I welcome members of the select committee. Today we commence Committee Stage of the Planning and Development Bill 2023. I welcome the Minister, Deputy Darragh O'Brien, and his officials and invite him to make his opening remarks.
Planning and Development Bill 2023: Committee Stage
I thank the Cathaoirleach and members of the committee. We will all be acutely aware of the significance of this Bill. It is one of the largest in the history of the State, running to over 700 pages and 541 sections. It is complex. It necessarily requires and includes multiple cross-references both internally and in relation to other regulations and legislation, which must be kept accurate and precise when any changes are made. It is 25 years since the last consolidated planning Bill, which came into the Dáil and Seanad in 1999.
We have a large number of amendments to deal with on Committee Stage, both from myself and committee members. I know we have had some commentary on that. I would like to thank committee members for their engagement with officials and indeed for the amendments they put forward. I would just like to point out in relation to the large number of amendments that a sizeable portion of them are technical and of a drafting nature. They simply seek to clarify language, improve that cross-referencing and ultimately make the legislation as user-friendly as possible for both the public and practitioners. Given the scale and complexity of the Bill, if a word is being amended for clarity this results in dozens of subsequent amendments to change it throughout the Bill to ensure the consistency of language and, really importantly, for absolute legal clarity.
The large number of amendments from Deputies is a testament to the importance of planning to us all but it is not, perhaps, surprising given the size of the Bill. Through the passage of this, I am sure it will be to the forefront of all our minds that the planning legislation we have in the State does need to be updated and modernised to ensure we can deliver the developments not just in housing but also the strategic developments and infrastructure that we need in a streamlined way, while keeping central the role of the general public and indeed third parties.
I see there are a number of themes in the amendments tabled by Deputies, particularly in relation to the Gaeltacht and Irish-language planning matters, and biodiversity and climate matters also. While these issues are already referenced in the Bill, my officials are reviewing them again to ensure they are appropriately referenced within a planning context and, if appropriate, I may bring forward amendments on Report Stage.
While some amendments brought forward by Deputies are of merit, I will need to consider these ones further in consultation with the Office of the Attorney General and, if appropriate, bring them forward as Report Stage amendments. Given the complex nature of the Bill and the significant interrelationship between its various sections, it is important to ensure they are appropriately drafted and do not cause any unintended consequences in any other areas of the Bill.
As I just mentioned, the purpose of the Bill is to provide a new and updated legislative framework for the proper spatial planning and sustainable development of our country, to operate at national, regional and local levels and ensure that the planning system functions to support and to regulate the development of both land-based and maritime-based development and infrastructure, while also enhancing our assets and amenities and preserving and improving the quality of the environment. It will replace the Planning and Development Act 2000, which has been in operation for more than two decades, as I just mentioned, and has become difficult for both the public and practitioners to navigate to its full potential due to the number of amendments that have happened in that time.
The planning landscape has also changed considerably over that period with the advent of the national planning framework as well as Ireland's obligation to a growing number of EU directives and environmental considerations. The Bill ensures that the planning system remains fit for purpose to meet the needs of future populations while maintaining the very careful balance that needs to be struck between public policy objectives, environmental considerations and, very importantly, the participation of the public in a transparent and fair system. It also ensures the national, regional and local tiers of planning maintain alignment and encourage debate and participation, particularly regarding the objectives of compact urban growth and environmental sustainability, and are more effectively focused on the plan-making stage rather than emerging at the later planning application stage. The introduction of statutory periods for decision-making for all consent processes, including for an coimisiún pleanála, will bring a certainty to consent processes for both the public and stakeholders involved in the delivery of key infrastructure such as housing and renewable energy.
The Bill provides mechanisms for the Government to make clear provisions for national planning policy, measures and guidance in the form of the national planning framework and national planning statements, delivered through a plan-led system based on an integrated hierarchy of plan-making consisting of the national planning framework, three regional, spatial and economic strategies, 31 local authority development plans, and area plans as mandated or required by local planning authorities. This hierarchy of plans will also underpin delivery of national climate objectives, ensure there is transparent and timely decision-making, facilitate consistency and quality in decision-making that is proportionate and sound, and incorporate and encourage public participation in plan-making and decision-making processes. The Bill clarifies the role of the Minister and planning bodies in the planning processes and that of the newly constructed an coimisiún pleanála as the independent body to determine appeals and applications for strategic development.
Overall, the Bill will enable changes to the planning system that will serve to enhance economic prosperity, quality of life, social cohesion and environmental standards for the benefit of present and future generations. Beyond revisions to remove duplication, ambiguity and unnecessary complexity that have developed over the past two decades, much of the general approach to the systems set out in the Planning and Development Act 2000 remain in place and are substantially unchanged as they are deemed to be working effectively. The focus as regards those parts of the Act has been to improve clarity for those using the legislation, both the public and practitioners, to provide clearer language and to enhance layout and more logically sequential processes, all to optimise efficiency.
I advise Members that I also intend to bring forward a number of amendments on Report Stage. I am currently examining how best to strengthen the planning system to deal with spurious planning submissions and appeals. This may include a requirement for a person or organisation making a submission on a planning application or making an appeal to submit a statutory declaration with that submission confirming his or her bona fides that the submission is made in good faith, with appropriate penalties for anyone making a false declaration. Those changes we are working on came from feedback from many members of this committee, both Government and Opposition.
I am also considering the introduction of revised governance arrangements for the Office of the Planning Regulator, including the option of having a governance or oversight board for that office. While I am bringing forward a number of amendments today to deal with the transitional arrangements, I expect to bring forward further provisions on Report Stage, including in respect of judicial review, compensation claims and notices given by an appropriate authority to an owner or an occupier of a property in advance of an authorised person entering a premises or land, as well as extension of duration provisions. My officials are also undertaking a review to identify amendments to existing enactments on the Statute Book to update references to the Planning and Development Act 2000 with references to this Bill when enacted. It is anticipated these consequential amendments will be appended to the Bill in the form of a new Part.
I thank the committee for the work it has done heretofore, all the members for what they have done on the pre-legislative scrutiny side, and all the stakeholders who made submissions on the pre-legislative scrutiny. I assure Members that I intend, as Minister, along with my colleagues, the Ministers of State, to listen very carefully to the amendments that are put forward and to work co-operatively and in a constructive way to ensure the efficient passing of this legislation. Fundamentally, as I said at the start, the reason we are doing this is to ensure we have planning legislation and a planning system that is fit for purpose and that underpins the development we need in Ireland right now for this generation and for generations to come.
I notice we seem to have a vote on the Order of Business in the Dáil Chamber. I propose to suspend the select committee meeting, and we will reconvene five minutes after the taking of the vote. Is that agreed? Agreed.
Sitting suspended at 2.46 p.m. and resumed at 3.05 p.m.
I will make a couple of brief remarks before we get into the detail of the Bill. I thank the Minister's officials for their work throughout this process, last year and this year. They have been enormously helpful in their private and public briefings and in providing additional information. I know it continues to be a considerable amount of work for them. I wish to put on the record my thanks for their efforts. There is going to be a robust discussion of the contents of the Bill, which is as it should be, but none of that is a criticism of any of the officials or the work they have done. It is instead reflective of the views of some of us on this side to the political and policy content of the Bill. I want to make that clear at the outset.
In my 13 years in the Oireachtas as an adviser and a TD, I have never come across a Bill which started its life with such very strong support for its intentions but as its detail came to light, concerns around specific aspects of it have grown considerably. Many of the amendments that I and others have tabled are reflective of the desire of people in the planning and development community, legal professionals, environmental NGOs, etc., to get this Bill right. I welcome the fact that the Minister has said he will listen to and work with us because if we approach it in that spirit, we can fix what I believe are the many considerable problems in the Bill.
With respect to the amendments in front of us today, while some of them are of a technical nature, the transitional ones are not. I appeal to the Minister to grant us a little time when we get to group 2 because this will be the first time we will be able to put on the public record the detail of each of those amendments and we want to ensure clarity in that regard. I do not think many of the amendments will be controversial, but the more certainty and clarity there is with respect to those transitional mechanisms, the better for all of us.
With the Chair's indulgence, I ask the Minister to provide an update, if he can, on the regulations that will follow the Bill and the notional timeline for the completion of a regulatory review. The officials gave us some information in private session but many people who are watching the debate would be interested in that. Perhaps the Minister would also give an update on the hoped-for commencement timetable. There are obviously very large sections of the Bill that are concerned with the Planning and Development Act 2000, for which there were years of commencements. I would be particularly interested to hear from the Minister on that point.
Will the Minister be in a position to give us more detail on those new areas of amendments he mentioned, particularly in respect of judicial review and the governance of the Office of the Planning Regulator, OPR? Perhaps he could do that at the outset. I appreciate that when we can deal with them when we see the text but the Minister, thankfully and helpfully, gave us a note on the possible changes with respect to planning appeals. We would like to have as much information as early as possible on those other areas if the Minister could provide it.
I acknowledge the considerable work the officials in the Department have put into this Bill. It is important that we get it right. As a public representative, I see communities paying the price all the time for the deficits in our planning legislation. That applies, in particular, to newer communities in newer developments that have been built out through existing planning legislation where issues around, for example, bonds, the taking in charge of public amenities and other things have not been dealt with properly in legislation to date. People pay the price for that and it affects the development of the community and so forth. I must say I am concerned that those kinds of issues are not addressed from what I can see in this Bill. I have tabled a number of amendments to address those sorts of things. I hope they will be engaged with constructively and accepted, or that amendments along similar lines will be agreed to.
It is useful that the Minister has outlined the amendments he will bring forward on Report Stage but can we have some details in respect of the changes to judicial review? If the Minister knows he will bring forward additional amendments on Report Stage, he must have some idea as to what they might look like so perhaps he could share that information with us. Is there more that he can say about what is being considered for the governance of the OPR?
We will go through the Bill section by section and Part by Part. I am sure the Minister will indicate, when we reach the appropriate points, what will be brought forward on Report Stage and we will get those briefing notes out to everybody, as is customary in this committee.
SECTION 1
Question proposed: "That section 1 stand part of the Bill."
Am I correct in saying there is a technical amendment to section 1 in the latter stages of the Bill? I am a bit confused as to why that amendment is at the end and is not being dealt with first. Perhaps someone could explain that to me. I apologise.
That is the Long Title. It is just a procedural issue that it is taken at the very end. I asked that question last week. It will be taken at the very end.
That is okay. I presume we can return to that on Report Stage if any issues arise when we come to discuss the rationale for that change. I will just put that on the record.
Question put and agreed to.
SECTION 2
Amendments Nos. 1, 888 and 889 are related and may be discussed together.
I move amendment No. 1:
In page 25, between lines 23 and 24, to insert the following:
“ “accessibility impact assessment” means an assessment to ensure that development must comply with Article 4 of the United Nations Convention on the Rights of Persons with Disabilities;”.
If these amendments are accepted, it would effectively mean that where, under section 203, an environmental impact assessment, EIA, is required, an accessibility impact assessment, AIA, would also be required. That is what these amendments seek to do.
It is very disappointing to see the lack of disability-proofing in the Planning and Development Bill 2023. Ireland ratified the UN Convention on the Rights of Persons with Disabilities, UNCRPD, in 2018. The convention states that policies and, by extension, legislation should be disability proofed and that built environments should be accessible to all. There are no disability-proofing provisions in the Planning and Development Act 2000. As a result, several people have faced the consequences of bad planning. Such planning has led to their being excluded. This disablement through design means that they find themselves excluded from their own communities. Currently, plans must have EIAs, which rightly look at the effects a development might have on the natural world. However, there is no equivalent look at the impact a plan might have on the accessibility of local areas amenities. The isolation of disabled people is leading to a deterioration in their physical and mental health and well-being.
The Planning and Development Bill is a golden opportunity for the State to implement key aspects of the UNCRPD. It is inexcusable that the Bill should lack a form of disability-proofing. My amendments would require the carrying out of an AIA wherever an EIA is required. This would ensure that the built environment would facilitate disabled people to live dignified lives in their own communities.
Bad planning can affect disabled people, and this can be widespread and systematic. Through my work as a public representative, I have seen the challenges that disabled people face in the context of their housing needs. There is a huge challenge at the moment in the private rental sector. That is affecting people generally, but the impact of it can be more pronounced for people who are disabled in accessing accommodation. A significant number of disabled people who are under the age of 65 and who are far too young to be doing so are living in nursing homes. This is completely inappropriate. Those residential settings do not meet their needs. This is an emergency measure, and it really is an affront to those people's human rights. According to the HSE, 1,128 disabled people under the age of 65 are living in nursing homes. That obviously affects their health and well-being, their social lives, their independence and everything else. That has profound effects on people that they should not be facing. I refer to poor design and a lack of housing that is universally accessible. All these things have impacted disabled people.
I have tabled these amendments to try to ensure that there is compliance with our obligations under the UNCRPD, but also to ensure that there is proper disability-proofing in this legislation.
I thank Deputy Cian O’Callaghan for introducing his amendments and explaining the rationale behind them. To be helpful, I refer to section 46 - I will deal with the amendment as well - which relates to the obligation to prepare a strategy relating to creation, improvement, preservation of sustainable places and communities. This deals with the local authority development plans as well. Section 46 states:
(2) The strategy shall include objectives for:
(a) the provision, or the facilitation of the provision, improvement, extension and preservation of amenities, facilities and services to meet the social, community, recreational and cultural requirements of the functional area, including the needs of children, the elderly and persons with disabilities;
There are a number of references within the Bill to the development strategies of local authorities.
Specifically with regard to the amendments, Deputy O’Callaghan proposes to insert the new a new Chapter into Part 6 of the Bill. It appears that his intention is to give effect to the UNCRPD in order to provide for an assessment of the development prior to its approval. We believe very firmly that this would be more appropriately dealt with in building control and building standards legislation rather than in planning legislation.
I will give an example of the accessibility threshold, and I will speak about new developments in a moment. From a planning perspective, for argument’s sake, it would be very difficult to be able to pass that threshold of accessibility one-off rural housing. It would probably be nearly impossible to meet that criterion. Our belief is that the building control and building standards legislation is a more appropriate place to deal with this. Part M of the building regulations sets out the statutory requirements for building accessibility, requiring adequate provision to be made for people to access and use a building, its facilities and its environs. In the cases of commercial buildings and apartment blocks, a disability access certificate must be obtained from a local authority building control, confirming compliance with the Part M requirements. It is an offence, as the Deputy will know, to occupy or use a building without having that certificate in place. Thankfully, as the Deputy will have seen, I have engaged with disabilities groups in relation to design and universal design, particularly in relation to houses. This is not just for local authority housing, but for AHBs and private housing as well. The standard of accessibility now is far greater than it was in the past. We see really good examples of that right across the country.
In light of what I have outlined, I will not be accepting this amendment or, indeed, the other two, which the Deputy may move in due course. This is on the basis that we believe any further changes would be more appropriately dealt with in the building control and building standards legislation, rather than in the planning legislation.
I thank the Minister for his response. This amendment goes beyond housing, although housing is a key part of it. The Minister quoted section 46(2)(a), which deals with the preservation of amenities, facilities and services to meet social community, recreational and cultural requirements. There is a mention of persons with disabilities on page 106 of the legislation. I am sure they are also mentioned elsewhere. Yet, it really does not address what I am putting forward at all; there is some mention of some requirements to include the needs of people with disabilities.
In these amendments, I am proposing that where an EIA is required, an AIA should also be required. I do not see why that should be addressed in building control legislation. Could the Minister clarify when he is planning on bringing forward changes to the building control legislation to address the needs of people who are disabled?
Housing is a key component of this, but it fundamentally goes beyond that. We see how all around Ireland, even in how local authorities maintain accessibility to the public realm, there are ongoing issues for people who are disabled and who should be able to access public spaces with the same ease as everybody else. Yet, because of a lack of consideration in planning, a lack of inclusion in planning and because of the way public spaces are planned and maintained, they are excluded.
I will give one example from my constituency. There is a housing estate where people who are disabled live. These individuals use wheelchairs. To access a bus within the housing estate, they have to take a route that may take them six, seven or eight minutes to negotiate. If it were designed differently, access would take 20 seconds. This is the case for people who do not use wheelchairs.
This goes across planning but I am using the example of a local authority as a public and State body, and because of the way it has gone about things, designed things and maintained the infrastructure, it seems to think it is okay to continue to do that in a way that excludes people or puts them at a severe disadvantage with regard to access. I do not think the status quo in any shape or form has worked. The legislation is deficient. The 2000 Act was deficient and this Bill is deficient. If the Minister is not going to accept my amendments, I would like to hear what he is going to do to address this. Specifically, when is building control standards legislation going to be brought forward? Is it going to be in the lifetime of this Dáil that the Minister intends to address these issues in building control standards legislation?
First, I strongly support Deputy O'Callaghan's three amendments. It is an issue that is going to come up regularly. Obviously, there was a very comprehensive review of the Planning and Development Act 2000 and all its subsequent changes. There were certain areas that many of us were hopeful would be addressed. One is the issue of Travellers and the expert group on Traveller accommodation's planning recommendations. There are issues around embodied carbon. There is a whole set of areas where our planning code and our regulation of development plans and housing plans clearly does not meet the needs, in this case, of people with disabilities.
Part of the difficulty here is we keep talking about disability. As the Minister knows, the disability certificate is only for accessibility, not for liveability. We have had presentations in this committee, during the current Oireachtas and its predecessors, from the Irish Wheelchair Association, highlighting that accessibility is no good if you want to live in the building because it does not give you full, free access. There is a certain amount of irony in the Minister suggesting that the review of Part M is the solution to this, given that there is not a review of Part M as I understand it. There has been a request from the Irish Wheelchair Association but, correct me if I am wrong, I do not believe such a review has been initiated. I would welcome it if it were to take place. Therefore, we really do not have universal design for people to live in their homes, and that is before we get to the wider built environment Deputy O'Callaghan mentioned. Regarding the general provisions referenced by the Minister with respect to development plans, and he could have referenced similar sections with regard to housing plans, my understanding is that is not new language. That is transposed from the existing language of the Planning and Development Act 2000.
Here is a very important area which this Bill could have addressed very simply. Deputy O'Callaghan has given one way of doing it and I urge the Minister to reconsider. If, in this once-in-a-generation piece of legislation, we do not ensure the needs of those who are traditionally most excluded from our housing system, whether they be Travellers, people with disabilities, wheelchair users or others, are fully and finally catered for in our planning code and housing plans, then we will have failed them. I urge the Minister to be more open to the sentiment if not the exact wording of Deputy O'Callaghan because it would be a shame if this issue were not addressed in this Bill.
Deputy O'Callaghan put it very well when he said that he is talking not just about housing here but also about the public realm, and that is why I would again refer him to section 46. That puts, and rightly so, an onus on the local authorities in the preparation of their development plans to ensure for persons with disabilities that the disability strategy place is in place, not just for housing but for the public realm and for access. The Deputy has given a good example with regard to access to bus stops and that type of thing. Road design, road layouts and roads legislation would cover that element of it. All of it, I think the Deputy will understand, is not pertinent to just a planning Bill but this section would ensure a local authority has to have that in mind.
Most of us would agree, and certainly from engaging with those with disabilities in my own constituency and with disability groups, which I have done, that there is, in the main, a great improvement in new developments. Where we find there are particular issues is in older estates, retrofitting older housing, and access. The work being done with active travel, access to safer routes to school and all those various elements has greatly improved over a number of years. The obligation to prepare that strategy as part of a development plan is very important, and we will be looking at the development plan cycle in this legislation, to have it more forward-looking, with the proposals around the ten-year plan going forward and a proper review in the middle of that.
To get to the Deputy's point on the environmental impact assessment, if he were to say this was needed with every EIA, he might want to expand on that. If an EIA were needed for a wind farm or any of the different developments we have that are not housing-related, as the Deputy has rightly put, and I have given him one example, I take it he does not believe a disability access certificate would be needed in that instance. We would be getting extremely prescriptive in every single type of application made as to what is in and what is out. My firm belief is that it is much better done in a plan-led approach, and one of the thrusts of this Bill is that we move to that plan-led approach, and that it be part of the objectives of a plan. One of the very strict criteria in that and underpinning that is about including the needs of children, the elderly and persons with disabilities, and I genuinely think that is the appropriate place for it.
We have done a full review of Part B fire regulations and what we can do with existing buildings, and we expect to publish that later this month. We have wide consultation on it and it has been going on for a long number of years, as Deputies may know, going way back to 2011, to see what we can do with our current built environment, how it can be reused and brought back into stock to improve the situation, and to try to unlock the many buildings that are currently unused or that can be converted from commercial property to residential. I expect we will be publishing that review later this month.
There has been engagement on Part M. I have engaged myself last year. Looking at the universal designs that are brought forward in planning decisions at planning authority level, and indeed An Bord Pleanála, it will be seen that a dwelling house in a residential development is far better than it was even a number of years ago in the mid-2000s, and it looks to that universal design.
I understand the sentiment behind the amendments the Deputy has put down. From a building control perspective, if that were to be looked at, further regulations on that would be the better place for it. It is more appropriate to the design of the development plan than having a broad brush approach within the planning Bill, to this or any other matter. One of the principles of the development plan is to ensure we have proper access for people. That liveability Deputy Ó Broin spoke about is underpinned within the development plan of each local authority. Section 46 speaks directly to that.
It would be useful to get some clarity on this. Is a review of Part M taking place or is there going to be a review of Part M? The Minister said there has been some engagement on Part M but is there actually a formal review taking place, and if not, will there be?
With regard to building control regulation, the Minister said that if this were to be looked at, further regulation would be positive. Is the building control legislation being looked at with regard to improving it in terms of access for people with disabilities or is that just something that would be positive if it were to happen? Will the Minister clarify if that is happening, and if not, when will it happen? When are those legislative changes due? Can we expect them in this term of the Dáil?
On the UN Convention on the Rights of People with Disabilities, which we ratified in 2018, and this legislation, what specifically have we put in this legislation, given this is once-in-a-lifetime legislation and the biggest update and change to planning legislation since 2000, to make sure we are compliant with the UN Convention on the Rights of People with Disabilities?
Not to repeat, and I will come back specifically with regard to Part M, but there is no formal review of that. I have engaged with groups myself on it, and we have to ensure with any changes that developments continue and that any changes are appropriate, and that would happen.
I am still of the firm belief the best place for this is the criteria within the development plan that drives the local authorities' development not just in housing but in all developments within an area. There is no formal review of Part M, but I have engaged with groups on it, as has the Minister for disabilities, and officials have met at that level. I have seen some exemplar developments for people with disabilities throughout the country and I am sure Deputy O'Callaghan has too. Many of those were driven by local authorities and it was ensured that housing was integrated within existing housing estates and appropriate development, design and output. Very recently I visited a development of 44 homes in south Dublin that are fully accessible. Most homes that are built now are and certainly all homes built by local authorities are. The legislative code needs to be distinct. Otherwise we will have multiple very valid issues like this where we are trying to tie in every single aspect into the planning Bill. We need to allow the principles to be enshrined in the development plans of each of the local authorities, so the planning decisions are granted on the basis of ensuring, like I referred to already, that there is that liveability piece, that we have functioning areas for people with disabilities, children, the elderly, and that we are designing for all our citizens. I believe that is happening now.
The difficulty is on the one hand the Minister is saying this Bill is not the right place to address this issue, but he is also saying it is not his intention to formally initiate a review of Part M.
What I said is there is no formal review of Part M right now, but I have engaged with groups specifically on it.
Does the Minister mind my asking whether it is his intention to initiate a formal review of Part M? That is what those groups have asked him to do.
I know what those groups have asked for and I have engaged with them and we have assessed the feedback and the asks they have. That is being reviewed at the moment.
Okay.
We all want to ensure developments are accessible for people. Anyone, by way of fair assessment, will see that developments under way now and that have been in recent years provide much better quality of life for people of all generations and all abilities. What we have to do, as Deputy O'Callaghan has said, is to ensure that underpinning our development plan are things like our public realm, our access, our parks, our roads and our paths and that all those provide that accessibility and liveability for people. That is why I refer back to section 46, which is the more appropriate place for this to be, so it can guide the development plans.
To continue the point I was going to make, on the one hand the Minister is saying this Bill is not the appropriate place to do it. On the other he is saying it should be a change to building control, but he has yet to decide whether he is going to initiate that review. If he were to initiate it, they typically take at least a year and that would only then start to work into the next cycle of development plans and future applications for planning permissions, meaning it will be quite some time before we see a tangible change.
I am in the South Dublin County Council area and the architects' department and the housing department operate to a very high standard of accessibility and liveability beyond what Part M requires, but the number of units is far smaller than the level of need that exists. It is not uncommon, for example, for people to be waiting nine years on a medical priority transfer for a wheelchair-accessible unit in our local authority area, and the authority has a good track record. There are also very significant numbers of people left living in the private rental sector in very inappropriate conditions because of the lack of appropriate building control regulations.
I am not convinced the Minister is going to review Part M. I really would welcome it and urge him to make that decision as soon as he can. This committee would be more than supportive of such a move. He is not going to support this amendment so I am not going to try to convince him, but he is going to have to find some way to strengthen the provisions within the development plan provisions and within the housing plan provisions. I may come back to that by way of a Report Stage amendment because some strengthening of that would be of enormous benefit, especially for those groups of people who very often are the most marginalised from our housing systems and housing stock.
I thank Deputy Ó Broin. Does the Minister wish to respond or shall I put the question?
I will respond very briefly. There are a number of amendments to get through but this is a very important topic. I have no doubt we will come back to persons with disabilities right the way through the course of our deliberations. It goes without saying there are many people with disabilities who are living in inappropriate accommodation right now. That is why it is important we continue to increase the supply of good quality social housing that is accessible to all. Fortunately, as I said already, I have had the fortune of visiting many of those types of developments throughout the country. Many of those with disabilities have been waiting too long for housing and wait longer on a housing list than an able-bodied person, for want of a better phrase. That is something I am acutely aware of and it is why we have to ensure we continue to increase the output of good quality social and affordable homes for people that are accessible to all. We will return to this matter again, but I really believe that by ensuring the development plans at local authority level - the local authorities are going to plan all different types of developments within their administrative area - the principle is enshrined in this Act to ensure those with disabilities, the elderly, the marginalised and children have proper design of developments within their local authority administrative area and that is where this should be dealt with in this part of the Bill.
I want to respond because the Minister was asking about what I am proposing here with reference to the principle of the accessibility impact statement and the threshold for that. Obviously, with these amendments there is a threshold of linking that to the threshold for an environmental impact assessment. I would have no issue if the Minister was proposing a different threshold or set of criteria. I am not fixed on it having to be linked to that threshold, but it was important we have a threshold for the kicking in if the need for an accessibility impact statement. The Minister has engaged on Part M, but I am not clear if there is any intent to do anything. He has told us there is no formal decision to review, so we are clear on that, but we are not really clear on what the view is, whether it is a view that there is a need for a review or what is going to happen there.
Given the Minister in his remarks put quite a lot of emphasis initially on the building control legislation, we again do not have clarity on when there will be changes there or whether there will ever be. I am not clear from the discussion if the Minister is saying there are deficiencies in other legislation that need to be addressed or if he is saying this legislation is robust enough that we comply with the Convention on the Rights of People with Disabilities and that, beyond this legislation, there is nothing further that needs to be done. I feel strongly much more needs to be done but I am just not clear on what the Government view on this is.
To be helpful, I am quite happy, at the appropriate time, to provide Deputy O'Callaghan with a note on the work that has been done and is being done. It can also be for Deputy Ó Broin and others who have raised it at the committee. It will not be for tomorrow, but there has been engagement there.
I have been dead straight with members that there is no formal review under way. To have this access environmental assessment would be a whole new approach. I believe that approach has changed on the ground anyway, and rightly so. Deputy O'Callaghan mentioned thresholds. I do not want to give a false impression I will be coming forward with something on Report Stage as I do not intend to. Again, I want to be very straight with members on that. What I will do is provide a briefing note for the Deputy and other interested members on the work that has been done heretofore and I am sure we will return to this. I believe it is a very strong provision to ensure local authorities must be guided in the preparation of their development plans. Deputy Ó Broin has mentioned that our last development plan cycle has concluded and new development plans are in place. All new development plans will have to have regard to this into the future.
One of our biggest challenges with disability access, if we take it as an example, is with older buildings. That is why so much has been put into improvement of the public realm in towns cities and villages throughout the country, but more needs to be done, unquestionably.
Is the wording of section 46(2)(a) new? Is the Minister saying it is not in the existing legislation?
They are guided by that anyway, but it is reinforced here and, as I said-----
So it is just a repeat of what is in the existing legislation.
This is a consolidated Bill. As I said earlier, there are many elements of this legislation that were taken from the Planning and Development Act 2000 because they are working and are appropriate. We have not thrown everything out. That reaffirms it. There will be changes to the development plan process, as the Deputy knows, which we will get to later on, but this is one of our principles and it is important that it is re-enshrined in this legislation.
This is a minor point, and I am saying this because we will come back to it. The phrase "shall have regard to" is one of the weakest formulations used in the legislation. There is a real dichotomy throughout the Bill, which is that where the Government really wants something to happen, it is stated that it must comply with or must substantially or materially comply with something. When it is a soft obligation, the wording used is "shall have regard to". That is the problem namely, that it is not new language. I am only asking that the Minister consider, either between now and Report Stage or when the Bill goes to the Seanad, strengthening the language of the existing provisions in order that a much stronger obligation will be placed on local authorities. The reality is that for far too many people in far too many parts of the country, what is currently in legislation, which the Minister is replicating here, is not doing what they need.
I take the points that are being raised, but the wording is not “shall have regard to” it is “shall include”.
Even weaker.
No, I do not think so. The Deputy has experience in South Dublin County Council. I do not think it is weaker. I put it to the Deputy that the phrase "shall include" is stronger. All local authorities will be aware that access, liability, universal design but also design for people with disabilities are at the forefront of all design brought forward and in all new developments as well. And it should be. It is made clearer in this legislation. We can do a comparison. There will be things in the Bill that have been in previous iterations. I said that at the outset. The Bill states that the strategy shall include objectives, and then it outlines them very clearly. As a result, the matter will be covered in primary legislation.
We have no clarity or commitment that there will be change in the building control legislation, even though the Minister did signal at the start that it is an area that may need to be looked at. We have no commitment that there will be any review of Part M. We do have this wording in section 46(2)(a) which is similar to the wording in the existing legislation. The situation since 2000 has not been the status quo. It has been massively deficient. Since then, Ireland has ratified the UNCRPD. However, there is nothing the legislation that reflects this or strengthens it. The wording here is fine, but it is not a major commitment to state that there be a “strategy for the creation, improvement and preservation of sustainable places and communities” and that it would include objectives for “recreational and cultural requirements of the functional area, including the needs of children, the elderly and persons with disabilities”. That is better than nothing, but is it robust? The section states that the "strategy shall include objectives for". That is all. You can meet that and be compliant with section 46(2)(a) relatively easily. All you have to do is have a strategy with these objectives. You do not even have to implement the objectives to be compliant with this Part. You just must have some objective somewhere that refers to this in your strategy.
To be helpful, to go back to the first line of that paragraph, it says “A planning authority shall prepare a strategy”. So it is the objectives within that strategy. We are not saying that a planning authority might have to do this or it might not. It says that the strategy be prepared as part of the development plan. That is very clear. I think it is very strong. I say that respectfully. It is strong; it is not just better than nothing. It is a strong, clear statement on what is required in the preparation. It provides an obligation to “prepare strategy relating to creation, improvement and preservation of sustainable places and communities” and then it goes into what the strategy shall include objectives for. It is very strong and it allows local authority members, in the preparation of their plans, and the local authorities - the planning authorities themselves - to have regard to their own areas too which is very important. One size does not fit all in this regard. The Deputy knows that.
According to the HSE, we have 1,128 disabled people under the age of 65 years who living in nursing homes and whose housing needs are not being met. These amendments are seeking to address this in terms of planning. Effectively, the response is that we have some wording in the Bill, which has been in legislation since 2000, regarding objectives relating to public places. That is the level of response to what has happened since then and to the UNCRPD. I will be pressing the amendment.
I fully respect the Deputy’s right to do so. That is fine. To be helpful, as we go on, we will give a comparison between the existing wording, which I do not have to hand, and the new wording, which we can get to the Deputy. It would probably be appropriate to have that tomorrow.
It is important that we not only speak on the strategies themselves but also that we see what is happening on the ground with new developments. That is very clear to see and welcomed by many, too. There are great improvements in the output and the developments themselves. I can certainly provide a comparison between the language that is here in this Bill and in the principal Act. We will get that to the Deputies. I understand the sentiment behind the amendment. I reiterate that I cannot accept it.
Amendment put:
The Committee divided: Tá, 4; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- O'Brien, Darragh.
Amendment declared lost.
I welcome the Minister of State, Deputy O'Donnell. There is a large grouping with amendment No. 2. I ask members to pay attention to their amendment number and ensure they speak to it in this grouping.
I move amendment No. 2:
In page 27, to delete lines 16 and 17 and substitute the following:
""architectural conservation area” means—
(a) a place, area, group of structures or townscape to which an objective referred to in section 299 applies, or
(b) an architectural conservation area (within the meaning of the Act of 2000) to which an objective in a development plan under the Act of 2000, that continues in force by virtue of section 66, applies;”.
In addition to the transitional provisions already set out in the Bill, the amendments in this grouping introduce an additional range of provisions that provide an effective transition from the current legislative framework to the scheme provided for under the Bill.
I will start at the end of this grouping. The provisions to be inserted by amendments Nos. 1178 to 1183, inclusive, are general transitional provisions that apply broadly across the Bill and so will form a new Part of the Bill, that being Part 23. These important provisions will preserve the validity of anything done under the Act of 2000 before its repeal and they will ensure the Act of 2000 continues to apply in respect of any applications for planning permission or any appeals that are in train at the time the Act is repealed.
I will go through these amendments methodically. In short, if a process is commenced under the Act of 2000 and that process is still under way or unresolved at the time of the 2000 Act being repealed, that process will continue to be dealt with under that Act until the process has concluded.
The new Part 23 includes the proposed section 546, which will ensure that proceedings brought under the Act of 2000, whether they be civil or criminal, can be continued and enforced following the repeal of that Act and that any ensuing penalties or punishments can be imposed.
The proposed section 547 provides that any warning letters or enforcement notices that were served under the Act of 2000 will continue to have effect following the repeal of that Act, and that any associated functions under Part 8 of the Act of 2000 that relate to warning or enforcement notices can continue to be formed under that Part.
Moving on from the proposed Part 23, the remaining amendments in this grouping consist of transitional provisions that are embedded within those Parts and sections of the Bill that correspond directly to the subject matter of the transitional provisions in question.
That is very helpful. Given that the new Part 23 is very significant, could we ask some questions on that first before we get into the other transitional mechanisms?
I will check with the Minister of State. Have you finished speaking on this?
I still have a note which is quite lengthy and covers the transitional provisions. With the Deputies' indulgence, perhaps it would help if I finished it and then we could come back.
My apologies.
We will allow the Minister of State to finish. I note that Deputy Ó Broin has an amendment to section 104 anyway.
It might appear cumbersome but it is quite important.
Perfect. That is brilliant.
Amendments Nos. 2, 61, 188, 981, 983, 986 and 1002 all relate primarily to the protection of architectural heritage. A lot of this is just detail as distinct from the substantive Part 23. They seek to include those areas under the Act of 2000 to which an objective and development plan applies as long as that development plan remains in force by way of section 66 of the Bill.
Similarly amendment No. 981 provides that the Act of 2000 will have effect for additions to, or deletions from, a record of protected structures included in the development plan, once the plan remains in force by way of section 66 of the Bill. In summary, we want to ensure that what is provided under the Act of 2000 in the Parts in question will not in any way get lost in terms of the repeal. It is seeking to ensure continuity of transition measures.
Amendments Nos. 983 and 986 relate to the ministerial recommendation of entries in the record of protected structures and declarations with regard to types of works that can be carried out on a protected structure that do not materially affect its character. Transitional arrangements ensure that recommendations made under section 53 of the Act of 2000, and declarations under section 57 of the Act of 2000, will continue to apply after the repeal of that Act.
Amendment No. 986 also provides that following its repeal, the Act of 2000 will continue to apply to a request made or an appeal brought under section 57 of that Act.
Amendment No. 1002 provides for the continued validity of notices made under subsection (1) of section 59 or subsection (2) of section 60 of the Act of 2000. Such notices are issued in respect of works carried out to prevent endangerment to protected structures or works carried out to restore the character of a protected structure. A number of associated provisions that relate to these notices are also provided for, such as those concerning appeals, offences and related powers of planning authorities.
Amendment No. 61 can be considered supplemental to amendment No. 1002 as it provides that where development has commenced in respect of a notice issued under subsection (1) of section 59 or subsection (2) of section 60 of the Act of 2000, that development will be exempted development for the purposes of the enacted Bill, once the development has commenced on or after the repeal of the Act of 2000.
Following the repeal of the Act of 2000, declarations made under section 5 of that Act, stating what is or is not considered to be exempted development, will continue to have effect by way of amendment No. 104. This amendment will also ensure that any requests or appeals that are in train at the time the Act of 2000 is repealed will continue to be dealt with under that Act.
Section 23 of the Bill provides that guidelines issued to planning authorities under section 52 of the Act of 2000, relating to protected structures and architectural conservation areas, are to be incorporated into national planning policy guidance as part of a national planning statement. Amendment No. 188 was introduced to ensure that such guidelines issued under the Act of 2000 will remain in force until the first national planning statement is issued under the enacted Bill. That sets it out pretty clearly.
Amendment No. 119 concerns licences granted under section 254 of the Act of 2000. Such licences permit the construction or assembly of specified appliances and cables on public roads. Under amendment No. 119, licences granted under section 254 will remain in force following the repeal of the Act of 2000, and any ongoing applications or appeals will continue to be dealt with under that Act.
Section 66 of the Bill provides for the continuation of development plans that were made under the Act of 2000, following the repeal of that Act. Such plans will remain in force for the remainder of their six-year duration or until a new corresponding development plan is made under the enacted Bill. Amendment No. 530 inserts a new section into the Bill to supplement section 66 by ensuring that the Act of 2000 will continue to apply to any draft development plans in preparation at the time the Act of 2000 is repealed, but only up until the development plan is made. Once the plan is made, it will be deemed to have been made under the enacted Bill. Similarly, amendment No. 908 makes it explicit that a housing strategy included in a development plan that has been continued under section 66 of the Bill remains in force until the development plan is replaced.
Section 45 of the Act of 2000 concerns the provision and maintenance of land as open space, in accordance with a condition of planning permission. Amendment No. 796 provides that the Act of 2000 will continue to apply in regard to any requests, notices or orders that were made under section 45 of the Act of 2000, before the repeal of that Act.
Amendment No. 920 provides that a certificate issued under section 97 of the Act of 2000 will have effect as if granted under section 231 of the Bill. Such certificates state that obligations relating to the provision of social and affordable housing do not apply to a specified development – for example, a development consisting of fewer than four houses.
Amendment No. 922 will deem agreements made by planning authorities under section 47 of the Act of 2000, for the purpose of restricting or regulating the development or use of land or maritime sites, to be agreements made under section 234 of the Bill.
Section 180 of the Act of 2000 relates to the taking in charge of estates and amendment No. 929 will insert a new section into the Bill to provide for the continued application of section 180 of the Act of 2000 with respect to any request made under that section before the repeal of the Act of 2000.
Amendments Nos. 932 and 942 concern orders made under sections 202 and 205 of the Act of 2000. An order under section 202 establishes “areas of special amenity” and section 205 provides for “tree preservation orders”. Such orders are to remain in force following the repeal of the Act of 2000 and will be deemed to have been under the equivalent sections of the Bill.
Amendments Nos. 943 and 944 provide transitional arrangements for public rights of way that were created under the Act of 2000, whether made by agreement under section 206 of the Act of 2000 or acquired under section 207 of the Act of 2000. Notices served, or appeals brought, under section 207 will continue to be dealt with under the Act of 2000 following its repeal.
Notices issued by planning authorities under section 209 of the Act of 2000, concerning the repair and tidying of advertisements and advertisement structures, will continue to have effect after the repeal of the Act of 2000 by way of amendment No. 947.
On matters such as the construction or placement of cables, wires and pipelines on privately owned land, amendments Nos. 950 and 953 provide that a consent given to a local authority by an owner or occupier under section 182 of the Act of 2000, before the repeal of that Act, will be deemed to be a consent given under section 248 of the Bill in respect of land, and section 249 in respect of maritime sites.
Amendments Nos. 1006, 1008 and 1009 relate to areas of special planning control. Sections 84 and 85 of the Act of 2000 currently provide for the establishment of such areas, and amendments Nos. 1008 and 1009 will provide that schemes prepared under section 84 and approved under section 85 will continue to have effect after the repeal of the Act of 2000. Such schemes will also be deemed either “draft special planning control schemes” or “special planning control schemes” under the enacted Bill. Amendment No. 1006 ensures that notices issued under section 88 of the Act of 2000 in relation to structures or land in areas of special planning control will continue in force and will be deemed notices served under section 307 of the Bill.
To provide for the introduction of a new planning register under section 349 of the Bill, amendment No. 1044 inserts new subsections into a section 349 in order to incorporate the existing register into the new register.
Amendment No. 1054 deems an agreement made by a planning authority under section 212 of the Act of 2000 to be an agreement made under section 375 of the Bill. Such agreements relate to the development and management of land.
Licences granted under Part 16 of the Act of 2000 concerning events and funfairs are to be deemed licences issued under Part 16 of the Bill by way of a new section inserted by amendment No. 1085.
Amendments Nos. 1098, 1109, 1112 to 1114, inclusive, and 1118 to 1121, inclusive, are transitional provisions related to An Bord Pleanála and they supplement those already provided for under the Bill. They include provision for the following: ministerial directions under section 109 of the Act of 2000 in relation to organisational reviews of systems and procedures; declarations of interest by members and employees; superannuation schemes; terms and conditions of existing employees; provision of services; reviews of codes of conduct compliance and proper discharging of duties; and indemnification of members and employees.
Importantly, amendment No. 1121 provides that Chapter 3 of Part 6 of the Act of 2000 will continue to apply in respect of any ongoing application, appeal, referral or request made under that Chapter before the repeal of the Act of 2000.
Amendment No. 1135 provides transitional provisions additional to those already set out in the Bill concerning the Office of the Planning Regulator. Ongoing reviews of planning authorities or An Bord Pleanála under section 31AS, or reviews of planning authorities requested by the Minister under section 31AT, that commenced before the repeal of the Act of 2000 will continue to have effect and operate under that Act. Examinations or requests made under section 31AU of the Act of 2000 will also continue to apply and have effect in the same manner.
Amendment No. 1143 will provide that, following the repeal of the Act of 2000, section 255 of that Act will continue to apply and have effect for any request, direction or appointment made under that section in relation to the performance of planning authorities.
It is important to note that as further key amendments to the Bill are likely to be made over the coming days, additional transitional provisions, as well as amendments to those moved on Committee Stage, will need to be brought forward on Report Stage.
While I await the conclusion of Committee Stage to determine the forthcoming requirements in this area, I anticipate that new transitional provisions relating to judicial reviews and claims for compensation, and provisions relating to notices given by an appropriate authority to an owner or an occupier of a property in advance of an authorised person entering a premises or entering on land, will be introduced on Report Stage. The Minister, Deputy Darragh O’Brien, has already referred to this.
There are a number of amendments in the names of Deputies Ó Broin, Gould and Ó Snodaigh and also an amendment in the name of Deputy Cowen, but I will await their deliberations before reading my note on them.
I thank the Minister of State. Deputy Ó Broin has an amendment to amendment No. 104 but also wishes to speak on the amendments referred to.
It will take a bit of time to work out the best way to process some of this material. My remarks are in no way a criticism. We are talking about a series of very important transitional mechanisms. I appreciate that the Minister of State had to read out a statement but I am still very unclear as to how some of the mechanisms are going to work. I have a couple of general questions on the operation of the transitional mechanisms and then specific questions about each one.
Clearly, the idea of these transitional mechanisms, notwithstanding the repeal of the relevant sections of the 2000 Act, is that certain categories of activity will continue as if the 2000 Act were still in place. Until what point will that remain the case? That is my first question.
The answer to the Deputy’s question is that they will continue as transitional provisions until the specific sections are commenced in the new Act.
This leads to a question I asked at the start. I will ask it in the context of these provisions also. Upon the passage of the Bill, the Act of 2000 is repealed, but until the enactment of the relevant new sections of the Bill-----
There is a qualification on that.
The Minister might explain that. Is there some sense of a timeline of enactment, even for these? I know that it is very difficult but can the Minister of State give us some sense of what we are looking at?
Anything that is in train at the moment will continue to be assessed under the 2000 Act. The only thing that will be slightly different is that a local area plan, for instance, will now align with the development plan. In the case of a local area plan that continues up to 2027, if the development plan is reviewed prior to that date, the local area plan will cease and it will become a different type of plan. It could be a priority plan, an area plan or an urban area plan.
Could there be no plan if a replacement plan is not put in place? Would it just fall?
It is very much up to the local authority but we will be encouraging local authorities in that regard. That is one such area. Anything like a planning application that is in train at the moment will be assessed under the 2000 Act. The one area which will provide change is the tiered system. If one has a development plan for a local authority and that development plan comes up for review on a statutory basis before the conclusion of a local area plan within that area, the local area plan then ceases.
It falls.
Yes. Then one is looking at other types of plans which we want to encourage. The zonings will come from the development plan.
Does the Minister of State or any of his officials know how many, if any, of our local authorities are still in or are about to commence a development plan review? Nearly all of them must be complete.
I would be reluctant to give the Deputy a number but I know there are very few. The Deputy is asking in respect of-----
There might be two, according to one of the Minister of State’s officials. The reason I am asking-----
I can think of two but-----
It would be good - it does not have to be today - if the Minister of State could confirm which local authorities are in that position. The only reason I say this is that elected members and councillors from those administrative areas-----
Donegal is one anyway. I am not certain, but I think Sligo is another. We will come back to the Deputy with definitive information.
The only reason I ask is that it would be very important to a Deputy or a councillor from one of those local authority areas to know that the local area plan, in all likelihood, is simply going to fall and is not likely to be replaced by any of the new plans. Those sections of the Bill will have to be enacted and those plans will have to be produced. It is not likely that a replacement plan would be in place before a local area plan would fall.
If a local area plan is due for review, it continues on until the new development plan is enacted.
That is very clear. My apologies to the Minister of State but my point is a separate one. There has been great anticipation for these transitional mechanisms, both in the House and more generally, because people want to know how they are going to operate. It is important that we take time to go through this so that people are clear.
The intention would be that be those new types of plans would be commenced early next year.
Yes. Even if that ambitious-----
We might give the Deputy a more detailed note on this.
The point I wish to make is an important one for the Minister of State to understand. Even if that ambitious enactment deadline-----
Once that comes in, the existing local area plan will continue as is. It is just that when the development plan comes in for review, it changes.
I ask the Minister of State to let me make my point because it is important. The development plans in a number of local authorities have not yet completed a review, or have gone into the review process.
Yes, a review.
They have local area plans.
Correct.
Notwithstanding that the new types of plans may be enacted next year, the creation of those new plans is likely to take some time. It may or may not be prioritised by the management or the officials. It would be good if the Department could provide this committee with a list of the relevant local authorities and relevant local area plans which are potentially likely to fall unless the relevant new plan sections are enacted and those local authorities produce those new plans. That would be a very significant consequence of the transitional mechanism. That is my first point.
I will make a second point. I know the Minister of State’s team will not be able to give us an actual calendar, but I would like to ask about the likely timescale for enactment. We are providing for approximately 25 transitional mechanisms. Is it hoped that the consequent new sections of the Bill, all the relevant sections and the transitional mechanisms will be enacted within a year, a year and a half or two years? I know that is a very tough question.
The intention would be to aim for six months but it will certainly happen within a year. I wish to go back to one thing referred to by Deputy Ó Broin. If one currently has a local area plan, when the new sections come in, in terms of priority plans and so forth, that local area plan will continue as is-----
Until the development plan changes.
Correct.
The Minister of State has made that very clear, 100%.
It just means that from that point on, local authorities can do these new types of plans. Everything is very straightforward in terms of following on. The zonings that will come out of the development plans will affect the local area plans. We will be looking to get those new types of plans. It is about being plan-led and having that in place over the next six months, or certainly within the next year. We will come back to the Deputy on that. Does that make it clear enough for him?
Yes. My point still stands, however. If the local area plan of the Minister of State’s party colleagues and my party colleagues in Sligo is at risk of collapsing because of a lack of alignment between the transitional mechanisms, the enactment of the new sections and the production of a new plan, they would like to know that.
To provide more clarity, we hope to commence the bulk of the provisions in this area in the fourth quarter of this year, and certainly by the first quarter of next year at the latest. We are certainly aiming to do this within six months of the enactment of the new Bill - after the summer and towards the fourth quarter of the year. We will come back to the Deputy. His question is seeking factual information.
That is very clear. I have a couple of specific questions but I-----
For clarification on Deputy Ó Broin’s question on the LAPs, it is still within the remit of a local authority to extend an LAP currently.
It is still within their remit to extend one, yes. They can do that if they wish.
I thank the Minister of State.
I have a slight caveat there. Everything flows from the development plan now. It can only be extended. For argument’s sake, if an LAP is finishing two years before the new development plan is to be looked at, the existing local area plan could be extended for two years but it cannot be extended beyond the date of the new development plan.
The only reason this is important is that a local community or local representatives could have put a great deal of effort into the local area plan.
Their new development plan might conclude within six or 12 months and, therefore, there is a-----
It would not be unusual even under the current system. Local authorities on many occasions have extended local area plans to be coterminous with the new development plans.
Sure.
It is the same model, only that once the new development plan comes in there will be a new type of structure in place for local areas.
I would like the Minister of State to explain a few of the individual mechanisms and I might have questions. Perhaps we can go through them one by one. There is not a large number of them. Amendment No. 61 deals with exempted developments. Will the Minister of State clarify this please?
I will repeat the note on it and then we can go back on it. Amendment No. 61 can be considered supplemental to amendment No. 1002 as it provides that where development has commenced in respect of a notice issued under subsection (1) of section 59 or subsection (2) of section 60 of the Act of 2000, the development will be exempted development for the purposes of the enacted Bill, once the development has commenced on or after the repeal of the Act of 2000. That is a separate one, apologies.
Where development has commenced in respect of a notice issued under subsection (1) of section 59 the development will be exempted development for the purposes of the enacted Bill, once the development has commenced on or after the repeal of the Act of 2000.
I do not understand, apologies.
Amendment No. 1002 provides for the continued validity of notices made under subsection (1) of section 59 or subsection (2) of section 60 of the Act of 2000. Such notices issue in respect of works that are carried out to prevent endangerment to protected structures or works carried out. A number of associated provisions that relate to these notices are also provided for.
To put it simply, if they commence before the new Act comes into play they will continue under the old Act and if they have not they will fall under the new Act.
If they have not commenced they will fall under the new Act. Perfect.
So that I am clear on this, this is not a new form of exemption. They are currently exempted under the existing Act.
Correct.
There is nothing new in this provision. It is simply transitional.
Correct. It continues as is under the new Act. If it has commenced before the new Act comes into play, as a technical point it will fall under the old Act. If it commences afterwards it falls under the new legislation. The same provisions apply.
There are the same obligations in terms of any derogation required in terms of impact on habitats or nesting birds or the birds directive.
There is no change, exactly. It is a technical point and there is no change.
There is no change in any of that.
Bar the question of the legal structure it falls under. If it is before the Act commences it is under the current legislation and if it commences afterwards it will fall under the new Act. In essence the same-----
All of the obligations-----
The substantive provisions are the same.
All of the obligations that someone has under the habitats directive or anything else still apply. The fact that it is exempted-----
The way it reads, it is a tiny bit of a-----
The fact that it is exempted development does not exempt it from any of those obligations. They still apply to it.
Obviously there has to be a transitional measure because we do not want a situation whereby it may become ambiguous. This makes it quite definite. It just means that one falls under the 2000 Act and one falls under the new legislation but the same requirements apply.
Correct me if I am wrong but this is with respect to section 12 of the Bill in front of us, which deals with licensing appliances and cables.
Is it section 12?
Yes. Does this mean if I have applied for a licence for an exempted development under the existing provisions but I do not commence it when the existing provisions are being repealed, I then have to wait until the new provisions of the new Act are enacted before I can then reapply for a licence and proceed?
I know the point Deputy Ó Broin is making. It is a very good one. I will read the note and I want to get clarification on the point.
Sure.
Amendment No. 119 concerns licences granted under section 254 of the Act of 2000. Such licences permit the construction and assembly of specified appliances and cables on public roads. Under amendment No. 119, licences granted under section 254 will remain in force following the repeal of the Act of 2000, and any ongoing applications or appeals will continue to be dealt with under that Act. It will come down to the period of time allowed when the licence is issued to enact or use it.
To commence.
To commence it, rather. If it is prior to the new Act coming in it goes back to the licence as issued. If that time period is after the new legislation comes in it will still operate under the old Act.
So that I am clear, this is a slightly different explanation to the first one.
According to the first one commencement seemed to the deciding factor. Just so that I am clear, what the Minister of State is saying is that if the licence gave a period of time-----
It is slightly different.
-----within which to commence, if it was not commenced at the point of repeal of the existing legislation and after the enactment of the new legislation, but if it was still within the licence period to commence-----
A licence has a defined period of time.
Yes. That licence applies irrespective.
It is time defined.
That is my point. This is for clarity as I am conscious there are people outside looking in. Let us say I get a licence for X and that licence has a defined time period.
In terms of the exempted development, you are required to do something. It is an activation and you are required to do something. Under the licence you have a specified period of time to fulfil and commence the licence. One is that you are required to do something and the other is an entitlement to do something within a defined period of time. If this is given prior to the new legislation coming in and that time period does fall in after the legislation comes in, you can still do it within that time period.
Again, just for clarity, if it is with respect to a exempted development commencement is the key issue.
If it is with respect to a licence to develop, it is the time period of that licence when granted and not commencement.
Correct. If you had a licence granted a year ago, hypothetically speaking, or perhaps it is better to say a licence granted three months ago, and that licence has to be enacted within a year, then all going well the legislation will come in and you will be operating under the regime when it was issued. It is based in that period of time. It is the same principle to a planning application with the five-year period.
Yes and some of this is not even to make a case for or against it, it is just for clarity.
Just for understanding.
With respect to my amendment to amendment No. 104-----
Is this Deputy Ó Broin's amendment to the amendment?
It is, yes.
It is amendment No. 1 to amendment No. 104.
Fine.
I am keen for the Minister of State to fully explain amendment No. 104 and particularly how it pertains to existing section 5 declarations where they are held by first parties or third parties during the transitional period. Will the Minister of State explain whether there is any change to the status and strength of the section 5 declarations during the transitional period under proposed amendment No. 104?
If it is helpful, I will deal with our area and then respond to the Deputy's amendment on it. Is he comfortable with that?
Yes, that is perfect.
Following the repeal of the Act of 2000, declarations under section 5 of that Act, stating what is to be considered exempted development, will continue to have effect by way of amendment No. 104. This amendment will also ensure that any requests or appeals that are in train at the time the Act is repealed will continue to be dealt with under that Act.
As regards the proposed amendment to amendment No. 104 tabled by Deputies Ó Broin, Gould and Ó Snodaigh, which relates to the validity of a declaration made under section 5 of the Planning and Development Act 2000, this may already be covered by the general transitional provisions that are to be inserted as the new Part 23 of the Bill. I have asked the officials to engage with the Office of the Parliamentary Counsel on the matter, however, and, if appropriate, will consider moving amendments on Report Stage.
With regard to amendment No. 104, I am seeking certainty that if I am the holder of a section 5 declaration on the day the existing Act is repealed, nothing will change during the transitional period. The declaration I have will have all the same uses and functions-----
-----within the planning process, such as if the matter ends up in court, for example, whether I am a first party or a third party.
It continues. The Deputy's interpretation is correct.
I know we will not decide on the amendment now. I am interested in the fact the Minister of State said he would come back. He seemed to suggest that the general provisions of the new Part 23 may address the concerns. My issue was whether his amendment did not address my concerns. It seems he is being advised that it does.
What we are really saying is that we would like to be given more time to consider the matter and come back with an amendment on Report Stage, to be helpful.
That is reasonable. I have four more questions, but I do not want to hog the floor.
Deputy Ó Broin is dealing with his amendments. I will then move to other members.
It is all relevant.
Again, these are just clarifications. As regards amendment No. 188, am I correct in saying that with respect to any section 28 matter through ministerial guideline, they will be in force until such time as the Minister either repeals them or decides to transpose them into national planning policy statements?
In essence, the section 28 guidelines will continue as having validity until such time as the Minister brings in ministerial statements.
Amendment No. 1085 relates to funfairs. We will probably not have much fun down in this basement for the next while. I ask the Minister of State to clarify the position with that amendment.
Licences granted under Part 16 of the Act of 2000 in respect of events and funfairs are to be deemed licences issued under Part 16 by way a new section inserted by amendment No. 1085. There are no changes. It continues as is in terms of the application of the provisions. In substance, they will continue as they are.
One of the questions that came up in conversations on the matter was that funfairs or festivals below a threshold of 5,000 people are exempt from the licensing arrangements in the existing Act. There was uncertainty regarding whether it is 5,000 on a single night or over a weekend. That all stays exactly as it currently is.
There is no change.
Although it is tangential to the amendment, I have never fully understood whether that existing provision relating to 5,000 people is for the entire weekend, in the case of a weekend festival, for example, or for each day of the weekend.
I think it is cumulative but, once again, I ask the Deputy to indulge us and allow us to come back to him on that one.
Perfect.
We will get the precise figure.
On the final two, I ask the Minister of State to talk me through this. There were two groups. Obviously, there are the amendments relating to An Bord Pleanála. They run from amendment No. 1112 onwards. I ask the Minister of State to go into more detail on the general provisions and explain why-----
To which amendments is the Deputy referring?
The first cluster on An Bord Pleanála is from amendment No. 1109 to No. 1120 or No. 1121, inclusive.
Yes, it is amendment No. 1098.
I ask him to go through those amendments in more detail. With respect to the general provision amendments, namely, amendments Nos. 1178 to 1183, I ask him to provide the rationale as to why general provisions are needed. It is obvious that a significant amount of time has been taken to have specific transitional mechanisms for specific things. What is the purpose of the general provisions? To what will they apply?
On the Deputy's second point, it is basically to make the provisions more legally robust. The general provisions are technical in nature.
It always worries me when somebody says that.
I will come back to the Deputy on it. I will first deal with the amendments relating to An Bord Pleanála and then we can tease it out. Amendments Nos. 1098, 1109, 1112 to 1114, inclusive, and 1118 to 1121, inclusive, are transitional provisions relating to An Bord Pleanála. They supplement those already provided for under the Bill. They include provision for: ministerial directions under section 109 of the Act of 2000 in respect of organisational reviews of systems and procedures; declarations of interest by members and employees; superannuation schemes; terms and conditions of existing employees; provision of services; reviews of codes of conduct compliance and proper discharge of duties; and indemnification of members and employees.
Importantly, amendment No. 1121 provides that Chapter 3 of Part 6 of the Act of 2000 will continue to apply in respect of ongoing applications, appeals, referrals or requests under that Chapter before the repeal of the Act. They will continue under the old Act if they have been initiated prior. If a person makes an application to a local authority prior to the new Bill coming into play, that will continue under the Act of 2000. If it is appealed to An Bord Pleanála, however, it will apply under the new Act. Am I correct in that regard? I am advised it is separate. If a person applies to the planning, it will continue until such time as that planning process has been exhausted within the local authority. If that is appealed to An Bord Pleanála after the new legislation has come in, it will be a different process. Equally, if-----
I presume that is with respect to the statutory timelines, for example.
Correct.
That would be the primary change. Is it the only change?
Obviously, if it has gone to An Bord Pleanála prior to the new legislation coming in, it will continue under the 2000 Act.
I presume the first case scenario also applies to the proposed ministerial Report Stage amendments that may make changes to the appeals process.
Is the Deputy referring to the ministerial statements?
No. The Minister indicated to us by way of letter and at the start of the meeting that he intends to bring forward amendments that may deal with issues relating to inappropriate-----
Yes, sorry.
-----abuse of planning and the appeal process.
Yes. That is flagged for Report Stage.
I have an observation to make on this and then a final question on the general provisions. In the course of the consideration of the Bill, committee members were written to by Fórsa trade union. I know these are matters between the trade union, its workers and the employer, and I am not seeking for the committee to get involved in those matters. As a general observation, however, on the ministerial directions and the other aspects of the An Bord Pleanála transitional arrangements that may impact on the terms and conditions of staff, I wish to make the Minister of State aware that the trade union was very unhappy that its employer and, in its view, the Department had not engaged with it regarding the potential workforce implications of these changes. As that it is not pertinent to the Bill, I am not asking the Minister of State to comment on that now, although if he wishes to comment, he may do so. In any aspect of the Bill where there are potential implications for the employees of An Bord Pleanála, I urge the Minister of State to ensure there is the maximum level of engagement with the staff. That is important.
As the Minister of State will know, those employees have worked very hard under difficult circumstances in recent years. They have borne the brunt of the unacceptable actions of a small number and they are quite sensitive, and rightly so, to these matters. There is a value, therefore, in both departmental officials, and through the Minister of State's offices directly to the board, ensuring that in respect of any changes we make by way of legislation that have the potential to impact on the working members of the board, there will be a dialogue with them as appropriate, separate from and outside of the legislative process, in parallel rather than at the end. They are rightly quite sore at what they see as a lot of potential change in which they have not been involved in any discussion of.
I take the point, which the Deputy makes in a genuine manner, but these are matters for the chairperson of An Bord Pleanála and the CEO designate.
Absolutely.
As for the transitional measures, they came out of discussions the Department had with An Bord Pleanála. We want to go through issues here in great depth and get them spot on, and we very much welcome the fact the Deputy is engaging in a constructive manner. His points are duly noted.
Turning to my final question, given that there are very specific transitional procedures for a large array of areas of activity, what is the purpose of the general provisions? Is it in case something was missed or is it just to have a general catch-all? Are there issues on which the Minister of State's officials are advising him that may benefit from these general provisions? I am not making a case against them but just looking to understand them.
In brief, it is for the avoidance of doubt and to ensure there will be no ambiguity. That is the main purpose of bringing in these additional transitional measures under Part 23. It is for the avoidance of doubt. They will apply to multiple provisions of the legislation. They are of general application but, as the Deputy will appreciate, we are carrying out a review here after many decades and we need to ensure there will be no ambiguity. They will have extensive application and the officials have done a great deal of work to get them right. Moreover, under amendment No. 545, for example, the transitional provisions will provide for the continuation of statutory provisions that were brought in previously.
Many of the statutory instruments could be indefinite in nature, and their transitional nature could be such that they will just continue until such time as somebody decides to cease them. They are less likely to be time bound in the way that some of the other transitional mechanisms are. It is just a matter for the Government.
It will be a decision of the Government or the Minister of the day.
That applies in a general way to all statutory instruments, other than the large body of regulations the Minister of State's team are working on, which will have to start moving their way through the system on enactment.
I thank the Minister of State.
Amendment No. 188, a ministerial amendment, states, “Any guidelines under section 52 of the Act of 2000 in force immediately before the repeal of that section by section 6, shall continue in force until the first issuing of a National Planning Statement after the passing of this Act.” There will be no issue, therefore, with them staying in force. Once the national planning statement has been issued, however, they will be gone, under that amendment-----
They will be incorporated into the national planning statement.
Is that guaranteed legislatively?
In simple terms, the section 28 guidelines will stay in existence until the Minister, whoever that is, decides to bring forward the national planning statement. They will then effectively supersede the section 28 guidelines. That said, guidelines will also be issued with the national planning statement.
What do the section 52 guidelines relate to?
They cover the preservation objectives. It is the same principle as the section 28 guidelines. They will continue until such time as they are replaced by ministerial statement, and it will be up to the Minister of the day to decide on that matter. Whatever is there at the moment will continue.
That is not at all how I read amendment No. 188. It refers to the “first issuing” of a national planning statement. If, therefore, a national planning statement does not include protections for built heritage, they will just cease, under this legislation. Is that correct?
Any guidelines that are there, whether section 28 or section 52, will remain in place until a Minister decides to bring forward a national planning statement. We will have a look at this before Report Stage to see whether we need to provide more clarity on that area in the legislation in the interests of certainty. The guidelines will continue. Nothing will change until a national planning statement comes in. It is the same principle whether it is section 28 or section 52.
What is the Deputy's core point?
My core point relates to what the implications of this could be-----
In what sense?
The guidelines will be gone once the national planning statement is issued. Could that mean, in the context of the protection of built heritage, that there will be a weakening?
The Minister of State might clarify why that cannot be the case.
Deputy Ó Broin has another question of clarification.
Yes, it is a supplementary point. The Bill as drafted outlines a clear procedure for either rescinding or replacing a section 28 mandatory ministerial guideline. The challenge with amendment No. 188 is that any guidelines under section 52 of the 2000 Act - I presume there is a list of the guidelines issued thereunder - will continue in force until the “first issuing of a National Planning Statement".
My concern about this amendment is that it does not explicitly state that the national planning policy statement has to be relevant to the particular section 52 guideline. I wonder if the wording is too general.
I can provide a bit of comfort, going back to Deputy O'Callaghan's point. Section 24 deals with considerations for the issuance of the national planning statement. Section 24(1) reads:
In deciding to issue and in formulating or amending a National Planning Statement under section 23, the Minister shall have regard to the desirability of setting out policy and providing guidance in relation to planning matters to support proper planning and sustainable development, including, but not limited to, the following:
[...]
(i) protection of landscapes, and features of natural, archaeological, architectural and cultural heritage of value.
It is provided for under the Bill as it is. Section 24(1)(j) refers to "protection of structures, parts of structures, or specified features of structures, which are of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest". Section 24(1)(k) refers to "preserving the character of architectural conservation areas", and the section goes down through them. These national planning statements are ultimately to provide consistency in the application of planning guidelines. In certain cases, there is inconsistency in how they are implemented at the moment. We can agree to perhaps provide some more clarity on amendment No. 188 on Report Stage.
We understand section 52 guidelines will continue in force, but as this is written, it states they "shall continue in force until the first issuing of a National Planning Statement". I think the question being put is whether it could be inferred, if you issue a national planning statement on any matter, that section 52 is expired.
By way of being helpful, it seems to me that the amendment needs some clarification that the national planning policy statement should be a relevant national policy statement as per section 24 of the Bill. A little bit of drafting would make it clear.
We can look at amendment No. 188 again and provide that level of certainty on the timing in that specific national planning statement. Second, the intention is that the national planning statements are-----
We will have a row about them tomorrow. Do not worry. We will get into that in the other amendments.
Ultimately, the objective is to incorporate what is in the guidelines into national planning statements and improve consistency in their application. We will look at amendment No. 188 and come back with an amendment on Report Stage.
Deputy O'Callaghan raised the issue with amendment No. 188. Is he okay with that?
There is one other matter. If the guidelines are not incorporated in the national planning statement, the guidelines continue in force.
That is not what the amendment says.
Can we come back on that?
That is one of the points I raised. The amendment would suggest otherwise.
We will have to, dare I say, do a little bit of tweaking with amendment No. 188. We will come back and provide more clarity.
I appreciate that is not the intention.
The point the Deputy is making, regarding what is there at the moment, is that he wants to ensure with the guidelines and the process that protected structures continue to be protected. We will come back on amendment No. 188 and give more clarity around that area as well.
Amendment No. 529 is in multiple names and all Deputies are present. I will ask those Deputies to speak about amendment No. 529 and the Minister of State may speak about amendment No. 500, although Deputy Cowen is not here to speak to it.
Does the Cathaoirleach want me to speak about amendment No. 500?
We will discuss amendment No. 529 first.
What time are we-----
We are going to finish at 5 p.m. Perhaps we can cover them off. I do not know if we will get to vote on this amendment, No. 2.
Amendment No. 529 is from Deputy Ó Broin and his colleagues.
I just need 30 seconds, with the Chair's indulgence.
There are multiple names attached to that amendment. Whoever wants to speak to it may do so.
This section relates to the continuation in force of pre-commencement development plans, which are development plans that are in existence before the new Bill commences, section 66(3) allows the Minister, by order, to reduce or extend the length of that pre-commencement development plan. Our concern is that there would be too much power in the hands of the Minister to make decisions about development plans that are democratically decided and how long they should remain in force. Why does he have that discretion or power to make those decisions? What are the reasons? That is the concern.
We are concerned about the decision to extend the duration of a development plan without public participation. Is that not a necessary part of such a process for compliance with our Aarhus obligations? What is the Minister of State's view about why that is not necessary, how is this Aarhus-compliant and why is there not a need for public participation as part of the process? That is what is suggested in this part of the Bill.
I have a complementary point. I know these extensions are not normal or usual. The merger of Waterford city and county councils is one example. I am interested to hear how frequent or infrequent such extensions have been. I also want to know the role of elected members. Is it that there is a request from the chief executive or the elected members to extend? Is it a unilateral proposition of the Minister? What is envisaged in how the Minister would operate this power, particularly with reference to the management, the executive and elected members?
Amendment No. 529 is tabled by Deputies Ó Broin, Gould, Ó Snodaigh, Boyd Barrett, Bríd Smith, Gino Kenny and Cian O’Callaghan. It relates to section 66 of the Bill and the transitional arrangements for a development plan made under the Planning and Development Act 2000 so that it continues in force following the repeal of that Act. Under section 66(3), the Minister of the day may vary the period that such a development plan can remain in force so as to ensure the effective operation of Part 3. This amendment seeks to delete subsection (3) to remove the Minister's power in this regard. It is not a general application; it is to ensure the operation of the Bill and the sections of the Bill. We are looking to commence most of the sections by quarter 2 of next year. It would be a relatively short extension if it did apply.
It is necessary that a method to transfer existing development plans to the new legislative framework is provided for. There is also a need to ensure unforeseen circumstances can be catered for and flexibility is important to avoid any unexpected issues. This is the purpose of section 66(3).
It is not to extend the transition period but provides that, if necessary, the process is to be managed in a practical and efficient manner. In view of the need to allow for the capacity to react and manage unforeseen circumstances, I am not in a position to accept this amendment. In summary, we have included this section because we are bringing in this new legislation. In the main, we are going to commence the measures by the second quarter of next year. There may be some development plans submitted before the commencement of particular sections of the Act. It makes sense to make new development plans coterminous with the new legislation coming in. That is the background to this.
That is quite a different proposition from what has happened in recent times in the unusual extension of development plans for very good reasons such as the merging of two local authorities. South Dublin County Council was in the first tranche of councils to recently agree a development plan. That was in the last 12 to 18 months. Given that we are moving to ten-year plans and that the relevant sections of this Bill are to be enacted by the second quarter of next year, the Minister of State must not be a betting man. I do not think he would put money on that timetable.
There are always unforeseen issues.
Are we saying that, in the transition from the existing development plans to the ten-year plans under this Bill, the duration of quite a lot of development plans could be extended?
No. That is not the intention.
Will the Minister of State explain his point?
It really depends on the plan. Covid taught us that we need flexibility around plans. We must provide some flexibility in that area. If a development plan was to run for quite a number of years from now, this would not arise. I expect it will apply to very few plans. If a plan was to come to a conclusion in a relatively short period of time, there might be a case for extending the plan. It would make sense for the new development plan to be dealt with under all of the new-----
We are not talking about the larger local authorities that have agreed their new development plans but about the small number that have yet to do so.
Correct.
Instead of completing the development plan review they have under way and into which they put blood, sweat and tears, their existing plans would be extended and their new plans would form the first generation of the ten-year plans. Is that correct?
Yes, that is possible. The Deputy is correct; if a plan is coming to an end-----
Let us take Donegal and Sligo, for example. If their plans are coming to an end and they have reviews under way but those reviews are not going to be completed before the enactment of the relevant sections of the new Bill, those plans will be extended. I have two questions.
I would not pre-empt that decision.
I have not got to the questions yet. What is the process by which such an extension would take place? Do local authority members or the manager request an extension? That is the first question.
If you look at-----
It is a two-part question. First, what is the process? The amendment does not say. Second, there are legal and EU environmental obligations as regards strategic environmental assessments and the Aarhus Convention. Deputy Cian O'Callaghan mentioned public participation. If these plans are to be extended, not only is it not clear from the amendment what the process is, who requests that extension and on what grounds, but there is also the question of how to ensure compliance with Aarhus and SEA requirements under EU law.
Section 66 of the Bill, which is on page 154, is titled "Continuation in force of pre-commencement development plan". I refer the Deputy to sections 66(3) and 66(4). Section 66(3) reads:
The Minister may, by order, for the purposes of ensuring the effective operation of this Part, vary for such period as he or she considers appropriate, the period for which a development plan continued in force under subsection (1) is to remain in force.
Section 66(4) reads:
Prior to making any order under subsection (3), the Minister shall comply with any applicable requirements of the Strategic Environmental Assessment Directive (and the Strategic Environmental Assessment Regulations) and the Habitats Directive (and Part 6).
That deals with the points the Deputy is making. They still have to be dealt with.
Does that include requirements under the relative directives on public participation and Aarhus compliance?
Under the directives, public participation is required.
On the first part of my question, there is no mention of the local authority, elected members or the manager or chief executive. Is this something a Minister could impose unilaterally on those local authorities? Is that the intention? Clearly, local authorities will be talking about it. Is there to be dialogue?
We value the local authority members. They do great work.
They had a different view when they came in for prelegislative scrutiny of this Bill but we will tackle that when we get to their sections.
Any decisions we make would certainly be made in consultation with the local authority and, more particularly, the local authority members.
Waterford City and County Council's plan is the only one I know to have been extended. Did the local authority request that extension? Was it negotiated when the two local authorities were being merged?
The short answer is that I do not know the answer to that question but I will get it for the Deputy. Limerick also saw an amalgamation. I was not a member of the local authority but that work was carried out in a spirit of partnership with local authority members and management. It was obviously an operational matter as well. I will put this another way. If we are bringing in legislation about a plan-led process and there is a development plan that is to be commenced very close to that new legislation coming into play, it makes sense to bring that plan in under the new legislation rather than the old. The time period is very short.
Has there been discussion with the local authorities that will potentially fall under this provision? Their development plan reviews are likely to be at an advanced stage. Do they know this is the intention? I would imagine that this would have a very significant impact on the workforce allocation of a director of planning services. The elected members and wider public are putting a lot of time and energy into these development plan reviews. There is probably a specific list of local authorities this provision may apply to. I presume there has been no discussion with those local authorities or with the CCMA.
This legislation has taken time to reach this point. However, the officials here would argue that this would not apply in that time period. Local authorities are likely to fall under the new legislation without any extension being required. We can come back to the Deputy on that. We have a bit of work to do on it. However, the provision is there to make the transition as soon as possible.
I am conscious of the time.
I was going to ask the Minister to respond on amendment No. 500 and then put the question on amendment No. 2. We will then come back to amendment No. 3 after a break.
Did Deputy O'Callaghan have a quick question?
I have questions I want to come in on.
Are they on amendment No. 188 or on others?
They are on the topic Deputy Ó Broin was asking about.
They are on the amendments to section 66. Then we will adjourn now.
Is it amendment No. 188?
We had better adjourn to give everyone, particularly the secretariat and the officials, a bit of a brain break.
I will not be back for the next session. Does the Cathaoirleach require me to deal with amendment No. 500?
Whoever is here can respond on amendment No. 500.
We will have a Minster, will we not?
Yes. We will suspend and return at 6.09 p.m., which gives everybody an hour for a cup of tea and something to eat.
Sitting suspended at 5.09 p.m. and resumed at 6.09 p.m.
I welcome the Minister of State, Deputy Malcolm Noonan. We will continue the Committee Stage of the Planning and Development Bill 2023. We were on section 2, amendment No. 2 as part of a grouping. We were discussing amendment No. 188 in that grouping and Deputy Cian O'Callaghan wished to come in on that.
The Minister of State, Deputy O’Donnell, referenced section(4) in particular in the context of amendment No. 188. Section 66 states:
Prior to making any order under subsection (3), the Minister shall comply with any applicable requirements of the Strategic Environmental Assessment Directive (and the Strategic Environmental Assessment Regulations) and the Habitats Directive ...
The Minister of State said that effectively covered the requirements in respect of public participation for extensions of development plans. However, the difficulty with that is that an SEA may not be triggered. It can well happen that a strategic environmental assessment will not be triggered. However, the requirements for public participation under Aarhus still apply. I am looking for an explanation as to how section 66(4) covers the requirements for public participation that are necessary under Aarhus when, in fact, an SEA may not be triggered.
It will need to comply with the directive.
Sure, and that is the explanation we have heard. They will need to comply with the SEA directive and with the habitats directive. That is what section 66(4) states. What happens when, for example, an SEA is not triggered and there is a still a requirement for public participation under the Aarhus Convention? What happens when it is not triggered and there is still a requirement for public participation? How does section 66(4) cover that requirement for public participation when, in fact, it will only be triggered in circumstances where an SEA is triggered?
Apologies. Is it okay if we come back to the Deputy after we get further clarification from Parliamentary Counsel on this?
Yes. We will get that before we vote on amendment No. 188.
It will be a long time before we get to vote on amendment No. 188.
Yes, it will. In that context, it would be useful to have the position clarified.
We can do that.
The specific question is not whether it does or does not have to comply. We know it has to comply, likewise with Aarhus. The question is how it will comply. Before the Minister of State came in, one of the questions I asked was how the provision in this amendment and in a previous amendment is actually enacted – given effect. It is the same. How will those things be triggered? What is the process? If the Minister of State can come back to us, we can reconsider it then.
It is an important question, and we will come back to members on it. As we said, we will not be voting on this amendment for a while.
On both the Aarhus on the SEA obligations.
Yes, we will come back on both.
I refer to clarification on the reserved function aspect. Was Deputy Ó Broin asking about that or did he get clarification?
I did not get clarification. This was not in respect of amendment No. 188; rather, it was with respect to the extension of the development plans. One of the officials helpfully explained it to me outside, and I am a bit clearer on it now. However, in the context of it being not necessary now but at a later stage, I would be interested in the process by which that would be triggered. Is it just that the Minister decides? Is there a dialogue between the Minister and the executive with the elected members involved? Again, I am not against the measure; the transition measures have to be there. If people have clarity, it would be helpful.
I understand.
Can the Minister of State come back with that?
We will indeed.
I ask the Minister of State to respond on amendment No. 500. We have not touched on it yet. It is in the name of Deputy Cowen. We need to discuss it because it is in this grouping.
This could be procedural. Does he not have to be here to move it?
If there is nobody to move amendment No. 500 when we get to it, then it would fall. It is grouped here for discussion.
Amendment No. 500 proposes a transitional provision relating to the determination of applications and appeals made to An Bord Pleanála. This approach would not be workable because the proposed amendment would insert a new provision into the Planning and Development Act 2000, which is going to be repealed once the Bill, when enacted, is commenced. Once repealed, the Act of 2000 will no longer have effect.
I can confirm that a new section 544 is to be inserted into the Bill in order to ensure that the Act of 2000 will continue to apply in respect of any applications or appeals that are in train at the time the Act is repealed. For this reason, I am unable to accept this amendment.
I ask for clarification on, I think, amendment No. 932. It is the one that refers to special amenity area orders. I think this has been answered. If an order was made under the previous section 202, that order remains valid. If that order has not been enacted by a local authority, it still remains valid, I presume, and transitions across with amendment No. 932.
That is correct.
A ministerial order for a special area of amenity is not time-bound; it continues until it is enacted. I just wanted to clarify that.
Amendment agreed to.
Amendments Nos. 3, 6, 7, 10, 13, 16, 17, 22, 23, 128, 177 to 179, inclusive, 1089, 1090, 1095, 1099, 1100, 1122 to 1125, inclusive, and 1136 are related and may be discussed together.
I move amendment No. 3:
In page 27, line 30, to delete “ “Chief Planning Commissioner” ” and substitute “ “Príomh Choimisinéir Pleanála” ”.
It would be much easier if we changed the rules of the House in order that with amendments such as these, one could put a single amendment at the start containing the phrase “thereafter, where it appears”, but this is the rule. Many of these amendments are quite similar in that they are trying to ensure that from the start of the legislation, the specific titles of príomh choimisinéir pleanála, or chief planning commissioner, as it appears, or chief executive officer, planning commissioners, planning regulator, national planning framework and a number of other ones appear in legislation in the Irish title. It is supposed to happen since the passage of the Official Languages (Amendment) Act 2021. We agreed in law that any new body will be given a title in Irish only. The logic is that in this instance, we would use this legislation to effect that if it has not been already. We are recognising the Official Languages (Amendment) Act. We wish to do away with the practice of having just a token title in Irish. For example, it used to say in legislation “and in the English language, such a title", and it then became the normal parlance for that title in English to be used. The change I suggest is that the change in the official language makes it clear there is no need for an English title when that title is as Gaeilge.
Section 9D(1) of the Official Languages (Amendment) Act states: "The name of a statutory body established, on and from the commencement of section 4 of the Official Languages (Amendment) Act 2021, shall be in the Irish language." Despite the commencement of the Act, numerous pieces of legislation have been tabled that have ignored this legal obligation they set themselves and many new bodies have been proposed with bilingual or Irish language names. In many instances, I tabled amendments and argued the case. Some Ministers have accepted it and others have not.
Strategic Environmental Assessment Regulations) and the Habitats Directive
The logic is there and the law is there. It is not just a question of accepting the law but to make sure that it is written into legislation so that there is no doubt. As I said, in many cases, Ministers have accepted it. We have the move by the Department of Housing, Local Government and Heritage to recognise "An Coimisiún Toghcháin" but it is still an issue because the branding has "Ireland's Electoral Commission" in English, which is a term that is not found in the legislation.
The Minister for Justice recently announced her intention to change what was originally to be known as the Office of the Policing Ombudsman and I argued with her that it was wrong. She changed it and it is now recognised as Fiosrú – Oifig an Ombudsman Póilíneachta.
I hope that in these instances the Minister will be able reflect on this. The historic position of the State was to recognise the primacy of the Irish language and in the past there were bodies such as Bord na Móna, An Garda Síochána, and Córas Iompair Éireann, CIÉ, Bus Éireann, and Bord Gáis. That was the normal terminology. It was not a problem for the public and there was not a need to translate. In the 1970s and 1980s there seems to have been a change within the Civil Service and those who were addressing this shifted to Dublin Bus, and Irish Rail rather than Iarnród Éireann, which was the previous title. There was a shift away from the Irish names. These amendments are trying to correct the balance and in some cases to ensure the law is corrected in regard to the titles that I have mentioned. In some ways the question of the titles of bodies has already been conceded in the Official Languages Act. I hope the Minister of State will be able to accept this amendment. The Department of Housing, Local Government and Heritage has been good. An example of that is the Croí Cónaithe scheme, which some might say is a difficult term. However, that is not the case and people understand it quite quickly. An Coimisiún Toghcháin is another example. The names of the other bodies I referred to are self-explanatory. There are quite a number of these amendments but they are not contentious. I will allow other speakers to come in or the Minister of State to reply.
I will address amendment Nos. 3, 6, 10, 13, 22, 1089, 1090, 1095, 1099 and 1100 tabled by Deputies Ó Broin, Gould and Ó Snodaigh.
These amendments relate to the naming of key positions within an coimisiún pleanála in the Irish language. This is proposed to be done by redefining a number of terms already defined under section 8 and Part 17 of the Bill. The positions in scope are the chief planning commissioner, the deputy chief planning commissioner, the chief executive officer, and the governing board. It is also proposed to replace the general reference term "Commission", used extensively throughout the Bill, with the term "Coimisiún".
While I fully support the use and proliferation of the use of the Irish language, and the sentiment behind these amendments, great care must be taken here as regards the functionality and rationality of the proposed legislation. In summary, I do not oppose what is being proposed here – in fact I support what the Deputy is trying to achieve - and I will instruct my officials to consult with the Office of the Parliamentary Counsel in relation to these proposals and to determine what options might be available from a drafting perspective.
I aim to move corresponding amendments on Report Stage that I hope can achieve what the Deputies are striving to achieve. As a result, I would ask the Deputies to consider withdrawing these amendments for the time being while additional work is carried out in relation to this important matter. I fully accept the rationale behind what Deputy Ó Broin is trying to achieve here, but I again ask that the amendments would be withdrawn while we give further consideration to how we might address the issue.
I can understand what the Minister of State says. We have all been under pressure to deal with amendments and to address them here today given the rush to ensure that our planning legislation is intact and correct. Some of these amendments are quite simple and they are not contentious. They are in line with the legislation. I could understand if the Minister of State said there is no need for them because the legislation already exists but there is a need for them because we must specify the exact spelling and the order of the words. This is an opportunity to ensure that each of the bodies mentioned are specified in the Irish language, as intended by the Official Languages Act.
Perhaps it is a hangover from previous legislation that it did not happen from the get-go. Part of my intention with the amendments to this and other Bills is to try to ensure that every Department understands from the get-go that the law exists and that there should not be any doubt. Beyond that there is the issue of branding and making sure that the branding of State companies is in line with the Official Languages Act. For years, branding existed as Gaeilge and perhaps the problem is that it was not always backed up by other actions. The hope is that through various Government strategies and the work that is happening on the ground, if we get it right in here – we are the ones responsible for ensuring that is the case - the branding will resonate with the public again, as it did before. That will then become part of day-to-day parlance and add to the other effects we have already noticed from the Official Languages Act. Everybody will have heard a lot more Irish language advertisements on TV and radio. We fought for that when the legislation was going through. The question is whether it is effective or not. My English-speaking friends say that it has resulted in them using a little bit more Irish or at least commenting on the fact that Irish is in greater use. We will give the same message with branding. There is only a certain amount that we can control when we are dealing with legislation that is not specifically to do with the Irish language in order that the message goes out.
In some ways I am not inclined to withdraw the amendments. I understand what the Minister of State has said about looking again at this but – this is not an accusation aimed at anybody – this is a lazy approach. The officials are not lazy because they have produced a 700-page document and they have gone through the more than 1,200 amendments. They will probably have to go through a lot of them again on Report Stage and in the Seanad. The use of the word "lazy" has nothing to do with them putting the work in, it is just the approach. As an Irish speaker I have often found when dealing with the State sector that the Irish language is an afterthought, if it is a thought at all. I will press the amendment.
The response is very disappointing. We should not even have to table these amendments. For me the real contradiction is if you look at the Government and the Department there has been quite a sensible use of Irish language names, particularly for schemes or agencies that are front-facing. Deputy Ó Snodaigh made a point about the Croí Cónaithe scheme. For those of us who are not Irish-language speakers, it is lovely that we actually go and look up what the word means and all of a sudden we understand the words for "beating heart". Again in the Department, Project Tosaigh means that the project is to begin. It began far too slowly in my view but it is still a beginning nonetheless.
In some of these proposed provisions, the chief planning commissioner is the public official for an organisation that, in the legislation we are dealing with, is named in Irish. It makes no sense. I do not understand why it would be necessary to go to the Official of the Parliamentary Counsel in this regard. The only question here is whether the grammar and spelling of these words are correct and if these are the correct translations. I say this because the Minister of State is either in favour of doing this or he is not. If he is in favour, then it would be much easier to just accept the amendments. If Deputy Ó Snodaigh and his team have got any of their spellings wrong, and I doubt they have, that could be fixed on a later Stage. In some sense, I think it would be great if we did not have to bring forward these proposed amendments and if this was just done as a matter of course. Whether that concerns a public agency, the public face and figures of agencies or key public schemes, this approach has such eminent sense. For this reason, I am with Deputy Ó Snodaigh on this point in thinking we should press the amendments.
To follow up that point, these amendments make absolute sense. The proposers have put forward a good case. These are not controversial amendments. The Minister of State has basically not stated any rationale against them. He seems, effectively, to accept the amendments, while not actually accepting them. I am at a loss as to why they are not being agreed to now, seeing as no case is being put forward against them.
Like Deputy Ó Broin, I try to use the Irish language as much as I can in daily conversations or in Dáil contributions. I have children attending Gaelscoileanna, and we have to try our best in this regard. From the perspective of the point being made, I absolutely agree wholeheartedly with the Deputy. The point made by Deputy Ó Snodaigh is well made. The more we have Irish terminology used in Government publications and in the titles of various policies and entities, the more useful it will be for us all. Again, in my initial response to Deputy Ó Snodaigh, I was certainly not opposing the sentiment behind this proposed amendment. I think it is extremely laudable. I am asking that he would allow us to go back to officials in the OPC in relation to the proposals. There is a novel aspect to what is being proposed here in terms of the positions around the chief planning commissioner and all of these titles and how they permeate throughout the Bill as well. I am giving a commitment that we will do this. On that basis, I ask that these amendments be withdrawn.
I appreciate that, particularly in the cut and thrust of a debate. In some of the discussions we had earlier, we came across drafting weaknesses or errors that require that they go back to the Office of the Parliamentary Counsel. I do not, though, understand why it would be necessary to do it in this instance, in the sense that the Minister of State either accepts the principle that the Irish translation or the English translation is used. If there is a separate issue in respect of whether we have captured all the iterations of the translations in the text, that is something the Department could do anyway. The Minister of State could accept this amendment, and then if we have missed anything, it could be captured by ministerial amendments on Report Stage. Surely the purpose of the Office of the Parliamentary Counsel is to give legal and legislative advice and not to make a policy decision as to whether the English or Irish version of a name should be used. Again, I am inviting the Minister of State to convince me why that office is going to offer us anything beyond what we are currently discussing, which is whether he does this or does not do it.
Okay.
It is a different matter if it concerns legislative crafting of language or sentences to have a particular legislative impact.
Yes. The Deputy will appreciate that there will be consequential amendments as well in relation to this aspect.
Great, and the more, the better.
What we are trying to do is to give effect to this change, while not accepting these specific amendments. I refer to allowing us to go back to the OPC and then come back to the Deputies with proposals in relation to this context.
I appreciate the huge volume of work the officials have done on this Bill. If only we all had a team of excellent officials, it would make our jobs easier. Surely, though, some of the work in this regard should be done prior to the proposed legislation coming to us. To me, this is a change that just seems so easy to make and that could have been discussed with the relevant office prior to this Stage.
As I said, we are talking about replacing all these terms throughout the Bill. I think this is the critical thing here. What we are asking, really, is for the Deputies to allow us to consult the OPC on the proposals to see what options would be available from a drafting perspective. I hope the Deputy can appreciate this point.
I do not understand it but I can appreciate it.
Okay.
If I were to be consistent, I would have to allow the Minister of State the time to go back to the Office of the Parliamentary Counsel because that is what I have done on other occasions. In some cases, a Minister or Minister of State has come back quite favourably disposed. In other cases, though, they have not done so on Report Stage. In the Seanad, then, the Bill would be changed again. In some ways, the Minister of State is giving a commitment and I have to take him at his word. It is an easy ask in some ways. The Minister of State might not agree with some of the amendments, but some of them he must agree with, legally speaking. It is not a choice.
I appreciate that.
I can understand if the Minister of State needs to go to the principal aistritheoir in the Houses of the Oireachtas. This is the man who is in charge of grammar for all of us who struggle with grammar, and it does not matter in what language. He can tell the Minister of State if my version of the different titles is correct, such as that of the "Príomh Choimisinéir Pleanála", as mentioned in my amendment. I refer to whether "Choimisinéir" is spelt correctly and is as exact as it should be. I do not think the principal aistritheoir will find against me in many of the cases because these aspects did not come from me alone. It is important, however, that we come back to this issue.
Absolutely.
I will come back to this issue on Report Stage if the Minister of State does not. It will be early enough on Report Stage. There is no extra cost involved in doing it. This is the luxury of it. A whole new planning system is being set up, so we can get it right from the get-go. We did not get it right with Irish Water. It is now Uisce Éireann. That organisation has had to change its name. It is an example of a body that was newly set up and had to change its branding. Perhaps the company changed its name because people did not like the name Irish Water anyway, similar to the case of Sellafield, formerly known as Windscale, and places like that which had bad press and had to change their names.
I think this is useful. We are approaching Seachtain na Gaeilge, so perhaps the Minister of State can come back to us even before this tome of amendments is concluded and tell us this has been looked at and that he will definitely be accepting these amendments, rather than us having to wait and wait. If we have word that these amendments are being accepted, that will mean that we will not have to resubmit them on Report Stage. I am happy enough to withdraw amendment No. 3, and then to withdraw the other amendments as we get to them. There are quite a lot of them.
Go raibh maith agat. The amendment is withdrawn, with the right to reintroduce on Report Stage.
I appreciate that.
Amendment, by leave, withdrawn.
We will continue. The Minister of State has a number of amendments grouped in this section. We will take them all together. Deputies have other amendments in this grouping too.
On a procedural point, when we did the grouping of amendments with the Minister of State, Deputy O'Donnell, on the transitional aspects of the proposed amendments, he read through the entire statement and then we had to go back over things. I think that approach actually took more time. It might be easier with some of these very big groupings for us just to go through amendments individually in chronological order. I just think we would get through this Bill faster because it gets very confusing otherwise when we are trying to jump back and forth. I mean we would take the amendments as a group but we would go through them one by one in the group.
I will ask the Minister of State to speak to his amendments first, and then we can go back and go through them in chronological order if the Deputies wish. I need to make sure all the amendments are spoken to in order to be covered.
The problem is that all these amendments, bar three, are the Minister of State's. What will happen is that he will speak to a very long list of amendments and we will then have to try to interrogate each of those different amendments with questions if we wish to clarify them.
It certainly proved very difficult when we did the previous grouping with the Minister, grouping No. 2.
We will try it with this one, as we did with the last, and then we will make a decision on it afterwards. Is that okay?
Okay, let us see how we get on.
I ask the Minister of State to move amendment No. 4 and then speak to the amendments in the group.
I move amendment No. 4:
In page 27, to delete lines 32 and 33 and substitute the following:
“ “city” means—
(a) the administrative area of a city council (within the meaning of the Act of 2001), or
(b) a municipal district that includes an area that, by virtue of subsection (6) of section 10 of the Local Government Act 2001, may continue to be described as a city;”.
Government amendments Nos. 4, 11, 12, 15, 19, 20, 24, 27, 32 to 34, inclusive, 122, 583 to 585, inclusive, 918, 928, 957, 958, 1003 and 1027 all relate to definitions used throughout the Bill. Amendments Nos. 4, 11, 12, 15, 19, 20, 24, 27 and 32 to 34, inclusive, seek to amend section 2 of the Bill, which provides definitions for terms used throughout the Bill. Specifically, amendments Nos. 15, 24, 27 and 34 propose to insert a number of necessary definitions for the purpose of the Bill, such as a definition of an "integrated pollution control licence", an "industrial emissions licence", a "reserved function", "shares", and a "waste water discharge licence".
Amendment No. 4 amends the definition of "city" to mirror the definition in the Planning and Development Act 2000 to allow for the continued use of the description "city" in relation to Kilkenny, Limerick and Waterford, while amendment No. 11 clarifies that maritime development, in addition to taking place “in” the maritime area, may also take place “on, over or under” the maritime area. This is consistent with the definition of "development" generally.
Amendments Nos. 19 and 20 amend the definition of "occupier" to clarify that an occupier in the maritime area includes a person who is a holder of a lease under section 2 of the Foreshore Act 1933.
Amendment No. 32 makes minor amendments to the language of the definition of "unauthorised development". The Bill has required continuous work to ensure it is fully optimised and this amendment has identified that the syntax could be improved without changing the intent of the provision as published.
Amendment No. 33 deletes the current text of the definitions of "unauthorised structure" and "unauthorised use" and adds new paragraphs (c), (d) and (e) to each of the definitions of "unauthorised structure", "unauthorised use" and "unauthorised works" for the purpose of ensuring that the definition of "unauthorised development" is consistent with the requirement to apply for permission for development in section 80(1). The new paragraphs outline types of development which should not be deemed unauthorised for the purpose of the Bill, including Chapter 6 State authority development which is exempted development, development required by either a notice or order relating to works which must be carried out in a special planning control area, an enforcement notice or a planning injunction, as well as development which is subject to a licence under section 12. These types of development are already set out in section 80(1) as development which does not require planning permission under Part 4 so this amendment is ensuring consistency throughout the Bill. Amendment No. 34 is a consequential amendment that deletes the current text of "unauthorised works".
Amendment No. 122 amends section 15 of the Bill to insert a definition of "functional area" for the purpose of Part 3 of the Bill. This definition clarifies that for the purpose of Part 3 of the Bill relating to the making of development plans and so on, the functional area of a coastal planning authority is limited to the administrative area of the planning authority up to the high water mark. The Maritime Area Planning Act 2021 provides that forward planning in the maritime area will be carried out under Part 2 of that Act, which deals with maritime spatial plans, so this amendment merely clarifies that development plans should only extend as far as the high water mark. Amendment No. 12 is a consequential amendment to amendment No. 122.
Amendments Nos. 583 to 585, inclusive, update the definition of "proposed development" in section 79 which applies throughout Part 4.
They remove the current references to State authority emergency development as this is exempted development for the purpose of the Bill. Amendment No. 918 deletes a duplicated definition.
Amendments Nos. 928, 957 and 958 are a minor reorder or edit of existing text for clarity and consistency.
Amendment No. 1003 adds a definition of draft special planning control scheme to Chapter 2 of Part 10.
Amendment No. 1027 updates the definition of "application" for the purpose of Part 12 to remove the current reference to section 208 which is an application for EIA screening. Part 12 sets out general provisions for applications throughout the Bill. However, the EIA procedures are already detailed in Part 6 so there is no need for this reference here and retaining it could lead to conflicts in procedures and uncertainty. All of the amendments I have just referenced are necessary to bring further clarity to the Bill.
Thank you. I am happy to go through those amendments now if Members wish. Also in this group is amendment No. 5 in the names of Deputies Duffy, Cian O'Callaghan, Ó Broin, Gould and Ó Snodaigh, if anyone wishes to speak to that. Amendment No. 29 in the name of Deputy McAuliffe is in this group too.
I will take the opportunity to thank the Chairman and the secretariat for all the work they are doing. I also want to thank the Minister, the Minister of State and the Department for taking on the very complex process of preparing this Bill.
I am looking forward to the discourse that has already begun. This amendment makes a small change to a definition. Climate change adaptation and mitigation means taking measures to mitigate the impact of climate change. The amendment seeks to add "to mitigate and" manage. It is in the title and so should also be in the meaning.
I concur but I would say that it is not a small change. It is a change of factual accuracy in the sense that if we are defining "climate change adaptation and mitigation" only as measures to manage the impact of climate change, we are actually ignoring the crucial and more important requirement to mitigate the impact. It is actually quite important because otherwise we are not actually defining "adaptation and mitigation" correctly at all. The definitions in the Bill, as we know, are crucial so hopefully this is one amendment that the Minister of State can support.
I agree this is an absolutely key amendment. I was actually quite shocked that the Bill talks about adaptation only and does not talk about mitigation. The idea that we would only be trying to adapt but would not actually be trying to stop, mitigate or reduce harmful emissions of greenhouse gases is shocking. Going to the root source of the problem should be a key objective in terms of what we are trying to do in the planning process. We certainly have to do adaptation where we have failed to do a sufficient level of mitigation but this amendment is absolutely key in terms of our entire approach to climate change. I am very hopeful that the Minister of State will accept our amendment. It is very important that we get this right in the Bill.
I invite the Minister of State want to respond on amendment No. 5 and then I will go Members on the other amendments.
Amendment No. 5 seeks to amend the definition of "climate change adaptation and mitigation" to include a reference to mitigation in the definition text. The new definition would provide that it means the taking of measures to manage and mitigate the impact of climate change. I understand the intent of the proposed amendment but would like to consider it further to ensure that it aligns with other provisions of the Bill. While I cannot accept the amendment now, I may bring forward a similar amendment on Report Stage on this matter. I agree it is important but I cannot accept the amendment as proposed.
I do not understand the response. I am not a Government Deputy but is it not the case that the Government is strongly supportive of measures to mitigate climate change and not just measures to adapt to it? Does that not run through Government policy and the programme for Government? Should it not run through this Bill? Is that not the case?
It is the case.
What else is there to consider? It is absolutely fundamental, in terms of climate change, that we are not just doing adaptation measures but are doing mitigation measures as well. It is absolutely fundamental. There is no debate to be had on this. There is no debate to be had between Opposition Deputies and a Minister of State from the Green Party on this. I assume we are on the same page on this issue so why can this amendment not be accepted now? Why is there any question mark over accepting it? A bad error was made in the original draft of the Bill by not having the wording that we propose here. Now that it has been pointed out, surely the amendment should just be accepted and we move on. I do not understand how there could be any consideration given to not including this.
There are a couple of practical considerations. If the Minister of State is not able to come to the meeting with an answer already prepared on such a simple matter, we are never going to make any progress when we get to much more complex and controversial issues. We could lose the opportunity to press amendments here and take the risk of deferring them to Report Stage, when we do not control the time allocations. Ultimately the Government will control the time allocations on Report Stage. I suspect if we will come to Report Stage with very long lists of amendments we will not get time to debate them, let alone vote on them. I am minded to push this. Unless the Minister of State can give me a compelling reason the language should not be there, I think he should just accept it. If not, I will press.
It does not make any sense. It references "climate change adaptation and mitigation". If we leave out "mitigation" it leaves a reference to the taking of measures to manage the impact of climate change. We are mitigating climate change at present so why can we not say it? I do not get why we cannot say it if we in this country are mitigating climate change. Why can we not stick in the word? It does not really make any sense.
I agree wholeheartedly with the Deputies. They have brought forward an important amendment. What I am asking them is to allow us to go back and give consideration to how we might give effect to it. They have to appreciate that we have to check the wording against other provisions in the Bill and unforeseen consequences in terms of other provisions. I ask them to allow us to do this. It is absolutely essential that climate adaptation and mitigation are given due consideration. Both have vital functions for communities. Absolutely we support it in principle. We ask that we be allowed to go back and see how we might give effect to it in bringing it forward on Report Stage.
The whole purpose of Committee Stage is that the Government tables amendments and we table amendments. We are all meant to do our homework in what limited time we have and then we are meant to come and make decisions. If every time we table an amendment the response from the Government side is that we must go and consult somebody, this is what the time between the publication of amendments and Committee Stage is for. I do not doubt the sincerity of the Minister of State. My problem is that if this is the way all of our sensible amendments are dealt with, if the Government does not act on its word or if the Minister of State is not able to convince his senior colleague, we will end up with very little Report Stage time to deal with it.
I will press the amendment but I also want to send a signal that if there are amendments the Government thinks are right in intention but we do not have the words right, it needs to bring it to Committee Stage. That is what it is meant to be for. I know it is extra work and the folks are bleary-eyed already because they have been working far too long and far too late on the Bill. The Government is meant to come and make suggestions if it wants changes here and not offer the possibility on a wing and a prayer of something on Report Stage. I will press the amendment but I want the Minister of State to reflect on the proposition that if he will not support an amendment or bring an alternative wording on this Stage on everything on which he agrees in principle, unfortunately we will have a very difficult time in the committee sessions.
What Deputy Ó Broin is saying suggests the officials are having as much difficulty dealing with the timeframe allocated to the Bill as we are. Otherwise they would have come here with advice that the amendment is okay and it can be let through. Why this is not the case is crazy. What the Minister of State is saying is that the Government has not really had enough time to consider it. Surely the Government should have considered what amendments were submitted by the Opposition before now and made a decision on whether it thinks they are okay. To be honest, it would not be satisfactory either way but is there assurance, for example, that a guillotine will not be imposed on Report Stage? It might give some comfort if it was known for certain that any subsequent amendments the Opposition tabled would not be guillotined. It would make a bit of a difference. It still would not address the fundamental point that Deputy Ó Broin is making, which is that the Government should have come prepared to accept or reject amendments and have them properly considered.
Is this a matter for the Business Committee? I do not know whether it is a matter for this committee.
Ultimately it is a matter for the Government because it controls the Business Committee.
It is just a point.
I take the point.
This is a very important amendment. If it is helpful we can accept it. We will have to look at bringing in consequential amendments and look at how it complies with other legislation, such as the climate action plan. The Deputies have brought forward an important amendment and we are happy to accept it.
I thank the Minister of State.
That is a 20% success rate so far. If we have this throughout the Bill, we are on the Minister of State's side.
I would like to make a point for clarity. Managing the impact of climate change does not rule out adaptation or mitigation. It is managing or reducing greenhouse gases, whatever that management might be.
Are you trying to convince the Minister of State to change his mind?
We are writing law here. If we were to say "measures to manage" it does not rule out mitigation and it does not rule out adaptation. This is my view on it.
It is better to be explicit in legislation. This is my view.
There are other amendments in the group. I invite Deputy Flaherty to speak on amendment No. 28 and Deputy McAuliffe to speak on amendment No. 29. We can then discuss them all in the round.
Amendment No. 28 merely has an additional word by comparison with Deputy McAuliffe's amendment. It is semantics.
I have a note to say that amendment No. 29 is a physical alternative to amendment No. 28.
This is a proposal for the expansion of the definition of "statutory undertaker" to include water and wastewater services to align with the existing definitions under the Water Services Act. It should read "carry out works for the provision of water services, wastewater services, gas, electricity or telecommunications services or cause such works to be carried out".
Amendment No. 28 tabled by Deputy Flaherty seeks to amend the definition of "statutory undertaker". Amendment No. 28 is unnecessary as it seeks to add "services" after the word "water", however water is the first word in a list which ends in "services". The Bill states "carry out works for the provision of water, gas, electricity or telecommunications services". I am of the view that the amendment is unnecessary in that sense.
Is the Minister of State satisfied that "wastewater services" does not have to be included either?
It is covered in it.
I am happy with that response.
That deals with amendment No. 29 also if "water" covers wastewater services.
Deputy Flaherty has covered many of the points that I want to raise. From a wider perspective, having discussed the Bill with Irish Water I know there are a number of powers it fears it may lose from the current range of powers it has. It believes the process with the local authorities is working quite well. Has the Minister of State examined any process to deal with issues such as this where there might be disagreements? After some time of operating the Bill, it would become very obvious whether there was a challenge.
Is there a process the Minister of State has considered, particularly for statutory bodies and bodies such as Irish Water where, if those type of issues arose, they might be addressed as part of that process? It is a broader query. I accept the bona fides of the Minister of State's answer, but if an issue were to arise, is there a process that would allow more speedy amendment? Amending the Bill again in future would be difficult in the normal legislative process. Do we have any process for identifying those types of issues? I imagine that will not just relate specifically to this amendment. In the overall delivery of the Bill, many other issues might be slightly different than the legislation or wording might have intended.
If it is helpful, I will address the matters raised in the amendments of Deputies Flaherty and McAuliffe. In amendment No. 29, Deputy McAuliffe is seeking to add "wastewater services" to the list. I am happy to include wastewater in the list. For clarity, I can table an amendment on Report Stage allowing for the word "services" not to be duplicated. It would be at the end of the list as follows: wastewater, gas, electricity or telecommunications services.
Okay. I thank the Minister of State.
Would that be of assistance?
I think that satisfies the amendments of Deputies Flaherty and McAuliffe, if I am reading that right. We will return to the Minister's amendments.
I have a significant concern about the definition outlined in amendment No. 11. When we considered the Maritime Jurisdiction Act, if people can remember that far back, we had quite lengthy discussions around the issues of using the term "maritime area" versus "maritime site", which are not the same. They have different implications, depending on their use. We also had quite lengthy discussions around what "under" or "over" means, and to what depth under and to what height over. From memory, there ended up being quite complex legal issues. I am concerned that the definition in amendment No. 11 is too ambiguous and unclear, especially regarding the reference to area rather than area and site. I am also concerned about the lack of clarity on how high over and what depth under. I am interested in hearing the Minister of State's response. I will then raise a separate point on amendment No. 33.
I have similar concerns about how the term "maritime area" is used in some parts of the Bill and "maritime site" elsewhere. For example, in amendment No. 32, "maritime site" is used rather than "maritime area". There seems to be an inconsistency in approach. Will the Minister of State clarify why "maritime area" is used in some areas of the Bill while "maritime site" is used in others? Will he also clarify what depth is covered when "under" is referenced in the legislation, for example, "under the maritime area"? What depth or substrata are we covering in that definition of maritime site?
I do not have the answers to the Deputies' queries to hand. From recollection, I recall quite a lengthy debate on the issue. Maritime area has the meaning assigned to it by the Maritime Area Planning Act 2021. According to that Act, "'maritime site' means a part of the maritime area, and includes ... the waters of that part of the maritime area ... the seabed in that part of the maritime area, and ... all substrata beneath the seabed in that part of the maritime area". Does that ring a bell, from Deputy Ó Broin's recollection?
It does. The question, however, is that across amendments Nos. 11, 32 and 33, there is confusion between, or mixed use of, site versus area. Why is one term used in one part of the Bill and a different one used in another, which is also Deputy O'Callaghan's question? Why is the definition of a site not included with the definitions, or at the same point as area is defined?
As I understand it, site is a more specific defined area. From a development perspective, it is about consistency in the use of that term.
The wording in the Bill reads " "development” means ... the carrying out of works ... on, in, over or under land, or ... in the maritime area". On exemptions, the Bill reads, " “unauthorised development” means, in relation to land [which is pretty much the same wording, although not as long] or a maritime site". In one part of the Bill that references development, it means maritime areas and land, while another part referencing unauthorised development means maritime sites and land. Why is there this inconsistency in the Bill whereby when it comes to development, it is the maritime area that is included, but when it comes to unauthorised development it is maritime sites? How come we are not concerned about unauthorised development in the maritime area but when it comes to development, it is the whole maritime area that is included? Only maritime sites are referenced with regard to unauthorised development whereas all land, not just maritime sites, is applied to an authorised development. Why the narrowing? It is quite an inconsistency in the Bill to narrow the language used when it comes to unauthorised development but not development. That could have very serious implications.
I see what the Deputy is saying. The Bill refers to development on a maritime site within the maritime area.
What if there is unauthorised development in a maritime area and it is not considered a maritime site?
Development can take place anywhere. A development that has taken place forms part of the site.
Does it definitely? The Bill covers development everywhere, but when it references unauthorised development in maritime places, it only references maritime sites. Why should it not be maritime area? Why not that broader wording? Are we absolutely clear that unauthorised development, by virtue of being a development, means that it is a site and is, therefore, covered? Why not just use the broader language used for development? Why have that inconsistency in the Bill? Why open that up to the possibility of court cases and someone saying a location is not a maritime site and the Bill does not apply to him or her because it does not apply to the whole maritime area? Why open up the possibilities for court cases, litigation and conflict on that? Why was that wording chosen? Why be so imprecise and inconsistent with the wording when we are introducing legislation on this very important area?
Site refers to a defined site within the maritime area. It is specific to an unauthorised development that might take place on that site. Maritime area is the broader definition of the marine area.
Why the inconsistency? Why not just use maritime area? Why use it in one place in the Bill and, when it comes to unauthorised development, narrower language is used that could be open to different interpretation, litigation, court cases and everything else?
It is because the site is location specific. That is why it is in.
Land is just land. It is not a development site on land; it is all just land.
I will bring in Deputy Boyd Barrett who indicated and then Deputy Ó Broin.
I get Deputy O'Callaghan's issue. The Government's amendment further elaborates what the maritime area is to try to clearly define it. However, when it comes to unauthorised developments, the definition is narrowed down. Would it help the clarity of the Bill to follow a reference to the site - I get the point about it being specific - by qualifying its definition through saying whether it is on, in, over or under the maritime area? This is so the definition is tight and cannot be misinterpreted as something different from the maritime area.
I will make the same point. Why not just have a consistency of language in both sections?
I ask the Minister of State to come back on the question of depth and height when it comes to "over or under". What is the scope of that and where is it defined? If not here, where else in other legislation?
Is it okay if I come back to the Deputies on those questions?
Yes.
I apologise for not having that information to hand.
We are on our first date in relation to this Bill, so we will be lenient with the Minister of State. I get that these guys have been thrown in at the last minute, but we are only on amendment No. 11 or amendment No. 12 and the Minister of State is saying he is going to have to come back to us on a lot of the points we are raising. We want to be helpful, but we will end up replicating a lot of this if we have to keep coming back to it. At this stage, I should state that I am uncomfortable with amendment No. 11.
I appreciate that.
I am not sure I can support the amendment as it is, but I am more than happy for the Minister of State to come back to us on Report Stage, if that is what he is recommending. I am minded not to support amendment No. 11 at this point.
We will have to come back to the Deputy on the definition of "on, in, over or under". The State owns the maritime area. The unauthorised development only takes place on a site. Does that clarify the difference?
Part of the problem is that the Minister of State seems to be defining "site" in a very geographically specific way-----
-----as opposed to it being a more generic term, which is my understanding of its original legislative meaning.
Okay.
Does Deputy O'Callaghan want to come in?
I can understand the point that is being put forward. However, if we used clearer language in the Bill, it would simply be "maritime area". It would have that consistency. There is no rationale as to why that language would be used for development and different language would be used for unauthorised development. Even if there is just a small chance of opening up any possibility of ambiguity, why would we do that? There is inconsistency with how land is treated as well. It makes sense to have our wording in legislation tight and consistent. It reduces problems down the line.
If I could be so cheeky, the Minister of State could always withdraw the three amendments, clarify the matter and reintroduce them. It would save us having to oppose them. I offer that as a constructive suggestion.
Specifically in relation to amendment No. 33, obviously this is a new text that is replacing the text in the existing legislation. I ask the Minister of State to confirm, on the record, that nothing has been left out or omitted from the previous definitions that the new amendment No. 33 is replacing.
We are happy with the terminology around development taking place on, over or under the maritime area. I think that is clear.
I am not so sure the Minister of State can say he is happy with it if he cannot actually explain what "over" and "under" mean, but I will leave that to him.
I am not clear on Deputy Ó Broin's question. Is he asking about how high over the maritime area a development is in feet, for example, 33,000 ft or 15 ft?
When we were dealing with some of the original legislation, as the Minister of State will remember, we had very lengthy discussions around these things. Depending on how high or how deep they are, the types of development, or indeed unauthorised development, change significantly. I ask the Minister of State to confirm that in amendment No. 33, nothing has been omitted or left out from the earlier definitions.
Is that in relation to section 33 of this Bill?
Amendment No. 33.
There is no definition of "on, over and under". Again, it goes back to the idea it being a defined maritime area.
I am not being awkward, but the Minister of State just said there is no definition, but it is a defined area. How can a-----
In that location. It is on, in, over or under in that defined area.
Who gets to define how high over or how deep under it is? If this is to do with granting development or making decisions on unauthorised development, surely that is important.
The definition is around specific developments, as I understand it. I can come back to the members with a clarification. I apologise.
Deputy Ó Broin wants clarification on amendment No. 11. Is that correct? It is just so we that know what we are coming back to. I am conscious that if we get to amendment No. 11-----
We will not get to amendment No. 11.
We are unlikely to. It is just to get that clarification.
We are not going to-----
The Deputy is right. We should try to try to get that clarification as soon as possible. Was Deputy O'Callaghan indicating there?
I am concerned that under amendment No. 33, there are several references to "maritime site". On page 31, there are definitions of "maritime site" and "maritime area". It is very clear that unauthorised use of a maritime site is only part of the maritime area, so why would the legislation seek to limit this? Why would we open up the possibility of someone saying "you are saying this is an unauthorised development but it is not taking place on a maritime site, so therefore it is fine". Then you have to go on to prove whether it is a maritime site or not. The language used could be "maritime area and maritime site". It is broader and safer. There is inconsistency in terms of "land". It is just "land"; it is not "sites on land" or anything else. I am very concerned that these inconsistencies are opening up potential difficulties down the line, and potential loopholes that people will try to exploit and so forth. A good rationale has not been given for why it is better to use the phrase "maritime site" than "maritime area", or why we would not use "maritime area" here.
I have an outstanding request. I ask the Minister of State to clarify that under amendment No. 33, nothing has been omitted or excluded from the earlier definitions.
No. That is based on the legal advice in terms of the drafting of the Bill.
Sorry?
These definitions are based on the legal advice in terms of the drafting-----
That is my question. If I understood the Minister of State's original speaking note, amendment No. 33 removes a previous set of definitions around unauthorised development and there is a new set.
What I want the Minister of State to confirm, on the record, is that the new set does not remove or omit anything that was covered by the previous definitions, and that everything that was previously covered is covered. The language of it is different, and there might be some new areas covered.
I can confirm that absolutely.
Just to be clear, we are looking for clarification on where "maritime site" or "maritime area" is used and the reasons for that. Under amendment No. 11, we are asking if there is a definition of "on, in, over or under". I think we can move on. Did Deputy O'Callaghan say he had other questions?
On the grouping or on the amendment?
We are still on the grouping.
I ask the Minister of State to explain amendment No. 585 in a bit more detail. I know we will get to Chapter 6 later, but given that we are all new to this it might help if the Minister of State is able to give us a bit more detail on Chapter 6, State authority emergency development, in the context of this amendment.
Apologies, but am I correct that the Deputy has asked about amendment No. 585 in respect of State authority emergency development?
Yes. The ministerial amendment No. 585 deletes the following: "(d) proposed Chapter 6 State authority emergency development in respect of which the State authority concerned is required to comply with sections 152 and 154." Section 152, on page 290, refers to a "Public notification procedure". Section 154, on page 294, refers to "Confirmation by State authority".
First, it would be helpful if the Minister of State explained to us, in summary, what a "Chapter 6 State authority emergency development" is and then why it is no longer being required to be compliant with sections 152 and 154. These small technical amendments always make me nervous.
A State authority development emergency order is a restatement of the provisions contained in section 181 of the Act of 2000 that the Minister may by order provide that permission is not required for certain State authority development, where such development is required by reason of an accident or emergency, and the development does not require appropriate assessment or environmental impact assessment. The example given is Covid emergency legislation.
All right. So it is putting up a field hospital sort of thing.
Please explain what it means to get rid of these provisions.
Public notification and confirmation are not required.
So for an emergency development the State does not have to do a public notice. Is that the implication of this deletion?
Yes. It has just to do it, as needed. For example, it is for emergency situations such as field hospitals, etc., in terms of Covid and so on. So I think that is the element behind it.
Is it fleshed out even more, what a State authority development emergency might be?
No. I mentioned Covid specifically. I think it is even the establishment of field hospitals as well.
I can see the logic of putting up a tent for a field hospital. Is there not potential to abuse such a definition?
I do not think so.
A state emergency development.
No, not if a state of emergency was declared. Again, it is military hospitals and issues around security and an emergency and State security. All of those are kinds of examples of where it might be relevant.
Again, I am reading the two relevant sections which would no longer apply. Section 154, on confirmation by State authority, includes, for example, "notify the planning authority within whose functional area it is proposed to carry out the development concerned" and "notify each person who made a submission in respect of the proposed development". Without going into the details, we had a facility in my constituency on which emergency planning exemptions were used. The building was occupied by a large number of people. It was then subject to potential fire safety planning enforcement by the local authority, after much wrangling between the local authority and a Government Department. On foot of that, the individuals concerned had to be evacuated because of fire safety. It was never fire safe. Significant work then had to be done. That is an incident and that is not even at the level of emergency we are talking about here.
Given that these two provisions, the notification procedure and the confirmation procedure, were originally proposed, what is the rationale for proposing them, if not removing them? We all accept that in the case of an emergency that things need to be done quickly, so nobody is proposing to slow things down but doing things quickly does not mean that there are no checks. For example, if there is a field hospital or an emergency residential unit that has a large number of people in it then at least ensure it is compliant.
Building regulations, for instance.
For example.
Yes. That will still be the case, yes.
My recollection is that the rationale for the original text of sections 152 and 154 is because these are emergency provisions and these are your safeguard procedures. While the State has the power and ability to do that then it is a safeguard that it would notify the local authority. That would mean then the local authority is aware of what is happening and it obviously then has a function of being able to check whether everything happening in terms of building regulations, safety and all those sort of things, so that is being followed. By getting rid of the notification procedure, does that not have the potential to undermine the safeguards? I agree that things sometimes have to be done very fast and that is absolutely necessary, so I do not want to see that hindered. I am concerned about the safeguards. State security, for example, is very broad. There are State security issues where things have to be done very fast.
Then there are circumstances in some countries, jurisdictions or areas where everything comes under state security and there could be a clampdown on democratic norms and stuff that come under state security, saying, "We have to build this wall because of state security. We have to separate people living in this jurisdiction by building this infrastructure" and we cite state security. That is a very broad measure that certainly would be open to abuse with the wrong type of government and all the rest. We need to be careful that this legislation is robust, regardless of whoever is in government or office.
I will make just a few points to clarify that. It refers to public development only, not to private development, and they are allowed to bypass, under the EIA directive.
What is the directive?
The EIA directive. These are emergency measures. There also remains a notification procedure but that the development would be exempt from normal processes or consultations. It would still absolutely adhere development or buildings regulations. Again, as we stated in the examples, they are specifically for emergency measures.
So I am clear, building and fire safety regulations apply completely, as they should. Essentially, what is being removed is any public participation. Why was it in there in the first place? It would seem to me that there is a certain rationale to what has been proposed. I just do not know why it was put in the Bill initially and why it is then being removed. Was it an error?
Did somebody at one stage make a case that it should be there and then a case was made that it should be removed?
I ask because it is quite a big change.
It was just a drafting error. That is the reason behind it.
I have three other queries that I wish to get clarified.
Go ahead, yes.
Amendment No. 918 will delete the "certificate" definition, and I am wondering about the purpose of that. The definition states, "A person may, before applying for permission in respect of a development ... apply to the planning authority concerned for a certificate stating that this Chapter shall not apply to a grant of permission in respect of the development concerned". Will the Minister of State explain the purpose of that amendment?
It is to delete a duplicated definition.
Is that because the definition is provided elsewhere in the text?
Turning to amendments Nos. 957 and 958-----
To reiterate, both of those amendments are a minor reordering, or editing, of existing text for clarity and consistency.
There is no change, therefore, and it is just moving the text around.
Amendment No. 1003 will insert a definition on page 481. I have no problem with it but I find it odd that we would put a definition in this Chapter rather than at the start of the Bill where the other definitions are. The section in question also deals with special conservation areas, but the definition for that is at the start of the Bill with all the other definitions. Why does it appear at this stage, on its own? I acknowledge that happens sometimes but it is strange.
That amendment will add a definition for a draft special planning control scheme to Chapter 2, so it is deliberate, from an operational point of view, to include it at that point.
That is section 303. Sections 300 to 302, inclusive, however, all deal with architectural conservation areas, but the definition for "architectural conservation area" appears at the start, on page 27. I am not going to labour the point but it is odd that it is the only definition that will appear in Chapter 2.
The definition of "architectural conservation area" is found in other sections as well, as I understand.
Amendment agreed to.
I move amendment No. 5:
In page 27, line 34, after “measures” to insert “to mitigate and”.
Amendment agreed to.
I move amendment No. 6:
In page 27, line 37, to delete “Commission” and substitute “Coimisiún”.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 28, line 1, to delete “Commissioners” and substitute “Coimisinéirí”.
Amendment, by leave, withdrawn.
Amendments Nos. 8, 9, 53, 85, 87, 90, 98, 598, 603, 619, 623, 647, 683, 709, 890, 921, 1036, 1040, 111, 1127, 1128, 1132 and 1133 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 8:
In page 28, between lines 2 and 3, to insert the following:
“ “competent in the Irish language” means spoken competency at level B2 at least of Teastas Eorpach na Gaeilge;”.
The amendment relates to a definition and makes sense with respect to the other amendments I have tabled regarding the Irish language. It will insert a definition of competency in the Irish language as relating to a level of at least B2 from Teastas Eorpach na Gaeilge. When it comes to the Irish language and development in Gaeltacht areas, among each local authority that has plans and policies in this context, there is no consistency regarding the language requirement. The amendment provides a definition such that there will be consistency in that regard. B2 in a European language is a recognised competency level and it was suggested by Conradh na Gaeilge and others that we would go for that level.
Amendment No. 603 relates to language plans that come on a statutory basis from the Gaeltacht Act 2012 and are allowed by the Minister of State with responsibility for the Gaeltacht. It will provide that the commission shall have regard to these plans when performing its functions under planning guidelines No. 15, on development plans, issued by the Minister pursuant to section 28 of the current Act. It is stated under mandatory objective No. 12, on Gaeltacht areas, regarding development in the Gaeltacht, that "Gaeltacht areas form a unique part of our Irish cultural and linguistic heritage and development plans have a role to play in their protection ... and development", that policies should be considered for inclusion and that the plan should ensure that "development proposals in Gaeltacht areas have a positive impact on the linguistic and cultural heritage". It states that some forms or scales of development may have to be discouraged. Current Government policy recognises the need for development to have a positive impact on the linguistic and cultural heritage of the Gaeltacht and that development must be managed to this end. Language impact statements, prepared by an independent expert suitably qualified in sociolinguistics or language planning, are necessary to determine the impact of the proposed development on the promotion and use of Irish as a language of the community.
Again, there is a lack of consistency here in terms of what happens on the ground. Different local authorities have different policies in this area, in many cases, in terms of the language impact statements, what is required and who signs off on them. In some cases, the builder or architect who signs off on them may not have any expertise in the area, which kind of reduces it to a box-ticking exercise that somewhat undermines the whole idea of the provision of language plans.
Amendment No. 647 is about what constitutes local housing need. This is creating problems in Gaeltacht areas, where people with the language and particular skills needed in the community are not necessarily meeting this criterion and, therefore, are not able to have their housing needs met. It is having a detrimental impact in Gaeltacht areas and is related to other issues arising in Gaeltacht areas, such as the increased use of unregulated short-term lets, driving out people with the language in the local community and making it very hard for people to find somewhere affordable to live. The issue of short-term lets arises elsewhere in the Bill but their regulation is restricted to RPZs. That is all well and good, but Gaeltacht areas tend not to be covered by the definition of rent pressure zones and it is virtually impossible for Gaeltacht areas to qualify.
That issue comes up and is one of the things that needs to be addressed. The language is under threat, especially in Gaeltacht areas, due to planning failures and planning problems. Irish-language speakers often cannot get somewhere to live in their Gaeltacht areas. They are being displaced and this is breaking up Irish-speaking communities. Census 2022 data shows that Gaeltacht populations grew by 7%, while at the same time use of Irish in Gaeltacht areas has been declining. Good work has been done in language planning in recent years. However, the Bill as it stands does not sufficiently recognise this good work. The planning Bill must integrate with and support other efforts to support and develop our national language. Planning cannot continue to undermine the Irish language. Economic development in Gaeltacht areas is of huge importance and is tied into this as well. The Bill is hugely important in terms of what can potentially be done for the protection and promotion of an Ghaeilge agus an Ghaeltacht.
Piecemeal but significant progress has been made over recent years with the recognition and protection that Government legislation and policies have given to an Ghaeilge and an Ghaeltacht in the context of planning and development. This Bill - an Bille um Pleanáil agus Forbairt, 2023 - provides an opportunity to integrate and strengthen the progress made and work done in recent years regarding language protection, in alignment with the straitéis 20 bliain don Ghaeilge and the language planning process under Acht na Gaeltachta, 2012. Tá tábhacht nach beag ag an mBille seo do chaomhnú, do chosaint agus do chur chun cinn na Gaeilge agus na Gaeltachta. Tá dul chun cinn déanta le blianta beaga anuas ar an aitheantas agus ar an gcosaint a thugann polasaithe agus reachtaíocht an Rialtais don Ghaeilge agus don Ghaeltacht i gcomhthéacs pleanála agus forbartha. Faraor, is céim chun siar ó thaobh na Gaeilge agus na Gaeltachta de atá sa Bhille seo mar atá faoi láthair i gcomparáid leis an reachtaíocht reatha. That relates to amendment No. 647.
Amendment No. 683 would insert text on page 230 between lines 36 and 37. It effectively states that development should not materially contravene a language plan. This would mean:
Where an appeal under this Chapter relates to development, or proposed development situated or proposed to be situated wholly or partly in a Limistéar Pleanála Teanga Gaeltachta or a Baile Seirbhíse Gaeltachta within the Gaeltacht materially contravenes any relevant language plan agreed pursuant to Acht na Gaeltachta 2012, the Commission shall, subject to subsections (4) and (5) refuse permission for the development or proposed development.
Having these language plans is all well and good, but we need to give effect to them in our planning legislation to ensure that the language in Gaeltacht areas continues to survive and thrive.
I turn to amendment No. 709. Current Government policy recognises the need for a development to have a positive impact on the linguistic and cultural heritage of the Gaeltacht. To this end some forms or scales of development may have to be discouraged. Again, no development should materially contravene any relevant language plan. Tugann Acht na Gaeltachta, 2012 an chéad chéim don Straitéis 20 Bliain don Ghaeilge 2010–2030 agus leagtar amach san Acht struchtúr don phróiseas pleanála teanga. Is é an sprioc atá leis an bpróiseas pleanála teanga ná an Ghaeilge a láidriú mar theanga theaghlaigh is pobail. Tháinig pleananna teanga ar bun nuair a reachtaíodh Acht na Gaeilge, 2012 agus is faoi Aire Stáit na Gaeltachta a cheadaítear na bpleananna. Baineann an próiseas pleanála teanga le limistéir pleanála teanga Gaeltachta, le bailte seirbhíse Gaeltachta agus le líonraí Gaeltachta araon. This Bill is of huge importance to the conservation, protection and promotion of Irish in the Gaeltacht. The Gaeltacht Act 2012 gives statutory footing to the 20-year strategy for the Irish language, and the Act sets out a structure for the language planning process. It is important that our Bill is consistent with that. The language planning process includes the limistéir pleanála teanga Gaeltachta, the bailte seirbhíse Gaeltachta agus na líonraí Gaeilge - the Gaeltacht language planning areas, the service towns and the Irish-language networks. It is important that the language planning process, which had not been established when the Planning and Development Act 2000 was enacted, is properly integrated into this Bill. The current provisions relating to the Gaeltacht do not make specific reference to the language plans, which they should because they are of course Government policy. Language plans have been allowed for each of the 26 limistéar pleanála teanga Gaeltachta, the majority of the bailte seirbhíse Gaeltachta and also the five líonraí functioning on the island, two of which are in the North. The Bill should be integrating those.
This is not just about the survival of the language in Gaeltacht areas; it is also about our living heritage and the survival of everything that comes with the language, like the songs and stories that have died out in parts of the country because we have failed to preserve the language in other areas. If we do not preserve the language in the Gaeltacht areas some of those songs, stories and cultural traditions will die out with it. If action is taken now we can protect these Gaeltacht areas, but if not we will lose them for good. Case studies have recently been done with occupational therapists in Gaeltacht areas, in places like An Spidéal, who have moved back to those Gaeltacht areas with their skills. Different therapists are not able to find accommodation in those areas. They are not in rent pressure zones so the regulations around short-term lets will not apply there. People trying to move back to a Gaeltacht community with the language and skills needed in that community are not able to find somewhere to live. They are not being protected by regulations coming in on short-term lets because they are not in rent pressure zones so are not being protected by that legislation. That is having a detrimental impact not just on those individuals, but also on the communities that need those skills.
Some Gaeltacht areas require language impact statements and some do not. There is a total lack of uniformity in what is required. They should be filled out by a qualified language planner, and the provisions should apply to service towns within the Gaeltacht. There should also be a further look at the language inurement clauses, which could be developed further to make sure anything done to protect the language in Gaeltacht areas has a long-term effect.
Deputy Ó Broin has indicated he also wishes to speak to amendment No. 709.
I will speak to the full cluster of amendments because there are a lot of shared amendments here. I will take a step back for a moment. Folks who are professional planners, but for whom the Irish language is not a part of their daily life, are sometimes surprised when we table these amendments or have this discussion. They think of this as a planning Bill and ask why we are spending so much time talking about this other issue. A couple of years ago I was invited to speak about planning to the Irish-language planning officers of the Gaeltachtaí.
They are not planners; they are people whose job is to help organise, plan and co-ordinate the development of the Gaeltachtaí, especially the rural Gaeltachtaí. I came away from that meeting with the understanding that, because our planning system is invariably blind to language and the needs of language speakers as regards planning, development, housing and infrastructure, it is actively undermining, whether intentionally or unintentionally, the ability of people to live in our Gaeltachtaí and to assist in growing and developing them. Deputy Ó Snodaigh can speak to the detail of this cluster of amendments much more proficiently than I can but they are trying to remove the blindness of our planning system to allow it to properly assess plans and applications for development with regard not only to its impact on the Irish language in a particular area, but also to how it can encourage, support and activate the growth and development of the language and the community of language users.
I will single out a couple of the amendments because they are particularly important. Amendment No. 647 makes provision for planning applications for housing in Gaeltachtaí to be considered in light of their impact on the language and the use of the language in the language community, among other things. Amendment No. 890 is one of the most important amendments by virtue of its depth. It ensures that language impact assessments are a central feature of our plan. By way of explanation, Deputies McAuliffe and Brophy will remember that when we were doing our strategic development zone in South Dublin County Council, we were originally told that the plans had to be tenure blind, that is to say, they were only about the physical infrastructure and not about the people who would use it per se. Of course, that SDZ ended up not being tenure blind. It has very specific and positive tenure provisions. Poolbeg is similar in that regard. As we move increasingly towards a plan-led approach to planning and development, which is what we want to do, it has to be about much more than the buildings, the infrastructure and the interaction of the built environment. It also has to be about how it facilitates or undermines the cohort of people we want to live in those areas.
This is a very important cluster of amendments that would profoundly change and improve the quality of our planning system across a range of areas. It is not something that is on the radar of the Attorney General's review or of the officials. They have been focused on other things, and I fully appreciate that. However, if you listen to the folks from Conradh na Gaeilge and USI protesting outside today about the urgent need to ensure our planning system sees these communities and that its interaction with them, which is currently negative but which could be positive if these amendments were accepted, encourages the growth of the languages and the communities who want to live, work and play in the language every day, you will realise that these amendments could have a profoundly beneficial impact on the planning system. I therefore encourage the Minister of State and his officials to consider them. They will hear quite a lot of cross-party support from both Government and Opposition members of the committee and Members of the House. On that basis, the amendments really deserve consideration.
Does Deputy Ó Broin want to continue with the rest of the amendments or do any other members wish to speak? For the information of Deputy Ó Cathasaigh, we are taking these as a group. They are related to Irish.
I will again make the point that there is something we do not get to do when we take the amendments as a group. These are not all the same. They are trying to do similar things in very different areas of our planning system. It is a challenge to take them as a group. I am returning to that again.
I get the Deputy's point but that is the way they are set out for me by the Bills Office, which proposed to take these as a grouping and discuss them together. I just want to logically make sure they are all spoken to.
My only point is a procedural one, which is that, while they have to be taken as a group, we do not have to discuss them all at the same time. We could take them chronologically within the group because they are not all the same, although they are themed. It is the same for the Minister of State. He is being hit with all sorts of questions about a grouped set of amendments. We are jumping back and forward between three or four different documents. It makes consideration much more difficult.
The way we had set about this was to take Deputy O'Callaghan's amendments first because No. 8 is one of his and they are all grouped together. I am quite happy to come back to No. 9 and to discuss them all.
I am also named on amendment No. 8 so I might as well speak to it. The first thing I would note is something Deputy Ó Broin touched on. I have a level of disappointment that these are all grouped. It was a decision made somewhere along the line. It was decided that these are all the Gaeilge amendments so we will deal with them all in one go. As Deputy Ó Broin has said, what the amendments seek to do is quite multifaceted. They have quite a range of aims.
I will speak to amendment No. 8, which Deputy O'Callaghan and I put down. This is something which was discussed in depth during the discussions on Acht na dTeangacha Oifigiúla that Deputy Ó Snodaigh chaired at the coiste Gaeilge. It is about defining language competency. We say we should have language competency. If I applied for a job within the European Parliament, I would not be asked whether I consider myself competent or fluent, up, down or whatever. Instead, I would be asked to sit a test and to come back with a level within the common European framework. It is proposed here that we would adopt that common European framework through Teastas Eorpach na Gaeilge. There is great work under way in Maynooth University to set out the conditions of this TEG. As I have said, it falls under the common European framework. It should be set at the B2 level. There has been discussion at the coiste Gaeilge as to what jobs would require that B2 level, the jobs in which a B1 would be fine and the jobs for which a person might need to progress to C1 level. There is a need not only in this legislation but across all legislation in the Houses that deal with issues of language competency to say more clearly what we mean and to make an objective measure available.
I do not know if the Chair intends to go through these amendments chronologically. In amendment No. 603, we talk about language impact statements and assessments. As has been mentioned before, some councils that have Gaeltachtaí within their areas do perform these language impact statements while others do not. It is very important to have a level of uniformity in that regard. Amendment No. 1036 has to do with planning and, more specifically, oral hearings. It affords native Irish speakers the right to have their oral hearing presided over by a chairperson who is competent in the Irish language and for it to be heard through Irish if the development is within the Gaeltacht. If the development is partly within the Gaeltacht, it provides for the hearing to be through either English or Irish. That is quite different from what the other amendments look at.
I am jumping around quite a bit now but, in amendment No. 1127, we are talking about the need for consistency in respect of limistéir phleanála teanga Ghaeilge and bailte seirbhíse Gaeltachta. It is about making sure this planning Bill, which is once-in-a-generation legislation, actually pays attention to other legislation that sets out what it is we are trying to preserve within our Gaeltacht areas. It makes reference to the need to protect the linguistic and cultural heritage of the Irish language. The Department is still sitting on work around coinníollacha teanga as they relate to planning conditions and language conditions within the Gaeltacht. That is very important work because many of the pressures being put on our Gaeltacht areas come from people from outside the Gaeltacht coming in, buying houses and not speaking Irish within the area. When that comes in, it is the death of a Gaeltacht.
Amendment No. 1129, which is the last of many pieces of paper I could come across, relates to consistency of the plan or a draft variation thereof with any language plan relating to the place agreed, pursuant to Acht na Gaeltachta, 2012.
Quite a number of these amendments are repetitious but I will repeat my initial disappointment. I fully expected those amendments that are repetitious to be grouped but to simply group all of the Gaeilge amendments together and say this is the Gaeilge bit is a disappointing approach from the Department.
On Deputy Ó Broin's suggestion, we will go back to No. 9 and try to put some chronological order on the discussion.
I appreciate the point Deputy Ó Cathasaigh made that it is all to do with as Gaeilge but not all to do with the same issue.
I do not disagree with the point about the grouping but the grouping is the Bills Office, I believe, not the Department. However, the point still stands.
What time are we finishing?
I will give it another ten minutes because we went over until 6.10 p.m. I said we would do a two-hour slot on this, so we will give it another ten minutes. We will have to return to this tomorrow anyway, but we can try to clear as much as we can.
I will use up the ten minutes on amendment No. 9 alone. Agus níos mó, más gá. Aontaím leis an méid a dúirt an Teachta Ó Cathasaigh agus an Teachta Ó Broin. It is difficult when trying to deal with different concepts, in some ways, because of the Irish language part. I understand the understand the role of the Bills Office, so I am not criticising, but it means the debate is a bit disjointed.
I will try to stick to leasú Uimh. 9 in my name and it very similar to amendment No. 8 in the name of Deputies Cian O’Callaghan and Marc Ó Cathasaigh. It is to do with the definition of competency in Irish. We had quite a number of sessions dealing with this in coiste Gaeilge. As Deputy Ó Cathasaigh said, it is one of those issues that is drawn up. How can you define competency and, in some ways, why are we even dealing with competency in language because not everybody in the Gaeltacht is already able to speak Irish? In fact, that is now we have such a crisis. That is why we are asking for exceptional measures and specific recognition in the amendments that have been tabled by different members of the committee, people who are not in the committee and from outside, from organisations such as Conradh na Gaeilge.
Planning authorities have failed in some ways. They will blame the Minister. We had the different county council chief executives before our committee and they appealed to the Minister to give them the guidelines and let them know exactly what the criteria is. The Minister has not delivered those guidelines as yet, two and half years later. There is a bit of back-and-forth between the Minister, Deputy O’Brien, and the Minister, Deputy Catherine Martin, or the Minister of State, Deputy Patrick O’Donovan, as the Minister of State with responsibility for the Gaeltacht. Different sections are saying, “It is their fault” and “No, it is your fault”. We are finished with it one moment and then all of the sudden a different Department will say, “They did not finish” or “They did not do this”. In the meantime, there is no set criteria that would protect Gaeltacht areas from developments that are proposed for areas such as An Rinn and Ráth Chairn. We have seen cases in Dingle, An Daingean, and elsewhere. Some of these have ended up in the courts because protection has not been granted to ensure the demand for housing from Gaeltacht areas is recognised.
At the end of the day, it ends up that a development might get a planning criteria that, for example, 30% of the houses will go to the Irish-speakers. However, there is no accepted specific criteria or measure accepted for competency. I think in the Dingle case, if you answered the question, “Do you speak Irish?”, which was put in English, by saying, “Yes”, that was enough. There is no measure that they speak Irish. Thankfully, the courts have been quite favourable in some cases and have tried to protect the community. We are trying to make sure this is set down in law.
I refer to level 2B in the common European framework for languages, which was developed by the Council of Europe. The framework is a measure to assess people’s fluency in a language and it is accepted across the Continent. The measure is used and assessed by Teastas Eorpach na Gaeilge, TEG, and that is done in Maynooth University. When the Public Appointments Service is recruiting for roles specifically where Irish is required, it uses that measure. Therefore, it is not as if it is a brand new measure coming out of nowhere; it is used. It is fluency in spoken language. It is not written language. It is not a test to see whether a person can answer letters as Gaeilge or whatever.
The key here is to ensure that the last remaining area where Irish is the vernacular is protected. It is not whether they can speak English or not. We take it as given that everybody in Ireland at this stage can speak a level of Irish. When I was younger up to the age of seven, I could not speak English, even though I was in the city. Thankfully, many people are rearing kids through Irish. Now at a young age, other than the influence of television and so on, the language is Irish. The problem is that once you go beyond the home or beyond the schoolyard, English is all-pervasive. Part of this is to protect those areas where it is not all-pervasive yet. They are under pressure.
This amendment is trying to ensure the common framework that measures the spoken language measures the range, vocabulary, accuracy, fluency, how a person interacts with others, and their coherence - whether a person can have a conversation. There is a need to assess a person who says they are fluent or, as the question asks, “Can you speak Irish?” Can you really speak Irish or is it just you have a few sentences? Having a few sentences is not being able to speak Irish with a fluency that a person should get an exception over and above other people. The reason for the exception and the reason we are trying to make a special planning area for the Gaeltacht is to ensure that those who are getting the right to live in the Gaeltacht can enhance this precious, valuable, historical heritage and living heritage - it is a living heritage in many ways.
I was at a protest earlier today outside. There was a lot of media around Bánú, which is trying to address this or trying to get us to address this. In many ways, it is aimed at some of these amendments. The journalist asked me my opinion of the amendments. The point I made is that if the Gaeltacht is gone, it is gone. It is not coming back unless you have 1,000 or 2,000 years in which to start all over again. If a Gaeltacht area dies – there are ones under threat – it is near impossible to bring it back unless you do what was done as an experiment in the 1930s where a whole load of families were dragged out of Connemara and landed in the middle of Meath. As an experiment, Ráth Chairn worked. Anybody who has visited Baile Ghib can see that. It is a lot smaller and it is near Ráth Chairn. That area is under huge pressure. Anybody who has visited An Rinn, as Deputy Marc Ó Cathasaigh can attest to, can see the growth in tourism and the growth in the English language. People being able to build houses nearby is putting pressure on that jewel in that area.
The Chair is indicating that he is looking for me to wrap up.
I am sorry to have to cut the Deputy short on this.
The Chair is okay. That is what I was going to say on amendment No. 9 anyway.
It is 8.09 p.m. now, so that is our session finished. On a housekeeping matter, amendment No. 1129, which was spoken to, is not in that grouping rather it is in a grouping with amendment No. 30. We will come back to that. It is with amendment No. 30, therefore, amendment No. 1129 will get two outings.
We will continue tomorrow at 10 a.m. I do not know which committee room we will be in, but we will find it.
I thank the Minister of State and his officials, and the committee members. I adjourn the select committee until 10 a.m. on Wednesday, 14 February.
Progress reported; Committee to sit again.
The select committee adjourned at 8.10 p.m. until 10 a.m. on Wednesday, 14 February 2024.