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

Amendments Nos. 2, 6, 8, 9, 24, 28 and 31 are related to amendment No. 1. Amendment No. 7 is an alternative to amendment No. 6, amendment No. 25 is an alternative to amendment No. 24 and amendment Nos. 29 and 30 are alternatives to amendment No. 28. We will discuss amendments Nos. 1, 2, 6 to 9, inclusive, 24, 25 and 28 to 31, inclusive, together by agreement.

I move amendment No. 1:

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


Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 2 not moved.

Amendments Nos. 4, 5, 23, 26, 71, 103, 107 and 166 are related to amendment No. 3. Amendment No. 27 is an alternative to amendment No. 26 so we will discuss amendments Nos. 3 to 5, inclusive, 23, 26, 27, 71, 103, 107 and 166 together by agreement.

I move amendment No. 3:

In page 6, between lines 4 and 5, to insert the following:

""Developments contributing to the strategic economic, social and environmental importance of the State" means those types of developments listed in Schedule Seven of the Act, or certain projects so determined by An Bord Pleanála to fall within the categories of projects listed in Schedule Seven of the Act;".

Amendment put and declared lost.
Amendments Nos. 4 and 5 not moved.

I move amendment No. 6:

In page 6, lines 13 and 14, to delete "if the following condition is satisfied" and substitute the following:

"if following determination by the Board, with reference to the projects listed in Schedule Seven".

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 7 to 9 inclusive, not moved.

Amendments Nos. 11 to 13, inclusive, and amendment No. 18 are related to amendment No. 10. Amendments Nos. 14 to 17, inclusive, are alternatives to amendment No. 13. Amendments Nos. 19 to 22, inclusive, are alternative to amendment No. 18. We will discuss amendments Nos. 10 to 23, inclusive, together by agreement.

I move amendment No. 10:

In page 6, line 21, to delete "one or more" and substitute "all".

This amendment is logical. It places greater emphasis on the accountability of developers of strategic infrastructure. This is a sensible amendment.

Amendment No. 22 seeks to strengthen environmental safeguards in the Bill. It deals with significant ecological elements that are not securely anchored in the Bill, such as the effects of component structures and the functioning of affected ecosystems. The Bill ignores those important elements and I seek to address that in this amendment.

Amendment No. 14 in my name seeks to delete section 3(b). This set of amendments is really what the Bill is all about. The legislation has been represented to us as a means of fast-tracking the planning process for what is called critical infrastructure. What is being set up in the legislation is a fundamental change in the country’s planning laws. Under this Bill, the promoters of projects described as critical infrastructure will be given a new means of getting planning permission. First, they will go to An Bord Pleanála where they will have a pre-application consultation with officers of the board. Following that, An Bord Pleanála will issue them with a statement which says they are cleared for take-off in the category that qualifies for the fast-tracking procedure provided in the Bill. They will then go back to An Bord Pleanála where they will be advised on how to write their EIS. They will then apply to An Bord Pleanála for planning permission. There will then be a make-believe consultation process under which An Bord Pleanála goes through the pretence of hearing what the local authority and elected councillors have to say over a ten-week period. At the end of that period, An Bord Pleanála will grant permission for the development. The whole thing is prejudged, of course, because from the day the applicant obtains clearance from An Bord Pleanála that they are free to submit an application, unless the promoter makes an almighty hames of submitting the application, they are virtually guaranteed to get permission.

When the Bill was first put forward, the idea was that it would cover major critical infrastructure, including transport programmes and road projects. The Schedule, however, contains a range of projects which can now be covered. One such project, for example, concerns wind farms. In many parts of the country concerns are developing over planning applications for wind farms. A wind farm promoter will no longer have to go to a local authority at all. They will be able to apply directly to An Bord Pleanála under this legislation and away they go.

As long as one satisfies one of the categories described in section 3 that qualifies for this fast-tracking procedure one will be in business. Section 3(2)(a) states, “the development would be of strategic economic or social importance to the State or the region in which it would be situate”. That is a pretty wide definition. I will come back to section 3(2)(b). Section 3(2)(c) states “the development would have a significant effect on the area of more than one planning authority”. That is fair enough. If it straddles two planning authorities there probably is a case for having it dealt with by An Bord Pleanála rather than by one or other of the individual authorities. I see some logic in that. However, the second criteria, outlined in section 3(2)(b), states “the development would contribute significantly to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional planning guidelines in force in respect of the area or areas in which it would be situate”. That definition is wide open because, even as it stands, there probably is not a residential, road, airport, seaport or other development of any significance in the country which would not satisfy some element of the national spatial strategy or regional planning guidelines. If it did not, however, the national spatial strategy and regional planing guidelines are not law — they are documents produced by the Government and may be changed by the Government. Therefore, if there is any doubt about whether a project will qualify for the fast-tracking procedure, the Minister has only to amend the regional planning guidelines and in it goes.

We recall there was a debate over the idea of large retail outlets, such as IKEA. The latter could now qualify as critical infrastructure if the Minister puts some provision into the regional planning guidelines or the national spatial strategy when it is reviewed. My amendment is seeking to address section 3(2)(b), which leaves the door open for any type of development to qualify. Under that provision, the Government, through the Minister, will be in the driving seat and can effectively change the planning goalposts at the stroke of a pen. That should not be permitted.

In what manner will the ten-week consultation process take place? What input will local authority members have in the area where planning permission is sought on the fast-track, critical infrastructure model through An Bord Pleanála? Would an incinerator be considered critical infrastructure and, if so, would there be any opportunity to speak on it during the consultation process? As Deputy Gilmore has said, the terms of reference are so broad that anything that contributes to the national spatial strategy can be considered as critical infrastructure. That almost includes any development within a local authority area and means it would go directly to An Bord Pleanála. Before the application is made, there will be the equivalent of a pre-planning meeting with the proposed developers and the board. I presume that will, or should, iron out the attitude of the board one way or the other towards an application. After that, it becomes a formality. After the pre-planning meeting and the application is lodged with An Bord Pleanála, what opportunity will anybody, particularly members of a local authority or the general public, have to make an input or in any way influence An Bord Pleanála's decision on any application under the fast-track, critical infrastructure system?

I wish to speak to amendments Nos. 17 and 18. Amendment No. 17 reads as follows:

In page 6, lines 27 and 28, to delete "significantly" and substitute "substantially".

It is important we should strengthen the Bill in the context of the proofs required to include projects under the national spatial strategy or regional planning guidelines. The issue is that projects must be of serious import to be dealt with other than at local government level. The amendment seeks to introduce a significant change. I understand the Minister's amendment No. 13 more or less takes that point on board. I am not sure when we will debate the Minister's amendment. It is being indicated that it will be taken contemporaneously with the others and I welcome that because it strengthens the Bill as well as strengthening the test before a project can be considered strategic infrastructure. My amendment No. 18 seeks, in page 6, to delete lines 34 to 36. This is a critical issue because what we have done in the Bill so far is to identify the strategic importance of the infrastructure. Section 3(2)(a) states:

the development would be of strategic economic or social importance to the State or the region in which it would be situate,

Section 3(2)(b) states:

the development would contribute significantly to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional planning guidelines in force in respect of the area or areas in which it would be situate,

Section 3(2)(c) states:

the development would have a significant effect on the area of more than one planning authority.

Given that we are concerned about the inclusion of paragraph (c) we seek its deletion from the Bill. It could refer to anything.

He is entitled to his opinion as I am entitled to mine.

Will the Deputies get their policies together?

The Minister of State need not worry. I suggest he straighten up his own act on the other side of the Chamber.

I am only pointing out the differences that exist already in policy.

It is important to point out what I see as reality in the Minister's proposal regardless of what he thinks of it. In the area where I live three local authorities come together — Meath County Council, Drogheda Borough Council and Louth County Council. While most developments of a commercial or industrial nature whether built in the county of Meath or the county of Louth all impinge directly on, say, the town of Drogheda, what the Minister of State is saying is that the fact that it affects two adjoining local authorities would mean it would not be a matter for decision-making locally if it falls in the test of the special strategy or the other test mentioned and would go straight to An Bord Pleanála strategic infrastructure board. I am concerned at that because there is no real test. If a decision affects two local authorities, it affect everybody. If a decision in an adjoining rural council affects an urban area the urban area will not participate in and cannot be part of the initial decision-making process and it goes straight to An Bord Pleanála. While it does not exclude the report from the manager or the views of elected members it takes the decision-making process out of the local arena. There is no test in paragraph (c) other than the fact that the development would have a significant effect on the area of more than one planning authority. That is not a good provision to have in the Bill. There are many issues that would be local in nature but will end up with the strategic infrastructure board. I am concerned that local democracy will lose out as a result.

Drogheda, Limerick and Waterford are examples of large towns or growing cities expanding into rural areas. The relevant test should be the local development plan. The adjoining local authority may want to do something that would be against the objectives of that plan. Therefore, the Minister of State should delete lines 34 to 36 in page 6, because they go against local democracy and the strategic objectives of the development plan. It takes away decision-making from the local arena without any real test in terms of strategic nature. The development would have a significant effect on the area of more than one planning authority. It does not necessarily have to contribute to the national spatial strategy and it does not necessarily have to be stated in any regional planning guidelines. Guidelines in respect of local development plans are not included. Local development planning guidelines would be excluded and ignored in the Minister of State's proposal as I see it.

I support my colleagues on these amendments. There is a concern that these powers will be abused. That is the genuine concern of all Members on this side because the powers being granted are significant. I accept that in projects such as the Dublin metro, the western rail corridor and so on there is a need for a fast track approach. The reasons these amendments have been tabled is to get the balance in place. There will be controversial projects that are profit driven such as a regional shopping centre. It will be argued that it is in the interests of the public good and that the national spatial strategy states that this should be a regional centre. As a consequence it goes before An Bord Pleanála rather thanvia the local authority.

The point made by Deputy O'Dowd needs to be taken into consideration. I am in the unfortunate position where two local authorities, Ballinasloe Town Council and Athlone Town Council, encroach into County Roscommon. Based on the legislation, if a proposed development straddles the border between the two counties it can go directly to An Bord Pleanála if it would have a significant effect on the area. That could be something as simple as a traffic effect on the area because traffic would have a significant effect on any community. Whether it is a housing development or a local commercial enterprise I do not see why it should be taken out of the remit of the local authority. The legislation forces local authorities to come together and look at issues such as this. Sometimes it can be difficult to get agreement but in the long run it is in the interests of all the communities involved that it actually happens.

I am concerned that as Deputy Gilmore said the rules can be changed at the stroke of a pen. It is important that the legislation is transparent and that it is not open to a Minister to change the goalposts at some future date.

In regard to the fast tracking of controversial projects Deputy McCormack mentioned the issue of incineration. There is concern at local authority level that the local authority cannot consider public health and safety issues or bring in expertise to deal with infrastructural projects such as incineration. That public health cannot be considered to any great extent is a significant failing in the Bill and will come to the fore when the issue of incineration is dealt with in detail. The powers conferred on local authorities should include taking into consideration the public good and health issues. That is not part of the legislation as it should be.

All of these amendments relate to the board's screening decision on whether a proposed development is or is not strategic. We had a long discussion on the matter on Committee Stage and I am happy that the criterion on which the board will base its decisions on whether a Seventh Schedule project is strategic infrastructure are clearly set out in the new section 37A to the 2000 Act. Issues to be considered by the board in reaching its determination include the importance of the proposed development to the relevant region, the contribution the development makes to the fulfilment of the objectives of the national spatial strategy and the national development plan and the potential effects of the development on more than one local authority.

On foot of those discussions we have brought forward amendment No. 13. This amendment will amend the criteria to require that the project would contribute substantially to meeting an objective of the national spatial strategy. Deputy O'Dowd will remember that I agreed to consider doing this on Committee Stage. This makes amendment No. 17 unnecessary as it seeks to do the same.

The other Opposition amendments seek to tie the hands of the board in reaching its decision. Deputy Morgan's proposed amendment would require that a project be listed in the Seventh Schedule and that it meet all the criteria listed. This is too strong a test and would substantially reduce the efficiency gains the new proposals aim to achieve.

The amendments in the names of Deputy Cuffe — amendments Nos. 11, 12, 16, 19 and 20 — Deputy O'Dowd — amendments Nos. 15 and 18 — and Deputy Gilmore — amendment No. 14 — seek to amend the criteria. In particular, they propose that when the board is making its determination on a proposed development, specific objectives and locations should be indicated in the NSS or the new NDP before the development can be deemed of strategic importance. I outlined on Committee Stage the nature of and interrelation between the NSS and the forthcoming NDP because there appeared to be a misunderstanding of the nature of the two policy documents. Due to the nature of both, these amendments are not viable.

I outlined previously that the Government's national spatial strategy sets the national agenda for balanced regional development while regional planning guidelines, RPGs, spell out how the NSS agenda is applied at regional level. Neither is site specific. Instead, they set out a broad framework within which Ireland and its regions can develop to their full potential. The NDP is a funding framework which will be firmly based on the spatial priorities set out in the NSS. These amendments would not work because they propose a level of detail, in terms of precise locations and specific objectives in the NSS, RPGs and the NDP, that does not exist.

It is also appropriate that we should rely on the expertise of the board to make the correct decisions. Deputy Gilmore said the board is involved in make believe, but I know he does not really believe that. There is little point in empowering the board to make decisions of great significance if we insist on micromanaging every step of the decision-making process. This would hardly represent an ideal means of overcoming unnecessary delays in the planning process.

Amendment No. 21 in the name of Deputy Cuffe is a drafting amendment which I will not accept. I appreciate the intent behind amendment No. 22. An extensive range of potential effects of a proposed development is set out in the amendment, but I am satisfied that the term "proper planning and sustainable development" used in sections 37B(3)(a) and elsewhere in the Bill fully embraces these considerations. I will not accept any of these amendments.

Will the Minister address the issue relating to amendment No. 18. The Bill proposes that the development must fall within one or more of the categories. It need not be of strategic economic or social importance, in the national spatial strategy or regional planning strategy, but if it affects two adjoining local authorities it will be included. Why is that?

I remind Deputies that a proposed development must fall within the Seventh Schedule and must meet one of the criteria in section 37A. Not just any development will be deemed strategic. Even if a development falls within the area of more than one local authority, it would still have to be a development of a class listed in the Seventh Schedule. That should overcome any difficulties that might arise.

I take the Minister of State's point, but I do not see a reason to include this. I have no difficulty with including something that is in the national spatial strategy or in the regional planning guidelines. However, I can see no reason to include the provision relating to adjoining local authority areas. There is enough power in the Bill under A and B to do what the Minister of State wants. I accept what he says about the Seventh Schedule. I do not see why he wants to include this because it makes it easier——

I draw the attention of the House to the fact that we are on Report Stage and Members may make a second contribution of only two minutes.

I am satisfied with it. Deputy Gilmore is quite happy and can see the logic of what we are doing here. It is quite logical for us to state that a development must be deemed strategic and that it must be included in the Seventh Schedule. This protects the issue, irrespective of how many local authorities it would straddle.

The Minister of State has significant back-up which will make it difficult for us to win any of these arguments. In amendment No. 10 I seek to unite the three conditions. Currently, one or more of the following applies: the development would be of a strategic, economic or social importance. Strategic or economic importance would obviously cover an incinerator. Would social importance mean that a superpub could be built under the terms of the Bill? Other "or" conditions applying are that the development would contribute significantly to the fulfilment of any of the objectives of the national spatial strategy — Deputy Gilmore outlined adequately paragraph (c) of section 37A — or the development would have a significant effect on the areas of more than one local authority.

These conditions leave the matter wide open as no development could fail to acquire permission under them. I seek to join the three conditions to put some rein on the hands of the board. The Minister of State accepted we are trying to tie the hands of the board. That is exactly what we are trying to do. It is a minor tie because the three conditions are very broad as they stand.

With regard to amendment No. 22, the Minister of State suggested there was a substantial lifting already, but it is not sufficiently substantial and does not deal with the issues I raise in this amendment, particularly the ecological effects of a development which are completely ignored. The aesthetic, historical and cultural effects are also omitted. I want these included to strengthen this area. Amendment No. 22 would strengthen the Bill significantly and it is unfortunate that it will not be accepted.

I wish to refer to the Minister of State's response to my statement that the consultation process provided for in the Bill is make believe. It is make believe. Let us be clear about what will happen. The projects in the Seventh Schedule will get permission from An Bord Pleanála. The only circumstance in which they will not get permission is if a dog's dinner is made of writing the environmental impact study, and that would be very difficult because the developers will go to An Bord Pleanála before making an application, will be taken by the hand and walked through what is required in the environmental impact study. Not one project in the Seventh Schedule would not qualify under section 37A as strategic infrastructure. If there were any doubt about it, there is a separate definition of strategic infrastructure contained in section 6, Part 3 of the Bill. All these projects will qualify as strategic infrastructure and so they are in the tent. In what set of circumstances will An Bord Pleanála, having first decided they are strategic infrastructure, decide to refuse planning permission for them? The only circumstance in which it will decide to refuse planning permission is if the environmental impact survey is totally messed up. We should be honest about the position. The decks are being cleared; the planning process is being cleared. It will remain on paper and remain as make believe. The provisions that the file and the proposals be sent back to the local authority for consultation and allowing this number of weeks for observations, is all codology. Once it qualifies as a strategic infrastructure project and the environmental impact survey is written as guided by An Bord Pleanála, it is a done deal and planning permission will follow.

I cannot envisage An Bord Pleanála making a decision to refuse permission for any of these projects, of which there already is an example. The An Bord Pleanála inspector gave 15 reasons why permission should be refused for the toxic waste incinerator in Ringaskiddy following an oral hearing. This is in the Minister of State's constituency. There were 15 reasons why it should be refused but the board gave it permission. It gave permission in that case because it is this Government's policy to build it. Once the environmental impact survey is written on any of these projects and with all the boxes ticked as guided by An Bord Pleanála, planning permission will be granted.

A lot of guff is being talked in the House about process but the process is fake. This is removing these projectsde facto from real decision making about planning permission. There is not a doubt in the world that any of these projects such as an incinerator, a wind farm, a landfill, a major road, a port or harbour or Greystones marina, will get permission once they qualify under these criteria.

I refer to Deputy O'Dowd's amendment No. 18. I do not dispute the point made by the Minister of State. If it is the case that it must come under the Seventh Schedule, what is the need for writing this if it already comes under the Seventh Schedule? Will the Minister of State state the reason he is stating the obvious?

There is significant concern that local power will be taken away. It is accepted by everyone that critical infrastructure needs to be fast tracked. We are all aware of the numerous delays in the planning and legal process. It must be ensured that not every project will be included in these categories but it seems every project under the sun will fall under some of the categories in one way or another and can then be fast tracked. The right balance must be achieved. We must ensure local people have their say and that they are heeded. Provision must be made for health and safety expertise within the planning process. Local authorities must be allowed take the health implications of a project into consideration. The legislation must be amended to address this issue.

I agree with Deputy Gilmore. I have never seen an environmental impact survey argue against a project. The items listed as critical infrastructure under the Seventh Schedule of the Bill include items of critical importance. Last week, An Bord Pleanála granted permission for an expansion of a water treatment plant and this needs to be implemented quickly. I remind the Minister of State that one must be careful of what one wishes for because it might come true. Will all items listed receive funding? It will be very difficult for the public to understand if a project defined as critical is fast tracked and is then on a list for funding. The planning process and the opportunity for people to interact is being jettisoned. A project might stand on a list for several years before it receives funding.

In answer to Deputy Morgan, a super pub would not come under the Schedule as it cannot be defined as being of any strategic importance. The Government was generous to the Deputy regarding his amendment No. 22 as it could understand the motive for the amendment. The Government is quite happy that the term "proper planning and sustainable development" which is used in section37B(3)(a) and elsewhere in the Bill, fully embraces all the considerations which the Deputy has in mind.

I am quite concerned with some of the terms used by Deputy Gilmore when referring to An Bord Pleanála and that he would describe that organisation as a make-believe organisation——

I did not describe the organisation as make-believe. I described the process which the Minister of State is providing for it as make-believe. The Minister of State should not come between me and An Bord Pleanála.

The Deputy is saying that anything that comes before An Bord Pleanála will be prejudged and therefore it is a make-believe organisation. As such I disagree absolutely with the Deputy.

I did not say it was a make-believe organisation. I said the process which the Minister of State provided in the Bill is make-believe.

The Deputy is trying to turn this Bill and its innovative provisions on its head——

It needs to be turned on its head.

These provisions will provide for better quality planning applications and will provide for better quality environmental impact statements. This will ensure people and communities will have the best possible information available to them.

Just because An Bord Pleanála determines that something is strategic does not automatically mean it will grant permission. Permission will be granted on foot of the application and how it stands up to due planning process. This process will build on the excellent decision-making experience of the board in making the correct decisions about the correct developments in line with proper infrastructural developments. This will provide an opportunity to ensure important strategic developments desired by all sides of the House are fast tracked.

The issues, fears and considerations outlined by the Deputies will be covered in the Seventh Schedule. They will be deemed as strategic projects within that Schedule. It is in the best interests of good planning that where a plan straddles different local authorities, this provision will ensure that proper strategic planning will be in place as a result of this Bill.

Debate adjourned.