Amendments Nos. 1, 2 and 107 are related and may be discussed together.
Planning and Development (Amendment) Bill 2016: Committee Stage
I move amendment No. 1:
In page 5, between lines 20 and 21, to insert the following:
"(2) This Act, other than Part 4 and Schedule 3 at reference numbers 12 to 18, and the Planning and Development Acts 2000 to 2016 may be cited together as the Planning and Development Acts 2000 to 2017 and shall be construed together as one.".
Section 1 contains the standard provisions relating to the Short Title of the Bill and commencement of the Act.
Amendment No. 1 inserts a new subsection (2) in section 1 of the Bill to provide for a standard collective citation, indicating that this Bill, when enacted, and the existing Planning and Development Acts 2000 to 2016 may be read together as one. Section 1(2) of the Bill sets out the standard commencement provisions for the Bill, providing that the Minister may bring into operation the provisions in the Bill when enacted by way of an order or orders on specified days. Amendment No. 2 amends this subsection to provide for the commencement of certain provisions on the passing of the Bill. The relevant provisions in this regard relate primarily to minor technical amendments proposed to the Planning and Development (Housing) and Residential Tenancies Act 2016 which I will propose later. Amendment No. 2 also amends the typographical error making reference to "Part 14" of the Bill, which should be corrected to refer to Part 4 of the Bill.
Regarding Opposition amendment No. 107, the Long Title of this Bill provides that it relates to an Act, inter alia, "to make miscellaneous and consequential amendments to the Planning and Development Act 2000 and to various other Acts in so far as they relate to planning and development". In this regard, section 1 of the Planning and Development (Housing) and Residential Tenancies Act 2016 provides the standard provisions for the Short Title, collective citation, construction and commencement of that Act. In the context of the collective citation, section 1 of that Act provides that the Planning and Development Acts 2000 to 2015 and the Planning and Development (Housing) and Residential Tenancies Act 2016 may be cited together as the Planning and Development Acts 2000 to 2016 and shall be construed together as one. Therefore, the Long Title of the Bill under discussion only provides for amendments to those provisions of the Planning and Development (Housing) and Residential Tenancies Act 2016 that relate to planning and development and not to any of the provisions of the 2016 Act relating to residential tenancies. For this reason, I oppose the amendment by Deputy Ó Broin. Any amendments to the provisions of the 2006 Act relating to residential tenancies are not appropriate to this Bill as they do not relate to planning and development, the principal focus of this Bill, and should instead be made by way of amendment to the Residential Tenancies Acts 2004 to 2016.
Do any members have questions on these amendments?
I will make a general opening comment that has nothing to do with what the Minister just outlined. I am very disappointed by the turnout today, and that is obviously no criticism of the members who have turned up. This committee has a consistent problem of very low attendances, which reflects very poorly on the very serious issues with which we are dealing, and today is a matter in point. I have tabled a number of amendments to this Bill. The Bill is very important. While I am critical of it, it is a central element of the outworkings of the Mahon tribunal and an attempt to reform our planning system. The fact that only four members of the committee are present, as well as one Member who is not a member of the committee but who has taken the time and interest to be here, is very shocking. I just wanted to put that on the record.
The members of the committee who are not here cannot defend themselves. They might have had prior commitments this morning.
I accept all that, but this is not a one-off. We repeatedly have very small attendances at committee sessions dealing with very important issues and events. We all have other commitments. I spent ten hours in the water committee meeting yesterday and seven hours the week before and was still able to attend to my housing committee commitments. I think anyone from the public looking in on these proceedings will ask where the rest of the committee is, and they would be right to do so.
I will not press amendment No. 107. The Minister's response is absolutely reasonable. It was not the intention of the amendment to try to facilitate or propose amendments to the Residential Tenancies Acts, RTA, sections of it; it was more a practical tidying-up exercise. However, I am happy not to press the amendment on the basis of what the Minister has said.
I move amendment No. 2:
In page 5, line 21, to delete “Part 14 and section 2” and substitute “section 2 and Part 4 and where otherwise expressly provided for”.
Amendments Nos. 3, 22, 47, 54, 55, and 57 to 59, inclusive, are related and will be discussed together.
I move amendment No. 3:
In page 5, between lines 26 and 27, to insert the following:
“ “Act of 2016” means the Planning and Development (Housing) and Residential Tenancies Act 2016;”.
I would like a little guidance from the Chairman. I can deal with the Government amendments in this group of amendments. Does the Chairman want me to deal with the Opposition amendments at the same time or wait for Opposition Deputies to move their amendments before dealing with them?
We will discuss all the amendments in the grouping together and vote for them individually when we get to them.
In moving amendment No. 3, I will address Government amendments Nos. 3, 22, 47, 54 and 55 first, followed by Opposition amendments Nos. 57 to 59, inclusive, together.
Regarding amendment No. 3, section 2 provides for the necessary definitions of terms used in the Bill. The Planning and Development (Housing) and Residential Tenancies Act 2016 has been enacted since the publication of this Bill. In light of this, a definition of the term "the Act of 2016" is required to be inserted to mean the Planning and Development (Housing) and Residential Tenancies Act 2016.
Amendment No. 22 relates to section 31Y of the Bill dealing with the resignation and removal from office of the planning regulator. It essentially corrects a minor typographical numbering reference to the subsection in the section, replacing an incorrect second reference to subsection (2) with a correct reference to subsection (3), thereby listing subsections (1), (2) and (3) correctly and in the proper order.
Amendment No. 47 is a further minor technical amendment to section 31AR of the Bill relating to the regional, spatial and economic strategies, proposing the deletion of an incorrect reference to a "plan" and its replacement with the correct term, "regional, spatial and economic strategy", in order to be consistent with other relevant provisions in the Bill.
Amendments Nos. 54 and 55 are further minor technical amendments to clarify two references in section 31AU of the Bill relating to the subsection on reports by the office of the planning regulator on foot of complaints received by it to the Minister or other named bodies, including the Ombudsman and the Garda, and that such reports concerned are reports on the preliminary examination of complaints by the office of the planning regulator referred to earlier in the section.
Opposition amendment No. 57 relates to the objectives of the national planning framework, as provided for in section 20B of the Bill, which provides that a core objective of the national planning framework should be to establish a broad national plan for the Government for the strategic planning of urban and rural areas. In this regard, Deputy Ryan proposes that the wording be revised to provide that a core objective of the national planning framework, NPF, shall be to provide for the strategic planning and sustainable development of urban and rural areas. I can accept this amendment. I do not have any difficulty with it.
Amendments Nos. 58 and 59 have been ruled out of order so I cannot deal with them.
I thank the Minister for accepting amendment No. 57. It is a pity the other amendments have been ruled out of order. I would like to see the details of that. The intent behind the amendments, to which I will return in a series of later amendments, is to strengthen the tension on core environmental objectives, particularly climate change and biodiversity but also other elements. A number of my amendments come back to this in order to give strong direction from the start. I would have liked to have had a more detailed discussion about the national planning framework. The purpose of the amendments was in a way to try to give very clear direction as to what the key role of the national planning framework is. I might be able to do that on other amendments and I will come back to it then.
I think the Deputy and I would have much agreement on these areas. If he wishes to talk to us about redrafting the amendments in such a way that they would be ruled in order as opposed to out of order, we could try to accommodate the thrust of those concerns at a later Stage. We will happily work with him on that if he so wishes.
If I can, I will attempt to renegotiate amendments in that regard.
Amendments Nos. 4, 32, 33, 36, 37, 46, 48, 99 and 100 are related and will be discussed together.
I move amendment No. 4:
In page 5, line 27, to delete “Minister for the Environment, Community and Local Government” and substitute “Minister for Housing, Planning, Community and Local Government”.
Amendment No. 4 is a minor amendment to correct the definition of the term "the Minister". I am sure other people might like to do that in a different way. In section 2, "to mean the Minister for Housing, Planning, Community and Local Government" must be corrected in light of the change in the title of the Ministry since the Bill was published in early 2016. There are eight further references of this nature throughout the Bill, which require the reference to the Department of the Environment, Community and Local Government to be corrected with the new title, namely, the Department of Housing, Planning, Community and Local Government. I will accordingly be moving amendments Nos. 32, 33, 36, 37, 46, 48, 99 and 100 as we reach them during the debate today. It is the same issue for all of them.
Amendments Nos. 5 to 15, inclusive, are related and will be discussed together. As Deputies Shortall and Catherine Murphy are not here, amendment No. 5 falls. This grouping now encompasses amendments Nos. 6 to 15, inclusive.
I move amendment No. 6:
In page 7, line 34, after “assess” to insert “and make legally binding determinations on”.
In respect of this group of amendments, we were late submitting proposed amendments and will be tabling them on Report Stage, specifically in respect of the strategic transport plans that have been suggested in this section. Some of us in counties neighbouring Dublin would be aware of the impact that "shall", "may" and "have regard to" have on our own county development plans. It is a matter of bringing oversight of transport infrastructure within the provisions of the Bill.
If I may speak generally, this is not a Bill that should be dealt with in any kind of party political way. The Government should not be trying to force anything through that is in any way inappropriate. I am very anxious to work with other Deputies to get the legislation right. We are talking about our planning structures and procedures. My only goal is to ensure that we have as much transparency, accountability and proper decision-making and planning as possible. That applies to transportation matters, working with the National Transport Authority or Transport Infrastructure Ireland, TII. It also applies to seeking commonality of thought when we are putting together county and city development plans and local area plans, with transport considerations and so on.
I ask the Deputies not to interpret the fact that we could not take on these amendments as us not wanting to talk about them. It was just a timing issue. The same goes for some of the other Deputies who may want to try to amend or improve proposed amendments. I will happily facilitate meetings to tease through some of these issues so that we can try to get as much consensus as possible on Report Stage, within reason, obviously. I did get a briefing on Deputy Casey's amendments earlier. We did not have time to get responses so they were not accepted. We will certainly tease through all of them with the Deputies before Report Stage. Either I can introduce the amendments or the Deputy can, I have no problem once we can get agreement on them.
I appreciate that.
I acknowledge the Minister's openness to considering changes. As I stated on Second Stage, we support the establishment of the planning regulator. It is a very important addition to our planning architecture and was strongly recommended by the tribunal. However, it is really important that we have a body that is not just consultative and that does not just evaluate and assess while the power to act rests in the main with the Minister. If a regulator is to really add value to the planning system, it has to have some independent ability to act.
I do not anticipate that the Minister will accept my amendments in this section or others. I am not going to try to convince him of their merits. I only ask him to go away and think, between now and Report Stage, about what the Government could do to give additional powers to the regulator. In whatever areas the Department thinks are appropriate, it is my view that the regulator should not simply be making suggestions to the Minister, which is essentially what the Act recommends, but that it should have powers to make binding determinations, or the ability to intervene independently of Government.
My fear is that, without provision for such a scope of action, we will have a toothless tiger and that is not what the Mahon tribunal recommended. I made the point on Second Stage that one of the tribunal's related recommendations highlighted the need to shift power away from the Minister and the Department. The concern that I and other planning commentators have is that the Bill seems to move in the opposite direction. I think that is a real fundamental flaw. I am not seeking to make politics. We are going to support this Bill whatever its final shape. However, I do think there is more work to be done. In proposing amendments Nos. 6 to 11, inclusive, I am raising these issues and urge the Minister to consider how he might act.
I am not clear from the functions of office as outlined on page 7 whether, for example, in addition to carrying out investigations and evaluations of planning authorities and decisions, the office of the regulator could do the same with the Minister or the Department. I think that would also be a very important function, not that I am at all suggesting that the current Minister or any of his officials need to undergo planning-related investigations. It would strengthen the regulator's independence if it had that additional function of holding the Minister and the Department to account in certain defined areas.
We also believe this Bill is a badly needed and welcome development in our planning architecture. There is a subtle line between having too much power going out of a Department, losing in-house capability, and having too much power remain there. In this instance it is right to transfer day-to-day regulation of the planning system away from the Department and the Minister. The overall approach is right and we need to get the legislation right.
Amendment No. 14 is in our mind just a drafting amendment. We thought it improved the wording. Amendments Nos. 12, 13 and 15 are similar to each other in nature. One of the ways in which our planning system is currently very mixed and variable is the application of Part VIII. Some authorities apply it in a very appropriate and proper manner while others use it as a short cut, according to a number of commentators.
The purpose of amendments Nos. 12, 13 and 15 is to provide oversight of how the Part VIII system works. There are other ways in which it could be improved in terms of what type of reporting of information should take place, but that is one of the intentions. It was the Mullaghmore decision that first changed the entire system where the State had to comply with the law. In some local authorities the Part VIII system is still used as a means whereby the State can in some ways bypass the law slightly. The amendments seek to strengthen the performance and application of Part VIII by giving the regulator a clear direction to review it. That is the intent.
I agree that it is a good Bill. It provides for the appointment of a planning regulator, which makes a great deal of sense. The weakness is not so much that the Minister has too much power but that councillors and elected members have too much power in the planning process, particularly regarding planning recommendations. I appreciate the difference between the powers of elected members in making a development plan as a reserved function and the power of officials, but I believe the abuse is where officials are often over-ruled and new development plans are put in place which bear no relationship to professional planning needs or advice. That is where my concern is. Historically, going back to the days of the late former Minister, James Tully, and so forth, a great deal of on-the-foot planning took place. I am not blaming the former Minister, James Tully, who represented part of my constituency. I know members of his family. Planning has changed significantly over the years but the wrong that has been done and the communities that have been disadvantaged are the result not of ministerial powers in the planning system but of councillors overruling planners and insisting on developments which should never be there in the first place. They are now in place with all the consequent unreasonable demands that go with that, including pressure on services which should never occur.
Out of town shopping centres are a major example. They do not make planning sense yet they mushroomed everywhere. The only people who benefited in my view were the developers, not the communities. In terms of joined-up planning, particularly with regard to transport links between significant shopping developments and communities, there is a huge in-built disadvantage with those out of town shopping centres particularly for people who do not have a car and where there is no proper public transport in place. They have contributed significantly to the death of our urban town centres which, in many cases, are derelict and destroyed. Bad planning and the powers of elected members in the planning process have helped destroy those town centres.
Hopefully, those days are behind us.
I will make a general comment before going through the individual amendments. A judgment call is required here in what we are trying to do as regards where the buck should stop on decisions to intervene to correct an inappropriate decision or to respond to corruption, although if it is a breach of the law it should involve the Garda. Ultimately, we are proposing in the Bill that the office of the planning regulator would essentially assess the procedure by which decisions are made, be it in respect of county development plans, local development plans, planning decisions and so forth. Before a county development plan is signed off on it will have to go to the planning regulator's office for a full assessment. If there are concerns in that regard, whether they are procedural concerns or decisions or the regulator believes that the local area plans or county development plans are not consistent with national policy or good planning practice, the regulator will report that to the Minister who will have to take action on it.
What appears to be under discussion here is who will be the appropriate body or person to make the intervention to correct a wrong. Should it be the Minister or the independent regulator? There is nothing to suggest that an office of planning regulation is beyond corruption or inappropriate decisions. At least a Minister is in the public eye and has a mandate from the people to be there. The Minister must respond in a very transparent way and if a Minister is not going to accept the recommendation of the new regulator's office, he or she will have to publish the reasons for that and will be questioned on it in the Dáil. None of that accountability applies to a regulator's office. Most people will never see the regulator or even know the names of the people who are making the determinations or decisions. If people persuade me otherwise, we will go in a different direction. This is not an absolute position. However, we have had a long discussion on this in the Department. Most of our team agree that the person who ultimately should be accountable here is a Minister with responsibility for planning. If that person decides they will ignore the advice of a planning regulator's office, they had better be damned sure they have a good reason to explain why they have not intervened.
In some ways that is a more transparent and accountable process. We all know what happens to Ministers who do not act in the way they should. They are put under huge pressure. The spotlight is on them and they must answer for their actions. Regulators have nothing like that level of scrutiny regarding the decisions they make. They never will have it, because that is the way our system works. The functions of the regulator's office are:
"(a) to evaluate and assess—
(i) development plans, including draft development plans,
(ii) variations of development plans, including proposed variations,
(iii) local area plans, including the amendment or revocation of such plans, and
(iv) regional spatial and economic strategies, ...
(b) in respect of any plan or strategy to which paragraph (a) relates, to inform the Minister if, in the opinion of the Office, any such plan or strategy is not consistent with its observations and recommendations, especially where, in its opinion, failure to be so consistent would affect the overall strategy for proper planning and sustainable development of the area concerned..."
Subsection (e) provides "to conduct reviews under Chapter IV of the performance by the Board and by planning authorities of their respective functions," while subsection (f) provides:
"to oversee the delivery of effective planning services to the public by planning authorities including having regard to—
(i) any relevant indicator (within the meaning of Part 12A of the Local Government Act 2001) identified by the National Oversight and Audit Commission or prescribed by the Minister under section 126C(1) of that Act, or ..."
The Bill also provides that the office shall conduct, at such intervals as it thinks fit or as the Minister directs, reviews of its organisation and the systems and procedures used by it in respect of the performance of its functions.
We are trying to ensure that professional planners in a regulator's office are assessing and reviewing all of the decisions around the country, the type of decisions Deputy O'Dowd refers to as being potentially undermined in the past. The regulator raises a red flag and says, for example, that there is something happening in Cork that should not be happening. The regulator sends that to the Minister and the Minister has a responsibility to act on it in a public and transparent way, having to account for their decisions before committees such as this or on the floor of the Dáil. If we were to decide not to go down that route and to provide that the regulator has the power to intervene and force a change in the decision, who questions the regulator and holds them to account in terms of consistency with national policy?
If, for example, we have a housing crisis and local authorities make a decision in using initiative or emergency powers to try to get the provision of local authority housing moving faster than it otherwise might be through the normal system, is that justified or not? Sometimes there are political or policy considerations that can be explained or justified by a Minister, but they need to be tested through debate and discussion, which cannot be done with a regulator. The regulator will produce an annual report that I presume will be discussed by this committee in terms of its assessment and decisions.
I am open to being convinced that we should move in a different direction, but my view is that the buck should stop with somebody who is accountable, has been elected to do a job and is available in a very transparent way to justify decisions. That is the way in which we will most effectively achieve accountability in the eyes of the public. I do not subscribe to the view that the political system cannot be trusted and that, therefore, we need to set up independent regulators to take all decisions in the implementation of policy. Instead, let us have a much more transparent political system that forces Ministers to stand over their decisions under questioning under the spotlight by both the media and the Opposition. For me, that is the way to deal with planning irregularities because we have seen, unfortunately, that senior officials, as well as public representatives, have been corrupted by the system. It is not just politicians who have made bad decisions, not by a long shot. What we are proposing is the right balance, but I have an open mind on the issue. We should not be ignoring the responsibilities and accountability that should come with holding ministerial office which is ultimately where the buck should stop.
I will address amendments Nos. 6 to 10, inclusive. I oppose these five amendments which primarily propose the making of legally binding determinations by the OPR. The role of the office of the planning regulator is to evaluate and assess development plans and regional strategies and make statutory observations and recommendations on them. It is not necessary to amend the Bill to give the OPR the power to make legally binding determinations. The Bill provides that the OPR will be independent in carrying out its functions. It also provides the OPR with sufficient powers to make recommendations to planning authorities and regional assemblies on local area plans, development plans and regional strategies and for these recommendations to have sufficient weight. The OPR can submit observations or recommendations to the relevant planning authority on draft plans and strategies. It would be extraordinary if a local authority did not act on the recommendations of the planning regulator. It would signal that the next step of the planning regulator would be, essentially, to inform the Minister that there was something untoward because it had warned the local authority which did not take its advice and that the Minister needed to do something about it. It will happen because sometimes local authorities take a stubborn stand on something. We see this at the moment where the Minister needs to intervene to change county development and local area plans. We have done it a number of times this year. I am not very popular with local councillors when I do it, but it is the right thing to do to ensure good planning. This is an independent office making that judgment and observation early and most local authorities will respond to it. A planning authority is then required to notify the OPR and state the reasons why its plan has been made in such a manner as to be inconsistent with OPR observations and recommendations. The information on the to-ing and fro-ing around notification and justification and so on will be publicly available. Where the OPR is subsequently of the opinion that the development plan or regional strategies made by the relevant planning authority do not set out an overall strategy for the proper planning and sustainable development of the area or region concerned, it shall recommend the use of a ministerial direction for the plan to be revised and submit a draft direction to the Minister for issue to the planning authority or regional assembly concerned. A copy of the notice submitted to the Minister shall be made available on the website of the OPR. The Bill further provides that where the Minister agrees with the recommendation of the OPR on a plan or strategy, he or she will issue a direction to the relevant local authority or regional assembly. The Bill sets out the detailed procedures that should then ensue.
To a certain extent, the OPR is taking over a function currently carried out by the chief planner in the Department. For example, I might get a file on my desk stating there is something happening in Kildare with which the OPR does not agree and outlining the reasons the Minister should intervene and disallow it. We do that. The local authority will then come back with a further justification or an acceptance of the ruling. The next step for me is to either confirm that the ruling should stand or to put in place an independent inspector to verify whether the planning considerations on which we have ruled are sound. We have done that in one or two cases. It is about introducing a more substantial body to intervene and make recommendations. It will have a lot of credibility and ensure the correspondence and interaction will happen in a very transparent way. If a journalist is into planning, he or she can follow the way the decisions are being considered and finalised in a way that is very healthy. The toothless tiger description is not accurate. I can understand the point the Deputy is making, but there is a lot in this which will expose the decision-making process to the public for real public scrutiny which is very positive. If the Minister does not agree with the recommendation of the OPR, the Bill provides that he or she is required to explain the reasons for such disagreement. The Minister must lay the reasons for such disagreement before the Houses of the Oireachtas and also publish them on the Department's website. These provisions will ensure the recommendations of the OPR are given due weight in the preparation of local area plans, development plans and regional spatial and economic strategies and that the procedures will be conducted in an open and transparent manner. Therefore, I do not propose to accept the amendments.
I do not propose to accept amendment No. 11 as there must be clear lines of demarcation between the role of the OPR and other responsible bodies, particularly in investigating possible corruption in decision-making in planning. In instances where there is evidence of planning corruption or breaches of the law, they are strictly for investigation by An Garda Síochána. The Bill already includes sufficient provisions for the investigation of complaints by the OPR and ensures they can, where appropriate, be deferred to more appropriate State authorities. It further provides that the OPR may, at its own behest, at the request of the Minister or on foot of a complaint received, carry out reviews and examinations to determine if a planning authority is properly carrying out its functions under the planning Acts. The Bill also allows the OPR to form its own opinion on complaints and make recommendations, as appropriate, to planning authorities and the Minister. Furthermore, it provides that, with regard to complaints made by any person to the OPR on a planning matter, the OPR can, where it considers it to be warranted, refer the matter and related documents to the Ombudsman, the Standards in Public Office Commission, An Garda Síochána or any other State authority, as may be prescribed. The Bill further requires that information, records or documents be made available to the OPR or an authorised person appointed by him or her as part of any review or examination and that a planning authority or the board and its staff comply with any request for information or records and that they co-operate with the OPR in this regard.
Any person who obstructs or refuses to comply with the request of the OPR or an authorised person commits an offence and shall be liable on summary conviction to specific penalties. Accordingly, there are sufficient checks and balances built into the provisions for conducting investigations into planning corruption. Therefore, I oppose the amendment.
With regard to amendments Nos. 12 to 15, inclusive, which seek to enhance planning enforcement, I am opposed to the amendments with the exception of amendment No. 14. In addition to evaluating and assessing local area plans, developments plans and regional spatial and economic strategies, one of the key roles of the OPR, as provided for in the Bill, will be to undertake reviews of the organisation, systems and procedures used by planning authorities in the performance of their functions under the planning Acts. These functions include planning enforcement. In situations where a sufficient number of complaints is received by the OPR about planning enforcement by a planning authority, there is scope within the provisions of the Bill, as drafted, for the OPR to review the organisation, systems and procedures used by the authority in respect of its enforcement functions under the planning Acts. In effect, while planning authorities will still retain primary responsibility for planning enforcement, where there are potential issues about the organisation, systems and procedures used by a planning authority in the performance of its enforcement functions arising from complaints received, there is scope for the OPR to examine the matter. This is considered to be the most pragmatic approach to adopt. I do not favour the OPR being empowered to investigate individual planning complaints. Otherwise, it is likely that the Office of the Planning Regulator would be inundated with such complaints, thereby undermining its ability to effectively perform its core and primary functions.
We have to have some faith in the processes for determining planning decisions. We have an appeals process and so on. If there are procedural flaws in it and complaints in that respect, the planning regulator will have the power to raise these issues. He or she can refer them on to an appropriate body or inform the Minister that something is wrong. If a planning department in a local authority has been corrupted, there will be an opportunity for the OPR to raise a red flag. I am not sure the planning regulator should essentially be a second appeals body for planning decisions. We would then end up with people using the office as a way of delaying the granting of planning permission.
On the broader issue of corruption in the State, my personal view is that we need to look at new structures to deal with whistleblowers and how they are dealt with. The way it works is overly political and results in Ministers having to take almost personal responsibility for whistleblowers' complaints. We need to look at what works elsewhere. Perhaps we might need to look at some new structures for how complaints of corruption, in State bodies in particular, can be dealt with in a way that is efficient and does not get caught up in political accusations and to-ing and fro-ing and so on but actually gets to the core of the issues a lot faster. That is for another day, but I do not think we should allow the new office of the planning regulator to get caught up in that stuff. There are other ways we can do it. Accordingly, as stated, I am opposing the amendments with the exception of amendment No. 14 which I can accept as its wording is consistent with the wording of section 31Q.
I thank the Minister for the detailed responses. Every time we go through legislation or policy, we start the conversation with the Minister telling us that he will be open to persuasion and end the process with broadly the same legislation or policy with which we started.
I accepted amendment No. 14.
On the substantive issues, it could be a reflection on our inability to persuade the Minister or of the fact that he is not as open to persuasion as he says and that he has his mind broadly made up at the start. Let me try to persuade him a little in response to his comments.
I absolutely accept that the buck stops with the Minister for legislation and policy on planning matters. No one here is suggesting those legislative or policy functions should be transferred outside the political process. I also agree that we need a much more transparent political decision-making process, but giving stronger powers to a regulator to ensure enforcement and compliance not only by planning authorities and the board but also by the Minister and the Department within the context of legislation and policy set by the Government and holding Ministers and the Government to account are not mutually exclusive. In fact, they can be mutually complementary.
It is not the case that people do not know who the regulators are. For example, Patrick Honohan, Philip Lane and the debates on the regulatory functions of the Central Bank have shown very clearly, albeit in a different context because the Governor of the Central Bank has a policy formulation role, that there can be very robust interactions in the public arena, of which people are publicly aware, between a regulator, a Minister and the Oireachtas. Where there are disagreements, they are aired at committees and in the Chambers. While I can be very critical of the nature of the Central Bank and some of its decisions, the debate on the issue of the mortgage lending rules has shown very clearly the value of having independent regulatory functions with stronger powers than for what the Minister is providing. Again, I am not proposing that we give the planning regulator policy-making powers, but I think ensuring compliance at all levels of planning authorities - political and official - is a very important function that it should have.
In some senses the Minister described it quite well when he compared the planning regulator to being a little like the chief planner in the Department. Clearly, this is a souped-up version of it. It has a greater number of staff and more clearly defined functions, but essentially it is doing something that is already doable within the Department, albeit in a more limited form. That is precisely the difficulty. That is why it is not in compliance with the key recommendations of the Mahon tribunal and we are urging the Minister to go further. He has said, for example, that if people are breaking the law, it is a legal matter. We have a very poor history in this State of holding individuals to account within the legal, judicial and criminal processes - whether they be politicians or planners - who were involved in corrupt, inappropriate or negligent planning decisions that destroyed the lives not just of individuals but whole communities. We have a very poor track record in that respect. We set up tribunals which meet for lengthy periods of time. They make recommendations, yet here we are not taking into account the key recommendation of the Mahon tribunal that there be a stronger regulatory body with independent powers moving from the Minister and the Department to the regulator. Not only do we not prosecute people, but once again we are in a situation where we are not fully implementing the recommendations of a tribunal rightly set up by a Government to tackle some of these issues.
These are the questions the Minister needs to answer if he is to continue with the more limited form of office of the planning regulator he is outlining. What happens if he refuses to take action? Great, the regulator will have to publish an opinion. That will not necessarily go anywhere or solve the problem. While it might create a little fuss in the media for a few days and those directly implicated might be able to access that opinion, it will not solve the problem. What if the Minister or departmental officials are implicated in the problem, either directly or because of inaction? Again, I am not in any way suggesting that is the case, but where is the regulatory enforcement to tackle that issue? The Minister is right - Ministers are in the public eye, but, again, we have a long history in this country of re-electing people to office, including to very high office, who are either accused of, or have been found guilty by tribunals of, corruption, malpractice, negligence and making bad decisions.
I know that the Deputy is being cautious, but I remind him not to mention names.
I will not name anybody or any local authority. The Chairman should not worry. I am just making the point that being in the public eye does not necessarily produce good quality outcomes in terms of planning decisions. The Central Bank is a good example of a regulator that is publicly known and the interventions of which lead to good public debate, but we should also look at the Environmental Protection Agency.
The Environmental Protection Agency has independent enforcement action powers. Nobody - probably none of us in this room, bar the Minister and his officials - could tell us who the head of the EPA is but we all know that the EPA takes decisive action when there are breaches of environmental regulations or contracts. It is a different context, but it shows the value of having independent enforcement powers in addition to the Minister. Who holds the Minister and the Department to account in all of these matters?
I agree with the Minister that the office of the planning regulator should not be a second appeals body. I agree with him in respect of that because that would simply provide a way for those trying to slow down planning decisions. In other areas where there is an appeals process within a particular decision-making process, for example, the appeals office in the Department of Social Protection which is independent, even when an appeal is concluded, appellants have the right to go to the Ombudsman which does not delay the decision but is a final check to ensure that there were no irregularities in the decision-making process. There is no reason the Minister could not design a mechanism for persons, whether for members of the public or whistleblowers within the planning process, to be able to make complaints but, just like with the Ombudsman where there is a strict screening criterion which is not to review the substantive decision but to see if there were irregularities in the process of making the decision, one could ensure that it would not become, as the Minister rightly states, a second appeals body to An Bord Pleanála.
There are compelling arguments - the Mahon tribunal recommendations reinforce this - why the Minister should review this issue. The Minister can do so without undermining any of the salient points he made in terms of the need for greater transparency in the political process and the authority of the Minister and the Government to set policy and legislation. The strongest argument is the tribunal was set up, it made a recommendation but this is not what was recommended; I have yet to hear the Minister explain why that recommendation should not be implemented in full.
I will be fairly brief. It is vitally important that we have a balance here. It is critical to maintain democratic control over the process, and with that, political accountability.
We are in a different place today from where we were a few decades ago. I have been through three county development plans and several local area plans during that period and there has been significant change from my first one, in 2004, to the current one that was adopted last year. We have seen, even in the past four to six years, that the Minister's intervention in the county development plans has been ramped up significantly compared to what it was on the first plan in which I was involved.
On transparency, a lot of what has been recommended in this Bill is already in place, in my local authority and maybe some other local authorities, in terms of following exactly how decisions are made. From the start of expressions of interest in the preparation of a draft plan right through to the final adoption of a draft plan, every aspect is now available on the website. Anybody can go onto it and look at any stage at what decisions were made, when they were made, who made them and who proposed them. We must acknowledge that we are in a different place today from where we were some time ago.
It is vital that we keep democratic control and political accountability. Those are two vital pillars. The planning regulator adds another layer of scrutiny to plans before they are finally adopted on top of what we already have and I would be comfortable and confident enough that there is enough oversight in what is being proposed here.
I will respond, in particular, to some of Deputy Ó Broin's comments.
I made the comparison with a beefed up chief planner's office in the Department. That is in the context of the recommendation for a Minister to intervene in terms of a local area plan or whatever. We have had this discussion in the Department. The question has been put to me: "What if one gets a pigheaded Minister who says that councillors in this area have made this decision, we should respect that, and he or she is not accepting their recommendation?" There is the potential for a Minister to do that and to ignore officials' advice, and for that not to be exposed publicly because the interaction between a Minister and his or her officials is not always subject to FOI as it is often in the form of conversations in meetings. A Minister has the power to be able to say: "Do not put that in writing. I am not accepting it. We are moving on here. Nothing to see." That would be totally inappropriate but possible under the current system.
The difference here is that we have an independent office of planning regulator that is making an assessment that there is something inappropriate here, that is publishing that, and that has made that judgment and sent it back to the local authority stating that in the office's view, the local authority has made an inappropriate decision and should do something about it, and that is publicly available for everybody to see. Then the office makes a report to the Minister stating that it warned this local authority that it should not be doing what it is doing, the local authority has given the office reasons but the office does not accept them, and the Minister needs to take this into account. It is not possible for a Minister to say "nothing to see here" on that basis because it is not the same as the interaction that happens sometimes between a Minister and his or her own planning authority in the Department. It is an independent regulatory office making an assessment and making a recommendation, that the Minister will have to respond to in writing, that will also be published and on which the Minister can be questioned.
I agree that we need to change the current system in terms of accountability of the Minister which is what Deputy Ó Broin is getting at here. However, it would not be fair to describe what we are doing here as still allowing a Minister to be blind to good planning decisions because if the Minister is, the political system in Ireland is fairly abrasive when decisions are being questioned by the Opposition, media, etc. The only question is whether that is how we should deal with this in terms of transparency and accountability or should we go down the route of giving the regulator all the power. We have landed on the side of the fence whereby democratic accountability, scrutiny and transparency should be the final decision-making structure here as opposed to a regulator who essentially merely takes this decision out of the Minister's office altogether.
By the way, I note we must be cautious about naming names but we have had tribunals that have named names very publicly. There is nothing secret about this. We have had a planning system in Ireland that has been fundamentally corrupted in the past, in particular, at a zoning level in terms of area plans, etc., with very inappropriate developments happening on the back of that which have impacted on the quality of life of thousands of people.
I take Deputy Casey's point. I would have been a member of Cork County Council putting together a county development plan 12 or 13 years ago. The process is now different but it is still not perfect by a long shot. The pressure that councillors get exposed to from vested interests, in terms of land zoning, etc., is still not as it should be. I would like to have the recommendations of an independent planning regulator, for example, looking at guidelines and appropriate ways in which meetings should be held and looking at physical separation between those who are making decisions and those who are trying to influence those decisions. Those are the kind of matters on which the new regulator's office can make strong recommendations. Having said that, the process is a lot cleaner than it was previously.
The view that we are taking here is that the buck stops with the Minister, but that all of the factors which influence the Minister's decision are very public with regard to transparency, accountability and availability of information for everybody to look at. On balance, that is probably a better approach than simply saying that the Minister is not capable of making these decisions and cannot be trusted and therefore everything should be handed over to a regulator's office. That is where we are.
I agree with much of the debate here. What the Minister is saying finds an echo in my experience as well since I was a councillor for many years.
Many years ago, we were doing a new development plan. As an elected member, I was awaiting the outcome of what the proposed development plan would be. I got a phone call from a developer in Drogheda who said he wanted to see me. I decided to go and see him. He produced for me a copy of the development plan that nobody on the council and no elected member had seen. Being shocked at that, I wrote to the Minister of the day and outlined to him what had happened. The Minister wrote back to me - and it is on the record - saying that he could not intervene because what I had seen was a draft development plan and was not the actual development plan because it was only a proposal.
That goes to the heart of what can happen in local government. A plan which no developer should ever have seen, certainly not before the elected members discussed it, was actually in the domain of people who were out making a profit on it down the road. I am sure other people will hear and know that certain landowners or farmers are approached by some fellow in a car saying, "Come here. Look over the hedge, would you? Sell me those couple of fields in the middle of nowhere." Suddenly, those fields turn out to be very valuable. There are issues there.
I agree there is greater transparency, but one of the problems I find is that if and when elected members state at a meeting that they are not participating in a vote because they have an interest in the issue, the record does not show what that interest is. I have looked at and am still looking at situations around some planning decisions which I believe are fundamentally wrong. If someone is an elected member, that person then takes part in the debate on a development plan. While he or she may then say nothing, having a vested interest and having declared it, the public should know what that interest is. There should be an obligation to say what that interest is. I know there is an obligation to make a declaration of interest anyway, but I would be concerned about that.
I agree with Deputy Casey. There is greater transparency and accountability, but I agree with the Minister that there is not enough. I will go back to the key point. I am very concerned when elected members decide to overrule professional planners on as serious a matter as a development plan. I have noted where decisions have been made which were wrong in my view - and I was not a member of the council. Communities are left with very bad decision-making.
The other point I want to make is on the question of where there are two adjoining authorities. Income is quite often an issue for local authorities. I am referring to income from commercial development. If I am in County Meath and there is a proposed development on the border of Louth, but still in County Meath, suddenly one might find that there is an out-of-town shopping development there, and the reason the council may give permission, apart from the wonderful planning considerations it has in mind, is that it generates an income for a local authority. The adjoining local authority loses a huge benefit to its own income. The reality, and what I am saying here, is that there are problems with adjoining local authorities. The town centre of Drogheda has been destroyed by planning permissions granted by Meath County Council. There is no doubt about it. There is a street in Drogheda which is totally derelict because of bad planning decisions which were made, even if they were made legally. There are other issues which should be taken into consideration for adjoining counties when planning applications are made for either, which can implicitly and definitively impact on the other local authority. I know this may not be a debate for today.
I have had a lifetime of planning decisions which went wrong and I welcome this development. I note the powers of the new planning authority and regulator enable the regulator to refer to the Minister and for the Minister to refer to the regulator. That is another point. If a complaint comes to the Minister, the Minister is not going to say that is terrible and he is going to stop that. If the Minister is wise - and the Department will recommend this - it will go to the regulator. I would think that the centre of gravity for investigations and complaints outside of corruption issues will, in fact, rest with the new regulator. If the Minister does not refer to the regulator, how can that Minister say that he or she reached a fair decision? I think that the traffic will be more to the regulator than to the Minister. I would think the Minister would not get away with dealing with an issue without referring to the regulator. The regulator also has other powers. It is not some weak, cocooned individual. It has powers to refer it to the Garda and to the Standards in Public Office Commission. There are many other powers in there that perhaps we could and should go through.
Is it a better country after this legislation, notwithstanding whatever faults people might find? I would say that it definitely will be. Is it more transparent? It is. There is more work to be done, but it is certainly a significant step in the right direction.
The Minister made the hypothetical case that there might be a Minister with responsibility for the environment who is rather aggressive or bullheaded - I think "pigheaded" is the word the Minister used. I cannot think of any like that in recent history. Looking back at our recent Ministers with responsibility for the environment, they are shy and retiring-----
Maybe not all of them.
Tipperary versus Kilkenny hurling comes to mind, when they are going full tilt at each other.
I have a couple of broad points to make. We have been quite good at regulation. It has not all worked. It came from Europe as a structure to force the Irish public administration system into use of regulators. Our former communications regulator is now the Permanent Secretary in the Department of Business, Energy and Industrial Strategy in the UK. Our former energy regulator is now head of the Office of Gas and Electricity Markets, Ofgem, in the UK as well. The one before her went on to be the UK's water regulator. That is a sign that we had good quality regulators. They were good at what they did. They are market regulators. This is slightly different. It is more akin to the EPA, the Data Protection Commissioner or the Broadcasting Authority of Ireland in the way that the broadcasting authority has to advise the Minister on a media merger at the moment and give a published recommendation. This is a slightly different type of regulator but we should not be afraid of the use of regulation. I agree with the Minister that the regulator should not have the final say. I think it is right that the Minister has the final say. We believe in democratic political representation and the Minister being the final accountable person.
The concern I have is at the other end of the democratic issue. Whatever about the Minister having the final say, we also have to ask how we get good councillors and good regional authorities. How they interact with the regulator is just as important as how the Minister does. They are going to be involved in the day-to-day stuff. I believe the ills of our democracy are cured by more democracy. I do not think we can just shut out councillors and take away responsibility because of the corruption we have seen. We have to make sure that they are more accountable and incentivised in the right way. Our councillors were incentivised by the profit interests for developers. That meant low standards and not taking into account externalities, and ignoring the interconnection of public infrastructure. Those were the fundamental failings. We need to flip that so that they are always thinking of how to get high environmental standards, high social quality, integrated planning, good public space and so on.
The regulator has to set the rules or conditions in which that is encouraged, rather than the quick-buck, low quality, development which is desired because of corruption or because the local authority gets revenue from it and takes an attitude of "sure feck it, never mind about the quality, if there are 100 apartments and a €10,000 levy each, it will fund the council." The regulator has an important role in setting conditions where the councillors themselves must think of really high quality development. Particularly on the national planning framework, where that is evolving and moving to, it is not a top-down process that tells cities and towns how it will work but instead it asks cities and towns how they think they can work to create high quality, low-carbon, quality public space developments. The regulator has to be flexible, not only with the Minister having the final say, but providing the guidance without completely killing the initiative of local authorities to be able to come up with good quality development.
To respond to the Minister on my amendments Nos. 12, 13 and 15, the intention behind them was not that the regulator would have a second An Bord Pleanála appeals process around an individual application, as he put it, or to look at it on an individual case basis but to review the broad application of Part VIII. It is one element which, in our experience, a number of local authorities use it in a way that is not high quality development. It is not the specific case in which we are interested, but the broad performance, reporting on the overall approach to Part VIII. The way this might work would be to take best of class and highlight it as a really good local authority that is doing good, high quality development that is bringing life back into the centre of towns, not out of town centres. It would be about promoting the good as much as policing the bad. Those amendments were not designed to catch out individual development, but to review how local authorities themselves operate within the planning system which is one test of their overall philosophy or approach.
We are spending a lot of time on this but it is the core of the whole thing so we will be able to zip through the other amendments quickly. That is up to the Chair; I am sure we will spend some time on them. The actual powers and the interaction between this office, the Minister and local authorities are key to this legislation. We are trying to get the balance right with democratic accountability, ensuring that planning decisions are consistent with the policy of the Government of the day, whether that is to dramatically increase the priority of climate change, or respond to a housing need, or get a national planning framework and establish consistency around that such as transport and the other things that are needed around good planning, and this is why we are spending more time on this section rather than pushing it to a vote, if people wish to vote on it.
Part VIII is not specifically referred to but the planning, procedures and decision making processes and their review is very much the role of the new regulator's office. If its view is that there is something amiss in the Part VIII system, it will make recommendations to us about that. There will be nothing stopping a member of the public or a political party from writing to the regulator's office to express their concern and ask him or her to look at it and come back with recommendations to Government or the Minister. If those recommendations are there, if we are talking about the teeth in the tiger, the Minister does have real edge to his or her powers to intervene and give instructions to a local authority to change a process or decision. The provision reads: "Where a Minister gives a direction under this section, the planning authority shall report to the Minister the results of the review conducted pursuant to the direction and shall comply with any direction which the Minister may, after consultation with the planning authority as regards to those results, give in relation to all or any of the measures which were subject of a review." The Minister will get a review from the regulator's office, and acting on that is a very direct power or order. Obviously, that should be a last resort.
I agree with the point made earlier that we cannot simply take a patronising view of councillors that we do not trust them to make decisions and therefore the Minister will take charge. We have to find a way to ensure that local councils make decisions and have a way of interacting with a new regulator's office that helps them to understand the parameters around which decisions need to be made and also to require other State entities, for example the National Transport Authority, to be forced to integrate its plans into county development plans so it happens in a seamless way. Anyone who has been to any of the consultations we have had around the national planning framework will have heard me and others talk about the consequences for towns of not having done that over the last 20 years. There are so many towns in commuter distance of Dublin where tens of thousands of people commute every day, spending hours in their cars, without public transport options, having chosen to live somewhere because it is the only place they could afford to buy a house while they work in Dublin. We are surely smarter than that in how we plan for the future.
Deputy Fergus O'Dowd made a number of points about the incentive for some local authorities that may border towns to rely on the population of that town for a commercial proposition that gives them a rates space on the other side of that border and the consequences for town centres and so on. I take his point, and these are the kinds of consideration that we are looking at in the national planning framework and the Ireland 2040 plan. They are also the kind of issues that a new independent planning regulator's office could make recommendations on. If a Minister needs to make unpopular decisions in changing procedures and structures at local authority level, I would not want those to be outsourced to a planning regulator because the political system finds it hard to ask local authorities to change.
This has been a good discussion and we will think about what people have said. If we can look at ways we can add to the wording already there, I will do that but for the moment I will only accept amendment No. 14 and we cannot accept the other Opposition amendments.
I move amendment No. 14:
In page 9, line 24, after “assemblies” to insert “in respect of”.
Amendments Nos. 16 to 21, inclusive, Nos. 24 to 29, inclusive, Nos. 39 to 44 inclusive, and Nos. 60 to 65, inclusive, are related and will be discussed together.
I move amendment No. 16:
In page 10, between lines 21 and 22, to insert the following:
“(b) the national transition objective established in the Climate Action and Low Carbon Development Act 2015,”.
I will speak to my amendment No. 16 and I intend to press it. To a certain extent, what this amendment proposes involves a continuation of the previous debate on the overarching objectives, rules or boundaries within which we give councils freedom to come back. All of these are key environmental objectives. We are more specific in various sections in setting out the functions and the requirements in terms of policies and objectives that need to take place. It is important that we come in on the planning side.
We have to take account of a very standard issue direction, which we see in much legislation. We take into account the public interest and the effect the performance of the office may have on the strategic economic or social importance of the State. We always put the economic interests first. The problem with our development planning system is that everyone is cheering for the economic side. The developers are looking for their slice and to have the lowest standards possible. The council officials are looking for as much development as possible to secure revenue to run the council. No one is standing up for the wider long-term planning issues around how we develop a low carbon society, how we protect our diversity, ensuring that we do not build on flood plains and how we can get our water system right. We would have been much better off if our planning system during the past 50 to 100 years had made such provision when it came to each planning application. I have seen an example of this in Sandyford in my local authority area. Planning was being proposed for many developments, including a skyscraper with alpine gardens on the 34th floor. We did not have the water or the wastewater system to accommodate that. It was a disastrous item of planning. All the planning had to be stopped in Sandyford Industrial Estate and that resulted in a half-finished estate because of a failure to bring together what we need to do, which is the Water Framework Directive, the floods directive, the biodiversity action plan and our latest Climate Action and Low Carbon Development Act. Putting them front and centre stage is the right way to go because they are the first elements that we need to get right, and if we do so, we will get higher quality development for social reasons, it will be more economically efficient in the long run because we will not have to go back to people who are stuck in the middle of a flood plain or we will not have to retrofit water infrastructure, which is incredibly expensive. We would be getting it right from the start.
We should be upfront in saying that what we want our planning system to do is to take the best of European regulations in the Water Framework Directive, the national biodiversity action plan and the low carbon obligations. The reason we need to do that is that we are only starting to understand the scale of the change required for us to meet our climate change objectives. It must be stitched into everything. It must be front and centre of everything. Our transport system must be completely changed. We must also change our energy system and our buildings. People have to be brought back to the centre. We have to stop the sprawl. The reason we included these requirements in all these amendments is to come back to that central point. There is not a sufficient signal or emphasis on the environmental element which is also the same as the social element. There is a natural constituency to look after the economic; the economic will look after itself but it would be better if we were to get the environmental element right. That is what these amendments seek to do.
I fully support the amendments and I can second them if that is required.
Does the Minister wish to respond? He might also address his amendment No. 22.
Yes. I have a speaking note on the amendments but I would rather speak directly on them. I would not accept that people have not been working to ensure that we have compliance and consistency with some of these directives. We had a very active debate on the Water Framework Directive in recent days, which would respond to one of Deputy Eamon Ryan's points. My concern is that if we list the specific directives that he mentioned, we would then need to have amending legislation to add another one in the future. We would become a prisoner to that list, which is a positive one, whereas what we are doing here is trying to have a framework that accommodates our responsibilities across all directives. The language in the Bill, as drafted, states: "31S. (1) The office shall, in performing its functions have regard to-----" and paragraph (d) states:
"the requirements of relevant acts of the European Union, in particular, those relating to—
(i) the Environmental Impact Assessment Directive,
(ii) Directive 2001/42/EC of the European Parliament and Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment,
(iii) the Habitats Directive, and
(iv) the Birds Directives,
in so far as those requirements relate to planning authorities by virtue of being designated as competent authorities ..." and so on.
The section also states: "The office shall, in performing its functions have regard to ... the policies and objectives for the time being of the Government, a State authority, ... planning authorities and any other body which is a public authority whose functions have, or may have, a bearing on the proper planning and sustainable development of cities, towns, villages or other areas, whether urban or rural ...".
I would happily use a regulation to list the current directives that need to be factored in with respect to good planning policy but there is a problem with listing them separately. I refer to the national biodiversity action plan, the all-Ireland national pollinator plan, the Water Framework Directive, the EU directives on air quality and the flood directive. I will deal with the Climate Change and the Low Carbon Development Act separately because it is a separate issue. If we were to change the national biodiversity action plan and it was to be called something else, we would have to amend the legislation, which is a laborious process at the best of times, to take account of that. We are putting a framework in place that represents good legislation that allows me or a future Minister to update the lists of directives and plans that are relevant in terms of consideration for the planning office. I will happily talk to the Deputy about how we can do that but I do not want to have an outdated reference in the legislation, where a person in 20 years time might say one is referring to the national biodiversity action plan or the all-Ireland national pollinator plan but that was two plans previously.
I have a different view on the national transition objectives established in the Climate Action and Low Carbon Development Act 2015. I would like to consider having a slightly different wording on that because that Act may be changed in the future and be updated. We may decide to take a different approach to dealing with climate change in the future and that needs to be factored in. I would like to have a specific reference to climate change and low carbon development in this legislation but I would like to take advice on how best to include that in a way that ensures it would not become outdated in terms of the terminology we use. If the Deputy is willing to work with us on that, we will try to come forward with something. The broader objectives of climate change are of such import that we need to reference that in terms of how we make decisions around planning, zoning and how people move around, and that also must be a major objective of the national planning framework. The other plans and directives are important. We can reference them in regulations, and we already do. I point to the requirements of relevant Acts of the European Union - we already cover them. If we list them and they might be outdated in ten years time in terms of terminology or content, we would be stuck with that reference in the legislation. That will not work. The way to deal with that is by way of regulation where a Minister could update the reference by way of a statutory instrument or ministerial order. I would like to accommodate the broader policy objective in legislation around a progression to a low carbon economy or something like that if we can get the terminology right. I would be willing to accept or to bring forward wording on that on Report Stage.
Those are very weak arguments. With respect to climate change, I welcome the provision depending on the outcome of the Minister's deliberations. We are in significant non-compliance with a number of very important EU environmental directives. We have until 16 May to transpose the 2014 EIA directive and unless the Minister is telling us today that it will happen, we will have a difficulty there.
We are not in compliance with the urban wastewater directive so badly that after five years of enforcement proceedings by the European Commission, we are facing action by the European Court of Justice. One of the bizarre things about the debate on the Water Framework Directive is that there is a series of areas of that directive in which we are not in compliance. We are late in producing our second river basin management plan. I am not sure if work in the Department on the water extraction registration regime has actually taken place. The track record of compliance on just those three directives makes a compelling argument for making Deputy Eamon Ryan's amendment. In terms of his concern that by naming them, we will have a difficulty with future directives or changes to existing ones, the Minister's own argument undermines it. It is technically covered by the inclusion of relevant EU Acts. To be doubly sure, there is no reason the Minister could not make his own amendment to Deputy Eamon Ryan's amendment on Report Stage to give him the power to add future directives or changes to existing directives by way of regulations. That would absolve him from the difficulty of having to bring forward legislation.
I have just said we will look at doing that.
What I am saying is the Minister could accept Deputy Eamon Ryan's amendments, given their importance, to give himself an additional power to update the list by way of regulations, if that is what he is concerned about. The crucial point is that we are in serious non-compliance with some of the key directives and I believe naming them in legislation would be good.
I accept the point about the national biodiversity action plan or the all-Ireland pollinator plan because, God almighty, our legislation is complex. Things are amended and plans changed. I appreciate Deputy Eolin Ó Broin being supportive on the likes of the Water Framework Directive and the floods directive. While it is possibly covered by the current wording, we all know that one of the disadvantages of regulatory systems is that they are very bureaucratic. As bureaucrats do not have a mandate, what they look for is legislative support on what to prioritise. Therefore, citing the directives is not unimportant. What Deputy Eoin Ó Broin said about the likes of the river basin is true. That thinking about the State in terms of physical infrastructure, river basin catchment management and land use management from the mountaintop down to the sea in a special integrated land use plan represents the way we need to go. When we stitch in the Water Framework Directive and the floods directive, it shows the intent that we plan land use in a really effective way. There is a case for including the directives, with the environmental impact assessment directive, because they are equally important when it comes to planning. We have seen the cost to individuals when the State ignores flooding and water planning. I welcome the Minister's willingness to consider how to word the amendment. We will certainly come back to his officials in looking at the wording of amendment No. 16 and how we could stitch in the Climate Action and Low Carbon Development Act. That would be the right approach. If the existing Act is amended at any stage, it would easily be automatically updated.
It is very important that the particular amendment go in right at the top. Not only do officials look to see which functions are mentioned, but by placing the directives centre stage, the whole planning system would focus on the massive leap we need it to make towards a low carbon system. That is something we are not doing. One of the reasons this is important is we are moving completely in the opposite direction to the reality of what is happening on the ground. In another committee of which I am a member IBEC is making the most insane proposals on roads, as if the climate is not a problem. Its view is let us have motorways everywhere. That is what the big money wants. We, therefore, need someone to say no, that we should do it differently when it comes to the environment and move towards a low carbon system. By putting it front and centre as the first key policy at which we need to look, the legislation would send that signal. I, therefore, welcome the Minister's willingness to consider the wording of the amendment in that regard and will quite happily look at how we might do it. I will withdraw amendments Nos. 17 and 18 on the pollinator plan, as much as I love it, and the biodiversity action plan because I recognise that plans can change. However, I would like to hold on to the possibility of stitching in the Water Framework Directive, the air quality directive and the floods directive because they are elemental to how we plan.
I want to make sure I am being consistent in what I am saying. In the proposed draft legislation there is a specific mention of the habitats directive and the birds directive. We also mention the environmental impact assessment directive and the strategic environmental assessment directive. We refer more generally to the requirements of relevant Acts of the European Union. Please allow me to check if there would be a problem in adding in the Water Framework Directive and EU air quality directive. We might have to include a rider in words such as "and subsequent follow-on European agreements" or something like them. My only concern is that we will have outdated legislation in five years' time. From my experience, what we normally would do is say EU directives would be taken account of and named in regulations at a later stage. There are some directives named in the legislation, but we have not included others. I want to understand why that is the case. Let us have a complete and proper list. If the Deputy is okay with it, I can bring forward such an amendment on Report Stage. If we are mentioning the habitats directive and the birds directive, I see no reason we should not mention the other directives to which Deputy Eamon Ryan is referring. If there is a good reason for not doing so, I will provide it, but if there is not, we will include them.
In terms of national plans and policies, it is different issue. If we are upgrading or changing them, that is something of which we need to take account. With regard to the Climate Action and Low Carbon Development Act 2015, we may well have a new Act dealing with climate change in the years ahead that potentially will be much more ambitious. We do not, therefore, want to be stuck with a reference to the old legislation and to have to come back to the committee with a small amendment that would take weeks to get through. I would like to have a more generalised but, at the same time, quite ambitious reference to climate change and moving towards a low-carbon society, as opposed to a low-carbon economy only. We will look at the directives to see if we can include a more complete list and whether we can or cannot add them to the list or to regulations linked with this legislation.
Is amendment No. 16 being pressed?
I will not press it with a view to discussing it with the Minister and his officials before Report Stage.
Is the Deputy withdrawing the amendment?
I would like to keep it live, subject to-----
Once the Deputy has mentioned it on Committee Stage, he can bring it forward on Report Stage in the Dáil Chamber.
I am fine with that.
I move amendment No. 22:
In page 15, line 14, to delete “(2) Where” and substitute “(3) Where”.
Amendments Nos. 23, 31, 34, 35, 38, 45 and 49 are related and will be discussed together.
I move amendment No. 23:
In page 22, line 23, to delete “and assess, at least at a strategic level” and substitute “, assess and where appropriate make legally binding determinations”.
As amendments Nos. 23 to 45, inclusive, have been substantively discussed, I intend to withdraw them.
However, I wish first to make a point about amendment No. 49 and to hear the Minister's response, after which I will withdraw that amendment as well. I wish to emphasise one issue. I mentioned it at the end of our previous discussion but I want to press it a little further. Amendment No. 49 refers to the ability of the office of the planning regulator to take complaints from individuals or third parties, etc. The Minister was conferring with his officials while I was making the point that I agree with him that what we do not want is a second round of appeal in the planning process. It is not the intention of this amendment to slow down planning applications that, for example, have already gone to An Bord Pleanála.
I made a comparison with the Department of Social Protection, which has an independent appeals process. A final decision is made. If someone feels that something in the process was not correct, he or she can make a complaint to the Office of the Ombudsman. That does not delay the decision of the Department of Social Protection. It does not allow the Ombudsman to review the substantive decision of the Department of Social Protection appeals office but it allows for complaints concerning, for example, malpractice or unfairness. I know the Minister will not accept the amendment and I will not press it. However, regarding the issue of whether or not, for example, whistleblowers or individuals should be able to make complaints, my reading of the legislation is that this is not currently possible. Rather than it just being the Minister, planning authorities or the regulator itself, I think such a measure can be provided for under this section.
My understanding is that this is covered and that the Bill, as drafted, already makes sufficient provisions for the investigation of complaints by the office of the planning regulator and ensures that these complaints can, where appropriate, be referred to more appropriate statutory authorities, including the Ombudsman, the Standards in Public Office Commission or An Garda Síochána, for them to make an assessment of the procedure that has resulted in a decision being made in respect of which an accusation-----
I could have misread the section. Does that mean that, for example, members of the public or whistleblowers within planning authorities have the facility to make such complaints?
Yes, that is my understanding. Section 31AU reads:
(1) The office may examine—
(a) complaints made by any person to the Office, or
(b) where requested by the Minister, complaints made by a person to the Minister.
In other words, if someone writes to the Minister to inform him or her that a corrupt decision has been made on any given week in a local authority and that he or she needs to examine it, the Minister can refer the correspondence to the office of the planning regulator. Subsection (2)(e) of section 31AU reads "may be operating in a manner whereby there is impropriety or the risk of corruption in the conduct of its functions". The office therefore does have the power to make an initial investigation to see whether there is validity behind the complaint. Then, if the office believes it is a criminal matter, it would refer it on to the Garda, or it may go to the Standards in Public Office Commission if it is not a criminal decision but is a political corruption issue that needs to be addressed through the political system, the Office of the Ombudsman, etc.
That is fine.
I think there is adequate provision in the Bill. Subsection (2) also reads "may be applying systematic discrimination in the conduct of its functions". Therefore, if, for example, a decision is being made - well, the Deputy does not need me to give him examples of discrimination. I think the point is made.
The Minister's answer is fine. I am happy to withdraw amendments Nos. 23, 31, 34, 35, 38, 45 and 49.
We must still go through them formally for the record.
I wish to make the point to Deputy Ó Broin that we do accept amendments that are well thought through and well argued.
I move amendment No. 30:
In page 24, to delete line 6 and substitute “as soon as practicable following submission to the members of the authority.”.
The amendment relates to the reports on public consultations which chief executives of local authorities will be required to make. We argue that such reports should be made public and published before the councillors make any decision so that there is transparency in this process. As I understand the current arrangements, such reports would only be made public after the decision is made, which does not allow for public engagement. This matter is significant because the CEOs' reports are an important part of the process, going back to what Deputy O'Dowd said earlier. Whether it be a draft report or not, everything should be public and published in a timely fashion so that developers or others do not have a significant advantage. Citizens should be able to know the chief executives' recommendations in respect of submissions for the plan so they can contact their councillors and so on. It is a matter of openness and transparency and it is a very important amendment in this entire process.
In the interests of facilitating greater transparency in the overall planning process, including in respect of the adoption of local authority development plans, I am happy to accept Deputy Ryan's amendment No. 30 requiring the chief executives' reports to the elected members on the observations or recommendations received from the OPR on draft development plans to be made available on the website of the planning authority as soon as practicable following submissions to the elected members of the local authority, which is what the Deputy is asking for. This is a significant change from what was proposed in the Bill as initiated. In line with long-standing practice, the chief executive's report, which effectively represents the chief executive's advice to the council on the public consultation process in respect of a draft development plan, is at present only required to be published once the elected members have had the opportunity to consider it - for example, at the relevant council meeting.
While I am prepared to accept this amendment at this Stage, I propose to carefully monitor the practical implementations and operation of this new arrangement, having regard to any potential unintended consequences that might arise and any difficulties experienced in the adoption of development plans by local authorities. We spoke to chief executives about this issue. We wish to make sure this is not used as a kind of enforced delaying tactic that may be part of a lobbying exercise or something inappropriately. We think it can work and that it is a good change to make sure that councillors are making decisions with a more informed position in terms of the consequences of what they are doing. However, it is quite a fundamental change in terms of the information flow. We think it is an improvement, but I wish to flag that if there is something relating to this change that we have not thought of yet, we will have to keep an eye on it.
However, it appears to be a sensible, transparent proposal so we are willing to accept it.
I move amendment No. 32:
In page 25, lines 28 and 29, to delete “Department of the Environment, Community and Local Government” and substitute “Department of Housing, Planning, Community and Local Government”.
I move amendment No. 33:
In page 27, lines 34 and 35, to delete “Department of the Environment, Community and Local Government” and substitute “Department of Housing, Planning, Community and Local Government”.
I move amendment No. 36:
In page 30, lines 11 and 12, to delete “Department of the Environment, Community and Local Government” and substitute “Department of Housing, Planning, Community and Local Government”.
I move amendment No. 37:
In page 32, lines 17 and 18, to delete “Department of the Environment, Community and Local Government” and substitute “Department of Housing, Planning, Community and Local Government”.
I move amendment No. 39:
In page 32, between lines 35 and 36, to insert the following:
"(b) consistency with the national transition objective established in the Climate Action and Low Carbon Development Act 2015;".
I will withdraw the amendment as I will discuss with the Minister's officials how we might deal with it.
I move amendment No. 46:
In page 35, lines 15 and 16, to delete “Department of the Environment, Community and Local Government” and substitute “Department of Housing, Planning, Community and Local Government”.
I move amendment No. 47:
In page 37, line 9, to delete “plan or, if appropriate, to constitute the strategy” and substitute “regional spatial and economic strategy or, if appropriate, to constitute that strategy”.
I move amendment No. 48:
In page 37, lines 18 and 19, to delete “Department of the Environment, Community and Local Government” and substitute “Department of Housing, Planning, Community and Local Government”.
Amendments Nos. 50 to 53, inclusive, are related and will be discussed together.
I move amendment No. 50:
In page 38, between lines 38 and 39, to insert the following:
“(c) is failing to achieve a desirable level of compliance with planning law in its area through the exercise of its enforcement functions in Part VIII,”.
To a certain extent this relates back to what I was discussing earlier regarding the different performances of local authorities in the implementation of Part VIII. It is phrased in terms of results. We are not seeking to review specific individual applications but to provide a general provision for a higher test so that if the Minister is of the opinion that Part VIII is being applied inappropriately, there is a mechanism for overviewing it. To return to the point I made earlier, it is an area where we believe local authorities must be held to greater accountability in terms of how they act in the planning system.
I will address amendments Nos. 50 to 52, inclusive, together before moving amendment No. 53. With regard to amendment No. 50, one of the key functions of the office of the planning regulator is to undertake reviews of the systems and procedures of planning authorities and An Bord Pleanála in respect of the performance of their functions under the planning Acts. Under planning legislation the enforcement of planning control is a matter for the relevant planning authority, which can take action under the extensive enforcement provisions provided for in Part VIII of the principal Act if a development does not have the required permission or where the terms of a permission have not been met. However, I agree it would be prudent to have a provision whereby the Minister can ask the planning regulator to conduct a review of a planning authority where there might be issues around the exercise of its enforcement functions, in other words, if there are inconsistencies in that regard.
In accordance with established practice, I ask the Deputy to withdraw his amendment on the basis that I will examine the legal and drafting aspects of the proposed amendment with a view to tabling an appropriately worded amendment on this matter on Report Stage. There are issues with the words "desirable level" in the phrase "is failing to achieve a desirable level of compliance with planning law". That terminology is something of a moveable feast. It is subjective in terms of who is doing the desiring. If we are to do that, we require tighter legal wording. However, I do not have a problem with the point being made.
I do not propose to accept amendments Nos. 51 and 52. These amendments, collectively, go beyond the intended functions of the office of the planning regulator by proposing that the office should have oversight in respect of the exercise of enforcement functions of planning authorities. It is not intended that the office of the planning regulator will have a power to investigate individual planning complaints. However, as previously signalled, the office will have scope to review the organisational systems and procedures employed by planning authorities in respect of their enforcement functions where it receives indications by way of complaints that the said functions are not being adequately performed. This is the most appropriate means of addressing enforcement related issues by the office of the planning regulator. Giving the planning regulator power to address individual planning complaints would in all probability seriously undermine the effectiveness of the office due to the likelihood of being inundated with individual planning complaints. That would be counterproductive in terms of delivering on its core objectives and functions.
Amendment No. 53 is a minor technical amendment to clarify the procedures to be followed by the office of the planning regulator in considering complaints received by it, in the undertaking of examinations and reports and in the onward submission of reports to specified bodies such as the planning authority, the Minister or both or, alternatively, to the Ombudsman, the Standards in Public Office Commission, SIPO, An Garda Síochána or to such other State authorities as may be prescribed for appropriate action.
I accept the Minister's points regarding amendments Nos. 51 and 52 and will withdraw them. I am pleased he is willing to consider slightly revised wording for amendment No. 50. That is welcome and I appreciate it. I look forward to an agreed wording being proposed on Report Stage.
I move amendment No. 53:
In page 40, to delete lines 35 to 37 and substitute the following:
"then the Office shall decide to undertake an examination or to prepare a report on the preliminary examination (including any recommendations) and, where an examination is undertaken, prepare a report on the examination (including any recommendations) and, accordingly, the Office shall as it considers it appropriate in the circumstances—".
I move amendment No. 54:
In page 40, line 38, to delete “the report” and substitute “the report concerned”.
I move amendment No. 55:
In page 40, line 40, to delete “the report” and substitute “the report concerned”.
I have a question. In section 4, page 13, 31W relates to the appointment of the planning regulator. Is it the Minister's intention to follow a similar procedure with the Environmental Protection Agency, EPA, or An Bord Pleanála, for example, or has he designed that yet? Obviously, it is quite broad with regard to the Minister's power to appoint the regulator. Can the Minister give the committee some information on that?
What section is that?
It is 31W in section 4.
I also have a question. It refers back to what we were saying about democratic accountability. In my experience, one of the ways one can get democratic accountability with regulators is through Oireachtas committees, whereby regulators must appear before committees for hearings. I wish to check that with the Minister's officials.
I looked in the Bill for clarity on whether future Oireachtas committees will be able to bring in the regulator. It is a very healthy process for both committees and the regulator in terms of providing some of that democratic accountability and transparency. The last amendment was about reporting and the role of the regulator in that regard. Are we confident the regulator will be accountable to an Oireachtas committee?
The way I think it will work is that it will be an open competition run by the Public Appointments Service which will make a recommendation to the Minister on a number of names that have been prioritised through that process and the Minister will make a recommendation to Government seeking approval. It is also clear that a person shall not be appointed for a term of office as planning regulator more than twice. It is a five-year term. In general, I am a believer in turnover on these things in terms of bringing in fresh thinking. That is not always appropriate but it is something that should be encouraged. From my perspective, there will be a ministerial input into finalising the choice of person here but it will be an open competition managed by the Public Appointments Service to get the best person. I would be surprised if there was not a lot of interest in this role.
On the annual report, section 4(31AH) provides that:
(1) The Office shall, not later than the 30th day of June in each year, prepare an annual report, which shall include information on the performance of its functions and its principal activities during the preceding year, including any matter to which section 31Q relates, and such other matters as the Minister may specify to the Office in writing.
(2) The Planning Regulator shall cause a copy of the annual report to be laid before each House of the Oireachtas and shall cause a copy to be sent to the relevant Oireachtas Committee.
(3) The Planning Regulator shall, at the request in writing of the relevant Oireachtas Committee, attend before it to account for matters in relation to its annual report.
In this section, the relevant Oireachtas committee is this committee. In fact, it is not just this committee. In section 4(31AH)(4) it states that the relevant committee "means a Committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas to which has been duly assigned the role of examining matters relating to environment and planning (other than the Committee of Public Accounts or the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann) or a sub-committee of such a relevant Oireachtas Committee". The regulator is fairly accountable.
I thank the Minister for that. My understanding is that, for example, with the EPA, An Bord Pleanála or the Aquaculture Licences Appeals Board there is a public call but the panel that provides the shortlist to the Minister is made up of sectoral interests. Sectoral interests is probably the wrong phrase; perhaps I should say people who have expertise in the area in question. In the case of the Aquaculture Licences Appeals Board, it makes the shortlist recommendations and the Minister makes the decision but the board can then review the decision. Is it a similar process in this case?
In some ways this will be more of an open competition than that. I have not quite decided whether the current appointment process, for example, that of An Bord Pleanála, is the right one. Different interests recommend names which go on different panels. There has to be a certain number from each panel. The problem with that is if people lobby heavily and get their names recommended through connections or contacts, there could be three people who are really good on one panel and there will be another panel that is not great. In that situation, the Minister is forced to prefer somebody from a separate panel because of the category he or she happens to come under even though he or she may not be as good as someone who the Minister is not able to accept because of those limitations. Having said that, I can see the upside of that because it requires consideration of different skill sets. We certainly do not want to have a situation where there is a Minister who is, for example, very pro-development and does not believe in climate change or something like that and so he or she dismisses-----
That could never happen in a modern liberal democracy.
I would like to think it could not happen in this country but it certainly happens in some countries, unfortunately. By having a panel system, it forces consideration coming from NGOs which is good. There are pros and cons to it. We have had an external review group report on An Bord Pleanála and it is recommending changes in that process, probably for good reason. The imperfections are understandable. As of yesterday, I made a series of new appointments to An Bord Pleanála. They are all really good people with a good spread of skill sets, none of whom I knew previously. They all have very strong CVs and have come through the process. With this new regulator's office, I would like to see a very competitive, open invitation. I am happy to trust the public appointments system to go after the skill sets that are needed and to make recommendations to me. If they are not good enough, we will send the list back to the Public Appointments Service and tell it to come back with a new list. We do not have to accept those recommendations. It is probably a good way of making appointments particularly for a regulator that does not have a policy role. Its role is really about enforcing existing policy. It requires a certain skill set which a competitive process is probably a good way of addressing.
The name of the person selected for the role should come before the Dáil. At least there would be discussion and debate on it. I will table an amendment on the recommendations on Report Stage. The Minister's faith in the Public Appointments Service process is touching but there has been a lot of controversy, even recently, over people who come to high positions in many institutions and the Dáil is powerless to do anything about it. The Minister cited the example of climate change. It is a good example. With the history in our country of planning corruption, which is incontestable, and the relationships between certain parties or individuals, one can see how, if the Minister has sole discretion over the approval of somebody, it could potentially be corrupt. It is something that should be amended on Report Stage.
It is important that there is a distinction between the powers of Government and the powers of the Oireachtas. This person and this new regulatory structure will have to be accountable to the committee for the decisions it makes. We will be going down a very dangerous road if we bring appointments to the floor of the Dáil and have a Star Chamber, as it were. Perhaps that is to exaggerate for effect but a person's politics should not necessarily be the focus. The focus needs to be the skill set that is required. Most people in Ireland have voted one way or the other at different times in their lives. That should not necessarily be held against a person unless of course he or she has a connection with something inappropriate or corruption. That should rule the person out. We have to trust some structure to assess the appropriate skill set of what is needed to provide an effective independent planning regulator's office.
The names that have been fully vetted under the system will be put before the Minister. I suspect it will be a small number of names, probably three or four, if even that. The Minister will make a recommendation to the Government for approval and he or she will have to be able to stand over it. In terms of opening it up to a broad political debate at that stage, I can understand why there is a need for accountability in the same way as chairmen on their appointment to various State bodies must appear before a committee, which is a good requirement and for which I advocated. As soon as this body is up and running, I expect the committee to immediately invite its representatives, essentially, to test them on where they see it going, how they will give leadership and respond to queries to ensure accountability to the committee.
With respect to the function of appointing somebody and the procedures in place, my view generally is that the buck should stop with the Minister. Ultimately, it is the Minister who is responsible for setting up this body. The appointment will ultimately be made and approved by the Government, even though the name will go through a very robust vetting system to make sure inappropriate appointments will not be made. I make no bones in saying that in the past political appointments have not been appropriate, but the new systems in place have modernised the process. We are learning lessons from, for example, the review of An Bord Pleanála and others that have taken place. The system will have to stand up to scrutiny. When a recommendation is made to the Government, it needs to be guided by it in making a final appointment and being able to stand over it.
I will not labour the point but people should not refer to the Dáil as a Star Chamber which is what I believe the civil servants whispered into the Minister's ear. In any case the Government does not have a majority. We have all seen the difficulties in removing people from office and the Dáil having a say in the matter. The Minister has sole discretion to approve appointments. Why should it not be a matter on which the Dáil has a say? Even the Mahon tribunal recommended that the person have separate and much stronger powers than those provided for in the Bill which seems to be following the traditional path in the Minister having sole discretion to approve appointments.
We had a long discussion earlier on the powers of the Minister versus the ones the new office needed to have. We spent a good hour discussing and teasing out the issues involved. On appointments, whether it is a minority or a majority Government, Ministers and the Government need to take responsibility for certain matters, one of which is the finalisation of a decision-making process in making State board appointments. We have radically changed the way in which such appointments are made in recent years. That was the right thing to do and we will continue to develop that thought process, but this will be a competitive open process in which people who believe they have the skill set to do this job will be able to apply. They will go through a fairly robust assessment screening-interview process before the Public Appointments Service will recommend names of persons it regards have the skill set to do the job. Only at that point will a political decision be made that will be approved by the Cabinet. It will then be tested fully in the normal way by this committee and potentially others by bringing in the regulator and ensuring he or she is up to the job. That is a reasonable balance to strike in terms of the roles the different players involved in the decision-making process will play. Unfortunately, we have seen episodes in the Dáil Chamber that reflected a Star Chamber-type setting. I am not suggesting that is the case in ths instance, but I can understand why the point was made.
I move amendment No. 56:
56. In page 43, between lines 34 and 35, to insert the following:
"Amendment of section 7 (planning register) of Principal Act
7. Section 7 of the Principal Act is amended in subsection (2) by substituting the following for paragraph (e):
“(e) the complete decision of the planning authority in respect of any such application, including any conditions imposed and the date of the decision, together with such further points of detail as are agreed, or deemed to have been agreed, under section 34(5), between the planning authority and the person carrying out the development,".".
This amendment provides that among the details to be noted on the planning register to be kept at the office of the planning authority of a planning decision are the complete decision of the planning authority on a planning application, details of conditions imposed and the date of the decision, together with such further supplementary points of detail referred to as compliance conditions, as are agreed or deemed to have been agreed under section 34(5) of the Act between the planning authority and the person carrying out the development subsequent to the granting of planning permission. The purpose of the amendment is to generally enhance transparency in relation to planning permissions and also points of detail or compliance conditions attached to such permissions in order that there will be wider public information available on planning permissions.
I signal that I will be bringing forward a further amendment on Report Stage to supplement amendment No. 56, effectively to require planning authorities to conclude agreement on supplementary points of detail with persons undertaking development within a specified reasonable timeframe and what will happen where agreement is not reached within that specified timeframe. The purpose of the further Report Stage amendment will be to speed up the process of negotiating agreement between planning authorities and developers on specific points of detail relating to development works in order that developers can proceed with the necessary works within a reasonable time or without undue delay, thereby providing greater certainty in the procession of development works.
I move amendment No. 57:
In page 44, line 12, after "planning" to insert "and sustainable development".
Amendments Nos. 58 to 60, inclusive, in the name of Deputy Eamon Ryan have been ruled out of order.
They were considered to involve a potential charge on the Exchequer. The Minister has indicated that he may come back with a revised wording to achieve the objectives of the amendments. I look forward to that happening.
I wish to inform the committee that we will introduce an amendment to section 7 on Report Stage.
I thank the Deputy for that information.
I move amendment No. 66:
In page 46, between lines 23 and 24, to insert the following:
“Amendment of section 28 (Ministerial guidelines) of Principal Act
9. Section 28 of the Principal Act (as amended by section 2 of the Planning and Development (Amendment) Act 2015) is amended by deleting subsection (1C).”.
You might have an inclination, Chair, as to the reason behind the amendment. To give an example, when Deputy Alan Kelly was Minister, he introduced legislation to restrict the ability of local authorities to opt for higher standards. There was an example in Dún Laoghaire-Rathdown where the council was seeking to implement passive house standards which have a higher standard of building rating. As I recall, the then Minister, Deputy Alan Kelly, introduced a provision in section 28 of the principal Act to allow him to restrict local authorities from setting higher standards. That brings me back to the earlier discussion about how we still need to free up local authorities and not completely disempower councillors but to encourage them to start doing innovative things which are in tune with the principles and objectives of the policy system we may want. The amendment will remove that legislative provision which is unnecessarily restrictive on local authorities. It is better to look for best case examples. In some cases it will work and in other cases it will not work and we learn from the mistakes and move on. To my mind, ruling out the ability of local authorities to opt for higher standards is inappropriate and that is the reason I will press this amendment.
To clarify, I did vote against that in the development plan but my reason is that I did not think it was achievable for many reasons. Apart from that, what was included is that passive house standards could be achieved where possible. They were not excluded and it was allowed where possible.
I do not necessarily want to go into the issues concerning Dún Laoghaire but I will deal with the point generally. The amendment relates to section 28 of the Planning and Development Act 2000. Section 28 provides that planning authorities shall have regard to guidelines issued by the Minister in the performance of their planning functions, that is, in the determination of planning applications and in the adoption of development plans. However, section 28 was amended in 2015 by the insertion of a new subsection 1C, which elaborated on the original provisions by introducing a new power whereby the Minister may, within section 28 guidelines, expressly state specific planning policy requirements to be applied by planning authorities or the board, as appropriate, in the exercise of their functions. This provision enables one to distinguish, in terms of the content of the guidelines, between advisory or general commentary on the one hand and specific requirements that have to be mandated by planning authorities in the performance of their planning functions.
This provision was critical to underpinning the revisions of the 2007 apartment standard guidelines which issued in early 2016 and contain specific new requirements that must be applied by planning authorities on minimum apartment sizes, the number of lifts per apartment, car parking provisions, floor to ceiling heights, and the provision of dual aspect apartments thereby ensuring their consistent application by planning authorities. The new revised apartment standard guidelines issued under section 28 represent a change in the national planning policy which must now be implemented by planning authorities in determining of planning applications and the adoption of development plans. The inclusion of the relevant new subsection 1C in section 28 of the 2000 Act further enables future revisions to existing planning guidelines or new planning guidelines to be expressed and applied in a clear manner and will improve consistency and certainty in the planning process generally by distinguishing in policy terms between matters to be determined locally by planning authorities and by national policy set by the Minister of the day. Amendment No. 66 proposes to remove the provisions relating to the incorporation of specific planning policy requirements in ministerial planning guidelines, as introduced in the 2015 Planning and Development (Amendment) Act and therefore I cannot accept it.
There may be some good examples around the country of local authorities that want to do more progressive things and want to factor that in as a requirement or where possible into their development plans. There may also be examples where local authorities look to go in the other direction to try to create a competitive edge for their area, to try to reduce costs for developers or to do things that we might be very uncomfortable with. If we were to have a situation where a Minister could not intervene to ensure there are at least set parameters within which local authorities can set their development plans we could potentially have a completely different quality of design in different parts of cities depending on the opinion that prevails in the council. Dual aspect requirements for apartment design, for example, is a decision that has made it more expensive on one level to produce apartment complexes and perhaps that is something we should examine, but it was a decision that was put in place for good reason. If we were to decide local authorities could just disregard that because they happen to have a different view locally then there would be accusations about a potential race to the bottom and standards that might result in different areas wanting to attract development by changing standards and making it easier to do it and in other areas there might be a race to the top whereby it is much more expensive or less viable to build or develop. The most important thing is that – excluding commercial influence – there needs to be a basic standard above or below which we ensure decisions are made.
For a Minister not to have the power to be able to ensure there is commonality of standards would be very problematic in terms of the unintended, or in some cases the intended, consequences of that. We must ensure there is consistency across local authority areas while at the same time leaving a sufficient level of flexibility for local authorities to be able to do innovative things. That is the reason the legislation was introduced a number of years ago to deal with the issue. That is why, for example, we need it to alter the guidelines in terms of ensuring we have appropriate ceiling height and an appropriate size of apartments in terms of quality of life issues and that we do not have inappropriate or inconsistent decisions being made locally with what we were trying to achieve through better planning and design linked to national policy considerations. I am afraid this is one of the amendments on which I disagree with the Deputy.
I thank the Minister for reminding me that the provision was not just about building standards in terms of energy use it was also about such issues as the number of car parking spaces, the size of apartments and the basic fabric of the building. Whatever one's views on the specifics I clearly believe the then Minister, Deputy Alan Kelly, was wrong to reduce the standards at that time. Fundamentally, it is a race to the bottom which will cost us in the long run. We are setting up an independent regulator and a process to encourage councillors. That legislative diktat from 2008 goes against that completely. The measure is fairly sweeping and does remove in a significant way the ability of councillors to innovate, as in the example I outlined. One does want to encourage people to have a race to the top and to have some flexibility in that regard. If we are going to set up a regulatory system the Minister must give councillors some encouragement to be innovative and to set local standards that are appropriate to an area. It was a case of a legislative hammer striking a small nut. The provision goes against the spirit of this legislation and it should be removed. Whatever one's views on apartment sizes, it is a very strong legislative tool that was introduced to crack a nut in Dún Laoghaire and elsewhere that is not in tune with the spirit of the legislation.
Thank you, Deputy Ryan. There are no nuts now in Dún Laoghaire. I call Deputy Ó Broin.
As a former resident of the good borough, I am not sure about that. I support Deputy Ryan. We debated this issue at length in respect of the Planning and Development (Housing) and Residential Tenancies Bill and during Private Members' business. I was worried when I heard the Minister talk about setting minimum standards which he could not go below, which I firmly accept, and which he could not go above. It is the first time I have heard anybody say it that explicitly. The issue around apartment sizes or dual aspect apartments is that when one puts a family in a high rise apartment without back or front gardens, dual aspect is vital to the quality of the family's life. It brings something to apartment living that otherwise is not there. I have lived in two high rise buildings, both of which were dual aspect and both of which were local authority builds in two other jurisdictions. The battle, and this is where I believe the Minister is wrong, is that clearly there is a cost implication in the provision of certain units but there is also a quality of life outcome for the people who live in them. If the issue is that providing better quality of life outcomes for people is more costly, we must find ways of reducing the costs elsewhere. We should never say to the local authority that there is a standard it is not allowed to go above.
With respect, the Deputy is misinterpreting what I am saying.
I do not believe I am. Neither am I misinterpreting the intention of the legislation, which Deputy Ryan referred to and which we have raised previously. Local authorities should be prevented from going below a certain minimum standard of acceptability. That is absolutely a function of the Government. However, where they are trying to improve, whether that is energy efficiency, the carbon footprint or quality of life outcomes, that should be encouraged and where there are cost implications for development, that should be examined elsewhere in the system. It is worrying that the Minister sees the role of the Government as setting a cap on the standards, above which people should not be allowed to go. That was clearly the intention of the former Minister, Deputy Alan Kelly's, legislation and his actions on that basis. It is the first time I have heard this Minister speak about it in that way.
The Minister referred to planning guidelines. The Minister of State, Deputy Michael Ring, said at another committee recently that the planning guidelines will have to be reviewed. The Minister should be aware that in urban areas there has been a prohibition in the county development plan which disallows people from urban areas to go just outside to the suburbs or to what is called areas under urban generated pressure. Nobody from the urban area can get permission in such places. Perhaps that is fine to an extent but, because of the classification of the area as being under urban generated pressure, a local person, the local son or daughter, who wishes to buy a site 200 yards or 300 yd. away and who has always lived in the area is being refused permission. The local fellow who is living next door to the site he wishes to buy will not get permission. The council tells us it is national policy and that it cannot do anything for such people. These people wish to build a house for themselves. They are not seeking money from anybody-----
Deputy Healy-Rae, we are not getting into that level of it. We are discussing the Bill before us and its implementation. We have heard your point and I will ask the Minister to respond.
There is an addendum. The national secondary road between Killarney and Barraduff is a typical example of a location where people cannot get planning permission because of a stipulation that the then Minister, Deputy Varadkar, put in place whereby no access can be granted to a national secondary road. There is no new access for family members or anybody. That is despite the fact that at one part of the road one can see for a mile in either direction. I believe that is totally unfair. Five families are being deprived planning permission-----
Deputy, we will not go into that level of detail.
That is okay. If we are discussing planning, I am pointing out that there are planning problems in Kerry as well. Those issues must be addressed. We must review the planning guidelines in those areas as well.
We are reviewing the rural planning guidelines. That process is under way at present. However, we must also try to ensure that we create communities and clusters that are much easier to serve in terms of infrastructure, amenity and all the other things that can be done in towns and villages but which are much more demanding of the State in the context of ribbon development. That is not to say there will not be some one-off housing as, of course, there will be. However, when one sees the number of vacant properties in towns and villages across rural Ireland and the demand for housing in those areas, we must try to connect the dots there in a more effective way than we have managed to do in the past. Nevertheless, I take the Deputy's point.
To clarify, Deputy Ó Broin is making an incorrect interpretation of what I am saying. There is no ceiling on any developer regarding the quality of what they produce. The guidelines we have are about having a floor standard in place and where that floor kicks in. If the floor is set significantly higher in one local authority, there are often unintended consequences to that in terms of the cost of building there and potentially not being able to provide affordable homes in certain areas because the only apartments that will be built will be extremely expensive both to build and to buy. We must try to have a housing policy element to ensure that different household types and different mixed tenure and mixed type communities can be facilitated in every local authority area. We should not decide, by making decisions in one local authority area, that only one type of family or person will be able to come into that area. That was our fear in that regard. In fact, the changes here were not about Dún Laoghaire, but about Dublin City Council. That council had decided to set its own size considerations in respect of apartments and we examined that. We did not reduce the national guidelines relating to apartment size. We just asked Dublin City Council to respect them. I remember the conversation the Government had at the time. It was a different Minister.
That was painted by many people as the State requiring smaller apartments but, in fact, the national guidelines remained quite consistent. However, Dublin City Council had gone beyond them and we required it to respect national guidelines. There was also clarity regarding ceiling height, dual aspect and a series of other matters. We have seen a significant improvement in the quality of build, whether it is local authority housing, privately built housing or approved housing bodies housing, be it apartments or family homes. We will improve inspection procedures around that. The building regulations are tighter than ever and we will be introducing a new mandatory registration process for all builders and contractors in the country. At present, it is a voluntary list. We are learning lessons and moving in the right direction. The point I am making here is that the Minister must ensure a minimum standard, on which we can all agree. The question is where that bar is set, whether one allows local authorities to go way beyond it for their local areas and the consequences of that.
My final point is that what we are doing here is establishing a new planning regulator.
If we do not have national policy guidelines for the regulator, it will not have a basis for assessment, decision making or recommendations. If we allow local authorities to do their own thing, there will be no national standard against which the regulator can measure them. The new planning regulator's office needs to have a minimum standard or benchmark by which it assesses decisions. That is why this is important. Otherwise the regulator would only be assessing local authorities against localised decision making. That defeats the purpose of having a national standard and a planning office.
I am always encouraging developers in particular, and the planning system, to make and approve planning applications that go way beyond the minimum standards. I think passive housing is a great thing. We are moving towards nearly zero energy buildings, NZEB, approaches, as well as A energy ratings and so on. The more of that we can do, the better. My job as Minister, however, is to make sure that we have a minimum standard which protects people's quality of life through better design and building, and which is enforced by a regulatory system. By having that at a national level, allowing local authorities to encourage more if they want, the new regulator's office will be able to make sure that those standards are implemented.
I do not think anything the Minister has just said contradicts my interpretation of how he phrased it the first time. It was Deputy Alan Kelly who introduced the legislation. Essentially, the Minister has set a minimum standard which is also a ceiling. In respect of the apartment sizes in Dublin City Council, he has just said that the minimum is also the ceiling. It is a standard below which we cannot go. As we saw in the intervention of the previous Minister, however, it is also a standard above which we cannot go. I ask the Minister to consider two things-----
There are loads of apartments that go way above that minimum standard.
As a regulation. I would ask the Minister to consider the following: the existing minimum standards do not guarantee affordability, as we see in all the other local authorities. Where there are cost implications to increasing standards at regulatory level, for example in a city or county development plan, there are other ways of addressing those implications. The Minister's Department and the Housing Agency are currently conducting studies of the cost of construction. We support that work and are looking forward to seeing the result of the research. The mistake Deputy Alan Kelly made was that the intervention was solely about preventing that increase in standards across the board at Dublin City Council, rather than looking at other ways of addressing the affordability issue.
All I am asking the Minister to do is to take this under consideration when he is addressing these issues in the future. Minimum standards should not also be maximum standards. The democratic process in the local authorities should allow them to go beyond the minimum standard if they think it is sensible. I am not aware of any elected member or official of Dublin City Council who thought that element of the city development plan was about pricing families out. It was about giving families better quality apartments to live in. We need to tackle affordability issues in other ways.
Deputy Ó Broin is right. The issue in Dún Laoghaire was energy; apartment sizes were more of an issue in Dublin City Council. The reality of that diktat, as I saw down the road from me a month afterwards, was a revised planning application and the whole development going down to the minimum standard. The Dublin city councillors, their planners, the city architects and others had a better understanding of what we need to do in Dublin than the then Minister, Deputy Kelly had. We have to make it really attractive to bring families into the city, in particular. That is how we will get the volume. It cannot just be all box apartments for students in the city centre. It cannot be just flats. It has to be family apartments. That means we have to set a high bar.
It has to be a mix of both.
That change has made it less likely that we will get the real high-quality, family-type neighbourhoods mixed in. In that particular instance, it was a restriction on a local authority that I do not think was appropriate. It was a sledgehammer, applied across the country. Different local authorities are working with different circumstances. The key thing we have to do is bring down the price of land. That is the biggest problem and I would love to see us addressing it rather than lowering standards. That is why I fundamentally disagreed with the decisions on energy and on apartment sizes. I dislike the legislative provision because it can be used in whatever way people want and undermines initiative in local authorities. That initiative is something we do need, as well as regulation.
I do not think anybody could accuse me of not trying to get local authorities to use their initiative in terms of new ways of building communities. We are encouraging them to do that in terms of how they use publicly-owned land banks. We are encouraging them to create partnerships between private builders and designers, to integrate local authority needs with private housing demand. We are talking about affordable rental models that are quite different from anything we have seen in the past. I want families living in city centres. I have been banging that drum since the day I took office.
We should not be encouraging families working in Dublin to live in 3-bed semi-detached houses in Maynooth, Clane, Navan, Dunshaughlin, Portlaoise or wherever because they cannot afford to buy one in Dublin. That is not a sustainable way forward for this city. That is why I have been adamant that every city development plan needs to be looking at development from the inside out as opposed to the outside in. We are seeing these huge doughnut-shaped areas around the commuter belts of cities. Towns that 20 years ago had up to 5,000 people now have 20,000 people, with largely the same town centres and so on. We are trying to change that. At the same time, we have huge vacancy rates in our city centres and, in some cases, depopulation in city centres. My own city is a good example of that.
I am all for different apartment sizes and shapes, linking in townhouses with apartment complexes, creating very diverse communities and so on. The only thing we are talking about here is whether the Minister can set a minimum standard that has to be facilitated through the planning system, or whether we allow a local authority to move that minimum size, for example, up to a level that actually rules out a certain type of apartment.
No, he said the minimum has to be the same as the maximum. He is restricting the-----
He is not saying the minimum has to be the same as the maximum. He is saying that the minimum standard becomes a floor. We have to allow people to apply to build at that standard as opposed to moving it higher. As the Deputy probably knows, 44% of people on social housing lists are living on their own. Some 25% of households in Ireland are single-occupancy households. I know that because of the water debates; we were looking at the statistics yesterday in terms of how we should be setting the benchmark for excess water usage and so on. Many of those people potentially could and should be living in city or town centres.
We have to use space more efficiently, through better design. That is something Deputy Ryan talks about a lot in terms of density, quality of living and so on. That is the context in which we want to have a minimum size below which we do not go. By the way, it is considerably bigger than the minimum size in many countries.
Anyone who stays in an apartment in Paris would see shoeboxes all over the place. There are tiny apartments that, in many cases, are just like tiny hotel rooms. We are not allowing that any longer. We are not allowing bedsits any longer. It is up to developers to design and use space more efficiently. Anybody who has looked at, for example, some of the apartments in the new Cherrywood development that use the minimum space required will have seen that, by using light, space and open-plan design differently, a lot more can be fitted into a smaller space. Anyone who looks at those show apartments would see that, for a certain type of person, they are very good quality accommodation. It is probably not family accommodation. We need to ensure that there is family accommodation too. The only point I am making is that if we do not have a common minimum standard across the country we will see different local authorities doing very different things. We would be asking the regulator to do an impossible job. It would potentially have to factor in 31 different sets of standards, as opposed to having a common basic standard in terms of what is acceptable and what is not. That is the only point I am making.
Is the amendment being pressed?
I understand I cannot press it but I will come back to it on Report Stage.
I wanted to come in on a separate issue, but I think it pertains to documents that would be required.
Before Deputy Coppinger starts, it is 12 noon. Can I have agreement from the committee that we might continue on for another half an hour, because we are going really well here?
We can keep going as far as I am concerned. I have no need for a break.
Does anybody want to take a five minute break? We will keep going. I am sorry, Deputy Coppinger.
Does the Chair think we will get through this in half an hour?
I am not putting a timeframe on it. I am just saying that we are going well and should keep going and see how we get on.
On this issue of documents that would be required by planning authorities for planning applications and which the planning regulator would ask for, I wonder if this is an appropriate place for the Minister to consider an amendment which I may put on Report Stage. One of the things that the Mahon tribunal recommended was that people making a planning application should have to disclose any political donations they had made, any membership of a political party and so on. The Minister may have referred to it earlier, but it is also something that could be put in here. It would seem to me that it is an absolutely critical requirement to rule out some of the abuses that we have seen in the past. It could even be added in as a third item to the points that the Minister has about documents that would be required.
People should be able to go online and to check out an application to see, for example, if a developer is in NAMA. Has he or she fulfilled other developments? That was something we have all seen on councils when we were councillors - developers leaving an estate unfinished and launching another application. The planning authority does not seem to have any qualms about allowing them to have that application. I think much more in-depth information about applicants should be online, where people can see and access it.
The Minister might wish to reply to that under his next amendments. We will move to section 9, amendment No. 67. Amendments Nos. 67, 70 and 78 are related and may be discussed together.
I move amendment No. 67:
In page 46, to delete lines 34 to 38 and substitute the following:
“ “(ka) facilitating the making and processing by electronic means of—
(i) planning applications, appeals, referrals, applications for approval, submissions and consents under this Act, and
(ii) the payment of fees, the issuing of decisions and setting out of requirements to which subparagraph (i) relates;”.
I will address my two other amendments, amendment Nos. 70 and 78, with amendment No. 67. These three amendments essentially relate to the changes in the principal Act with regard to the forthcoming introduction of e-planning, facilitating the online submission of planning applications and appeals, and other related matters by electronic means.
Amendment No. 67 is a minor textual amendment to improve the text in section 9 of the Bill relating to the regulation which gives powers to the Minister for the purposes of facilitating e-planning, allowing for the submission of planning applications and appeals, as well as referrals and submissions, to the board, and allowing any associated fees to be paid electronically.
Amendment No. 70 enhances the provisions of section 38 of the principal Act and provides for development documents in planning decisions to be placed on the planning authorities' websites, while also being made available for purchase and inspection at the office of the planning authority.
Finally, amendment No. 78 supplements the other two amendments in this grouping by amending section 248 of the principal Act which relates to the provision of planning information and documentation in electronic form. The adoption of this amendment will make it administratively easier to move to automation and to make more efficient use of electronic communication in planning matters. I also wish to signal that I propose to bring forward further Government amendments at Dáil Report Stage in order to further enhance and supplement the e-planning provisions already in the Bill.
In respect of Deputy Coppinger's questions, there is an element of the legislation, which I think we will come to later, whereby if a developer has, for example, a record of not finishing estates properly, that can be factored in by a planning authority as a reason for not granting a certain developer's planning application. In other words, if the developer has a consistent record of poorly finishing estates, not fulfilling the terms and conditions of planning permissions, and so on, that record is factored in in terms of the appropriateness of granting planning to that person for building an estate in future. I think that is new.
We need to make sure that is not abused either. If someone had a genuine reason for going bust, particularly in the last ten years, while trying to finish out an estate and is now back again and building properly, we have to be sure that consideration is not unfair. At the same time it needs to be factored in and, of course, it can be tested and appealed to An Bord Pleanála.
We had a discussion earlier in respect of declarations of conflicts of interests by a councillor that may be involved in decision making and so on. There is also a section in the Bill relating to conflicts of interests in terms of applicants. I will come back to the Deputy but I think those issues are catered for in the legislation.
On the point the Minister just made, it is not just since the collapse of the economy that we have had houses built poorly in Drogheda. I raised one as an issue last week, where a builder built a house for a local authority in which there is no damp-proof course. The person who now occupies it has been told that, despite whatever remedial works have been carried out, the house may have to be demolished. That is an appalling vista for a builder who built a house. It should have never happened and it is a disgrace.
I appreciate that the Minister cannot answer the specific question. I do not expect him to, but in an event like that, where a builder clearly and absolutely built without due regard to a basic fundamental issue, will such a builder be kicked off this list? Can he or she be refused in the future, because he or she is not competent? The problem that arises, even if he or she is removed from this list, is whether it is the individual or the company that is affected? Who is accountable in that context? I agree and support greater accountability. I am with the Minister in what he is saying, but we need to sort these guys out urgently and immediately if we can.
We are doing a number of things on that issue. First of all, we are going to have a register of builders in the future. That is mandatory. A builder will not be able to build in Ireland if he or she is not on the register. If people are removed from the register, that will obviously have very serious implications for their business. It will be non-viable. That is the first thing. That is not in this Bill, but is in legislation around building regulations which will be coming down the tracks very shortly. It is nearly ready.
In this legislation, and in a later amendment to it, the record of a builder or developer is brought in and can be factored in in the context of new planning permissions and the consideration around them. Again, we need sensible implementation of that from chief executives and planning authorities that actually look at the detail of a person's history.
They should certainly be able to factor that in, however. We do not want people who have basically shown themselves to be incapable of delivering high-quality buildings.
And paid for work they did not do. It is a very fundamental structural issue.
That is something we are catering for. Apparently, we will deal with that under amendments Nos. 69 and 76. I will get to it in a few minutes.
It will be covered in the second part of our building regulation meeting, which will be tomorrow.
I may add to that on Report Stage. People should be able to go online and see the record of a company, developer or person. It is fair enough that the planners have to take it into account but if there is a development going up beside one, one should be able to go online and see the record of the developer.
Once the Deputy has raised it here, she will be able to raise it inside as well.
I move amendment No. 68:
In page 47, between lines 1 and 2, to insert the following:
“10. Section 34 of the Principal Act is amended by inserting the following after subsection (2):
“(2A) A planning authority shall, unless a derogation from the provisions of the Water Framework Directive has been granted, refuse permission for any project which may cause a deterioration of the status of a body of surface water or where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the Water Framework Directive.”.”.
This amendment is to make sure our legislation reflects the judgment of the European Court of Justice, ECJ, in case 461/13, which we will be required to do anyway. It is putting in legislative provision for what the European Court of Justice has directed.
This amendment in the name of Deputy Ryan would have the effect of inserting a requirement in the planning code that planning applications be refused where the development proposed would be contrary to the water framework directive because it might cause deterioration in water quality or the status of a water body, thereby jeopardising the attainment of good chemical status of water, as required under the directive. While the Deputy is well-intentioned, I am opposing this amendment because the water framework directive is already given general effect in section 1A of the Planning and Development Act 2000, as amended. More specifically, the water framework directive is also given effect in relation to the planning functions of planning authorities by way of section 10(2C)(b) of the Act relating to the content of development plans. I draw the Deputy's attention to the commitment given in my recently published public consultation on the river basin management plan for Ireland. Deputy Ó Broin was suggesting we were not progressing very well in this respect but we are. We have already had quite a number of meetings in regard to that and on the extraction issue.
I have met farming bodies on this. We have an active consultation process under way for my Department to prepare a high-level guidance document for planning authorities on the relationship between physical planning and river basin management planning for the purpose of the development of river basin management plans under the water framework directive. Given the integration of the requirements of the water framework directive at a more fundamental level in the planning Act, it is unnecessary at this time to make this amendment, and it would also be premature pending the completion of my Department's work on the guidance document I have referred to, in addition to receiving feedback and guidance on this area from the EU Commission following a recent ECJ judgment in this connection, referred to as the Weser case.
I know where the Deputy is coming from. We may specifically mention the water framework directive in the legislation. We spoke about this earlier. It will be signalled very strongly that it needs to be a factor. One could make a similar case for introducing amendments related to other directives so, if we find a way of mentioning the water framework directive, as I suggested, taking into account what I have just outlined, it would cover what the Deputy is trying to achieve.
I am nervous about mentioning the word "lawyer" at all. Poor old Deputy Ó Broin and others have had too many lawyers in too many weeks, as I am sure is the case with the Minister. Our intention was not so much to refer to the directive in general but to a recent ECJ decision. I might withdraw the amendment in this case. I will go into the legal assessment and come back on Report Stage. I interpret the Minister as saying he is in some way in train towards doing the work in question but that it may come in future legislation. Can it be delivered by way of statutory instrument in terms of review of the river basin district and so on? Does the ECJ case to which I have referred, C461/13, require us to make any legislative response or are there other mechanisms? If there is a need for a legislative response, it should be noted it is not easy to get legislation through, with timing and so on. If there is a legislative response to the judgment needed - it is not the directive we are talking about but the ECJ's interpretation of it - this might provide the valid opportunity. I might take to the chance to ask my legal advisers about the Minister's earlier response and come back to this on Report Stage.
Yes, my understanding from what I am being told here is that, further to the publication of the Weser case, it is evident that further guidance is needed for planning authorities to tighten up and standardise consistency in development plans across the country in respect of the water framework directive. We need to get some guidance from the European Commission on the back of that judgment. We do not have that now.
That is exactly what this amendment is saying. We need to give guidance.
We also need to get guidance from the European Commission.
As to how we give.
I suppose so but if we are to mention the water framework directive specifically as a consideration that needs to be accounted for by the new planning regulator, that will clearly deal with that broadly. We can talk to the Deputy about that but I am not in a position to accept the amendment. In the absence of the guidance from the European Commission, it is really hard to know what we should be putting in.
I have a question. I acknowledge the Minister's point that one cannot refer to everything but I would have believed the impact of a development on water would be a pretty important one in respect of which he could concede. I am not sure whether Deputy Ryan can tell me whether his amendment is addressing the issue of what we have seen in this country, namely building on flood plains. It is not specifically a matter of the water framework directive but it is something that the planning regulator should specifically-----
There is another directive and we debated that earlier. We will try to accommodate that in the Bill. The Deputy is absolutely spot-on on that. We have said the officials are going to consider it.
That is grand.
There is a flooding directive, and we discussed earlier whether we should name it specifically in the legislation.
Surely we do not need a directive from Europe to put something in legislation.
We have pretty strong guidelines in regard to flooding that are factored into planning decisions. Unfortunately, there were many instances when bad decisions were made, particularly on zoning, which is the main problem. Once somewhere is zoned, the permission exists to proceed with the planning application. We should not be, and I do not believe we are, zoning flood plains any longer. If local authorities attempt to do so, I can assure Deputies that if it is brought to our attention, we will reverse their decisions.
Amendments Nos. 69 and 76 are related and may be discussed together.
I move amendment No. 69:
In page 47, to delete line 3 and substitute the following:
“10. (1) Section 34 of the Principal Act is amended in subsection (2)(a) by deleting “and” in subparagraph (v) and by inserting the following after subparagraph (v):
“(va) previous developments by the applicant which have not been satisfactorily completed,
(vb) previous convictions against the applicant for non-compliance with this Act, the Building Control Act 2007 or the Fire Services Act 1981, and”.
(2) Section 34 of the Principal Act is amended in subsection (4)(g) by substituting “the giving and maintaining of adequate security” for “the giving of adequate security”.
(3) Section 34 of the Principal Act is amended in subsection (6)—”.
These two amendments are intended to address problems associated with taking into account past performance of developers in the determination of planning applications. We mentioned that earlier. Second, they address the taking in charge of housing developments by local authorities. I know these are subjects that are of interest to members of this committee, particularly Deputy Murphy, who tabled a Private Members' Bill a couple of years ago addressing the same issues. Unfortunately, she is not here but we will give her a mention anyway.
Amendment No. 69 proposes that section 34 of the principal Act be amended by now requiring that planning authorities shall, in the assessment and determination of a planning application, have regard to, "previous developments by the applicant which have not been satisfactorily completed," as well as "previous convictions against the applicant for non-compliance with" Planning Acts, either the Building Control Act 2007, or the Fire Services Act 1981, hereby taking account of the past performance of the applicant for planning permission.
In the same vein, this amendment further proposes that, instead of attaching conditions to planning permission relating to the giving of adequate security for the completion of a development, the wording in section 34 of the Act should be strengthened to allow planning authorities to attach conditions relating to "the giving and maintaining of adequate security" for the satisfactory completion of housing developments. In other words, while the development is not completed, there will be an obligation to maintain that development as well as just an obligation to complete it. We have had many examples, particularly in recent years, for understandable reasons, because many builders have got into financial difficulty, of estates not having been finished. If there is a bond which is solely linked to the completion of the estate, there is an issue around the maintenance of the estate in the meantime which is something which has not been covered in previous legislation. We want it to be covered now. We are only too aware of the thousands of housing estates throughout the country which have been left in an unfinished state by developers over recent decades, leaving it to local authorities to have to take remedial action. This situation is totally unacceptable and the new provisions in this amendment are intended to go some way to addressing this by giving planning authorities additional strength and powers in the attachment of conditions to planning permissions, requiring developers to both give and maintain adequate security to facilitate the satisfactory completion of housing estates. In recognition of the priority attached to this issue both by myself and my officials, I would like to flag that I propose to table further amendments along these lines on Report Stage.
On amendment No. 76, section 180 of the principal Act outlines the procedures relating to the taking in charge of housing developments by local authorities. This amendment is intended to improve and streamline the process. Amendment No. 76 firstly addresses section 180(1) of the principal Act as presently constituted. Subsection (1) requires that a planning authority shall, where it considers that developments have been satisfactorily completed in accordance with the permission granted, where requested by the developer or majority of the house-owners, initiate the taking in charge procedures under the Roads Act as soon as may be after being requested. In light of this loose, non-specific wording on timelines, the first part of this amendment now proposes that local authorities shall initiate the taking in charge procedures "not later than 6 months after being so requested", thereby putting a specific timeline for acting on the request by local authorities.
The second change to section 180 proposed in this amendment is to provide that where a development has not been completed to the satisfaction of the planning authority, and enforcement proceedings have not been commenced by the planning authority to address the situation within four years of the expiration of the planning permission on the development, the planning authority shall, on being requested by the majority of the owners of the houses involved, take in charge the housing estate concerned. The current time limit for this is seven years, so this is a further strengthening of section 180 and the taking in charge provisions.
The third change to section 180 proposed in this amendment is that where enforcement proceedings against a developer have not been commenced regarding the completion of a housing estate within four years of the expiry of the planning permission, the authority may, at its discretion and at any time after the expiration of the planning permission in question, initiate the taking in charge of the estates on the request of the majority of house-owners. The four-year timeframe mentioned here is a reduction from the current seven-year timeframe.
The final amendment to section 180 essentially provides that where a planning authority takes and stays in charge, that will not preclude the authority from pursuing the developer for costs incurred in respect of further works undertaken on the development to bring it up to an acceptable, satisfactory state for the residents of the estate. All told, these amendments incorporate some fundamental revisions to the existing section 180, on taking in charge provisions, with a view to ensuring that housing estates are more promptly taken in charge than heretofore.
I am sure the Deputies have the same complaints in their constituencies. Particularly in the last ten years in our cities and built-up urban areas, there are many examples of estates that have not been taken in charge, there are bonds that are outstanding that are unable to be paid in some cases, and we need much more clarity for developers and for local authorities on what the rules of the game are. How do we ensure that people who purchase homes are being looked after in a way that ensures that local authorities take estates in charge? I have a number of examples where local authorities say, each year, that they cannot afford to take estates in charge and so are not going to do it. I am sorry, but that is not good enough.
There is a requirement here to start the process of taking in charge. We need to find a way of making that affordable, whether that is local authorities pursuing a developer for costs or whether, as one approaches the four-year timeframe, local authorities have to factor that into their budgets. We cannot have a situation where a local authority just says that it is ignoring the estate down the road because there is no money. Residents in such estates are in limbo. They do not have a developer that can finish the estate and look after it properly and they have a local authority that says that it cannot afford to take it on, or is not taking it on for whatever reason. I think this will put down a marker for everybody.
If people have any suggestions on Report Stage as to how we might be able to improve that, we will listen to that, but we have had the necessary discussions to try to get the balance right here with various different stakeholders. I think it is a significant improvement on where we are today.
These two amendments are very important. I generally welcome them.
The matter in amendment No. 76 is a massive problem in any area that has seen development in the last ten years and before that. It was a problem when I was a councillor in the early 2000s, when so much development was taking place. Even though developers were making substantial profits, they were still flying from area to area, leaving work undone and doing defective work. I could catalogue many instances but will not do so here. I want to raise some questions about the changes that the Minister is making and whether they are enough.
On the first change, I welcome that the wording "not later than 6 months" is there. That is fine, but is four years still not far too long to give somebody to comply with what that person knew would be the conditions to comply with before undertaking the development? Seven years was obviously far too long, but it still seems to me that four years is giving too much leeway, considering someone might be living in an area for four years which has had defective work done. I do not know if the Minister is planning to amend this elsewhere, but the problem with the bonds is that they were far too low to be any kind of disincentive to a developer. Some of the bonds used to be in the region of €200,000. They were simply a joke. They were not a deterrent to any developer. Developers could lodge the bond and then go off and do whatever they wanted to. That is probably separate legislation, but is the Minister going to consider anything like that?
That was certainly the big problem we found in Fingal when so much development was taking place.
I welcome the intention to pursue developers for costs because we cannot expect local authorities to pick up the tab for what developers are meant to do. Another separate issue which I do not suggest the Minister can address at this time relates to developers setting up management companies. Most housing estates are multi-unit developments comprising apartments, duplexes and houses. By setting up such management companies they make residents pay for maintenance. That is an ongoing problem, especially in west Dublin, and it requires separate legislation.
On the four-year issue, we need to allow sufficient time for a legal process, for example, to take its course. It will take time if a local authority is taking a developer to court. The enforcement processes take time.
If local authorities are to take housing estates in charge, they must be able to factor in the cost. One cannot just require them to take all housing estates in charge overnight in factoring the cost into the Estimates process. My intention is that we will give a very clear signal that there are timelines, after which there will be a requirement to start the process of taking an estate in charge. A well run local authority will account for that and plan for it financially. It is also a very clear signal to developers that it will be a real problem for a developer who does not finish a housing estate to the quality that is consistent with the planning regulations. We will introduce new legislation on building standards. I suspect Deputy Ruth Coppinger will be interested in these provisions when the Bill comes through. It will very much be about enforcement and creating a level playing field in order that the good developers and builders will not be at a disadvantage compared to those who cut corners. A combination of the building standards, the mandatory register for builders and what we are doing here in the amendments will dramatically improve where we are today.
Past performance will also be taken into account, for example, where developers have caused real problems for local authorities in not finishing estates and, more importantly, for residents or local authorities that have paid for homes. That will be taken into account as part of the decision-making process in planning. There is a series of new layers, with which developers can live. The good ones will welcome it and see it as a way of ensuring the same standards are being applied to everybody. That is the way it should be.
I move amendment No. 70:
In page 47, between lines 21 and 22, to insert the following:
“Amendment of section 38 (availability of documents relating to planning applications) of Principal Act
11. Section 38 of the Principal Act is amended by substituting the following for subsection (1) other than paragraphs (a) to (e):
“(1) Where a planning authority gives its decision in respect of a planning application the following documents shall be made available by the authority within 3 working days by placing the documents on its website, and may also make available such documents both in electronic form and for inspection and purchase by members of the public during office hours:”.”.
We are in public session. Amendment No. 71 is in the name of the Minister. Amendments Nos. 71 to 75, inclusive, 79 to 87, inclusive, 96 and 98 are related and will be discussed together.
I move amendment No. 71:
In page 47, to delete lines 23 and 24 and substitute the following:
"11. (1) Section 48 (which relates to development contributions) of the Principal Act is amended—
(a) in subsection (3A) (inserted by the Urban Regeneration and Housing Act 2015) by substituting the following for paragraph (b);
"(b) where the development comprises houses and one or more of those houses has not been rented, leased, occupied or sold,",
(b) by substituting the following for subsection (3B) (as so inserted):
"(3B) Where a development referred to in subsection (3A) comprises houses one or more of which has not been rented, leased, occupied or sold the planning authority shall apply the change in the basis for the determination of the contribution referred to in that subsection only in respect of any house or houses that have not been rented, leased, occupied or sold.
(2) Section 48 (which relates to development contributions) of the Principal Act is amended in subsection (17)—".
I will also address other amendments in this group, amendments Nos. 72 to 75, inclusive, and Nos. 82 to 87, inclusive. I will then address Opposition amendments Nos. 79 to 81, inclusive, 96 and 98.
Turning first to amendment No. 71, sections 48 and 49 of the principal Act provide for development contributions. Amendment No. 71 is a technical amendment to clarify an unforeseen outcome from the way in which the Urban Regeneration and Housing Act 2015 provided for reductions in the application of development contributions to assist in addressing the current housing supply shortage situation. The amendment is intended to close a loophole in the 2015 Act whereby a developer who has not sold houses in a development and has been renting or leasing them thereby getting rental income in the process, could simultaneously apply for a reduction in the development contributions in respect of such houses, effectively gaining on the double. This possibility was not intended in the 2015 Act and the amendment now clarifies that any reduction in respect of development contributions can only be availed of in the cases of houses that have not been rented, leased, occupied or sold.
Amendment No. 72 inserts a new section in the Bill to amend section 144 of the principal Act. In this connection, section 144 enables the board, with the Minister's approval, to set fees for appeals and various other matters and functions with which the board is concerned. The amendment proposes to insert a new subparagraph in section 144 to provide explicitly that the board may determine a fee for an appeal by a property owner against the proposed application of the vacant site levy by a planning authority under the provision of the Urban Regeneration and Housing Act 2015.
Amendment No. 73 is now withdrawn as it is considered to be unnecessary.
Amendments Nos. 74 and 75 are technical amendments to Part XAB of the principal Act, specifically, in sections 177S and 177T. Changes are proposed in these two amendments to close potential gaps in the principal Act. To clarify that, the Minister will be the competent authority for the purpose of undertaking an appropriate assessment under the Habitats Directive of the draft national planning framework if such is required and to confirm who shall prepare the subsequent Natura impact report for the NPF - it will also be the Minister.
Government amendments Nos. 82 to 87, inclusive, all relate to what are minor technical amendments to the provisions relating to strategic housing developments in the Planning and Development (Housing) and Residential Tenancies Act 2016. It is proposed that these amending provisions will come into operation on the enactment of this Bill. I propose all of these Government amendments.
Moving on to the Opposition amendments, amendment No. 79 relates to section 179 of the principal planning Act which, in association with Part VIII of the planning regulations, sets out the arrangements for approval by local authorities of own-development proposals relating to social housing, local roads, libraries, community facilities, etc. The amendment proposes to insert a new subsection (2A) in section 179 to provide that the regulations made under this section shall require a local authority, when notifying prescribed bodies or providing information to the public on any local authority-owned developed proposal, that the information provided shall be the same as required if the proposed development were subject to a planning application. It is important to note that the Part VIII process is not the same as the application for planning permission but is rather a notice of intention to undertake a proposed development which is ultimately subject to the approval of the elected members. In any event, the Part VIII provisions already set out the procedure to give public notice of, and ensure that the public and prescribed bodies are consulted on, any such proposed developments and inviting submissions. I consider that the current Part VIII requirements are sufficient in this regard. On this basis, I do not consider the amendment necessary and I am opposing it.
Amendment No. 80 proposes to amend section 208 of the principal Act regarding public right of way. This amendment, by Deputy Eamon Ryan, proposes to revise section 208 of the principal Act to provide that where a provision in a development plan or local area plan in force on the commencement of this section relates to the preservation of a public right of way, the way shall be maintained by the planning authority. I do not have any issue with Deputy Ryan's proposal and I am, therefore, proposing to accept it, even though he is not here. I am not sure if Deputy Ryan can move it.
Deputy Eamon Ryan's notes are still here and I would say he is coming back.
Okay. I hope we will be able to move that in his absence.
Amendment No. 81 again addresses section 208 of the principal Act relating to public right of way and proposes to delete the phrase "in force on the commencement of this section" in subsection (1) of section 208 of the principal Act. This wording was intended to address any transitional issues following the commencement of the 2000 Act and I do not see the need for the amendment. Accordingly, for the moment at least, I am opposing it.
Amendment No. 96 relates to the definition of the term "strategic housing development" in section 3 of the Planning and Development (Housing) and Residential Tenancies Act. Deputy Ó Broin's amendment proposes that additional text be inserted in the second criteria of the definition of the effect that the development shall be on residential zoned land or on a mixture of residential or other uses where the quantum of houses or accommodation units is not fewer than 100 units. This is already clear from the existing definition and, accordingly, I oppose the amendment on the grounds that the proposed additional wording is not necessary.
With regard to amendment No. 98, section 28(2) of the 2006 Act amends section 42 of the principal Act to provide that a second extension of duration of permission may be granted by a planning authority in the case of a housing development comprising 20 houses or more where the authority considers that a further extension is necessary to enable the development to be completed. This removes the requirement to go through the planning process again and aims to expedite the completion of the housing developments in question. It is a temporary provision which, when commenced, will limit any such extension to no later than 31 December 2021, the end of the Rebuilding Ireland policy timeframe. Amendment No. 98 tabled by Deputy Ó Broin proposes to remove this provision entirely, as the sole purpose of section 28(2) is to provide, albeit on a temporary basis, for a second extension of permission for housing developments to support and expedite the completion of much needed housing. I oppose this amendment.
With regard to my amendments Nos. 96 and 98, I am happy not to press amendment No. 96. I do have a concern that the wording as we agreed last year is not as clear as the Minister thinks. I ask that the officials look at the wording that is in the Act at present regarding the 100 units. I still think there is some uncertainty about it. If people could look at it, they could come back and say-----
We will take a look at it.
That is fine. With regard to amendment No. 98, I have a real concern that the section that I seek to remove could be used by developers to hoard land and not to develop it until property prices are at a higher level. What they could do is have live planning permissions and deliberately not develop them even though they have the resources to do so, clearly knowing that they have a fast track to the subsequent extension. It is an amendment that I will be pressing.
On that issue, we are going to come back with an amendment on Report Stage to deal with the hoarding of land.
The Deputy might want to wait until he sees that before he presses the amendment. As the Deputy was speaking, I was being briefed on it. I want to signal the intent that we are going to come back on Report Stage with an amendment specifically on the issue of using the provisions that we are introducing in good faith as a way of facilitating the hoarding of land. We may be dealing with the same issue that the Deputy has a concern about. That is all I am saying.
On that basis, I am happy to withdraw amendment No. 98, but may come back to it depending on the revised text from the Minister.
I would obviously like to see that because this is one of the key problems that we have in the last number of years in the escalation of the housing crisis, including, it would seem, NAMA hoarding land as well. I will wait to see what the Minister does, but I would like to have the potential to introduce an amendment as well on that issue.
I move amendment No. 72:
In page 47, after line 37, to insert the following:
“Amendment of section 144 (fees payable to Board) of Principal Act
12. Section 144 of the Principal Act is amended in subsection (1A) (inserted by the Planning and Development (Amendment) Act 2010) by inserting the following paragraph after paragraph (a)—
“(aa) an appeal to the Board under Part 2 of the Urban Regeneration and Housing Act 2015;”.”.
I move amendment No. 74:
In page 48, between lines 3 and 4, to insert the following:
“Amendment of section 177S (Competent Authority) of Principal Act
14. Section 177S of the Principal Act is amended in subsection (2) by inserting the following paragraph after paragraph (a):
“(aa) in relation to a draft National Planning Framework, the Minister.”.”.
I move amendment No. 75:
In page 48, between lines 3 and 4, to insert the following:
“Amendment of section 177T (Natura impact report and Natura impact statement) of Principal Act
15. Section 177T of the Principal Act is amended in subsection (3) by inserting the following paragraph after paragraph (a):
“(aa) as respects a draft National Planning Framework, the Minister.”.”.
I move amendment No. 76:
In page 48, between lines 3 and 4, to insert the following:
“Amendment of section 180 (taking in charge of estates) of Principal Act
16. Section 180 of the Principal Act is amended—
(a) in subsection (1) by substituting “not later than 6 months after being so requested” for “as soon as may be”,
(b) in subsection (2)(a) by substituting “4 years” for “seven years”,
(c) in subsection (2A)(a)(i) by substituting “4 years” for “seven years”,
(d) in subsection (2A) by inserting the following after paragraph (b):
“(c) The initiation of procedures under section 11 of the Roads Act 1993 shall not preclude the planning authority concerned from pursuing, under the Planning and Development Acts 2000 to 2017 or otherwise, a developer for the costs incurred by that authority in respect of works undertaken on a development to enable it to be taken in charge by that authority.”.”.
I move amendment No. 77:
In page 48, between lines 3 and 4, to insert the following:
“Amendment of section 247 (consultations in relation to proposed development) of Principal Act
17. Section 247 of the Principal Act is amended—
(a) in subsection (1) by substituting “Subject to subsection (1A), a person who has an interest in land” for “A person who has an interest in land”,
(b) by inserting the following after subsection (1):
“(1A) (a) Subject to section 5 of the Planning and Development (Housing) and Residential Tenancies Act 2016, prior to making an application to a planning authority or authorities under section 34 in respect of a development that—
(i) consists of or includes either or both residential development of more than 10 housing units or non-residential development of more than 1,000 square metres gross floor space, or
(ii) such other development as may be prescribed,
a prospective applicant shall have consulted the appropriate planning authority or authorities in whose area or areas the proposed development would be situated, comprising at least one meeting, and for that purpose—
(I) subject to paragraph (b), section 247 applies, with any necessary modifications to those consultations, and
(II) those consultations shall have regard to so much of Part V as would be relevant to proposals that include housing development.
(b) Consultations under section 247 in relation to proposed development referred to in paragraph (a) shall be held within 4 weeks of the date of receipt by the planning authority, or planning authorities, as the case may be, of a request by the prospective applicant for such a consultation, unless the prospective applicant requests that the period be extended by a specified period, in which case—
(i) the period shall be extended by the planning authority, or planning authorities, as the case may be, by such specified period upon the first such request, and
(ii) the period may be extended, at the discretion of the planning authority or planning authorities, as the case may be, by such specified period upon a second or subsequent such request.
(c) The failure by a planning authority to comply with the requirement to hold a consultation meeting for the purposes of section 247 by virtue of paragraph (b) within the time limits provided for by that paragraph shall not prevent the prospective applicant, after the expiration of the period specified in that paragraph, from making an application to a planning authority or authorities under section 34 to which the request for a consultation under paragraph (a) relates.
(d) The Minister may by regulations prescribe for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of requests to which paragraph (a) relate and may be so prescribed in respect of different classes of such requests.
(e) Without prejudice to the generality of paragraph (d), regulations under that paragraph may make provision for the following—
(i) the manner in which requests under paragraph (a) are to be made to planning authorities,
(ii) requiring planning authorities to acknowledge in writing the receipt of requests under paragraph (a),
(iii) requiring any person making a request under paragraph (a) to furnish to the planning authority concerned any specified types of drawings, plans, documents or other information in relation to that request.
(f) For the purposes of this subsection ‘gross floor space’ means the area ascertained by the internal measurement of the floor space on each floor of a building (including internal walls and partitions), disregarding any floor space provided for the parking of vehicles by persons occupying or using the building or buildings where such floor space is incidental to the primary purpose of the building.”,
(c) in subsection (5) by inserting “or request for consultations” after “consultations” in both places where it occurs.”.
I fully support the amendment. It is one of the issues I raised when we were dealing with the general strategic housing development legislation last year. One issue I have is that there are good local authorities that try to expedite the meetings for pre-planning as quickly as possible. One of the complaints they often have is that the information they receive from the applicant comes very late. Therefore, the ability of the local authority to have their planners, road planners and whoever else to review the information to make the pre-planning meeting as productive as possible is limited. Is that something the Minister could look at? While it is obviously good to have a time requirement for the local authority, would the Minister be willing to look between now and Report Stage at some kind of requirement for the information to be given to the local authority within that timescale?
In advance of the meeting?
Yes, but not the day before. For example, when I sat on South Dublin County Council, a developer would look for pre-planning and the council would be willing to get it done quickly. It would set a date but the documentation would only come in the day before the meeting. That would not allow the relevant officials time to properly examine it. I think it could help. However, I fully support the amendment.
I will take a look at that. That seems to be a sensible suggestion. Certainly, if it is a complex development, the local authority needs to be given the time. Otherwise the meeting just becomes a preamble to the next meeting.
That is the point.
We would end up having unnecessary meetings. We will have a look at that.
I do not have a problem with that proposal. It makes sense that one would have an initial consultation with the planning authority. That generally happens in any event. If people are complaining about the length of time that it takes, it is clearly because staff and resources are an issue in all the local authorities. The number of planners, architects and directors of services has been cut systematically. If the Minister is going to implement something like this, he must ensure the provision of staff who would be able to facilitate it.
We have approved many additional new positions in terms of planners, engineers, architects and quantity surveyors, particularly linked to housing. More approvals have been given than posts have been filled. In the past 12 months or so, many local authorities have added to their housing teams. Deputy Coppinger is right in that there was a moratorium on recruitment for a number of years for understandable reasons but that is no longer in place. We are asking local authorities to do much more in the housing and development area generally. It is not the case for all local authorities because, from a development point of view, Dublin, Cork, Galway and Limerick and other cities are progressing at a different pace from other parts of the country, but we are trying to make sure that the human resources are in place to be able to respond. There is not only that issue but there also needs to be an understanding within local authorities that they cannot simply move at their own pace, that priority needs to be given to matters and that there is a reason timelines are in place. If there is a genuine problem meeting that timeline because of staffing resources, I need to know about it and we need to help them on that. There also needs to be a mindset that takes on board that we are setting timelines for a reason and that there needs to be an efficiency in management to deal with that. Some local authorities are good at that and others on which we get feedback suggest there is room for improvement. Setting a four week period gives a clear signal to local authorities as to what is acceptable and what is not.
I welcome this amendment. While there is a four week timebound period on a local authority to have a meeting, I have a concern that there is no timebound period applying to the output of that meeting. The Minister put in place a fast-track planning process, where the first stage of preplanning is a nine week process and then there is a determined outcome whether it be to move forward to full planning or otherwise. Something similar might work in this respect. Otherwise, a pre-planning meeting can be held and nothing may happen at the end of it. I would like there to be a conclusion to that process.
I move amendment No. 78:
In page 48, between lines 3 and 4, to insert the following:
“Amendment of section 248 (information to be provided in electronic form) of Principal Act
18. Section 248 of the Principal Act is amended—
(a) in subsection (2)(c) by deleting “, if the person to whom the document or other information is required or permitted to be given consents to the information being given in that form”, and
(b) in subsection (5) after “electronic form” to insert “, and may deal with applications, appeals and referrals by electronic means.”.”.
I move amendment No. 79:
79. In page 48, between lines 3 and 4, to insert the following:
“Amendment of section 179 of Principal Act
13. Section 179 of the Principal Act is amended by inserting the following after subsection (2):
“(2A) The regulations to be made under subsection (2) shall provide that the information to be made available in accordance with subsection (2)(b)(ii) and subsection (2)(c) shall be at least as detailed as that which would be required for a planning application for the same development.”.”.
The Minister mentioned earlier that he was opposed to accepting this amendment.
I am opposed to accepting that amendment. I will accept one of the Deputy's other amendments.
Amendment No. 80.
I will withdraw this amendment but I will speak on the issue again on Report Stage.
I move amendment No. 80:
In page 48, between lines 3 and 4, to insert the following:
“Amendment of section 208 of Principal Act
13. Section 208 of the Principal Act is amended in subsection (1) by inserting the following after “development plan”:
“or local area plan”.”.
I move amendment No. 82:
In page 48, between lines 30 and 31, to insert the following:
“Amendment of section 3 (definitions (Chapter 1)) of Act of 2016
15. (1) Section 3 of the Act of 2016 is amended—
(a) by inserting the following definition after the definition of “consultation meeting”:
“ ‘gross floor space’ means the area ascertained by the internal measurement of the floor space on each floor of a building (including internal walls and partitions), disregarding any floor space provided for the parking of vehicles by persons occupying or using the building or buildings where such floor space is incidental to the primary purpose of the building;”,
(b) in the definition of “strategic housing development” by substituting “gross floor space” for “gross floor area” in paragraph (i).
(2) This section comes into operation upon the passing of this Act.”.
I move amendment No. 83:
In page 48, between lines 30 and 31, to insert the following:
“Amendment of section 5 (request for consultations before making application under section 4) of Act of 2016
16. (1) Section 5 of the Act of 2016 is amended—
(a) in subsection (4) by deleting “with the application concerned” and substituting “with the request concerned”, and
(b) in subsection (8)(a) by substituting “gross floor spaces” for “internal floor areas”.
(2) This section comes into operation upon the passing of this Act.”.
I move amendment No. 84:
In page 48, between lines 30 and 31, to insert the following:
“Amendment of section 6 (consideration of request under section 5 by Board and consultations) of Act of 2016
17. (1) Section 6 of the Act of 2016 is amended—
(a) in subsection (1)(b) by substituting “under this section” for “under paragraph (a)”,
(b) in subsection (5)(a) by substituting “notification under subsection (4)(a)” for “receipt by the Board of the request under section 5(1)”, and
(c) in subsection (7) by deleting “the” before “those meetings”.
(2) This section comes into operation upon the passing of this Act.”.
I move amendment No. 85:
In page 48, between lines 30 and 31, to insert the following:
“Amendment of section 8 (requirements relating to application for permission under section 4) of Act of 2016
18. (1) Section 8 of the Act of 2016 is amended—
(a) in subsection (1)(a)(iv) by substituting in clause (I) “plan, or” for “plan, and”, and
(b) in subsection (3)(c)(iii) by deleting “prospective”.
(2) This section comes into operation upon the passing of this Act.”.
I move amendment No. 86:
In page 48, between lines 30 and 31, to insert the following:
“Amendment of section 12 (regulations (sections 4 to 10)) of Act of 2016
19. (1) Section 12 of the Act of 2016 is amended in subsection (2) by substituting the following for paragraph (c):
“(c) the making available for inspection by members of the public, at the offices of the Board or the relevant planning authority or authorities in whose area or areas the development will be situated, and in electronic form, of any specified documents, particulars, plans or other information with respect to applications under section 4;”.
(2) This section comes into operation upon the passing of this Act.”.
I move amendment No. 87:
In page 48, between lines 30 and 31, to insert the following:
“Amendment of section 28 (amendment, etc., of section 42 (power to extend appropriate period) of Act of 2000) of Act of 2016
20. (1) Section 28 of the Act of 2016 is amended in subsection (2) (which provides for a construction of section 42 of the Principal Act)—
(a) by substituting “the day preceding the day that section 28(2)” for “the day preceding the day that section 28” where it occurs in the construction so provided,
(b) by substituting “expires on or after the date of commencement of section 28(2)” for “has not expired on the date of the commencement of section 28” where it occurs in the construction so provided, and
(c) by substituting “within the prescribed period” for “prior to the end of the expiration of the period by which the appropriate period was extended” where it occurs in the construction so provided.
(2) This section comes into operation upon the passing of this Act.”.
Amendment No. 88 in the names of Deputies Shortall and Catherine Murphy has been ruled out of order as it poses a potential charge on the Exchequer.
Amendment No. 89 in the names of Deputies Shortall and Catherine Murphy have been ruled out of order as it is not relevant to the provisions of the Bill.
Amendment No. 90 is in the name of Deputy Ó Broin. Amendments Nos. 90 to 93, inclusive, and amendment No. 97 are related and will be discussed together.
I move amendment No. 90:
In page 48, after line 37, to insert the following:
FURTHER MISCELLANEOUS AMENDMENTS
Amendments to Part 1 of Act of 2000
16. The Act of 2000 is amended by inserting the following into the Table to section 1A—
“DIRECTIVE 2011/92/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (codification)
DIRECTIVE 2014/52/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment”.”.
I am going to speak to the amendments in groups 11 and 12 on the list. They comprise seven amendments and they all relate to the environmental impact assessment screening that was agreed by the Oireachtas before Christmas. The Minister will recall when we had that discussion we were dealing with a major Bill and I had a series of quite technical amendments around the environmental impact assessment screening sections of it. I withdrew those but said I would return to the issue at this stage. Before I speak to each amendment, my general concern is that the more I have looked at this since December, the more I have become concerned that what we agreed in the Oireachtas in December is not compliant with key aspects of the Aarhus Convention or, crucially, the 2014 environmental impact assessment directive. When we discussed some of these issues previously the Minister rejected some of the proposals I made because he said they ran counter to the intention of the Bill, which was to try to make sure that these decisions could be taken as quickly as possible. The difficulty, however, is that if we have agreed legislation and it is not compliant - my considered view is that it is not compliant with the most recent directive - we could end up getting bogged down in legal challenges to planning related or environmental impact assessment related decisions that could end up being counter to the intention of the original legislation that the Minister proposed. I am more convinced than I was in December that there are significant issues here. I am also concerned that the environmental impact assessment directive 2014 has not been transposed yet and I assume the deadline for that will not be met. That creates some ambiguities in the legislation.
I will deal briefly with each of the seven amendments. Amendment No. 90 proposes to insert the 2014 environmental impact assessment directive into that section of the legislation to make it clear that it is one of the reference points for the implementation of the legislation. Amendment No. 91 has four paragraphs. Paragraph (a) relates to new information arising from the 2014 directive which needs to be taken into account in environmental impact assessment screenings. Paragraph (b) deals with a typographical error. I seek to substitute the words "the authority may do either or both" in the section I seek to amend with the words "the authority shall". Paragraph (c) deals with an issue I raised previously concerning the need for greater opportunities for public engagement and public consultation with the screening process not only by ordinary members of the public but also by organisations that may not be on the prescribed list such as environmental non-governmental organisations etc. Paragraph (d) deals with an issue we discussed previously relating to the returning of the fee to the applicant. It does not make sense to return the fee because if an application is rejected on the basis that it was of poor quality, the fee should not be returned.
Amendment No. 92 would broaden the eligibility of individual members of the public or environmental NGOs to bring decisions to the board for review. Paragraph (b) of the amendment concerns the right to conduct a judicial review, if required.
Amendment No. 93 addresses an issue in requiring the board to publish decisions, first, and also, crucially, the reasons by which it came to them. That is very important. If somebody is going to seek a judicial review of a decision, he or she has eight weeks in which to do so. If the reasons for the decision are not published, the only recourse for individuals or organisations is to make an access to information on the environment request which can take up to four weeks. That cuts down on the time available to consider what are very technical sets of issues.
Amendments Nos. 94 and 95 pertain to the requirement for screenings in seeking extensions of planning permission. I had a big problem the last time and I am more concerned about the issue now. If somebody is applying for an extension of planning permission, there could have been significant contextual, environmental changes in the immediate area or other developments since the period in which planning permission was originally granted. There would, therefore, be a requirement for rescreening to take the new circumstances into account.
Amendment No. 95 is in respect of public participation, the need for submissions, facilities to appeal to the board and, crucially, giving local authorities discretion to take some decisions on whether an extension of planning permission should be granted. This is provided for in subsection (1) of the amendment. Rather than stating they "shall" grant, the amendment proposes to use the word "may", depending, for example, on proper planning or whether they are unacceptable environmental impacts.
As this is quite a technical area, I will refer to my notes.
Amendments Nos. 90 to 93, inclusive, and amendment No. 97, tabled by Deputy Eoin Ó Broin, all pertain to new environmental impact assessment, EIA, screening provisions under the new sections 176A, 176B and 176C of the principal Act, as inserted by section 26 of the Planning and Development (Housing) and Residential Tenancies Act 2016. I am opposing amendment No. 90. Section 1A of the Planning and Development Act 2000 contains a table listing the EU directives which are given effect in full or in part, where appropriate, by the Act. Amendment No. 90 proposes to include references to two directives, Directive 2011/92/EU and the directive of 2014 which amended it. I am opposing the amendment on two grounds. First, the environmental impact assessment directive is already included in the table in section 1A. Section 2 of the 2000 Act provides that the environmental impact assessment directive means Directive No. 2011 of the European Parliament and the Council of December 2011 on the assessment of the effects of certain public and private projects on the environment. Therefore, amendment No. 90 is unnecessary. Second, it is premature to include a reference to the new 2014 EIA directive, as it has not yet been transposed into national law. On this basis, I am obliged to oppose the amendment.
Amendment No. 91 proposes a number of amendments to section 176A of the Planning and Development Act 2000 and the Planning and Development (Housing) and Residential Tenancies Act 2016. Paragraph (a) of the amendment proposes to substitute the existing paragraph (e) of section 176A(3) of the 2000 Act, as amended, with a new paragraph (e) to indicate that the Minister shall, by regulations, prescribe the information without specific reference to information required under the EIA directive, as amended, which should be included in the application for EIA screening. It is premature to include a reference to the new directive at this time as the 2014 directive which includes details of information required to be submitted for EIA screening purposes in annex 11(a) has not yet been transposed into national law. It is premature to list the directive in section 1(a) at this time.
The provisions in paragraphs (b) and (c) of amendment No. 91 appear to have the purpose of including mandatory public participation in the EIA screening process to be carried out by both planning authorities and the board. I am opposed to these provisions because public participation for screening purposes is not a requirement of the EIA directive, either in the 2011 version or the 2014 amended directive. There is already provision for public participation in processing substantive applications for development consent. Instead, the EIA directives of 2011 and 2014 require that a screening determination be made available to the public. This is provided for in sections 176B(5) and 176C(9) of the 2000 Act, as amended. In this connection, I do not see the point of having separate public participation processes for the intermediary stages of the planning process that precede the substantive planning application and environmental assessment processes.
I accept the principle of the provision contained in paragraph (d) of amendment No. 91 which provides that the fee for an EIA screening application shall not be returned to the applicant where the planning authority rejects the application on the basis that it is incomplete in material detail. The material or documentation to be included in an application is set out in subsection (3) of section 176A of the 2000 Act, as amended, and further material for inclusion in the application may also be prescribed. It will be absolutely clear to the applicant what is required in an application. There is no reason the applicant should be refunded the application fee if relevant material is omitted. We will try to accommodate this through a change on Report Stage. It is a fair proposal. However, as this element forms part of amendment No. 91, other elements of which I oppose, I cannot accept it at this time. In accordance with established practice, I ask the Deputy to withdraw amendment No. 91 on the basis that I will examine the legal and drafting aspects of the fee-related amendment proposed and will table an appropriate wording on Report Stage.
These are technical and detailed amendments and I want to deal with them properly. I oppose amendment No. 92 for the same reasons I oppose amendment No. 91. Paragraph (a) of amendment No. 91 provides for public participation in the EIA screening process to be carried out by both planning authorities and the board. As signalled, this is not a requirement of the EIA directive.
I oppose amendment No. 93, as drafted, as it appears to provide that a person can appeal a determination made by the board in a review of an EIA screening decision prior to its determination by the board. I cannot see how a determination can be judicially reviewed before it has been made. The wording of the amendment, as drafted, would also undermine the established eight-week rule in initiating judicial reviews of decisions made by An Bord Pleanála as provided for in section 50 of the Planning Act. As I read it, the wording of the amendment would allow an EIA screening determination to be judicially reviewed, possibly months or even years after the screening determination, when the application for permission for development which had relied on the said screening determination was determined. Perhaps we might talk about the wording as there seems to be a genuine concern. However, I accept the thrust of a specific aspect of amendment No. 93 on the basis that the wording of section 176C(9) of the 2000 Act, as amended, on the board's public notice of its review of the EIA screening determination needs to be tightened to ensure all documents relevant to an EIA screening determination should be available on the board's website, in addition to being made available on the website of the relevant planning authority. In accordance with established practice, I ask the Deputy to withdraw amendment No. 93 on the basis that I will examine its drafting aspects.
Amendment No. 97 relates to section 7 of the Planning and Development (Housing and Residential Tenancies) Act 2016, which sets out the provisions and timelines whereby a prospective applicant may, following a consultation meeting, request the board to determine within eight weeks if the proposed strategic housing development will require an EIA or an AA and, if so, the prospective applicant may also request the board to give an opinion within 16 weeks as to what should be contained in the environmental impact statement, EIS, and-or the Natura impact statement, NIS. Deputy O'Broin's amendment, first, proposes to make the board's determination and opinion subject to public consultation. The process under section 7(1)(a) is essentially a screening process, that is, the board on request confirms if an EIA or an AA is required for the proposed development and, if so, what the EIS and-or the NIS should contain. It is not a consent process. There is no requirement in the EIA directive for public participation in such a screening process and it is not necessary. Public participation is provided, however, at a later stage when the planning application for the proposed strategic housing development is made to be accompanied by the EIS or the NIS, if required. The EIA directive, both in 2011 and in 2014, requires that a screening determination should be made available to the public and should be in compliance with section 7(2)(c) of the 2016 Act by requiring that a copy of the determination should be placed and kept with the documents relating to the planning application concerned, which will be made available to the public.
Second, the amendment also proposes that this screening process under section 7 should take place in accordance with sections 176A, 176B and 176C of the principal Act. Section 26 of the Planning and Development (Housing and Residential Tenancies) Act 2016 amended the principal Act by inserting these three new sections to provide for new arrangements in respect of EIA screening. These are stand-alone provisions for EIA screening, in addition to the provision for such screening in respect of strategic housing developments as provided for in the Act. Section 7 of the 2016 Act, as it currently stands, contains essential provisions relating to requests for EIA and AA screening within appropriate timeframes in respect of the strategic housing developments provisions. In that context, I cannot accept the amendment.
Amendments Nos. 94 and 95 relate to the extension of the duration of planning permissions under section 42 of the 2000 planning Act. During the passage of the Planning and Development (Housing and Residential Tenancies) Act 2016 before Christmas, I proposed a number of amendments to the section 42 provisions, which were approved by the Oireachtas at the time. Notably, one of the amendments inserted a new provision whereby developments that require an EIA or an AA at the time of the original permission will not qualify for an extension of duration of the permission. This will apply to both developments where substantial work has been completed and developments where work has not commenced. The condition is necessary to avoid an extension of time being granted for developments where, for whatever reason, an EIA or AA was required at the time of the original permission but is now out of date. However, amendment No. 94 seeks to go even further and require that an application for an extension of duration may be granted only where the planning authority undertakes an EIA or AA screening and determines that neither assessment is required. This goes beyond what is required in these circumstances and what was approved by the Oireachtas a few months ago. However, I am prepared to reflect on the Deputy's comments bearing in mind that due to the often complex nature of EIA and AA requirements, it may require legal advice and further consideration and I will examine that.
Amendment No. 94 seeks to provide that an application for an extension of duration of the planning permission will be treated as a new EIA screening application similar to section 176A, as introduced by Planning and Development (Housing and Residential Tenancies) Act 2016. However, unlike both sections 42 and 176A, the amendment also seeks public notice and public participation in such EIA screening applications, which is not required by the directive. The amendment further seeks an appeal referral mechanism to the board in respect of screening where there is currently none. I oppose the amendment as it would virtually negate the long established administrative purpose of extensions of duration, which is to allow a limited period of additional time to complete existing permissions which have been slowed down by unforeseen, mostly economic, circumstances in accordance with the terms of the original permission. In other words, the proposed introduction of public participation as part of an EIA and AA screening process together with appeals and referrals to An Bord Pleanála for applications for extensions of duration would impose an administrative burden on a process which has been adjudicated through the planning process to the extent that the extension of duration application would be more akin to a brand new planning application.
Having broad public consultation as part of a screening process is not required under the directive but it would potentially significantly delay the process. I do not propose to accept the amendments. I will, however, examine the legal issues in more detail before Report Stage and revert to the Deputy.
I hope "Callan's Kicks" was not listening to that because he would have a field day with it next Saturday. I thank the Minister for the detailed response and I will come back to some of that on Report Stage rather than trying to rush through it in the few minutes we have left. I will press a few amendments and withdraw a few others.
Can I have my support recorded? Is that appropriate?
The question is lost and the opposition of Deputies O'Broin, Coppinger and Ryan to that is noted.
I move amendment No. 91:
In page 48, after line 37, to insert the following:
"Amendments to Screening for environmental impact assessment
16. The Act of 2000 is amended—
(a) in section 176A(3) by substituting the following for paragraph (e):
"(e) any such other information as is required under Directive 2011/92/EU as amended by Directive 2014/52/EU where such information shall be prescribed by the Minister, and any additional information which may be prescribed by the Minister,",
(b) in section 176A(4), by substituting "the authority may do either or both" for "the authority shall",
(c) in section 176A(4) to insert the following paragraph after paragraph (b):
"(c) consult with the public, and consider any views of that body and shall publish the application for screening determination for environmental impact assessment (within the meaning of section 176A(1)) on both—
(i) its website, and
(ii) in a newspaper circulating in the area where the proposed development would be situated, together with a notice, stating—
(I) where and when the full application can be found and inspected,
(II) inviting submissions from the public, and
(III) stating what fee if any is required to make a submission, and the notice shall specify the period within which submissions are required to be received by the authority, where such period should not be less than 4 weeks,",
(d) in section 176A(7) by deleting “together with any fee received from the applicant".".
Can my support be recorded?
Deputy Ó Broin's support for the amendment is noted.
I move amendment No. 95:
In page 48, after line 37, to insert the following:
"Amendment to section 42
16. (1) Section 42 of the Act of 2000 is amended in subsection (1) by substituting "On application to it in that behalf a planning authority shall" for "On application to it in that behalf a planning authority may".
(2) Section 42 of the Act of 2000 is amended in subsection (1) by inserting the following after paragraph (d)—
"(e) the planning authority has required the applicant to issue a notification in local newspapers circulating widely in the area of the proposed development, the application for extension of duration of the appropriate period, and indicating the public may make submissions on the application as if the application was being made in the first instance in accordance with section 176A of the Act of 2000,
(f) following notification by the planning authority to bodies prescribed under the Act of 2000 for a development of this type,
(g) following consideration by the planning authority of submissions and observations received under paragraphs (e) and (f) above and the application itself and a determination then of the application as if it was being considered for the first time under section 176A of the Act of 2000, and
(h) any such determination shall be notified as if it was determined for the first time, but stating clearly that the determination is in respect of an extension of the appropriate period, and shall also state how the determination may be appealed to the Board.".".
We will register the opposition of Deputies Ó Broin and Coppinger to the question being declared lost.
I move amendment No. 97:
In page 48, after line 37, to insert the following:
"Amendment to section 7(1)(a), and consequential amendment to sections 7(2), 7(3) and section 22.
16. (1) Section 7(1)(a) of the Act of 2016 is amended by inserting the following after subparagraph (ii)—
"(iii) any determination under this part shall be made in accordance with sections 176B and 176C, and the Board shall provide for consultation with the public, interested bodies, and the owner, occupier as if the application for determination had been made under section 176A.".
(2) Section 7 of the Act of 2016 is amended by repealing subsections (2) and (3).".
Deputy Ó Broin's support for the amendment is noted.
I move amendment No. 99:
In page 52, to delete lines 2 to 5 and substitute the following:
(a) make available on the website of the Department of Housing, Planning, Community and Local Government a direction under subsection (16), and
I move amendment No. 100:
In page 53, to delete lines 40 to 43 and substitute the following:
(a) make available on the website of the Department of Housing, Planning, Community and Local Government a direction under subsection (16), and
I move amendment No. 101:
In page 63, to delete lines 37 to 44 and substitute the following:
“(aa) A chief executive’s report prepared for the purposes of paragraph (a) shall be published on the website of the planning authority concerned as soon as practicable following its preparation.”.
I move amendment No. 102:
In page 64, to delete lines 1 to 9 and substitute the following:
“(aa) A chief executive’s report prepared for the purposes of paragraph (a) shall be published on the website of the planning authority concerned as soon as practicable following submission to the members of the authority under paragraph (a).”.
I move amendment No. 103:
In page 64, to delete lines 11 to 19 and substitute the following:
“(aa) A chief executive’s report prepared for the purposes of paragraph (a) shall be published on the website of the planning authority concerned as soon as practicable following submission to the members of the authority under paragraph (a).”.
I move amendment No. 104:
In page 67, to delete lines 2 to 10 and substitute the following:
“(aa) A chief executive’s report prepared for the purposes of paragraph (a) shall be published on the website of the planning authority concerned as soon as practicable following submission to the members of the authority under paragraph (a).”.
I move amendment No 105:
In page 67, to delete lines 12 to 21 and substitute the following:
“(ia) A chief executive’s report prepared for the purposes of subparagraph (i) shall be published on the website of the planning authority concerned as soon as practicable following submission to the members of the authority under subparagraph (i).”.
I move amendment No. 106:
In page 69, to delete lines 2 to 9 and substitute the following:
“(ka) A chief executive’s report prepared for the purposes of paragraph (k) shall be published on the website of the planning authority concerned as soon as practicable following submission to the members of the authority under paragraph (k).”.
I have a question for the Minister. Is there a timeline or date for transposition of the 2014 environmental impact assessment directive? It will not be transposed by 16 May 2017.
We have contracted in outside expertise to help us to get the work done. I do not want to bounce our people into giving a date. I will get back to the Deputy when we have one.
I thank members for their patience and the Minister and his officials for attending.