Vol. 198 No. 9
I welcome the Minister of State at the Department of the Environment, Heritage and Local Government, Deputy Michael Finneran.
Before we commence, I remind Senators that Senators may only speak once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment.
I move amendment No. 1:
In page 6, to delete lines 18 to 20.
I second the amendment.
Amendment No. 1 proposes the deletion of a definition of the core strategy. However, the evidence-based core strategy is a cornerstone of the Bill as it ensures a sound development plan, which is a key to ensuring good planning at local level, and a central plank to zoning reform. Decisions taken at the development planning stage affect all other planning decisions. This amendment was considered on Committee Stage and my position remains that the proposed amendment is not acceptable.
Amendments Nos. 3 to 6, inclusive, are related and will be discussed together.
I move amendment No. 4:
In page 13, lines 23 and 24, to delete "a vote of not less than two-thirds" and substitute "a majority".
I spoke at length on this on Second and Committee Stages. We in Fine Gael see no logical reason for changing the wording from a simple "majority" to a vote of "not less than two-thirds". Later in the Bill the Minister proposes to reduce the quorum required for An Bord Pleanála, based on the same principle. We feel that leads to a democratic deficit and the legislation as proposed by the Minister gives more power to the minority within local authorities. It should be retained as a simple majority and this is the reason for this amendment.
I second amendment No. 4.
I ask the Minister of State to reconsider it either in this House or in the other House.
Amendments Nos. 3 to 6, inclusive, are related to the issue of the higher two thirds majority as opposed to a simple majority which was discussed at length last week. I found the Committee Stage debate on this issue very constructive and I have reflected further on the issues raised. As I have clarified, it was intended to ensure that any further changes proposed by Members to amendments to the draft development plan that had been subject to public consultation, namely, the second consultation period, were to be subject to a higher approval threshold because such changes would not be subject to any further public scrutiny. It was always intended that a simple majority vote by the members would be all that is required as is currently the case in respect of all other stages in the development planning process as I have already outlined. This is also the position in the case of variations to development plans, namely, where such changes would not be subject to any further public scrutiny. Nevertheless, I am minded to introduce a substantive amendment to clarify further and provide that the voting change to the development planning process will only apply in such instances. Unfortunately, in light of the tight timeframe, it is not possible to revert to the Office of the Parliamentary Counsel with specific proposals to seek further legal advice. I assure the Senator that I have taken fully into consideration his strong input into this element of the debate. I will address it accordingly on Committee Stage in the Dáil and report back to the Seanad at a later stage, in light of the discussions initiated here.
I thank the Minister of State for his response which I regard as fairly positive. He has certainly listened to the debates and the concerns of Senators and their views on this issue. This is fundamentally an issue of democracy running to the heart of local democracy and the manner in which local authorities conduct their business with regard to development plans. The existing legislation is more than adequate in this regard. Every local authority elects its chair and mayor by a simple majority vote. It is the democratic decision of that local authority and it should be no different in this legislation. As this is a strongly held view, I will be pressing the amendment.
Amendment No. 6 is related to amendment No. 5 and both may be discussed together.
I move amendment No. 5:
In page 15, lines 19 to 36, to delete all words from and including "and—" in line 19 down to and including "variation—" in line 36 and substitute the following:
"and a resolution to make any such further modification (other than a further modification recommended or accepted by the Manager) shall require approval by two-thirds of the members of the authority concerned, and in addition such further modification—".
The amendment deals with two issues raised on Committee Stage. First, the Minister of State indicated that his intention was only to apply the two thirds rule to modifications to amendments that would not require further consultation and not to apply it to all amendments to the manager's draft of the development plan. The amendment achieves that purpose. The Bill, as initiated, was too sweeping in curtailing councillors' powers to amend the draft plan.
Second, we seek to ensure the two thirds rule will not apply to modifications to amendments the manager agrees to or proposes. Sometimes amendments are proposed by the manager and sometimes he or she will accept an amendment suggested by someone else. The Bill's provisions mean the manager's amendments will be defeated unless two thirds of councillors vote in favour. A simple majority should be more than adequate at least for the amendments accepted by the manager. The Bill is hugely bureaucratic, as it will make it cumbersome to pass an amendment to which no one is opposed. Such an amendment cannot even be passed by acclamation because a roll call vote will be legally required to establish that two thirds of the overall membership have voted for it. I ask the Minister to accept the amendment.
I second the amendment.
I referred to this issue on Committee Stage. It is ludicrous to seek a two thirds majority when a simple majority is required currently. This provision will give a small rump on a council significant authority and this should not be allowed. A small number of people could block or promote a development. A simple majority is more than sufficient. It has served us well up to now and I cannot see the reason for requiring a two thirds majority other than it might appease the Minister, his colleagues in the Green Party and like minded people who might acquire one third of the votes to block development. I am surprised Government colleagues are going along with this. I hope the Minister of State, following the deliberations he said he would undertake following Committee Stage, will shoot this duck in the water and accept the amendment.
It is no harm to say something a second time even though I thought I made my position clear a few moments ago. Amendments Nos. 3 to 6, inclusive, refer to a higher two thirds majority as opposed to a simple majority. We discussed this at length last week. The debate on Committee Stage on this matter was very constructive and I reflected further on the issues raised. It was intended that any further changes proposed by local authority members to the amendments to the draft plan that had been subject to public consultation, namely the second consultation period, were to be subject to a higher approval threshold because such changes would not be subject to any further public scrutiny. It was always intended that a simple majority vote by the local authority members would be all that was required, as is currently the case in respect of all other stages in the development planning process. This is also the case in respect of variations to the development plans, namely where such changes would not be subject to further public scrutiny. Nevertheless, I will introduce a substantive amendment to further clarify and provide that the voting changes to the development planning process will only apply in such instances. Unfortunately, in light of such a tight timeframe, it was not possible to revert to the Parliamentary Counsel with specific proposals for legal advice. I have taken on board the strong input of Members to this element of the debate and I will address it accordingly on Committee Stage in the Dáil. I will report to the Seanad at a later date in light of discussions initiated here.
On the basis of the commitment given by the Minister of State I will not press this amendment.
Amendment No. 6 has already been discussed.
I move amendment No. 6:
In page 15, lines 29 and 30, to delete "a vote of not less than two-thirds" and substitute "a majority".
I second the amendment.
I move amendment No. 7:
In page 16, to delete lines 10 to 45 and in page 17, to delete lines 1 to 16.
The Minister said during the debate on an earlier Stage that:
. . . the mandatory population threshold for preparing local area plans . . . [should be] raised from 2,000 to 5,000 persons. The preparation of local area plans is resource intensive, involving consultation with both the elected members and the general public. Such resources are best used when an area is likely to undergo significant development on a greenfield site or redevelopment on a brownfield site.
We in Fine Gael believe there is no logic or reason as to why this threshold should be changed. The 2,000 population threshold is sufficiently adequate and communities, villages and towns throughout the country are entitled to have their local area plans formulated by local authorities on a statutory footing, as has been the case up to now. Increasing the population threshold from 2,000 to 5,000 absolves the obligation on an authority to have local area plans for those towns and villages.
As I said during the debates on Second and Committee Stages, every town and village should be entitled to reach its full potential and should have the hope and aspiration to develop to the best of its ability, as should any individual or community.
The Minister of State pointed out that nothing is stopping the local authorities from having local area plans, but this measure effectively will remove the statutory obligation on them to do so. The existing legislation, which provides for a threshold of 2,000, is more than adequate. That is the reason we have proposed this amendment and we will press it.
I second the amendment. I listened to what the Minster of State said during the debate on an earlier Stage. As Senator Coffey said, what is proposed will change the statutory obligation on local authorities. The flooding during the past two weeks illustrated the need to maintain the status quo. Population centres of 2,000 and fewer require their own specific plan. I heard what the Minister of State said because I was in the Chamber when he spoke. There is no rationale for what he is trying to achieve. What is proposed in the legislation in this respect will result in the creation of a two-tier community. A dormant sleeper type development will be created. There is an obligation on the Minister of State, as the responsible line Minister, in conjunction with the authorities to make sure we have a sustainable community-led planning process which allows smaller, urban and rural communities to have their own development plan and local area plan.
I cite the Marsh community, which is part of Cork city, as a microcosm in this respect. If that community was in the middle of rural Cork, it would be absorbed into the wider, bigger catchment area and would be lost and forgotten. That is the fundamental point. I appeal to the Green members in the Chamber not to sell out the small community. It is imperative that the Minister of State listens to this point. This is about creating sustainable communities. It is about helping people in small communities, as Senator Coffey said, to have the plans and aspirations of people living in a big metropolis or a big urban town. If this amendment is not accepted, the situation will be different.
Senator Glynn asked if a matter might be considered when the Bill goes to the other House. If the Minister of State does not accept this amendment, I ask that he reflects upon it and accepts such a proposal in the other House, as this is an important amendment.
The proposal to raise the mandatory population threshold for preparing local area plans from 2,000 to 5,000 persons provoked some good discussion. I recognise the issues raised as to the possibility of no new local area plans being put forward in some instances because the population may fall below the threshold, even though a local area plan would have been prepared previously for an area. I am therefore minded to give this matter further consideration with a view to, if necessary, bringing forward a proposal on Committee Stage in the Dáil and reporting back to the Seanad at a later stage in light of the discussion initiated here on Committee Stage and today.
I appreciate the Minister of State's response. I am pleased he has listened and I trust he will introduce amendments on Committee Stage in Dáil Éireann. We would have preferred the amendments to be tabled in Seanad Éireann and we flagged our difficulty with this matter at an early stage, some weeks ago in the discussion on Second Stage. It is important that Ministers and officials give due recognition to the contributions of Senators to be fair to the Seanad and the input from Senators on all sides. Where genuine concerns are raised concerning legislation we would appreciate if the amendments could be introduced to this House. However, I am willing to accept the thrust of the Minister of State's comments and we will not press the amendment.
Amendments Nos. 8 to 10, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 8:
In page 21, to delete lines 16 to 45 and in page 22, to delete lines 1 to 19.
We propose to delete the sections related to the report of the regional authority and the preparation of draft development plans because of the top-down approach to planning this legislation will foster. All city and county development plans will be required by law to comply with regional authority guidelines. Previously, I outlined that the regional authorities as currently structured do not have the resources to formulate development plans in the same manner, on the same consultative basis and with the same representative basis as local county and city development plans. I pointed out that regional authority members are essentially delegations from local authorities, not directly elected from the regions. They do not advocate the interests of the wider region.
I recognise they have a role in co-ordinating local authorities and the way development plans progress within a given region. However, we believe this is a step too far and that it represents a top-down approach with which we are not satisfied. This is why we propose the deletion of a large section referring to regional authorities. We believe it would create an unfair hierarchy of planning and that a bottom-up approach is preferable. As I outlined previously, improvements are required in planning laws and in the way in which development plans are formulated. However, we believe this is not the correct approach and that it further removes the formulation of plans from local people, communities and local elected representatives, who are directly elected every five years. This is why we propose the amendment.
I second the amendment.
Amendments Nos. 8 to 10, inclusive, are not acceptable for the reasons outlined already. Regional planning guidelines are the linchpin between the national spatial strategy, which sets the broader strategic planning framework at central Government level, and local planning, which sets the local context for development planning and management. The amendments provide for regional authorities to participate in a consultation process in the pre-draft development plan preparation, the draft development plan and variations to the development plan, to ensure a consistency between the plans and the regional planning guidelines in force.
Taking account of the points made on Committee Stage and today, I stress that regional planning guidelines represent a combination of top-down and bottom-up content. While regional planning guidelines are required to give effect to the national spatial strategy objectives at regional level, especially in respect of gateway and hub towns, they also reflect specific regional priorities. These include regional economic strategies to address identified strengths and weaknesses within a region, for example, within the mid west; regional flood management, for example, where a river catchment crosses a county boundary or boundaries; and conservation of built and natural heritage within a region, for example, in areas of high scenic value. These regional priorities are identified by the elected members and the regional planning authority officials and are fed into the regional planning guidelines drafting process at an early stage, that is, the publication of the regional planning guidelines issues paper.
The draft regional planning guidelines are prepared on foot of this public consultation and the feedback from the members of the regional authority will eventually provide approval to go to public consultation on the final draft guidelines. On foot of this second round of public consultation, the draft guidelines are modified as necessary and subsequently adopted by the members of the regional authority as the final regional planning guidelines. Therefore, these amendments are not accepted.
I am disappointed the Minister of State will not accept the amendment. We have serious reservations about this part of the Bill. We believe that in practice it will neutralise the potential of many local authorities because it will make all of them appear bland and the same within a given region. Let us consider any given region. Every local authority in every city or county within that region has their own strengths and weaknesses. This is an effort to have consistency within a region and all local authorities are considered to be the same and will be managed from the top down. We have serious reservations about this in practice.
I move amendment No. 9:
In page 22, to delete lines 20 to 50.
I second the amendment.
I move amendment No. 10:
In page 23, to delete lines 1 to 32.
I second the amendment.
I move amendment No. 11:
In page 23, to delete lines 33 to 49 and in page 24, to delete lines 1 to 16.
I second the amendment.
Amendment No. 11 proposes to delete the proposed amendments to section 28 of the principal Act in respect of strengthening the requirements for the planning authorities to adhere to rather than merely have regard to key statutory guidelines issued by the Minister under the section. The amendments relate to the inclusion of more specific information in development plans and how a plan would implement the guidelines. As I stated on Committee Stage, I will consider the text of this section again and, in consultation with the Attorney General's office, consider whether further amendments are warranted to clarify and strengthen the status of my Department's planning guidelines.
I move amendment No. 12:
In page 26, to delete lines 35 to 39.
Our concern is that reference is made in the section to an inspector. However, no definition or indication is given as to who such an inspector should be. It is not clear whether it is intended that the Minister would have the power to appoint a completely new category of inspector or if it is intended an inspector would be appointed by An Bord Pleanála. This is a technical amendment to bring clarity to the Bill because it is not clear from the wording and it could be open to challenge in future. Our advice is there should be clarity and this is the reason for the amendment.
I second the amendment.
Amendment No. 12 proposes the deletion of the proposed new subsection 31(12) which would remove the selection criteria for the inspector to be appointed by the Minister to report to him or her on the draft direction. There must be an over-arching criteria which would determine if a person is experienced and qualified to act as an inspector for the purpose of reporting to the Minister on planning and development issues. Without such selection criteria, the inspector's report would not have credibility and it could be open to challenge. Therefore, the amendment is not accepted.
I understand the Minister of State's point but he does not define who such an inspector should be, who would have the power to appoint such an inspector, or whether the inspector would be appointed by An Bord Pleanála. Will the Minister of State take this into account when he introduces the Bill in the Lower House? It is a genuine attempt on the part of Fine Gael to bring clarity to the Bill.
The inspector will be appointed by the Minister of the day.
Amendments Nos. 13 and 14 are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 13:
In page 27, line 44, after "public to insert "within 7 days of receiving such direction".
The new section 31(19) to be inserted into the principal Act provides that, "A planning authority shall make a direction issued to it under subsection (16) available for inspection by members of the public, during office hours, at the offices of the authority". However, the subsection does not stipulate when this should be done. Amendment No. 13 suggests it should be done within seven days. No effort is made to specify for how long the direction to which the subsection refers should remain available for inspection. These are basic omissions, particularly as confusion may arise with regard to the amount of time for which the direction should remain available for inspection. A clear timeframe should be set down in the Bill. I am open to correction by the Minister of State but I seem to recall his indicating on Committee Stage that he would examine this aspect of the Bill in the context of either introducing a timeframe or clarifying the position.
I second the amendment. I do not believe there is sufficient clarity in respect of this aspect of the Bill. I look forward to the Minister of State's reply. He indicated on Committee Stage that he would return to us on this matter.
While the new section does not provide for a specific timeframe within which a final direction must be put on public display, I am considering a generic wording which would allow planning authorities to display directions in as timely a fashion as possible. I will introduce any such amended wording on Committee Stage in the Dáil.
We flagged at a very early stage the need to ensure the wording was clear and that, as with the planning process, a specific timeframe was laid down. The Houses can either produce legislation which is understandable and which works or we can produce that which causes great confusion among those — planners or members of the general public applying for planning permission — who will use it on a daily basis. This is a basic omission. There should be clarity. We propose a timeframe of seven days but remain open to suggestions from the Minister of State in this regard.
Members of the House are again proposing genuine amendments designed to try to improve the legislation. However, all we are hearing in reply is that it may possible to amend the Bill when it goes to the Dáil. The Seanad is a separate House of Parliament and Members would appreciate it if Government amendments could be introduced here. After all, the omission in respect of a timeframe was, in the first instance, raised in this House.
This issue has been raised and debated in the Seanad and I am responding in that context. If there is a need to amend the wording, it will be done on Committee Stage in the Dáil. Senators will appreciate that we are obliged to engage with the Parliamentary Counsel and the Office of the Attorney General on matters of this nature. It is not always possible to have matters adjudicated upon and dealt with in a short period. However, it is important to state I provided the House with a commitment to the effect that I would have the matter examined by the Parliamentary Counsel and the Attorney General. I have shown the Seanad great respect.
I move amendment No. 14:
In page 27, line 45, after "authority" to insert the following:
"for a specified period of time which shall not be less than 2 weeks".
I second the amendment.
Amendments Nos. 15 to 19, inclusive, are related and amendment No. 20 is an alternative to amendment No. 19. Therefore, amendments Nos. 15 to 20, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 15:
In page 28, line 36, after "other" to insert "connected".
These amendments are proposed in an effort to bring clarity to the language used in the Bill. Section 35(1)(b) of the principal Act, as amended by section 20(a) of the Bill, makes reference to “any other person”. For the purposes of clarity, this should read “any other connected person or body corporate”. Similar language is used in other legislation and provides a clear definition of the persons covered by the Bill. It is a technical amendment, on which we hope the Minister of State will take on board our genuine view.
I second the amendment.
I wish to speak to amendment No. 18, the objective of which, as we discussed on Committee Stage, is to allow local authorities to refuse planning permission to a developer who has failed to complete a development. We want to deal with rogue builders who do not complete estates because, notwithstanding the Minister of State's claim on Committee Stage that such powers exist, problems clearly arise in that regard. We want to put it beyond doubt that leaving an estate unfinished shall not constitute compliance with a previous permission. The Government amendment No. 6 to the Companies (Miscellaneous Provisions) Bill 2009, which was debated last Thursday, provided for the avoidance of doubt. I want to put the matter of unfinished estates beyond doubt and ask the Minister of State to accept the amendment.
As regards amendment No. 15, the current position allows a planning authority to take account of any information concerning a development carried out by a person to whom the section applies pursuant to the granting of planning permission when deciding whether to refuse permission to a developer on the basis of past performance. To insert the word "connected" would mean that the planning authority could only have regard to development carried out pursuant to a permission granted to the applicant or a connected person. It would mean that the authority could not have regard to development carried out pursuant to a permission granted to a person other than a connected person. The proposed amendment would therefore limit the scope to refuse permission on the basis of past performance and I do not accept it for that reason.
My Department has sought the view of the Parliamentary Counsel on amendment No. 16. Section 18(c) of the Interpretation Act provides: ""Person" shall be read as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of "person" shall be read accordingly". I therefore consider the proposed amendment to be unnecessary.
The Parliamentary Counsel believes amendment No. 17 would lead to inconsistency in the use of the word "any". Amendment No. 18 was discussed at length last week and, as I explained previously, under the current provisions planning permission may be refused to a developer who has substantially failed to comply with a previous permission. A development which is left substantially unfinished would represent non-compliance with the permission. The proposed amendment is therefore unnecessary and I do not propose to accept it. I acknowledge the concerns expressed by Senators about unfinished estates but this is a question of planning enforcement. My Department will further consider whether the enforcement provisions in the legislation require amendment to strengthen the requirements on planning authorities and, if appropriate, I will bring forward an amendment on Committee Stage in the Dáil.
In 2008, my Department issued comprehensive policy guidelines to planning authorities which emphasised the importance of taking all possible steps to compel the completion of estates. These steps include the attachment of appropriate conditions to planning permission on the standards for roads, drainage and public lighting. The guidelines also urged planning authorities to inspect residential developments during or shortly after construction to ensure they are properly completed.
My Department's guidelines on bonds, which were discussed at some length last week, state that the amount of the security and the terms on which it is to be given must enable the planning authority to complete the necessary services in the event of default without giving rise to costs to itself. The guidelines also state that the conditions must require that the lodgment of a security be coupled with an agreement that would empower the planning authority to realise it at an appropriate time and to apply it to meeting the cost of completing the specific work. My Department has not been made aware by planning authorities of any current problem in regard to bonds. However, my officials will liaise with the County and City Managers Association to determine whether problems have arisen and, if so, whether they can assist through, for example, the circulation of relevant advice. Data obtained by local authorities for the recently published fifth annual report on service indicators in local authorities indicate that more than 300 estates were taken in charge by local authorities in 2008. Senators will agree this was a reasonably good performance.
Senator Glynn asked whether I would table a Government amendment on Report Stage to give locally elected members a role in directing county managers to take action against rogue developers. As Senators will be aware, section 140 of the Local Government Act 2001 allows elected members to direct managers to take any action which they may lawfully take as an executive function. The Planning and Development Acts already place clear statutory obligations on planning authorities in regard to unauthorised development. A planning authority must issue a warning letter in response to written complaints about unauthorised developments except in the case of trivial or minor issues. A statutory obligation also exists to carry out investigations and expeditiously decide whether an enforcement notice should be issued. The planning authority's decision on whether to issue an enforcement notice must be entered on the planning register and, in cases where a decision is made not to issue a notice, the complainants must be informed.
Amendment No. 19 is a Government amendment which inserts "accordingly" whereas Fine Gael's amendment No. 20 proposes to insert "on that basis". It is the view of the Parliamentary Counsel that the word "accordingly" is more appropriate and would achieve the same effect as the Fine Gael amendment. I commend amendment No. 19 to the House.
Amendments Nos. 15 to 17, inclusive, and 20 are technical in nature. I welcome the introduction of amendment No. 19 to address the issues raised by amendment No. 20. The Minister of State has repeatedly agreed to consider bringing forward amendments in the Dáil. There is a feeling on this side of the House that we are being treated with a degree of contempt. We raised many of these issues early in the Second and Committee Stage debates. I begin to wonder why the Government initiates Bills here if it will not have clarity and amendments on time for debate here. We saw that the Bill was rushed through Committee Stage and was left open-ended. There is no genuine attempt to accept recommendations or amendments from Senators on all sides of this House. That is not good enough. We have something credible and genuine to offer but to a degree we are disregarded . I hope the Minister of State and his officials might take that on board for future debates and Bills.
The Minister of State mentioned unfinished estates. They are a matter of concern. We spoke at length about major infrastructure such as sewerage and water supply systems in unfinished estates. I am amazed that local authorities are not telling the Minister of State that the bonds are inadequate. Every Senator knows full well that they are inadequate. Under previous planning legislation they were intended to address minor works in finishing an estate such as a missing public light or the final course on a piece of tarmacadam or a section of footpath, or correction of drainage covers. The bonds collected will not cover the finishing of estates which are only half finished or where houses are built with no water supply or sewerage infrastructure. When local authorities have tried to claim the bonds the banks, knowing the legislation inside out, have known full well that the planning permission must run its full term.
The Minister of State will put an amendment to increase the term for planning permission up to five years. This will have implications for unfinished estates because the banks that hold the bonds for those planning permissions will be within their rights to retain the bonds until the full five years of that extended permission passes. This will create many problems for those living in estates who are lobbying hard to have those estates taken in charge by the local authority or to have the local authority force the developers to finish the estate. The Minister of State and his officials need to be aware of the implications of this Bill and its impact. I can understand why he is tabling an amendment to extend the permission to five years but will address that later. It will, however, have an impact on unfinished estates and delay the rights of council to draw down the bonds which are totally insufficient.
I suggest that the Minister of State issue a circular to all local authorities. There is no reason why the Minister for the Environment, Heritage and Local Government, who issued a circular to local authorities about councillors' expenditure on conferences, should not issue a similar circular on a major issue such as unfinished estates and bonds, requiring them to submit or furnish information regarding the number of unfinished estates in their jurisdictions, the amount of outstanding bonds due to them and their view on whether those bonds will be adequate to finish the estates to an acceptable level. Many issues surround this section that will have far-reaching implications. One of the biggest challenges facing local authorities and councillors and more important, their communities who live in these unfinished housing estates, is trying to finish those estates. This requires the Department's and Minister's special attention. He could in early course send out that circular and get the information in as soon as possible. I am amazed that local authorities are not telling the Minister of State that bonds are an issue because they most certainly are a serious issue.
Much has been said about unfinished estates and it is widely acknowledged that they pose a major problem. The Minister of State contends that the power exists and that the problem lies in planning law enforcement but the problem does exist. He says that our amendment No. 18 is not necessary. What is the problem in putting the phrase we suggest into the Bill, even if an interpretation of the phrase "not in compliance with a previous permission" could include unfinished estates? Given that in so many cases it has not been used as it should be, why can the Minister of State not accept our amendment? This is a very important aspect of planning and is a daily problem for communities and residents of estates. It is so important that we ask the Minister of State to reconsider his view and accept this amendment.
I reject totally the suggestion that I am treating this House with contempt as Senator Coffey indicates. I have given the view of Parliamentary Counsel on three of the four amendments with which we are dealing. That is a fair achievement since last Wednesday. Any changes or amendments made in the Dáil will have to come back to this House because the Bill originated here.
In response to Senator Ryan I acknowledge the concerns of Senators about unfinished estates and planning enforcement. My Department will consider again whether enforcement provisions of the Act require amendment in order to further strengthen the requirements of the planning authorities. If appropriate I will bring forward an amendment on Committee Stage in the Dáil. Any such amendment will be open to debate at a further Report Stage in the Seanad. I thank the Senators for their contributions.
If there is a deficiency in bonds in some local authorities they are not following the guidelines that my Department issued in 2008. The local authorities have a responsibility to ensure they are implemented. They are sent out as guidelines from the Department and the bonds are supposed to cover all the areas I mention. I am prepared to consider this in respect of unfinished estates. I appreciate the points being made. Senator Ryan made a strong case about this on Committee Stage. I am prepared to take further advice on it if we need to strengthen the requirements of the local authorities in regard to the enforcement provisions of the Act.
I move amendment No. 16:
In page 28, line 36, after "person" to insert "or body corporate".
I second the amendment.
I move amendment No. 17:
In page 28, line 41, to delete "any".
I second the amendment.
I move amendment No. 18:
In page 28, line 47, after "development," to insert "has failed to complete a development,".
I second the amendment.
I move amendment No. 21:
In page 30, to delete lines 5 to 24.
I second the amendment.
Section 21 amends section 37H(2)(c) of the principal Act providing for the extension of cost recovery to pre-application scoping requests for environmental impact assessment for strategic infrastructure development cases under the Seventh Schedule of the principal Act. This is in addition to cost recovery which is already in place for the strategic infrastructure cases that proceed to a full application and determination by An Bord Pleanála.
Senator Coffey opposed the entire section on Committee Stage on the basis of his concerns regarding costs and public confidence in the determination of such costs. On Committee Stage, I confirmed that the applicant pays principle is the basis for the payment of costs under the strategic infrastructure Act. This section provides for the recovery of costs associated with the pre-application stage for strategic infrastructure cases. I also clarified that such costs can be offset against the formal strategic infrastructure application fee for those cases that proceed to a determination by the board. We must remember that we are generally talking about large-scale strategic infrastructure projects in this instance. It is unrealistic to expect the Exchequer to have to foot the bill for these costs.
Amendments Nos. 22 to 25, inclusive, are related and may be discussed together. Is that agreed? Agreed.
Section 23 replaces section 42 of the principal Act. The section provides for the extension of permission for a period not exceeding five years in circumstances where substantial works have not been carried out but where there were commercial, economic or technical reasons beyond the control of the applicant which substantially mitigate against either the commencement or the development of the carrying out of substantial works. On Committee Stage, I outlined the general purpose and intent of section 23, which provides for the extension of planning permissions in certain circumstances where substantial works have not been carried out. I undertook to come back on Report Stage with an amendment which would set out more explicitly the conditionality attached to these provisions. Amendment No. 22 now substitutes section 23 and will require the planning authority having to satisfy itself that there have been no significant changes in development objectives in the development plan, or in the regional development objectives in the regional planning guidelines, for the area of the regional authority since the date of the permission, such as the authority would not, as a result of these changes, grant an application for permission for the development as being in material contravention of the proper planning and sustainable development of the area of the authority.
On amendment No. 23, I can confirm I have sought the advice of the Parliamentary Counsel with regard to Senator Coffey's proposed amendment to delete "each of" from line 8 of page 31. As I understand it, Senator Coffey's concern that the use of the aforementioned "each of" could possibly conflict with the use of the word "either" in paragraph (a) on line 9 and with the use of the word “or” in line 19. I am satisfied, having received legal advice, that no such conflict arises as the use of the word “either” and “or” arise only in the context of paragraph (a). It remains the case under the amended section 42(1) that each of the requirements under paragraphs (a) to (d) must be complied with.
While I can see where Senator Coffey is coming from in regard to amendment No. 24, in practice it would be very difficult for a planning authority to determine the number of jobs that the use of a proposed development would create. However, I would propose to use the statutory guidelines that will accompany this provision to ensure that the planning authorities have regard to the employment potential of developments where applications for an extension of permission are being considered.
On amendment No. 25, as I indicated on Committee Stage, there are many instances throughout the planning Act where entries must be made on the planning register. Generally, no time limit is prescribed for making entries on the register or it is stated that the entry must be made as soon as may be, that is, as soon as possible. I do not see any reason why a time limit of one week should be put on the entry of these particular details on the register when the registration of other details is not subject to a time limit. Accordingly, I cannot accept amendments Nos. 23 to 25, inclusive.
Amendment No. 22 is a substantial Government amendment. We on this side of the House outlined on Second Stage that we felt this Bill was not complete and we forecast it would be heavily amended by the time it would leave the Seanad. That has transpired and, as the Minister of State said, it will be amended further by the time it gets to Dáil Éireann.
I referred earlier to bonds and the extension of the planning permission, and I wish to clarify the point further. Bonds generally remain in place until an estate is taken in charge by the council. In some cases, developers got into difficulties after a year or two of development and there were calls for the council to call in the bond in order to finish works on lighting, paths, green areas and even sewerage networks. The bond does not allow for this and the legal advice is that unless it is specifically made a condition that something must be done by a particular date, the bond will last for the full length of the planning permission, which is normally five years. Once a development has substantially commenced, a developer is entitled, by law, to seek an extension to complete it and the council must grant such an extension, usually for up to two years. The legal advice is that the council cannot try to use the bond unless it has given the developer the opportunity to finish the development in the extended period allowed.
We have the case that the period will be increased by a further five years under the new planning Bill. Local authorities will be caught in a catch-22 and residents will not be able to understand why they cannot act. Legal advice indicates that it would also be pointless for local authorities to try to acquire the bond if they have not gone down the enforcement route first. In some instances, heavy enforcement by the council would put many developers out of business, which would be in nobody's interests, as the council would still not have the money to finish the estate. There are implications in this for those living in unfinished estates with the extension of the period of planning permission from two to five years. I can understand why an effort is being made to do this from an economic perspective. I presume that in the current economic climate the hope is the economy will recover to a degree and enable developers to finish estates. The downside is that local authorities will be restricted in trying to secure bonds when developers do not finish estates and where the extension of the period of planning permission is required. I am marking the issue for the Minister of State's attention.
I take on board the legal advice given to the Minister of State on amendment No. 23. We were trying to ensure clarity on the wording and did not consider there was a need for the inclusion of the words "each of" and "either". In the light of the Minister of State's comments, we are willing to withdraw the amendment.
The Minister of State referred to amendment No. 24 and has said he understands from where we are coming. Planning authorities should not be limited to considering factors which conspire to prevent development, be they commercial, economic or technical. They should be entitled to consider the proposed use of the development and whether such use is likely to lead to the creation of long-term and sustainable employment. Within the current economic climate the generation of employment is critical. Development which stimulates long-term job opportunities must be protected and encouraged by the planning system. That is the reason we are proposing amendment No. 24, as it would allow planning authorities consider whether the proposed use of a development would lead to the creation of at least ten full-time jobs. The Minister of State has indicated that the thrust of the amendment will be considered in guidelines. We look forward to such a provision. Will the Minister of State clarify his intentions in that regard?
Amendment No. 25 is proposed in an effort by the Fine Gael Party to bring further clarity and a definitive timeframe to the Bill. All planning practitioners, including planners, architects and draftspersons, and the general public should be clear on the defined time limits specified in the planning Bill.
I will make two points. With regard to determining the number of jobs to be created through the use of a proposed development, I have said I am prepared to consider statutory guidance in that respect to accompany the provisions included. Members will see that with the Government amendment, a local authority will have much discretion with regard to an extension. It is a matter for planning authorities to tie down the issue in the event that an extension is granted. I would be amazed if a local authority did not write into the permission for an extension that there be some contract with regard to the bond. I will have the matter looked at, as I do not want there to be a loophole when people are granted an extension that would lead to the bond going by default. That is not the intention. I will take advice on the matter and see if that is the case; if it is, I will have something further to say on Committee Stage in the Dáil.
As amendment No. 22 has been agreed to, amendments Nos. 23 to 25, inclusive, cannot be moved.
I move amendment No. 26:
In page 32, between lines 35 and 36, to insert the following:
"(i) the provision of facilities for physical activity to promote a healthy lifestyle.”.
I know the Minister of State spoke on Committee Stage about how he supported the concept behind this amendment but he decided not to proceed with it at that stage. I was disappointed about that. I have an American friend who loves ice cream. However, he feels very guilty whenever he has one but he is also a keep fit merchant. Whenever he has an ice-cream cone, he obliges himself to walk 5 km. He actually says it is 3.5 miles but I will stick to kilometres. The reason I say this is if we provide space for exercise, we are likely to avail of the facility. With many of the Americans I think of, he talks very strongly about prevention rather than cure when it comes to health issues. There is the fundamental question of promoting a healthy lifestyle and exercise. In that regard, we must allocate space to allow people to engage in such activity. I have read the Minister of State's comments made on Committee Stage. He indicated that planning authorities might levy a charge but we have an obligation, when developing, to make sure space is allocated. We are not talking about the provision of facilities but the provision of enough space to enable people to walk, run or cycle. It would not have to be a large space, but we should not develop in the future without taking this matter into account.
Obesity poses one of the major threats to 21st-century lifestyles. If we are to make a healthier lifestyle a way of life for our population, we must give people opportunities. This would be one of the simple ways of achieving such a goal and it would not carry a cost. The amendment merely stipulates that space should be provided. It is worded simply and seeks "the provision of facilities for physical activity to promote a healthy lifestyle". It would not place a heavy onus on anybody. It could include area in which people could do physical jerks in the morning, if they wanted to. The provision is worthy of support. I will be disappointed if the Minister of State responds in the way he has responded to a number of requests that he may take it into account and make changes in the Dáil. I remember when he was in this House and know he realises the importance attached to having a decision made in this House, particularly with a Bill introduced, amended or discussed in the Seanad. I will not use the words of Senator Coffey but it would show a certain degree of respect for the work put into legislation in this House.
I urge the Minister of State to seriously consider the amendments which he has said he may take into account. If we have an amendment proposed in this House, it should be given consideration here rather than in the Dáil. There may be occasions on which provisions need more attention but I urge the Minister of State to give serious consideration to the amendment I have proposed and accept it.
I second the amendment, as it makes a clear statement of intent. We are used to local authorities dealing with the provision of obvious infrastructure and services; the legislation mentions substantial works, refurbishment, upgrading and enlargement, as well as the replacement of roads, car parks, sewers, wastewater and water treatment facilities. I also welcome the inclusion of high capacity telecommunications infrastructure such as broadband which in this day and age is as essential as any other major service in a development. The provision of school sites is also an important inclusion. We welcome all these provisions.
However, Senator Quinn has raised an important issue and perhaps we should send out a clear and strong message in the legislation that local authorities should be required to consider the provision of facilities for physical activity. One of the biggest challenges facing society today is the rise in diabetes, obesity and other illnesses related to inactivity. It makes sense for us to promote a healthy lifestyle infrastructure. While on holiday in the North of Ireland during the summer, I noted that not only were parks provided in local areas but outdoor gym circuits were provided in the parks. This physical infrastructure promotes a healthy lifestyle. Not only were people walking in the parks, they were able to exercise because of the provision of the physical exercise infrastructure.
This is a good amendment. It encourages all of us to think outside the box about providing physical exercise infrastructure. It would certainly be no harm to encourage local authorities, through making it a requirement in law, to include the provision of such facilities for communities. They can only do good. They are not overly expensive and would not involve huge costs for developers, local authorities or whoever would ultimately pay for them. During the Committee Stage debate I was one of those who raised concerns about the implementation of the infrastructure requirements of the Bill and about where the costs would lie eventually. I warned that first-time buyers might have to pay for much of the essential infrastructure. I am sure they would welcome a small amount of the moneys they pay for their houses being spent on facilities for physical activity. This would be bring a healthy, long-term sustainable benefit for them and local authorities. I second the amendment.
The Labour Party strongly supports this worthy amendment, especially at a time when there is a growing level of obesity, particularly among young people and adults. We urge the Minister of State to accept the amendment in the Seanad and not to defer it until the legislation comes to the Dáil.
Section 24 amends section 48 of the principal Act which provides for development contribution schemes to be drawn up by each planning authority and approved by the elected members following a public consultation process. The Bill redefines the definition of public infrastructure and facilities to provide local authorities with greater flexibility to use development levies, if needed, on a broader range of infrastructure such as flood relief work, broadband provision and school sites. Amendment No. 26 seeks to extend the definition of "public infrastructure and facilities" further to include the provision of facilities for physical activity to promote a healthy lifestyle. We discussed this amendment in detail on Committee Stage.
The Planning and Development Acts already provide for the provision of facilities for physical activity. There is nothing to prevent the locally elected members including such facilities in the development contribution scheme, if they so wish. The Minister has already stated his intention to provide statutory guidance under section 28 of the planning Acts with regard to development levies. This guidance will provide the appropriate mechanism to elaborate further on what is meant by recreational facilities and will include specifically, but not necessarily be confined to, the provision of facilities for physical activity to promote a healthy lifestyle. It is the reserved function of the elected members in each authority to specify the nature of such facilities in their adopted scheme. On that basis I will not accept the amendment.
I would like to put some additional information on the record. Section 48(1) of the Planning and Development Act 2000 provides that a planning authority may, when granting a permission under section 34, include conditions for requiring the payment of a contribution in respect of public infrastructure and facilities benefiting development in an area of the planning authority and that is provided, or that it is intended will be provided, on behalf of a local authority, regardless of other sources of funding for the infrastructure and facilities.
Section 48(17) of that Act defines public infrastructure as "(a) the acquisition of land, (b) the provision of open spaces, recreational and community facilities and amenities and landscaping works, (c) the provision of roads, car parks, car parking places, sewers, waste water and water treatment facilities, drains and watermains, (d) the provision of bus corridors and lanes, bus interchange facilities (including car parks for those facilities), infrastructure to facilitate public transport, cycle and pedestrian facilities, and traffic calming measures, (e) the refurbishment, upgrading, enlargement or replacement of roads, car parks, car parking places, sewers, waste water and water treatment facilities, drains or watermains, and (f) any matters ancillary to paragraphs (a) to (e)”.
Section 48 of the Planning and Development Act 2000 provides for development contribution schemes to be drawn up by each planning authority and approved by the elected members following a public consultation process. It is a matter for the members of the planning authority to determine the level of contribution and the types of development to which they will apply. Planning authorities may levy development contributions in respect of public infrastructure and facilities provided by, or on behalf of, the local authority that benefit development in the area, including recreational facilities. It is a reserved function of elected members in each authority to specify the nature of such facilities in their adopted scheme. I wanted to put on the record that local authorities have a reserved function pertinent to this situation and the opportunity is there for them to avail of this facility.
I am disappointed. What I am trying to do is to ensure physical exercise as a recreational activity is put on the same level as some of the other areas mentioned by the Minister of State, for example, broadband and car parking spaces. These are important provisions but they have been included in the Bill. I suggest that prevention is better than cure and if we want to promote a healthy lifestyle, it is important we send out the message that exercise and physical activity are good for people.
The Minister of State covers the issue by saying there is nothing to prevent local authorities from providing facilities or that the planning authority may provide them. I can understand the importance of specifying that they must provide water mains, but broadband and car parking are also considered important enough to be included in the Bill. However, when it comes to providing that we ensure there is somewhere where youngsters or adults can exercise to prevent obesity and ill health, it has been decided not to provide for that in the Bill. Instead, all that is provided is that the planning authority may make provisions.
I am disappointed but I hope the Minister of State will consider the amendment. I would prefer to see the amendment accepted in this House but the case has been made and has been supported strongly by a number of Senators, including Senators Ryan, Coffey, Mullen and Coghlan who have spoken eloquently on the issue, as did some Members on the Government side of the House on Committee Stage. I urge the Minister of State to consider the matter further. It is worthy of that. I will not push it to a vote now but hope the Minister of State will reconsider it between now and Committee Stage in the Dáil.
I am very conscious of what Senator Quinn has said, which was supported by other Senators. I do not have any conflict with the concept or principle of the amendment. What I am saying is that already, under section 48(17) of the principal Act, there is provision for open space, recreational and community facilities, amenities and landscaping works. I am also conscious, as somebody who worked in the local authority system, of the reserved functions of local authority members and their entitlement under the levy regime. However, as Senator Quinn has requested, I will ask the Parliamentary Counsel to check whether there is an opportunity available, without infringing on someone else's authority, to deal with this matter. The Senator will be conscious of what I mean by that in so far as there are already reserved functions. I will ask whether there is any opportunity for me to make any further provision by amendment.
I have already indicated I am prepared to provide for this by way of guidelines. This guidance would provide for the appropriate mechanism to elaborate further on what is meant by recreational facilities and will specifically include but not necessarily be confined to the provision of facilities for physical activity to promote a healthy lifestyle. I am prepared to do that which I believe I am entitled to do by guidelines to the local authority. I will have the matter investigated further to see if there is another opportunity for amendment and I will revert to the House if this is dealt with on Committee Stage in the Dáil.
I move amendment No. 28:
In page 33, to delete lines 3 to 38.
This was debated at length on Committee Stage and many Senators spoke on it. We are opposed to the reduction of a quorum of An Bord Pleanála from three to two. There is no reason for this change. The rationale given by the Minister of State previously was that the workload of the board required the quorum to be revised downwards to allow more efficiency and throughput in appeals. A quorum of two is a very strange proposal as deadlock can arise in such situations and in that case it will be referred to a quorum of three in any event. We do not see the reason for the requirement as it gives more power to individual members of the board and I have outlined difficulties that have come to light recently with regard to An Bord Pleanála and accountability of decisions within that structure. I urged a review and a reform of An Bord Pleanála but that is for another day. I ask the Minister of State to consider this view. We do not see the reason for this proposal to reduce the quorum in An Bord Pleanála from three to two.
I second amendment No. 28. It is ludicrous to suggest that the workload of An Bord Pleanála demands that there be a quorum of two in these instances. I have not heard of a quorum of two for playing tiddlywinks. This proposal is an absolute disgrace and could lead to deadlock in many cases unless there is collusion between the two people to agree. It is a dreadful situation to propose such a quorum of two persons. For instance, two members of the technical side of the board who are technically qualified in a particular area may have the same technical ability in that both may be architects or solicitors. The board is supposed to have a spread of membership. It would be a disgrace if the quorum for making decisions is to be two people. Fine Gael will be pursuing this matter. I ask the Minister of State to take consider the points being raised because it is ludicrous to suggest that two people would comprise a quorum.
The way this Bill is being handled in this House is an absolute disgrace. This Bill should not have come into this House if it was not proper. It is being rushed through the House from Second Stage to Committee Stage. A week has elapsed and nothing has happened with regard to the points we have raised. I do not blame the Minister of State who is present. This Bill is being rushed through the House. Reference has been made to the Parliamentary Counsel being consulted but at the same time no cognisance has been given to the amendments from this House and this is unacceptable. When the Bill goes to the other House there is no guarantee it will not be guillotined there as has happened to so many other Bills. It will return to this House with amendments made by the Minister of State. What is behind the rushing of this Bill and the manner in which it is being dealt with in this House? It is an absolute disgrace.
I reject completely the assertion of any disrespect to this House or that the Bill is being rushed. Of the 31 amendments in front of this House, owing to proper investigation and judgment by the Parliamentary Counsel and Attorney General, approximately six need further study by those offices. It is appropriate this is done so that the proper response to amendments is given. Legislation is not treated differently in this House compared with the other House. Any Bill must return to the House in which it was initiated. Any of the responses we are dealing with tonight are as a result of debate in this House. I have given all the time necessary to this Bill. I have given the responses of the Parliamentary Counsel and the Attorney General on the amendments they have dealt with.
Section 28 refers to section 108 of the principal Act which relates to the quorum of An Bord Pleanála. It is now proposed to assist the board in achieving efficiencies of operation by providing a reduction of the current statutory required quorum of the board members from three to two for the purposes of determining certain classes of routine cases. Fine Gael Senators opposed the entire section on Committee Stage on the basis they are not convinced that the reduction in the quorum will solve the issue of time delays in the process. As I have stated on Committee Stage, this provision is a flexible facilitation mechanism for the board. It is estimated that more than 60% of the current case load will be affected by this proposal, offering a significant potential for improved performance. It would also allow for more board time to be allocated to complex and economically significant cases. I have also outlined the appropriate safeguards in place in the event of a disagreement. For these reasons I commend section 28 to be part of the Bill.
The chairperson or the deputy chairperson of the board will have the power to recommend which cases are suitable for a reduced quorum. Cases as outlined are outside the proposed provision. The provision of this amendment will not apply in respect of the following case types: developments that would materially contravene the relevant development plan, strategic infrastructure development or a development or class of development referred to in the regulations made under section 176 EIA type developments. If there is a meeting with a quorum of two and it is evenly divided on a vote, the matter should be referred to a meeting where there is a quorum of three. The board has achieved a significant reduction in its caseload backlog, moving to 1,653 cases on hand, a decrease of 43%, compared with the 2,900 cases for the same period in 2008. The board's 18-week compliance rate for 2008 was 23%. It is envisaged that in the coming months this will double to 50% and will continue to rise in 2010, aided by this amendment of the principal Act.
The matter of the determination will be as a result of the inspector making his or her recommendation to the board. In other jurisdictions cases such as this are dealt with by an inspector and do not go to the board at all. We still continue to have two members of the board adjudicating after the inspector has made his or her recommendation and that the chairperson has decided in those cases it is suitable to go for a quorum of two persons.
I refer to the comments of Senator Cummins. Those of us on this side of the House understand and appreciate that clarifications and consultations must take place with the Parliamentary Counsel and the Attorney General with regard to amendments before the House. We fully understand this is part of the parliamentary process. We have a difficulty with the Bill being rushed through the House. It is fair enough that the Minister of State must await advice from the Parliamentary Counsel or the Attorney General but Report Stage should not have been taken until these consultations had been finalised. That would show more respect to the House and make it more relevant if Report Stage had been delayed. I do not blame the Minister of State because the ordering of business is the cause of the problem. Account needs to be taken of this when dealing with future legislation. If advice is needed from the Parliamentary Counsel on amendments tabled by the Opposition, we should be given the benefit of that advice when the various Stages of a Bill are being taken. That is our problem. We appreciate the Minister of State needs clarification.
With regard to the efficiencies achieved by and throughput of An Bord Pleanála, the Minister of State outlined the logic behind this section but in a few years will Bills be introduced to reduce the quorum to one, as happens in other jurisdictions? That is not the way we should go. We are supposed to have an objective and impartial appeals body, which is supposed to reflect a cross-section of views in society. Some commentators argue rural Ireland is not adequately reflected in the appointees to An Bord Pleanála but that is a debate for another day. The number of appeals must be slowing down in the current economic climate. Staff numbers in planning departments of local authorities have been cut from ten or 12 to two or three and, as a consequence, the number of appeals to the board will reduce significantly. Is this legislation being introduced after the horse has bolted?
Perhaps this is not the correct way to deal with the achievement of efficiencies within An Bord Pleanála. If the Minister of State and the Department are serious in this regard, they should review how the board does its business. Reform of the board could be considered in separate legislation. This is not the proper Bill to insert such a provision. It will not achieve significant efficiencies; it will interfere with the powers of members of the board. I have a difficulty with this and will press the amendment.
I concur with my colleague's remarks, especially in regard to the Parliamentary Counsel and the Attorney General. I accept the Minister of State's bona fides but if he is seeking opinions from them, Report Stage should have been delayed until the advice had been provided. He has stated inspectors' decisions have been accepted on many occasions but, in some cases, their decisions have been overturned by the board. Providing for two members to adjudicate on such decisions is insufficient. It does little for openness and transparency. Will the Minister of State revisit this issue? Staff numbers have been decimated in planning departments because fewer planning applications are being made, yet the Minister of State proposes to reduce the number of board members making decisions on appeals from three to two. This proposal is ludicrous.
The reason five or six amendments remain to be dealt with by the Parliamentary Counsel is my accommodation of Members.
I understand that.
I have indicated as the Bill has progressed through the House that I am prepared to examine issues where there is a good, solid debate on them. I spent almost 14 years in the House and when I see a good, solid debate on an issue, rather than accept my brief, I take Members' comments on board and state I will examine them.
We accept the Minister of State's bona fides.
Of the 31 amendments tabled on Report Stage, I received a response on 25. Six need further investigation.
The Minister of State does not order the business of the House.
The Minister of State to continue, without interruption.
The reason I have asked the Parliamentary Counsel to do additional work is I am satisfied good points have been made in the House and I would like them to be teased out. I indicated I would address Senator Quinn's amendment which addressed a new issue.
An Bord Pleanála's 18-week compliance rate in 2008 was 23% and, with this measure, is expected to increase to 50%. Inspectors' reports are forwarded to board members. A total of 11% of cases are rejected by the board and, by and large, they are significant. A determination can be made by the chairman or vice chairman on whether cases are suitable for forwarding to a two-person board. If there is a conflict between the two members concerned, the case will revert to a board meeting comprising three members. The measure is designed to increase the efficiency of the board and meet the 18-week guideline, for which everybody is crying out. My Department and I have received strong representations about meeting the deadline. I would like the 18-week compliance rate to increase from 23% to 50% and, ultimately, 100%. The measure is proposed to effect this.
I move amendment No. 29:
In page 33, between lines 38 and 39, to insert the following:
"29.—The Principal Act is amended by the insertion of the following section after section 151—
"151A.—Where, following complaint by a person relating to a breach of this Act, a planning authority fails or refuses to take measures under this Act by way of planning enforcement, the person may appeal such failure or refusal to An Bord Pleanála, which may on such appeal give such directions to the planning authority in relation to its functions as it considers appropriate."."
We had a good discussion on the consistency of planning enforcement right through from Second Stage to Committee Stage to Report Stage. Planning enforcement is probably the only area in planning legislation where no appeal mechanism exists. The Minister of State will recall we tabled an amendment on Committee Stage, which was more of a general nature, proposing that local authorities put in place measures to provide consistency in enforcement. I gave a commitment on Committee Stage to bring forward a more specific amendment. Given that the amendment has only been tabled on Report Stage, I wish to record that we want to insert in the principal Act that "Where, following complaint by a person relating to a breach of this Act, a planning authority fails or refuses to take measures under this Act by way of planning enforcement, the person may appeal such failure or refusal to An Bord Pleanála, which may on such appeal give such directions to the planning authority in relation to its functions as it considers appropriate".
The amendment deals with the matters we discussed on Committee Stage. Senator Glynn had some support for the thrust of a similar amendment tabled on Committee Stage. We believe this is a good amendment, it addresses the issue and I ask the Minister to accept it.
I second the amendment.
In view of the substantial obligations that planning authorities already have in regard to enforcement, I do not support the creation of an appeals mechanism, as proposed. In any case, this would result in a whole new area of work for An Bord Pleanála, which would be required in each case to inspect the development, review the entire dealings with the issue by a planning authority etc. This would have some serious implications for the board's work in dealing with planning appeals. Nevertheless, in view of the concerns expressed by Senators on the issue of planning enforcement, my Department will consider again whether the enforcement provisions of the Act require amendment to further strengthen the requirements on planning authorities.
I addressed this matter in my reply to amendment No. 18 in the name of Senator Ryan and other members of his party. Other Senators, including Senator Glynn, commented on this matter on Committee Stage and perhaps on Second Stage.
I have asked the Parliamentary Counsel to examine if some extra provision as regards enforcement can be made in the Act. I will bring forward such a provision on Committee Stage in the Dáil, if that transpires to be the case, and report back to the House. I thank the Senators for bringing forward this proposal. I appreciate this is a topical and current issue but I also reiterate there are existing provisions regarding enforcement. If I get clearance on this from the Parliamentary Counsel, we will examine this proposal.
Under the planning Acts there is a clear statutory obligation on planning authorities in regard to an unauthorised development. It is important to state that because they have a responsibility in this area. A planning authority must issue a warning letter in regard to written complaints regarding unauthorised developments or other unauthorised developments of which it becomes aware, except in the case of a trivial or a minor development. There is also a statutory obligation to carry out an investigation and expeditiously decide whether an enforcement notice should be issued. The planning authority's decision on whether to issue an enforcement notice must be entered on the planning register and in cases where it is decided not to issue an enforcement notice, any complainant must be informed.
My Department's development management guidelines for planning authorities issued in June 2007; the statutory guidelines issued, under section 28 of the planning Act, recommend that enforcement notice should issue in all cases where an investigation has established that unauthorised development is being or has been carried out, unless there are compelling and defensible reasons for not doing so, and the persons who do not comply with this enforcement notice should be prosecuted in all cases.
A problem arises with the possibility of an enforcement officer being able to have the fall back position of resorting to the phrase "a trivial or a minor matter". This is one person in the planning system who can decide this is a trivial or minor matter. Nothing the Minister of State said gives me any comfort in terms of putting in place an appeals mechanism. We need an appeals mechanism for people. As the Minister, Deputy Gormley, said during the debate on an earlier Stage, planning is about people. If the person on the ground does not have the means to appeal a decision, it is not satisfactory.
I am not making a charge against any enforcement officer, but the existing provision in this area lends itself to one person deciding a development is trivial. Therefore, how can that be fair? We must have an appeals mechanism available in every matter of life and legislation. In his initial response the Minister of State said we cannot have this. To where else can a person appeal in the planning process if not to An Bord Pleanála? He seems to have already discounted the possibility of having an appeals process to An Bord Pleanála. If an appeal is not allowed to An Bord Pleanála, to where can it be allowed? If there is to be provision for an appeals mechanism, can one appeal up the ladder in the local authority structure? I tried that in a case in which I was involved. I went from an enforcement officer, to the director of services, to county manager and the answer I got was "sorry, that is a delegated power". Therefore, one does not get anywhere with that process.
It is essential we have an appeals process in planning legislation. This is probably the one element of planning legislation where we do not have an appeals process. This is an important aspect. I ask the Minister of State to reflect on it and not to discount, as he seems to have, the possibility of an appeals mechanism to An Board Pleanála. We have already decided on one aspect of this legislation, where the Minister of State has reduced the quorum from three to two. I would not have a problem with the quorum being reduced from three to one for the purpose of this specific aspect of appeal, but there must be an appeals mechanism.
I very much appreciate the heartfelt contributions made by Senator Ryan and the difficulties he and perhaps other Senators have encountered. I do not support the creation of an appeals mechanism, as proposed, because of the workload it would add to An Bord Pleanála. I am conscious of the contributions the Senator has made in this regard not only on this Stage but on Committee Stage. I know they are based on good solid cases. I will try to ascertain, through the Parliamentary Counsel and the Attorney General, if it possible for me to enhance the provisions on the enforcement side. I am not closing the door on anything here. I do not support the proposal on the basis of how it would affect the workload of An Bord Pleanála, but that does not exclude the Parliamentary Counsel from coming up with some solution, if they can, on this matter. Senators will have an opportunity to consider the legislation again in this House and it is possible matter will be teased out in the meantime on Committee Stage in the Dáil. I have been involved in planning for almost 30 years, including 23 years in a local authority and as part of my work in the Department at present. I am conscious of the points made by the Senator of the difficulties that arise and what determines a minor infringement. I take the point also that a planning officer may make a decision which may be considered a delegated responsibility but it may go no further. I will give this matter attention and request that it be examined to determine if a solution is possible without piling a good deal of extra work on An Bord Pleanála. As I remarked earlier, there was 23% efficiency in 2008 and with these revisions I am attempting to reach 50% efficiency by 2010. However, I will consider if we can address this issue one way or another but I am in the hands of the Attorney General and the Parliamentary Counsel.
It becomes a problem only if the local authority does not do its job.
That is if the local authorities carry out the provisions of enforcement. This is the reason I have stated I am prepared to consider if it is possible to strengthen further the requirements of the planning authorities. If needs be, I will introduce an amendment on Committee Stage in the Dáil and then revert to this House.
I move amendment No. 30:
In page 34, to delete lines 29 to 48 and in page 35, to delete lines 1 to 11.
I second the amendment.
As stated on Committee Stage, the purpose of this amendment is to implement a recommendation of the Law Reform Commission to the effect that only the owners of properties should have a say in respect of whether a development should be taken in charge. The Law Reform Commission noted that the capital value of units owned may be affected where an estate is taken in charge. For example, where an estate's common exterior areas are heavily landscaped, the local authority's taken-in-charge budget may not match the resources required for their upkeep. On the other hand, it might be the case that an estate would be better maintained under the charge of the local authority. In either case, whether an estate is taken in charge can have serious implications in respect of the value of properties. This, in turn, will directly impact on the owners of individual units and, to a much lesser extent, on tenants. Accordingly, I consider it is reasonable that the decision on whether an estate is taken in charge should be made by the owners rather than the occupiers of the units. I am not, therefore, in favour of the proposed amendment.
I move amendment No. 31:
In page 37, line 12, to delete "creation, management, restoration or".
This amendment also relates to language used. We are of the opinion that the Bill is being complicated in circumstances where it is not necessary to do so. The wording used in section 35 is too prescriptive. For example, the phrase "secure the creation, management, restoration or preservation of any site of scientific or ecological interest" is used in paragraph (g). We suggest it would be adequate for the paragraph to read “secure the preservation of any site of scientific or ecological interest”. The amendment is technical in nature and is designed to reduce the level of complexity in the Bill. This section is overly prescriptive in the context of the wording it contains and that is why we have tabled the amendment.
I second the amendment.
Section 35 amends section 212 of the principal Act, which refers to developments by planning authorities. This is an enabling provision to allow such authorities to take proactive steps to protect areas of ecological importance. Much like the other provisions of section 212 of the principal Act, it remains within the discretion of a planning authority to take such measures as it sees fit. Where European, national or local nature sites are threatened, local authorities must have the ability to intervene, where appropriate, to create, manage or restore such sites. This corresponds with the biodiversity responsibilities of local authorities.
As indicated on Committee Stage, local authorities have an important role — indeed a responsibility — to ensure that Ireland complies with its obligations under EU nature conservation law. As pointed out on Committee Stage, section 212 of the principal Act, which section 35 amends, is an enabling rather than an obligatory provision. The proposed new provisions will provide local authorities with an additional set of tools they can use, where warranted, in order to protect the natural heritage in their areas. For these reasons, I cannot accept the amendment.
When is it proposed to sit again?
Ag 10.30 maidin amárach.
