ii), by substituting “(not being less than 6 weeks)” for “(which shall not be less than one month)”,

(b) in paragraph (a)(iii), by substituting “during such period” for “before a specified date (which shall be not less than two weeks after the end of the period for inspection)”, and

(c) in paragraph (b), by substituting the following subparagraph for subparagraph (iii):

"(iii) the period (which shall be that referred to in paragraph (a)(ii)) within which objections may be made in writing to the Minister in relation to the scheme.”.

(3) Section 51(3) of the Act of 1993 is amended—

(a) in paragraph (a)(iii), by substituting “(not being less than 6 weeks)” for “(which shall not be less than one month)”,

(b) in paragraph (a)(iv), by deleting “and”,

(c) in paragraph (a)(v), by substituting “during the period referred to in paragraph (a)(iii)” for “before a specified date (which shall be not less than two weeks after the end of the period for inspection)”,

(d) by inserting the following subparagraphs after subparagraph (v) of paragraph (a):

"(vi) where relevant, stating that the proposed road development is likely to have significant effects on the environment in Northern Ireland, and

(vii) specifying the types of decision the Minister may make, under section 51(6), in relation to the application;"

and

(e) in paragraph (b), by substituting “within a specified period (which shall be that referred to in paragraph (a)(iii))” for “before a specified date (which shall be not less than two weeks after the end of the period for inspection referred to in subsection (3)(a)(iii))”.”.

This amendment, which seeks the insertion of a new section into the Bill, provides for the making of certain amendments to the Roads Act 1993. It relates to the time period during which public notices regarding roads must be displayed. Under the 1993 Act, notices must be on display for a minimum of one month. People then have a further two weeks to make submissions on the road proposals. Under the Bill, it will become standard that road notices be displayed for at least six weeks. The information on the proposed development will, therefore, be available for the entire period during which the public can make submissions. This is a better system because it standardises the issue of timing. It was mentioned by several members that standardising the time for notices is a good development. It means that there will be no confusion. What we have done is increase the notice to six weeks to provide additional time.

Amendment agreed to.
TITLE.

Amendments Nos. 305 and 306 are related and will be discussed together.

I move amendment No. 305:

In page 5, lines 10 to 12, to delete all words from and including "CERTAIN" in line 10 down to and including "STATE" in line 12 and substitute the following:

"DEVELOPMENTS SO DETERMINED BY AN BORD PLEANÁLA TO BE DEFINED AS DEVELOPMENTS CONTRIBUTING TO THE STRATEGIC ECONOMIC, SOCIAL AND ENVIRONMENTAL IMPORTANCE TO THE STATE, AS SO LISTED IN SECTION SEVEN OF THE ACT".

In light of the importance of developments that will come within the scope of the legislation, it is important to provide certainty and greater clarity within the definition of the Act. To that end, it is of importance to emphasise strongly that developments encompassed by the legislation will be of strategic economic, social and environmental importance to the State rather than simply providing for certain proposed developments. The current definition is too open and more certainty is required. This should be brought down to the specific development categories listed in the new Seventh Schedule to the Act rather than leaving it open to interpretation or addition at a later stage.

I do not wish to be obstructive. However, I make the point from years of experience that the Long Title is not the appropriate place to do some of the things the Deputy is seeking to do. It would not be appropriate, and it certainly would not be the norm, to define strategic infrastructure in the Long Title in the way that is proposed. The effect of amendment No. 305 would be to narrow the Long Title. The wording of the Long Title is sufficiently clear. It more accurately reflects the content of the Bill than would the Deputy's amendment.

Amendment No. 306 would have an even more dire consequence. It seeks to omit the words "for certain other types of consent or approval and applications for planning permissions generally". That would impact on section 9, which amends section 35 of the 2000 Act and enables planning authorities to withhold planning permission from road developers. That seems to be something the Deputy does not wish to do. However, that is what the Deputy's amendment would inadvertently do. Like me and all Deputies who have spoken, he would be anxious that rogue developers should not have that type of latitude. What the Deputy seems to be saying is that it would be better if Long Titles were written in clearer, more crisp English. There is a variety of reasons we should not go down that route. I am not being bloody-minded in saying no. There are practical reasons why I cannot accept the amendments.

I appreciate what the Minister said. I am sure he is mindful of the fact that resources available to him are not available to me.

I fully appreciate that.

My point is that transparency and clarity are needed in interpreting the applicability of the Act to certain defined categories of development applications. I am concerned that the net might be spread too wide.

The Deputy's point is that we need more user-friendly language in the drafting of legislation. If it were provided, phalanxes of people who normally wear wigs and gowns would become unemployed.

We not only need that, we also need to ensure that the door is not opened so wide as to allow all sorts of matters we have not considered to slip through the net.

The Deputy will accept I am not being bloody-minded, but I cannot accept the amendment.

Amendment, by leave, withdrawn.
Amendment No. 306 not moved.
Question proposed: "That the Title be the Title to the Bill."

We had a discussion yesterday on nuclear power stations during which I made the point that the Electricity Regulation Act 1999 specifically precludes the generation in Ireland of electricity by nuclear power. When we were leaving this room last night, somebody — possibly the Chairman — said to me that it was a pity we could not put down a marker on this issue in the legislation. It is not traditional to take a belt and braces approach and the officials in my Department think that what I propose to do is slightly west of mad. However, I am of the view that it is a good idea to put down a political marker.

I was impressed by the debate. It is not that I believe there is any attempt to undermine the previous legislation. Everyone accepts that no such attempt is being made. However, in the context of what is happening in Europe, where a major debate is beginning on nuclear power and where many politicians who do not care about global warming have been bowled over by a very powerful and sinister lobby, I believe it is a good thing for the Oireachtas to record its views on an issue of this nature from time to time. I intend to do just that on Report Stage, although I know some people are blanching at the thought.

I intend to introduce an amendment which would capture the spirit of what was said here by making a cross-reference back to the previous legislation and to the spirit of that legislation. It will not be a substantial change but it will mean that this legislation will forever have to be read in the context of the previous legislation which reflected the unanimous view of the Oireachtas that regardless of whatever problems we face in respect of energy, the nuclear solution is not an option we will choose. It is appropriate that we should record this fact, which was unanimously expressed in the Oireachtas when the original legislation was enacted. It is in no way contentious and would represent the unanimous view of the Dáil.

I welcome that. It would address one of the objections that has been made to the Bill, namely, that it could allow for such a development in the future. It is important that the Minister reiterates in the legislation the unanimous view of the Oireachtas.

I wish to record in public that Deputy O'Dowd and I are completelyad idem on this issue. Deputy Stagg also referred to it. There is a pernicious debate going on, ostensibly in the interests of dealing with global warming. We all know that is not the reason for this debate. The incoming German Government has endorsed the decision by its predecessor to phase out the use of nuclear power by 2023. In the context of current debates, it is a good idea for the Oireachtas to record its view that nothing in this Bill can be construed as providing for the development of an installation for the use of nuclear fission for the generation of energy.

I do not have any objection to it. As the Minister stated, it is probably not necessary legally because it is covered by the electricity legislation in any event. In that sense, it is a political statement. The Bill repeats thede facto legal position. However, the Minister is partly causing a political distraction. This Bill will change the planning laws very dramatically and will introduce a new system for approvals and permissions in respect of many types of developments — from roads, incinerators and landfill sites to energy interconnectors and gas pipelines — but the Minister stated we need not be concerned in that regard because we are not going to build a nuclear power station. By all means, let us make the amendment, with which I agree, but we should note that the Minister is effecting a political distraction from the violence he is doing to planning in this legislation.

Oh, that one so young should be so cynical. The point——

It is not being cynical at all. I recognise codology when I see it.

If the Deputy believes that, I will not move the amendment. We had a very constructive debate. An issue arose as to whether there was game playing involved — I do not believe there was — and members explored whether we needed to make the amendment in question. I gave some consideration to the argument overnight and, on the basis that I believe it is a good idea for the Houses of the Oireachtas to make a statement on the matter, I will table the amendment. I made a series of telephone calls from Cavan today to say that it is a good idea to put down a marker.

I have no problem defending the Bill, which, although Deputy Gilmore and I have different views on it, is very progressive. However, to call it a cynical attempt to disarm his arguments is nonsense. The truth is that it is occasionally a good idea to make an expression such as that proposed. I am sorry that the Deputy has a negative view because I am offering an unusual vehicle and, as far as I know, it has never been used before to achieve a goal with which we all agree. Why should we disagree on it at all?

I just disagree with the substance of what the Minister is doing.

I apologise if I upset the Deputy.

I congratulate the Minister on his initiative and wholeheartedly support his proposal regarding nuclear power.

I would like to believe that the Minister was converted on the road to Damascus but I suspect he simply worked out which way the wind was blowing by putting his finger in the air. Let this not distract from the underlying purpose of the Bill. It is worth reflecting on the irony that we might well have had the legacy of a nuclear power station at Carnsore Point had legislation of this nature been enacted in the mid-1970s. This is because the ethos of the legislation is such that it allows the national interest and central government to override the views of local communities. The Bill will have an unfortunate and dangerous effect on the ability of local communities to make their views known on issues relating to archaeology, transportation, waste management, etc. Essentially, it will centralise decision-making.

My party is committed to devolving powers to local authorities and allowing them greater involvement in the governance of their jurisdictions. The trend internationally is to give local authorities more powers, be it through recent decisions in Spain giving Catalonia more power or through the actions of elected mayors in various cities throughout the world. The future will be based on devolving power rather than centralising it. I have deep-seated concerns regarding the thrust and impetus of the Bill.

I do not envisage another Second Stage debate on the Bill.

Question put and agreed to.
Bill reported with amendments.

I thank the Minister and his officials for attending today and previously. The committee is very grateful for the Minister's participation in the deliberations on Committee Stage of the Bill.

I concur with the Chairman and I thank him and the officials of the committee for courtesy shown to members.

I thank the Minister for spending so much time on the Bill, which has resulted in our having a more intensive debate than we might have had in his absence.

The debate has been constructive in that some of the Opposition's amendments have been taken on board. This is important because democracy is a two-way process. The ideas we have expressed have been taken on board in some instances.

I thank the Chairman, the officials and members on all sides who contributed really well to the debate on the Bill. I agree with Deputy O'Dowd in that I have never believed all wisdom resides in any one part of the House. Irrespective of whether I was in opposition or in government, I have always believed Deputies are elected so they can bring their combined wisdom to bear on matters. The changes we have made are good and I hope my not having made certain changes was not the result of bloody-mindedness or the view that the Government has better knowledge. As Deputy Cuffe stated, we have better resources available than the Opposition.

I assure Deputies that the last change I propose is novel. Normally, if such a provision is expressed in one Bill, it is not imported into another. My proposal was not made cynically but purely because I was convinced of the sincerity of the argument in its favour. Although there is no need to make the change, as Deputy Gilmore stated, it is right to propose it.

We have made better legislation than would have been the case if we had simply opposed every proposition. There are some matters with which we must deal overnight and before Report Stage. I shall give long consideration to the bona fide and reasonable issue to which Deputy Gilmore referred. I accept the spirit in which it was raised. I shall bead idem with him if the wording will stand that test and, in such circumstances, I will accept the amendment. This is not an attempt to avoid the issue. If it does not stand the test, I will reject it.

I also wish to thank Ms Oonagh Buckley, in particular, and Mr. Philip Nugent. Mr. Nugent has offered all the instructions in recent times. However, Ms Buckley and I have worked extraordinarily well on this Bill. It has been in gestation for a very long time, a period during which several Ministers held office. I believe the changes I have made in this Bill reflect my approach to the issue, which is to try to be as inclusive as possible. If members refer to the Long Title, they will agree that something must be done in respect of planning matters. I say to Deputy Cuffe that I do not intend to destroy what is a good planning system, but we must make it more appropriate to the times in which we live.

Finally, I thank Deputy O'Dowd who has been particularly positive. All Deputies have, in fact, been very positive.

The Minister was not present earlier.

I am grateful that I was not, but it would be very easy for Deputy O'Dowd, as the Fine Gael spokesman, to simply adopt an obstructionist view——

I would never do that. That is not my job.

——which is old-fashioned politics.

Even the Chairman agrees with me on that.

The Minister has had a calming influence on Deputy O'Dowd.

I hope it was calming, not soporific. Again, I thank everybody.

I thank the Minster for engaging with the committee in the way he did. It was much appreciated by all concerned.