Welcome back to Committee Stage consideration of the Planning and Development Bill 2023. I welcome the Minister of State at the Department of Housing, Local Government and Heritage, Deputy Noonan, and his officials. We will move on to amendment No. 101 in the name of Deputy Cian O'Callaghan. How stands the amendment?
Planning and Development Bill 2023: Committee Stage (Resumed)
The select committee met in private session until 6.26 p.m.
SECTION 11
We had paused because we were going to get a note on section 11 and we did not proceed with moving it or voting on it. We received the note on section 11, so can I comment on the note on section 11 because that is the reason we paused?
Okay, but could we keep it to a very brief comment because it has already been discussed? I appreciate we received the note but I cannot keep going back to amendments that have already been discussed because we would then have no consistency.
I am not looking to go back to the amendment as such, I am just looking to discuss section 11. We are on section 11 and if we do not discuss section 11 while we are on it, there will not be an opportunity to do so.
I suggest that if the discussion is on section 11, when we come to the question on section 11, the Deputy comes in at that point. I do not want to be going back to amendments we have already discussed because it opens it up to everybody.
I move amendment No. 101:
In page 51, to delete lines 28 to 30 and substitute the following:
“(2) A relevant declaration shall be admissible in evidence in any proceedings brought by a person, other than an enforcement authority, relating to the act, operation or change in use in respect of which the relevant declaration was made.”.
Before we vote on the amendment, I would say that this is problematic. My amendment seeks to amend section 11. Section 11 has been problematic in that it has been hard to understand. The note has been helpful. It states the declaration would not be evidence of the commission of an offence because that would deprive the defendant of the right to produce evidence proving that the development was an exempted development. That provides some clarity on this. It is very problematic that third parties are excluded from section 11. The Minister said that is being looked at but we just do not know at this point what sections 10 and 11 will look like if this is changed on Report Stage. We really are in the dark as to what section 11 will look like, potentially, on Report Stage. I will press my amendment because at this point this wording is highly problematic and it is highly problematic that third parties are excluded in sections 10 and 11 in the way they are.
I do not want to discuss the amendments or the section. I have three really simple questions on the briefing note we were given the following day, just for clarity.
Could we discuss that when we get to agree section 11 because I would rather keep the flow?
The only reason is that this is materially relevant to the amendment but I do not mind as long as I get to ask for clarity before we move off section 11.
Sure.
Perfect, I am happy with that.
Amendment put:
The Committee divided: Tá, 6; Níl, 3.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Níl
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Amendment declared lost.
Amendment No. 102 not moved.
I move amendment No. 103:
In page 51, line 28, to delete “not”.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
Question proposed: "That section 11 stand part of the Bill."
I withdraw my opposition to this section based on the Minister saying they had to go back and look at third parties and how they would be included in this declarations. Deputies Ó Broin and O'Callaghan wish to speak on section 11.
I thank the Department for the memo that was sent on Friday. I appreciate that being done, particularly at the end of a busy week. I am seeking three clarifications. I refer specifically to the note on section 11. It is stated that section 11(2) makes provision in respect of the specified types of proceedings listed in the subsection. Given that the subsection refers to "any proceedings relating to the act", is that what specified types of proceedings listed means? In fact, they are not necessarily specified; we are talking about any proceedings that relate to the legislation. Is that correct?
That is the first one. The second is to ensure that I fully understand section 11(1). If I read the explanation correctly, section 11(1) relates to circumstances where an enforcement authority is taking enforcement action against the owner of a development. If the developer is able to provide a section 10 declaration stating that the development was exempt, that will be determined as conclusive evidence of the matter. Is that the scenario that is envisaged?
Yes, unless the person knowingly provided false or misleading information to the planning authority or the commission.
What I am trying to work out is the procedure which is envisaged in section 11(1). If, in the first instance, a planning authority takes a case against a developer and the developer comes into court and says he has a section 10 declaration saying the development is exempt, then that is it - case closed. In some senses, the purpose of this provision is to disincentivise a planning authority from taking such action where a section 10 declaration exists. It states that the development is exempt from planning permission.
It is in relation to enforcement.
It is where a developer is using a section 10 declaration to defend against an enforcement action. The hope here is that if this provision becomes law, a local authority would not proceed with such a legal action if it knew there was a section 10 declaration held by the developer saying that the particular development was exempt. Is that not the case? The local authority would know that would be conclusive evidence of the matter, as is stated in the section.
Yes. There is no time limit in respect of a section 10 declaration. The local authority could take enforcement action and use the declaration as a defence.
For clarity, this provision would apply either to a developer who is defending against enforcement where he has a section 10 declaration stating it is exempt or to a local authority that is pursuing a prosecution.
Can it be used by both sides?
The memo we received states that the net effect will be that a third party cannot participate in the decision to grant a section 5 declaration - we know that from section 10 - and cannot challenge a section 5 declaration when given. It is also stated that a third party cannot seek an injunction against the construction or retention of a development carried out on the basis of a section 5 declaration. My question specifically relates to circumstances where a developer puts in a request for a section 10 exemption declaration and it is denied. Despite whatever information the developer has given, the council states that the development is not exempt. However, the developer begins construction. In the meantime, a third party gets access to the section 10 declaration stating that the development is unauthorised. What we are saying here is that rather than those people being able to use that section 10 declaration or the third party being able to injunct against the development, they have to go through planning enforcement.
Yes, that is the case. The third party can go to the courts and seek an injunction themselves.
Can the third party use the section 10 declaration in the context of section 11 (2) in any proceedings?
No, they cannot.
They would have to use section 31(8) of the planning Act. They could not use the section 10 declaration in any proceedings.
The Minister gave a commitment to examine this matter. The situation I have outlined seems bizarre. It would be much to allow a third party that got hold of a section 10 declaration to just injunct and stop the development. If they have to go through planning enforcement, which takes a long time, the development could be built by the end of it.
Yes, definitely.
We had the debate on section 10 and I am not going to reopen it. However, in certain circumstances, there has to be a provision to allow a third party who gets access to the declaration to utilise it. The wording of section 11(2) is too general. It would people if they could just injunct using the section 10 declaration.
Also, getting access to a section 5 declaration is quite simple because they are published on local authority websites and people can access them. In the context of what the Minister of State said about looking at the third-party access to section 10 declarations, I suspect something will have to be done in that regard as well.
I would be very worried if it is not. However, that is why the section, as it stands, is not good.
Deputy O'Callaghan indicated to speak.
I thank the Department for the briefing note on this and other matters. In the context of section 11, if a developer gets a section 10 declaration for exempted development, under no circumstances at all, except what is provided here - namely, where they knowingly provided false information or withheld information and regardless of what new information could come to light at any stage and from any source - there is an absolute prohibition on the council or planning authority bringing a case to court because that section 10 declaration is conclusive. That is it.
Yes, that is it. A section 10 declaration is legally binding.
What about a situation where new and particularly significant information comes to light that is neither false information provided by the first party nor information that had specifically been withheld?
Yes, there is a provision.
Why is that not provided for in the Bill? I appreciate that this may not happen often.
It is provided for in circumstances where the person withheld information from the planning authority or the commission.
If significant information that was not withheld by the first party or that was provided falsely by that party comes to light, why does the Bill prohibit its use in court by the enforcement authority?
What is the rationale for doing that?
I am not familiar with other provisions in other Bills like this which create this situation where, no matter what new information comes to light, an enforcement authority cannot proceed because a declaration like this would be considered conclusive and the end of the story. Will the Minister of State clarify the rationale for such an absolute prohibition on legal action being taken by an enforcement authority? Presumably, it would only do that in an extreme circumstance. I am surprised the Bill prohibits it from doing so.
It bases the decision on the information provided at the time. It is up to the first party to provide all the information.
I appreciate that.
New information would be allowed.
This seems to assume that the only source of information could be the first party. Surely there are other potential sources of information. Often, the main source of information may indeed be the first party. I totally accept that. Surely in some circumstances there could be relevant information. Even if there are no third party rights, it could still be relevant information to the enforcement authority that is not from the first party. Why will they be legally excluded from being in any way relevant or applicable here?
Because it is only between the first party and the local authority. That is the reason.
Does the Minister of State accept that the local authority may have other sources of information apart from the first party if it wants to pursue enforcement proceedings? This seems to tie the hands of the enforcement authority. Why is the Government doing that?
The planning authority is the enforcement authority. This is only between the first party and the local authority. There is a provision where a person has withheld information. The point the Deputy is making is about other information coming to light to the planning authority in the intervening period. Is that correct?
The enforcement authority, yes.
That is the planning authority.
The local authority is the enforcement authority and is also the planning authority.
A section 10 declaration is presumably the local authority carrying out its functions as a planning authority whereas this section seems to be prohibiting what it can do as an enforcement authority. What is the rationale for narrowing down what it can do as an enforcement authority based on what it has done as a planning authority in a section 10 declaration? It has a slightly different set of responsibilities as an enforcement authority compared with being a planning authority. What is the rationale for doing this given that a section 10 declaration does not have the full process a planning decision would have to give it this absolute conclusiveness and when not all the relevant information may have been available at the time of decision, when third party rights are excluded, and that might be fixed? It seems to be a significant change to the existing legislation. What is the rationale for it?
The planning authority could still take enforcement measures if the development was broader than what was covered in the section 10 declaration.
I appreciate that, if it was broader. There could be relevant information that comes to light about what has been in the section 10 declaration that has been made which the enforcement authority did not know about at the time. This ties its hands. Why is the Government seeking to do that? If the Minister of State does not have an answer and there is not a clear rationale for that, I will accept that.
Is Deputy O'Callaghan talking about where more information becomes available that was not available at the time of section 5?
The local authority would not be solely relying on section 5 then because there would be other information.
The Bill states the relevant declaration shall be conclusive evidence. Therefore, new information could come to light but the authority cannot use it because the section 10 declaration is conclusive evidence.
For enforcement proceedings brought by the local authority.
It seems to be closed unless it was because information was withheld or the first party provided false information. I am simply making the case that this does not involve all information. The Minister of State said information would come from the first party but there are scenarios where not all information would come from the first party, even if third parties are excluded from the process. The enforcement authority could still have relevant information brought to it. It may decide to take enforcement proceedings but this provision in section 11(1) could tie its hands and prevent it from doing so. There could be fairly extreme situations where it wishes to take enforcement proceedings and new information has come to light but it has given this section 10 declaration that it is exempted development. It may have reason to believe it is not exempted development but the section 10 declaration is issued and it has not found that any information was withheld or that false information was knowingly provided by the first party. In these scenarios under section 11, there is nothing it can do as an enforcement authority. I am concerned about that. I am inquiring about the rationale for the Minister of State bringing forward such a change.
The approach we have taken is based on legal advice from the Attorney General. As a reminder, we are looking at the third-party review. We will need to review section 11 in that context too.
I appreciate that. Did the legal advice from the Attorney General include a view on the scenario I raised?
I do not know that. The enforcement is based on the information and has to be. The advice on the operation of section 10 is broad with regard to the declarations and legal standing. That was the advice and approach taken based on that legal advice from the Attorney General.
I am not satisfied with that response about section 11. It is positive that this will be looked at but we have no information about what the outcome will be.
There was one other scenario. I appreciate the Minister of State was not here. The Minister, Deputy O'Brien, was here. The scenario, which is a real-life case, relates to a section 5 declaration being submitted to two local authorities beside each other for a development that ran across the boundary of two local authorities. I am pretty sure it was submitted by a utility company. The local authorities gave opposing answers. One said it was exempt and one said it was not. The answer may be "No", but was there any consideration when drafting the note we were given about what happens in that case?
Again, the point is that the legislation must be pretty clear that the relevant declaration shall be conclusive evidence. It has happened in two local authorities, but thankfully in very few cases, that they have given opposing answers. Is it that each answer is relevant for the local authority in question or, if it is the one development, does one trump the other? It would be unusual. I believe this was to do with cabling in a particular location. One local authority said it was not exempt and the other said it was. Is it that both section 10s would be conclusive evidence in their respective local authorities, as decided, notwithstanding the fact they gave contrary answers?
Let me just get it straight. The question the Deputy is asking about is where a project spans two separate counties. As I understand it, that would be appealed to the commission.
Is the Minister of State saying that if a public utility company which has a development, and in this case the wiring and cabling had already been laid, puts in a section 5 declaration and it gets two different answers, if it is not happy with one of those answers it should appeal it to the board?
What happens if the board upholds the original decision? If the board likes the decision I appeal, I am hardly going to appeal the other one, which is in my interest.
Then the company could apply for planning permission.
The problem is that it has already happened, so one would have to apply for retention. That is what I am trying to tease out. Without labouring the point, all I am saying is that I think it is an issue that needs some consideration given that it has actually happened.
Is it okay if we give consideration to the issue?
Yes. What I might do is email the officials with the case in point, as that would be instructive.
Yes, it would be.
I wish to raise a quick point. I will not prolong matters. We raised a lot of these issues a year ago in our pre-legislative scrutiny, and a year later they are still not addressed and we are being told they are going to be looked at and sorted out in the next few months. I do not have a lot of confidence they are going to be looked at given that 12 months ago we flagged all of this in great detail during our pre-legislative scrutiny.
I believe the Minister, Deputy O'Brien, did state in the previous meeting that he would come back with sensible changes to this measure.
We do not know what they look like.
We eagerly await them.
We do.
Question put: "That section 11 stand part of the Bill."
The Committee divided: Tá, 6; Níl, 4.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Níl
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Question declared carried.
NEW SECTION
I move amendment No. 104:
In page 52, between lines 14 and 15, to insert the following:
“Saver for declarations under section 5 of Act of 2000
12. (1) A declaration under section 5 of the Act of 2000 made before its repeal by section 6 shall have effect on and after such repeal as if made under section 10.
(2) Notwithstanding the repeal of section 5 of the Act of 2000 effected by section 6, the Act of 2000 shall, subject to Part 17, continue to apply and have effect in relation to a request or appeal under that section made before that repeal.”.
I move amendment No. 1 to amendment No. 104:
To delete subsection (2) and substitute the following:
“(2) Notwithstanding the repeal of section 5 of the Act of 2000, however such appeal be effected, the Act of 2000 shall continue to apply and have effect in relation to a request or appeal under that section made before such repeal, and any declaration made under Section 5 of the Act of 2000 can be being relied upon, including by a third party, in any appeal or Court proceedings, in which the request, appeal or declaration as the case may be features.”.
Amendment put:
The Committee divided: Tá, 4; Níl, 6.
Tá
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
Amendment put:
The Committee divided: Tá, 6; Níl, 4.
Tá
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Níl
- O'Callaghan, Cian.
- O'Donoghue, Richard.
- Ó Broin, Eoin.
- Ó Snodaigh, Aengus.
Amendment declared carried.
SECTION 12
Amendments Nos. 105 to 118, inclusive, are related and may be discussed together. Amendment No. 105 is in my name so I must vacate the Chair for a moment.
Deputy Paul McAuliffe took the Chair.
I move amendment No. 105:
In page 52, line 23, after “maintain” to insert “, retain or relocate”.
I think I have four amendments to this section, which relates to licensing. Section 12(2) begins by stating "Subject to subsections (3) and (12), a person shall not erect, construct, place or maintain— ..." and then lists what a licence is needed for. It might be improved by adding the words "retain or relocate". Let us say somebody needs a licence for something, does not have it and is pursued by the local authority for that. They can move it, whether it is advertising structures or something more significant. I am therefore suggesting we include the words "retain or relocate". The word "retain" is there because somebody could say they did not put the structure there, even though they are responsible for retaining it in place. I am thinking especially of the talk about all the clutter we see on our footpaths which requires licensing. It can be a real impediment to people who have mobility issues and is one of those grey areas. I remember doing a bit of a survey on the amount of street clutter in my town and searching to see how many people had applied for a section 254 licence and I could not find any record of it at all. I have no problem with people advertising their business, they need as much help as they can possibly get, but not where it impacts pedestrians and especially people with mobility issues, visual impairment or whatever it might be. It is just to try to tighten up the wording on that.
Amendment No. 106 relates to section 12(2)(g), which refers to "a telephone kiosk or pedestal". We see a lot of these telephone kiosks being put in place now and they are more an advertising structure with a telephone inside than a telephone kiosk. I see Eircom or whatever it is called now is removing a lot of telephone boxes at the moment, but we are seeing them getting replaced by very flashy advertising structures. They are placed to advertise to people so they will have the most effect. I do not mind people advertising to the greatest effect, but they are often orientated in a direction that impedes the footpath. The widest part faces the flow of where people are trying to walk. They should be placed where they present least obstruction. I cannot find my exact wording, which may not be accurate enough. I apologise, I think I have skipped on to amendment No. 111. Have I?
I think the Deputy is discussing amendment No. 107.
I am on amendment No. 107. My wording might not be perfect on this, but I believe the Minister of State understands what I am trying to do here. We need to look at the blocking of the footpaths now. It is directly related to planning because the local authority has to grant licences under this Act.
I will move to Amendment No. 106. If my amendment is accepted the section will read "a person shall not erect, construct, place or maintain— [...] [this list of things] on, under, over or along a public road or on an existing pole or pathway installation, save in accordance with a licence granted by a planning authority under this section". I cannot remember what I was trying to do with this amendment. I will come back to that one.
Amendment No. 111 relates to section 12(7), which states "In considering an application for a licence under this section, a planning authority, shall have regard to—" various things, including "proper planning and sustainable development" as well as "the number and location of existing appliances, apparatuses or structures". I am interested in opportunities to share existing structures. I will give the example of a licensing application going in to put up a telephone mast. There is a perfectly good structure not too far away from it, but a previous planning condition was this structure was not to be shared. We need to look at the opportunity to share structures. We need to look at the opportunity to share street signage on poles as well. It seems we must put up a new pole for every single bit of information. I was driving down the N81 last night looking at this and every pole had another bit of information. I understand the requirement to give information to drivers and signage information, road safety information, etc., but there has to be a better opportunity to share existing poles and structures.
I think that is my four amendments in that group.
I have two additional points. I support Deputy Matthews. Most of us will have in our constituencies old telephone boxes that are no longer used as telephone boxes. Either the structure remains and it is very difficult to get it removed or we have seen a more recent phenomenon of the company that owns the structure not installing a new phone in it or sometimes removing the phones, but putting new advertising on it. Given it was intended as phone box rather than an advertising structure, there clearly needs to be something to ensure that if a structure has a principle purpose which is not advertising and that principle purpose ceases to operate, such as with telephone boxes, for example, it cannot then be used for advertising where it would not have been granted in the original application. It is not included in Deputy Matthews's amendments, but I ask the officials to consider it. It is a perpetual problem in constituencies and because the structure has planning permission, albeit no longer used in the way it was intended, it causes difficulties.
I support these amendments. These phone boxes are being turned into what are primarily advertising structures, though maybe with some phone function there. It is hard to know in this day and age how that phone function is being used by anyone. One certainly never sees them in use given the proliferation of mobile phones and other forms of communication. It seems to be a form of bogus conversion of what was an essential phone box use into an advertising structure. It is something our planning system should be able to deal with, rather than facilitating these conversions from phone boxes to advertising structures.
On the shared structures, I am aware of very scenic locations of significant natural beauty where there are multiple phone masts located. There are objectives in development plans for those to be shared over time. However, each time there is a licence renewal that sharing and consolidation does not happen and decades later, despite the objectives in development plans to have shared structures for phone masts, we end up with multiple phone masts in highly scenic locations and nothing effective that can be done about it. It just seems very unnecessary. If we could get those all down to one structure it would have much less of an impact. Is there anything in this Bill that is going to address that? If not, is the Minister of State looking at supporting these amendments or doing something on Report Stage to address these issues?
I join colleagues on these amendments. There is a strong argument that if these structures are no longer being used as a telephone kiosk they are in breach of the original purpose for which planning was granted.
The idea that they would be repurposed into Wi-Fi hot spots or phone charging points, which is happening in a number of cases, is just a farce and undermines the reason they were allowed in the first place. They were allowed in the first place because a telephone box was seen as an essential service for people. Now the essential service is the revenue which comes from the advertising. I urge the Minister of State to look at this and come back to us on Report Stage because there is something we can do about this.
Chair, if I may come in briefly, then I can resume the Chair. The four amendments together are about how the planning system can improve accessibility around our towns, reduce visual clutter and look at the opportunities to share structures. I refer in particular to subsection (12). It states, "Subsection (2) [which is the requirement to do this] shall not apply to a planning authority." Because it does not apply to a planning authority, I think we end up with so much street signage and clutter. It is important directional information, but because planning authorities themselves do not have to go through any process, I think it is often easier to stick in a pole and put another sign on it. It can really cause damage, especially when quite a lot of money is spent improving the public realm and then we get these poles dotted everywhere. It really detracts visually. It does state in subsection (7) that the planning authority "shall have regard to ... the convenience and safety of road users including pedestrians". We should expand that to the visual impact on road users and pedestrians.
I thank the Minister of State. I hope he can consider these amendments.
Most of these amendments relate to something similar. The one amendment in Sinn Féin's name in this grouping is amendment No. 108. Perhaps the Minister of State wants to finish off on this one and come back to amendment No. 108, which has to do with the Irish language and signage.
Amendments Nos. 108 and 110, I think, are about slightly different issues, and I think-----
Yes, so if we finish off on the broader stuff about the-----
I can come in now but it would take away from the conversations.
I agree. Sorry. When you indicated, I thought you were going to come in on this.
I was, just to agree with Deputy Matthews about the clutter and the poles. I live in Crumlin, along the canal. Works have been done along every single junction and the authorities have put up extra poles, just to make sure. Where there were four poles, there are eight poles now. That makes it difficult for cyclists and people pushing buggies. On top of that, in these locations, there is not that much of what we are dealing with here, but sometimes there are old ESB junction boxes, which are small. They are in the way as well. You cannot move them. If a pole is put next to one, it limits the space. Then there is signage and the other paraphernalia, such as CCTV cameras and so on. There are poles outside shops. Any of us in the city know there are boxes next to the shops for delivery of the newspapers. They would not be allowed in this day and age - well, maybe they would. If you are visually impaired, you walk along and encounter them. This is what this legislation will hopefully address, but it does not address the objects that are already there or the need to encourage shopkeepers or those who own these obstacles to those who are visually impaired to find some way of moving them out of the way. The same can be said of some of the shutters. Some of the shutters on shops have poles sticking up in front of them. Again, aside from the fact that you might trip on the path, you may not expect them or there may be something sticking up out of the ground.
I agree with the amendments. I do not have a problem with any of them. There is definitely a need for more of the material that is there - not the street furniture, some of which has been there so long - to be shared or reutilised rather than putting up additional material. The space that is there already should be used. People are used to it. If there is an old box or whatever, a use for it should be found or it should be taken down.
Amendment Nos. 105 and 106 propose to amend the wording in subsection 12(2). Currently, the Bill provides that a person may not erect, construct, place or maintain listed structures on a public road without a licence. The proposed amendment would add that a person could not "retain or relocate" those listed structures without a licence. It further provides that, in addition to the listed structures not being placed on a public road without a licence, they may not be placed on an existing pole or pathway installation. I am satisfied that these are captured within the current wording. "To maintain" would include "to retain", and "to place" would include "to relocate". Further, the placing of items on existing poles is captured by the reference to "along a public road" and is further captured by any conditions and periods which would be attached to a licence. I therefore cannot accept amendment No. 105 or amendment No. 106.
Amendment No. 111 seeks to add "the opportunity to share existing appliances, apparatuses or structures" as a matter for planning authorities to consider in assessing a licence request. I can see the merit in this proposal. I would like to give it further consideration. If it is okay, I might bring an amendment in this regard on Report Stage. I am listening to what all the Deputies are saying. There is a good logic to the proposal, and we would like to try to see if we can advance it on Report Stage, if that is okay.
Specifically, subsection 12(2)(d) refers to advertisement structures. The point about the safety of pedestrians and people with visual impairments is well made. Section 12(7)(d) refers to "the convenience and safety of road users including pedestrians". I think street clutter is catered for there.
Subsection 12(12) "shall not operate to entitle a planning authority to ... hinder the reasonable use of a public road by the public or any person entitled to use it". I am therefore confident there are provisions in the Bill as regards the other proposed amendments, but we will give consideration to amendment No. 111 and bring an amendment on Report Stage in that regard.
The Minister of State has addressed amendments Nos. 105, 106 and 111, but Deputy Matthews also spoke on amendment No. 107.
I apologise. Amendment No. 107 seeks to provide that conditions should be attached to require that structures are positioned to avoid obstruction to pedestrians. Subsection 12(7)(d), as I have pointed out, already provides that, in considering a licence, the planning authority shall consider "the convenience and safety of road users including pedestrians".
When a town or landscape map, or even an advertising structure, is erected, if the planning authority has been granted a licence for its erection, then, obviously, somebody has decided that the structure is in the common good. We are trying to ensure that that common good also includes the need for those advertisements to appear on such a structure as Gaeilge and as Béarla. In the case of town and landscape maps, it is quite a simple proposition in that they are usually in situ and are visible. They do not move, and the Irish placenames can be put on them. Also, if there are any speakers on them, you can press a button, A or B, to hear information in the Irish language or in English. It becomes a bit more complicated when you are dealing with advertising structures, especially rotating ones, but it can be a condition, because permission is sought on any such advertising structure, that you ensure that the advertisements are 50% in Irish or that there is duplication, whereby one is in English and is then repeated in Irish straight away or within that series of rotating ads.
As we know from the Official Languages Act, there was a recognition that advertising has an effect. Most people will have noticed and have spoken to me in the past while about the amount of Irish being used on radio and television because it is subliminal in some ways. They are hearing ads as Gaeilge, which they never heard before. This is because the new legislation stipulates that 5% of the advertising budget of State companies must be spent on the Irish language. That is the law so it is having an effect. Here we have an opportunity to influence the private sector because it is seeking a licence to do this. Most of the town maps are usually erected by councils or a Tidy Town body so, in general, they could be more easily maintained. The ask here is probably set higher but is in line with what we debated when we debated the Official Languages Act. This is a way of giving effect to that type of thinking in our planning legislation.
Does Deputy Ó Snodaigh wish to address the other amendments before him together? These are amendments Nos. 113, 114, 115 and 116.
Amendments Nos. 112, 113 and 114 are on separate issues. I will deal with those.
That is fine. Will the Deputy address all his amendments together?
Mine is amendment No. 108.
Amendment No. 108 seeks to add specific condition requirements for licences to provide that they may not be granted for advertisements or town or landscape maps unless they are in both Irish and English and provides that the planning authority may issue guidance to provide that the Irish text is no less prominent. The attachment of conditions to licences is a matter for the individual planning authority and should be assessed on a case-by-case basis having regard to the matters set out in the Bill in section 12(7). The Official Languages Act already sets out requirements for advertising and the use of the Irish language by State authorities so it is already provided for in that regard; I am not in a position to accept amendment No. 108, although I do appreciate the thought behind it in terms of what the Deputy is trying to achieve.
I will not delay too long on this. Local authorities will obviously look at licences on a case-by-case basis anyway. This is trying to ensure that in some ways, they cannot avoid putting in place a condition relating to the Irish language. It can be tweaked. The Minister of State is correct that this is now law but this is trying to capture those who do not come under that provision so where the State can influence not just in terms of planning but elsewhere, it should use its authority or ability to change behaviour. In this case, the behaviour involves advertising as Gaeilge. It would be the same if you were trying to get a private company to change its behaviour in some other way. You cannot control it because it is a commercial entity but you can control it by virtue of the fact that it has come to the State seeking a licence.
The same would be true with regard to the campaign for a living wage. When you are dealing with a living wage, the concept that is accepted is that the State can exert control over the private sector and set a higher bar than the private bar would by virtue of the fact that it is the one that grants a contract and it also has that ability with regard to a licence. That is what we are seeking but if the Minister of State is not open to it-----
It is really a function of the Official Languages Act. I travel a lot, as the Deputy can appreciate, visiting heritage sites across the country and I generally find there is uniformity across local authorities in terms of interpretation of signage and signage in urban centres. The Irish language is always prominent and generally first in the text of a lot of interpretation of signage so there is very good compliance in that sense, be it a code that local authorities have adopted or something else. It is the structure that is the matter for the planning authority whereas the Official Languages Act deals with the issues raised by the Deputy. I appreciate the sentiment behind the amendment.
The Official Languages Act deals with State advertising so the Minister of State is quite correct. Local authorities put up the signage and, in fairness, they are quite good. When there is signage for an historical trail or something else, usually one side is as Gaeilge and the other as Béarla. I do not have questions about that. If in future, somebody complains, he or she can complain to An Coimisinéir Teanga because there is greater protection. If someone was driving along a road and saw an advertising hoarding owned by a number of companies that got permission from a local authority like Dublin City Council or Offaly County Council, there is no control over that and this amendment is a way of trying to assert some control over it. The only control over it that really exists is the stipulation that a picture of a nude man or woman cannot be stuck up on a motorway because it is a distraction and there is control if specific obscene images are put on one of those virtual rotating advertising hoardings because of another law. In this case, we are saying that this could be a way of ensuring that at the very least, advertising is as Gaeilge and as Béarla. We are looking for 50% but if it was a lower percentage to reflect what is in the Official Languages Act, so be it. At least, it would be a start.
Does the Minister wish to speak to amendment No. 109?
Amendments No. 109 and 117 relate to Part 2 of the Bill specifically regarding the licensing provisions in section 12. Section 12 restates section 254 of the Act of 2000 with certain modifications and regulates the placement of certain apparatus on public roads. Planning permission is not required where a licence is granted under this section and vice versa. This section does not apply if an environmental impact assessment or appropriate assessment is required. A person applying for a licence must provide the planning authority with such plans and other information concerning the position, design and capacity of the appliance, apparatus or structure as the authority may require. A licence may be granted by the planning authority for such period and upon such conditions as may be specified, including conditions relating to location, design, space taken up by appliance and the need to protect protected structures, etc.
Amendment No. 109 clarifies the application of section 12 of the Bill. Section 12 regulates the placement of certain apparatus on public roads and provides for a licensing procedure.
Planning permission is not required where a licence is granted under this section and vice versa. This amendment clarifies that a licence is also not required under this section for development which is classified as exempted development.
Amendment No. 117 provides that where the continuation or revocation of an existing street furniture licence is appealed and the licence remains in force pending the decision of the commission on the appeal, continuation of a licence may be refused and may be subject to first party appeal for practicalities. The infrastructure should remain in place as the commission may overturn a decision of the planning authority. Alternatively, continuation may be granted and where there is third party appeal for practicalities, infrastructure should remain in place as the commission may uphold the decision of the planning authority. Following a decision of the commission, the infrastructure will either remain granted or be removed following a refused continuation or revocation. This provides clarity while an appeal is ongoing.
Deputy Steven Matthews resumed the Chair.
One of the things that confused me about this section and took me a while to get my head round, particularly in relation to the discussion we had on a previous section on Environmental Protection Agency licences versus planning permissions, was the question of why we have these as licences rather than permissions. I am interested in finding that out. I can get my head around an exempted development but here, where something is an exempted development, it does not need a licence. For me, they are not the same thing. To help clarify for our benefit, is it just for particular reasons that these categories of what are essentially development became subject to a licensing process rather than the planning process? How did we get to this point? I have always thought that a planning permission was for a structure and a licence was to do something. Planning permission is granted for a building and a licence is granted to run a pub in a building. They are not the same. Planning permission is provided for a waste management treatment plant and then permission is granted to run a waste management treatment plant. They are different categories.
This relates to the licensing of appliances, cables, etc., on public roads. It restates section 254 of the 2000 Act and regulates the placement of certain apparatus on public roads. Those that-----
I understand that and I could read that part of the Bill myself. If this is related purely to cables, one might think that there is a licensing process for the laying of the cables. However, there are physical structures here. We have had conversations about some of those earlier. Why do we license those rather than grant them permission. What is the advantage of a licence versus a permission?
It is because they are on a public road.
Bus stops and bus shelters require planning permission.
Planning permission is not required where a licence is granted under this section and vice versa.
There are structures. For example, when representatives of Bus Éireann and the National Transport Authority were before the committee they talked about a process whereby they had to apply for planning permission for bus stops on public roads. Why do we license some and grant planning permission for others?
It is to do with the sheer volume of-----
It is a more streamlined process.
Yes, it is a more streamlined process.
That makes some sense.
The Deputy will appreciate that there are vast numbers of these as opposed to individual planning applications.
I have a second question. Can the Minister of State or his officials give an example of an exempted development that, because it is exempted, would not require a licence? I ask so that I am clear about the intent of the two amendments. What is that amendment intended to cover?
I will get an answer for the Deputy.
Did we not deal with the relocation of bus stops being exempted and not requiring a licence?
It was a planning permission exemption.
Did bus stops require planning permission?
That is why we have given the exemption.
Was it not just bus shelters or was it bus stops also?
It was for the replacement of existing bus stops.
The interesting thing about the bus stops is that the argument made was that there was such a volume of them that they should be exempted developments and it was not an unreasonable decision.
I think it was that the replacement of existing bus stops should be exempted developments.
That is where the location of existing bus stops is moved.
Yes, the relocation of existing bus stops.
Paths for drive-ins now require planning permission. They did not require it in the past.
Two examples would be small-scale electricity and gas network installations.
They would be also be covered under the exempted development regulations and are already in the list of exempted developments, so no licence would be required.
Another example would be bus stops where the landscape had to be changed to create the paving to facilitate access to a low-floor bus.
That is to provide accessibility for disabled bus users.
We are dealing with amendment Nos. 110 to 118. Amendment No. 110 is in Deputy McAuliffe's name. The Minister of State has spoken to it but I do not believe Deputy McAuliffe has.
I got a sneak preview of the answer. For the record, we will go over it again. For all the good reasons we have just discussed, this would facilitate security infrastructure at airports. The benefit of having this in the legislation as opposed to regulations is that it gives greater certainty. Is there a reason the Minister of State would not include it in the primary legislation?
Amendment No. 110 seeks to amend section 12(3) and proposes that licensing shall not apply to security cameras and other measures connected with the security of airport infrastructure within an airport. We discussed amendment No. 109, which clarifies that licences are not required for development which is exempted development. The current planning regulations already exempt the construction, erection or alteration of security fencing and gates, security cameras and other measures connected with the security of airport infrastructure within an airport. These exemptions will be replicated in the new planning regulations which are being prepared alongside the Bill. For this reason, I do not see amendment No. 110 as necessary.
I accept that. I sought clarification on exempted developments that I believe will be covered by regulations and the Minister of State gave a commitment that he would provide a draft version of those in advance of the Bill moving to the Seanad. I ask that the subject matter of this amendment be also included in that.
We will move to amendments Nos. 112 to 118, inclusive.
These amendments are in three groups. The first is amendments Nos. 112 and 113-----
It is amendments Nos. 112 to 116, inclusive. We have dealt with amendment Nos. 117 and 118. I spoke to my amendment No. 105.
We will deal first with amendments Nos. 112 to 114, inclusive, because they relate to the same section. As I read it, section 12(8)(b) relates to an application for a licence and if a local or planning authority does not make a decision on the application within a set period of time, or if it does not make a decision within a set period after securing additional information, there is an automatic assumption that permission is granted. I have a concern that, as a general procedure, this could lead to inadequate or inappropriate decisions, particularly in the context of local authorities not having adequate staff to meet what are pretty onerous timelines. Just to remind the committee, the County and City Management Association raised over a year ago the fact that there were 500 too few staff in the planning authorities to undertake their current functions.
That needs to be borne in mind with anything provided for. I would be interested to know whether this type of procedure is a feature in licensing or planning elsewhere. I will refer to the purpose of my amendments. The first suggests that the period should be 12 weeks rather than eight weeks. That is 12 weeks from the application before an automatic assumption of grant is provided. The second extends the period from four weeks to six weeks where a decision is to be made on foot of further information.
The third addresses an issue I am quite concerned about. There is no recognition here, although there is elsewhere in these sections, of licence applications that involve environmental impact assessment or appropriate assessment considerations. Whatever about periods lasting eight weeks or 12 or four weeks or six for regular licence applications, I would have thought than any licence application subject to an EIA or an AA could not avail of such a procedure because that would breach European law. I am quite concerned about a carve-out for any applications subject to EIAs or AAs. On that basis, the third amendment seeks to make very clear that:
Notwithstanding this subsection, where the licence involves environmental impact assessment or appropriate assessment, no deemed grant of permission shall arise where a planning authority fails to make the decision within the periods referred to ... [in the paragraph.]
As the Minister of State is answering the question, I would also like to know the basis on which the number of weeks was decided because that is going to come up quite a lot over the next period of time. That is obviously an important consideration. Was there consultation with the County and City Management Association or professional planners? Some of these could be quite small and could be done within the set number of weeks. Some could be quite complex and may involve multiple cabling or related structures in a particular area. I am interested in the rationale behind these very tight timelines of eight and four weeks.
On these amendments, is the provision to be granted a licence by default because the time has expired in existing legislation? Does it reflect existing provisions or it is a new provision? Will the Minister of State answer that question now as subsequent questions depend on his answer?
The answer is "Yes". That applies to overground electronic communications infrastructure and any associated physical infrastructure.
That is provided for in the existing legislation.
Does the Minister of State have any statistics on the number of licences granted by default? Does he have any indication of the types of licences granted by default? Is there any pattern as regards the local authorities that-----
I do not have that detail to hand.
Information on how often these provisions are being used and the types and sizes of applications involved would be relevant to our consideration. Is there a pattern of certain local authorities granting by default more often than others? If so, does that point to a resource issue in some local authorities or to a lack of priority being given to this issue in some local authorities? I am concerned about the granting of licences by default. We had a good discussion earlier on Deputy Matthews's amendments. Very good points were made about licensing and how we need to improve things to minimise visual clutter, to deal with unnecessary obstacles for disabled people and to ensure the use of shared structures, where appropriate. If licences are granted by default, none of those issues will come into play. The licence will simply be granted by default. The important issues we raised will not be addressed as we want them to be if licences are granted by default.
On a related issue, the cost to the public when licences are granted and reinstatement is not to a high enough standard is certainly an issue. I have seen this happen a lot over the years. Reinstatements are done but they are often partial reinstatements and, a year or two later, you can literally see the line of where the reinstatement was carried out having sunken or fallen or where cracks are emerging. At that point, where the reinstatement carried out on foot of the licence issued is not of a sufficient standard, the local authority does a full resurfacing at considerable expense to the public. What provisions or safeguards are there in this Bill to ensure this poor practice, whereby the local authority and the public effectively pick up the bill for a high-quality reinstatement, sometimes a couple of years later, is not allowed to continue? Will the Minister of State comment on that or share his views on it? That would be useful.
Amendments Nos. 112 and 113 seek to amend section 12(8)(b), which provides that, where a planning authority fails to make a decision on an application for a licence in respect of electronic communications infrastructure, the licence shall be deemed granted if eight weeks has passed since the application was received or four weeks have passed since an applicant’s response to an additional information request, whichever is later. The proposed amendments would change these periods to 12 weeks from receipt of an application and six weeks from receipt of a response to an additional information request respectively. These provisions are included to give effect to EU Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communication networks. Article 7 of the directive requires, among other things, that applications for statutory permits required prior to undertaking works to install high-speed broadband electronic communications network infrastructure be decided upon within four months of the submission of a complete application. Although the proposed amendments would be within the timeframe required by the directive, it is not in keeping with the decision timeframe for licences set out in section 12 and could cause confusion. As such, I cannot accept amendments Nos. 112 and 113. Will I also speak to amendment No. 114?
Yes, please.
Amendment No. 114 seeks to add a provision that, notwithstanding the permissibility of deemed decisions in respect of electronic communications infrastructure, no such decision shall be deemed to be granted where the licence involves EIA or AA. This provision is unnecessary as section 12(3) provides that you cannot apply for a licence if EIA or AA is required. In these circumstances, planning permission must be sought, allowing the development to be appropriately assessed for EIA and AA. As such, I cannot accept amendment No. 114.
For clarity, the planning authority can seek an extension. It is stated that:
if, not later than 8 weeks from the date on which the planning authority received the application, the planning authority notifies the applicant in writing that for exceptional reasons-----
Where is the Minister of State reading from?
I am reading from section 12(8)(d) on page 55, which states:
if, not later than 8 weeks from the date on which the planning authority received the application, the planning authority notifies the applicant in writing that for exceptional reasons stated in the notification it is not in a position to comply with paragraph (a) within the period specified in that paragraph, and where the planning authority so notifies the applicant, it shall—
(i) make a decision in relation to an application under this section
That provides for the planning authority to extend that eight-week period. A separate question was raised about the staffing of local authorities. Additional staff have been provided across all of our local authorities. That process is continuing in the local government sector this year to ensure sufficient numbers of planning staff in our local government system.
On staffing, as the Minister of State will know, the CCMA said a year and half ago that more than 530 additional staff were needed.
They have sanction for an extra 100 but I do not believe they have been employed and the workload is increasing. Staff numbers are way behind what they need to be. That is a separate matter. I want to get this right. Is the Minister of State saying there is no set of circumstances in which an application for a licence could be submitted where an EIA or AA is required?
In all cases, without exception, that has to be part of planning permission.
Perfect. With respect to the interaction of section 12(8)(b), which my amendments relate to, and subsection (d), is the Minister of State saying that in cases where the licence application has been granted or additional information has been provided, the planning authority can seek a further eight-week extension under the terms of subsection (d)?
Does the term "seek" mean that the applicant for the licence has to consent to that? Is it simply the local authority or planning authority providing themselves with an additional eight weeks?
The planning authority notifies the applicant in writing.
That means, in real terms, there could be, under these provisions, a 16-week period from the date of application if, prior to the conclusion of the first eight-week period set out in section 12(8)(b), the planning authority could seek an additional eight weeks? Likewise, there could be a 12-week period under section 12(8)(b)(II) where, just before the four-week period expires, the planning authority could seek an additional eight weeks. Does that apply in both sets of circumstances?
Yes, to give a copy of the decision, and the main reason and considerations on which the decision is based, to the person who made the application.
Ultimately, there can be 16 weeks under subsection (8)(b)(I) when we add-----
Yes, it is not later than eight weeks from the date on which the planning authority received the application.
If I am the planning authority and, coming to the end of week eight, I notify the party of the extension, how much time am I given? Is it eight weeks on top of the original eight weeks, or is it less time?
It is not later than eight weeks from the date of the notice.
If I submit an application for a licence and there is an eight-week timeline, and if a decision is not made within eight weeks there is a default grant. However, if the Planning Authority on the second last day of the eight weeks notifies me that under exceptional circumstances it is applying subsection (8)(d), it gets a further eight weeks.
Yes, 16 weeks in total.
Does that also apply to the four weeks for additional information? It applies in both cases.
Okay. It is just in the first and not in the second.
Correct.
Is the term "exceptional circumstances" set out in the Act or by way of regulation? What would be considered exceptional circumstances? Would not having sufficient staff to make an appropriate decision within eight weeks suffice? I presume there are regulations that govern this now, so it is not the case that new ones will have to be produced.
It is done on a case-by-case basis, as the Deputy will appreciate.
There would be pretty wide latitude for a local authority to stipulate the exceptional circumstances.
I think so, yes. There could be complex planning decisions.
That is my point. I do not know when the section was originally inserted into the Planning and Development Act. I presume it was not in the original 2000 Act; it came in at a later stage on foot of EU directives. Our planning system is inherently more complex than it was then. Obviously, we are moving to a stage where there is a greater level of development. Our local authority planning sections have far fewer staff than they had a decade or a decade and a half ago. Notwithstanding the fact that it is an existing provision, it is an existing provision in different circumstances.
It states "for exceptional reasons". It would not be the case that this would be used as a default.
The term "exceptional" is not set out anywhere. It is done on a case-by-case basis.
No, it is-----
It is not set out anywhere. That is okay.
That cannot be defined in the context of the Bill.
Was any consideration given to providing an additional period of time, post the four weeks, on receipt of additional information? Perhaps it would not be an additional eight weeks, but an additional four weeks. If not, why not?
Even if there were exceptional circumstances.
No, because a decision would need to be made in respect of the additional information after that period had elapsed.
We are-----
We said we would have a bit of flexibility.
I intend to spend about 20 minutes on this, in terms of questions and answers back and forth.
Let us draw a line under that.
Progress reported; Committee to sit again.
The select committee adjourned at 6.17 p.m. until 2 p.m. on Wednesday, 28 February 2024.