This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 113, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. The only matters, therefore, which may be discussed are the amendments made by the Dáil. For Senators' convenience, the Cathaoirleach has arranged for the printing and circulation of the amendments. The Minister of State will deal separately with the subject matter of each group of related amendments. The Cathaoirleach has circulated the proposed groupings in the House. Senators may speak only once on Report Stage. The only matters that may be discussed are the amendments made by the Dáil. I welcome the Minister of State of the House and invite him to speak on the amendments in the first group.
Planning and Development (Amendment) Bill 2009 [Seanad Bill amended by the Dáil]: Report and Final Stages
I am pleased to return to this House with the Planning and Development (Amendment) Bill, as amended by the Dáil. The Dáil amendments have been grouped into thematic areas and I propose to outline each group of amendments to the House. There are a significant number of amendments to the Bill. Some of them are substantial amendments but a number are technical amendments. I reassure Senators that the substantial amendments inserted into this Bill were flagged to this House at the time of the Bill's debate and are required to comply with EU law and to avoid substantial EU fines. Senators will be heartened to hear that a number of the concerns raised during the debate on the Bill in this House have been addressed by amendment in Dáil Éireann.
The first group of amendments to the principal Act are predominantly technical in nature. Amendment No. 1 inserts section 1A into the principal Act to provide a table listing all Community Acts that are given effect through the planning Acts, which is the new section 3 of the Bill. Amendment No. 2 amends section 2 of the principal Act to update the current definitions and to insert a certain number of new definitions through section 3 of the Bill.
On foot of consultation between officials of my Department and officials at the Department of Agriculture, Fisheries and Food since the Bill was passed by Seanad Éireann, amendment No. 3 was introduced to retain the exemption for the construction of forest roads from the planning consent system, as currently provided for under section 4 of the principal Act. The requirements of the environmental impact assessment directive with regard to private forest roads will now be fulfilled through a separate forest consent process as prescribed by EC regulations made by the Minister for Agriculture, Fisheries and Food. In response to the issue raised by the Labour Party, section 4(1)(i) of the Act has also been amended to provide that land reclamation or reclamation of estuarine marshes or callows under the Land Reclamation Act 1949 will no longer be exempt from planning permission. The Minister is also empowered to make regulations to ensure developments that are ordinarily exempted can be de-exempted within specific areas if necessary for the purposes of ensuring that any such development that could have a significant effect on a Natura 2000 site is screened for appropriate assessment and appropriately assessed if required. This amendment is required as part of Ireland's transposition of the habitats directive in section 4 of the Bill.
Amendment No. 4 is a consequential amendment to section 7 of the principal Act on foot of the new Part XA, substitute consent procedure, and the new Part XAB, appropriate assessment of plans and proposed developments, to ascertain whether, having regard to the habitats directive, there would be an adverse effect on the European site. Amendment No. 58 makes a further technical amendment to section 37 of the principal Act which deals with works affecting character of a protected structure or a proposed protected structure. This is in section 26 of the Bill. Amendments Nos. 59, 60, 65, 76 to 79, inclusive, 81, 93 to 95, inclusive, and 97 provide for technical amendments. Amendment No. 96 will not be commenced and will be repealed in due course as the required provision now stands part of a separate Act.
I welcome the Minister of State to the House. I have no doubt about his interest in and passion for proper and sustainable planning, which is shared by many Members on this side of the House. We have concerns with regard to how the Bill has been handled. The Minister of State referred to putting us on notice that the Bill would be heavily amended as it passed through the Houses of the Oireachtas. I remind the Minister of State that when the Bill was initiated in the Seanad, it consisted of 40 pages. It generated quite an amount of debate and Members on this side of the House, as in the Lower House, have concerns about the autonomy of local authorities and the powers of the elected members of local authorities. These are elected on a five-year basis and are closest to the citizen in the governance system. By the time the Bill arrived before the Select Committee on the Environment, Heritage and Local Government, it had increased to 124 pages, a considerable amount of additional substance. I accept that much of this is necessary and is a requirement under EU law. The Minister of State said it is important to address shortfalls in our legislation to ensure Ireland is in compliance with EU law regarding the habitats directive. I understand that but I consider that the information was readily available when the Bill was initiated. Perhaps the Minister of State can clarify if this is the case and why we did not have the information when it was initiated.
Today we have a substantial book of amendments, with more than 120 pages of amendments in addition to the 124 pages discussed in the Select Committee on the Environment, Heritage and Local Government. A substantial portion of this Bill was guillotined through the Lower House without any debate or proper analysis and consideration. As the Minister of State is aware, Members of this House do not get an opportunity to make further amendments at this stage. Moreover, they do not get an opportunity to vote on the amendments but are more or less obliged to accept them as the Minister of State submits them to the Seanad in report.
As Members go through the amendments, I will have some comments to make for the public record. At the outset, however, it appears as though this is quite a substantial Bill that I accept to be necessary in many ways to reform the planning systems and processes to reflect the current and modern needs of society for a sustainable planning model. I will be the first to acknowledge that serious mistakes have been made in the past from which one must learn and many legacies have been left behind by bad planning practices, management and decisions. However, one must be careful to avoid trying to crack the nut with a hammer. There are ways to remodel the planning system to ensure full engagement from local communities and to give them the say in the system the Minister of State claims to be providing. Fine Gael is concerned that in many ways, this planning Bill will manage planning in the future with a top-down approach and that the bottom-up approach is being abandoned to a large degree. This is evident in many areas, even among local authorities that at present are adopting city and county development plans. Even though this Bill has not yet been enacted, the Minister of State is aware that the management of many local authorities already are engaging with it. While that may be as the Minister of State prefers, they are acting as though the Bill is already in place. Many local representatives, who are elected by the citizens on a regular basis and who are accountable to those people for decisions made in those communities, have serious concerns about the Bill's substance and the impact it will have on smaller towns and villages in particular. As I will outline later, a hierarchy is being created through this legislation that more or less will sideline many smaller towns and villages and will take away their ability to exploit their full development potential. This is a genuine concern I outline on behalf of many people to whom I listen and who represent local communities.
The Bill is based on the national spatial strategy, which I consider to be a good model. However, having been in place for eight years, it needs to be reviewed and no analysis of its impact has been conducted. Moreover, it has never been adopted by the Oireachtas but is a Government model. While I acknowledge it contains much that is good, it must be analysed closely to ascertain how successful it has been since its inception. While this issue can be teased out further, I argue that it has not been as successful as intended in some areas and this certainly must be reviewed and analysed to ensure a proper model.
As for the group of amendments under discussion, I accept that many of them are technical in nature and that Ireland is required by European law to comply with them. Only last week it was necessary to rush through emergency legislation on the compulsory purchase order process to prevent a potential exposure of the taxpayer to a significant amount of money with regard to the Galway city bypass. I am aware the Bill contains provision for this matter and that it had passed all Stages in the Dáil. When enacting legislation, one must be careful that any law passed must work for the benefit of society and the people who live within it. Ireland must comply with European law pertaining to special areas of conservation, which I support. However, it is a cause of great concern in rural Ireland, which will be most affected by such directives on habitats, and the deeper consequences and implications of such directives on rural Ireland remain to be seen. Obviously, it will not have the same impact in the city, apart from protected structures and institutions. However, people have been living in rural Ireland for many generations and I suggest they are the people who care most about the natural environment in which they live. Nothing in this legislation should impinge on how they wish to continue to live in rural Ireland. Obviously, existing dwellings in rural Ireland will remain in place but there is grave concern that on foot of this Bill, the building of new houses will not be allowed in any local authority area in rural Ireland. The Minister of State might give Members his views in this regard because were this to be the case, there would be serious problems. This also is a matter that can be discussed further as deliberations on this Bill continue.
All Members welcome this Bill because the planning system probably needed to be tidied up to an extent. One or two items may give rise to conflict. Amendment No. 3, which inserts section 4, includes the words "‘consisting of land reclamation or reclamation of estuarine marsh land and of callows, referred to in section 2 of that Act' after ‘the works are commenced'". However, it may be necessary for some farmers to undertake land reclamation to fulfil the regulations regarding area payments by the European Union. In some cases, farmers have been queried with regard to scrub. I refer to clearing scrub on land or rushes on wetlands, not about removing hedges or anything similar. There have been queries in this regard and in some cases, on foot of the satellite photography that is available to the European Union, queries have been made to ascertain the legitimacy of such lands being classified as grazing ground. Were someone to be queried in this manner and were they obliged to remove such scrub, would it be necessary go through the full planning process to have it removed or can this be achieved in the traditional manner by cutting it away?
Another point about which all Members are worried concerns the question of forestry roads. There is no problem with creating forestry roads but I am worried about the county and regional roads onto which such forestry roads will lead and which will be seriously impacted when the timber is being extracted. Will this Bill facilitate the imposition of limits regarding the tonnage that may be put on some of these roads? All Members will have seen minor county roads that were in reasonable repair being turned into pulp by people who have no consideration for the local community or anyone else. It is simply a case of going in and getting out as quickly as possible and to hell with the damage because the local authority or someone else will pick up the tab. Will such a scenario be covered by the amendments introduced by the Minister of State?
I welcome the Minister of State. I have strong feelings about the question of rural houses. The greatest resource and greatest part of any environment are its people.
While it might not appear to be politically correct, I consider that people come first. Anything that would stop the son or daughter of a farmer or anyone else in a rural community from building on or around the ancestral home should be neither legislated for nor tolerated. At a later stage in the deliberations, the Minister of State should make a clear statement on the position in the future for those who wish to build in the country. I refer to those who wish to maintain a traditional way of life. While one might think it was efficacious to have people moving into villages from the perspective of economies of scale, social engineering and so on, ultimately it is the people's choice to live in the way they do and this should be supported. Consequently, I seek an assurance from the Minister of State in this regard. How does he perceive the influence of the habitats directive on the capacity of people to secure planning?
I refer to a senior county councillor who is a colleague of Senator Wilson and mine in that he is an elected representative from County Cavan. I do not wish to name him because that would be unfair. He was told at a meeting he attended recently that 80% of the planning applications in Cavan would henceforth fail under the terms of this Bill. I seek an assurance from the Minister of State that this is not the case. I believe the failure rate should be 8% given that obviously there are certain conditions in which planning cannot be granted because health and safety issues are involved or the complete ruination of an environment or the building of a monstrosity on the top of a hill is proposed. Everyone is familiar with the exceptions but within reason and while giving people the benefit of the doubt, I believe people should be fit to build where they wish and to live in the communities of which they are part.
I have just had lunch with a family from Cavan. When I told them the Seanad was about to consider the Planning and Development (Amendment) Bill, they said it was very important to them to know their children would have the option to build on their property. That is a reasonable aspiration for any family to have.
I hope Senator O'Reilly who comes from Cavan paid for lunch.
We are legendary for our generosity.
We need assurance on this matter from the Minister of State. I need to know that I will be able to tell a county councillor the 80% provision is not applicable. If it were, it would be very wrong. If we were even remotely party to legislation that applied such a provision, we would be totally remiss in our duties towards the people we represent. It is incumbent on me to make this point. I want the Minister of State to offer assurance.
No planning permission application should fail, unless there are glaring reasons for its failure. Such reasons include health and safety. In the normal run of play the people are the greatest part of the environment. While this may not sound politically correct, wildlife should not come before people. Keeping people at home and happy and building good communities should be our ultimate ambitions. No social engineering that achieved the contrary would be prudent, nor would it be accepting of the indigenous nature of our people. I hope the Minister of State can reassure us on that score.
We have a lot of work to get through this afternoon. I welcome the Minister of State and the technical amendments made. I listened carefully to the Senators opposite and believe we will find common ground on many issues, including the need for sustainable planning and development. Senator Ellis's understatement on there being a need for some tidying up will probably prove to be below the mark later in the day.
The many amendments made are to be welcomed. They will remove a lot of unnecessary demands from councillors, not by way of taking power from them but by giving them a much clearer direction on what is possible. It is most unsatisfactory that the legislation in place is such that a planning decision need only have reference to higher planning documents within the cascade of planning. That this has been the case has left me and other Senators who have acted as county councillors open to undue pressure at times. In many cases throughout the country the existing legislation has caused poor decisions to be made that may have satisfied some short-term need but which have left communities with a legacy of planning problems in the longer term.
As the Bill begins to be understood more broadly, its key themes will be accepted as realistic and inform a realistic assessment of the position in which poor planning has placed us. The Bill is so important because of the role of bad planning in contributing to the bust we are experiencing.
It was through an unhealthy set of relationships, partly caused by the shortcomings of the Planning and Development Act 2000, that considerable overzoning was spawned. This, in turn, led to speculative purchasing on the back of reckless lending. There are untold stories concerning planning, planning advice and council decisions that need to be addressed. The pain we are all enduring with regard to NAMA will be for naught, unless we change the planning system.
The Bill passed through the Dáil on the same day as the Civil Partnership and Certain Rights and Obligations of Cohabitants Bill 2009. Rightly, the latter stole the lion's share of the publicity on the day.
I am still here.
Indeed, the Senator is.
I would like to believe that on this quieter day in the Oireachtas due recognition will be given to the truly important nature of planning legislation. This is a landmark Bill which will create new landmarks on the environment which I hope will be more sustainable.
On Senator O'Reilly's point about families living in the community, I take it he was referring to families from those communities. We are trying to stop unnecessary migration from towns. The Bill will lead to the creation of a better landscape, better planning and more sustainable delivery of services. It will give a better direction to councillors and planners, increase the efficiency of An Bord Pleanála and lead to a wider distribution of development levies in the community. I regard this as a truly important day in legislative terms.
I am very glad to have an opportunity to speak on this Stage of the Bill. I hope to be able to refer to section 33, in particular, but I must attend a meeting of the Joint Committee on Foreign Affairs.
I welcome the emergence of the Bill from the Dáil. It is interesting that the amendments fill a very thick volume. This may suggest the Bill was not as carefully thought out as it might have been. There are 117 pages of amendments to a Bill that I believe has fewer pages. It is unusual and interesting that the Bill, after passing through the Seanad, has been returned from the Dáil with an enormous volume of amendments. Nevertheless, I welcome its return.
I very much welcome the help of the staff of the Houses, particularly those of the Bills Office. I am the first person to advert to the fact that in the old days amendments were grouped according to number. I have not heard anybody else mention this. In recent days amendments were given to us that were grouped not only according to number but also according to subject matter. This is immensely helpful. I thank the civil servants involved for their help in this regard because it makes our work as parliamentarians much easier.
When Senator O'Reilly said it might not be politically correct to say people came first, I felt it was about the most politically correct statement one could possibly make. I certainly support it, but it can be used as a fig leaf for other views.
I have stood in this House as more or less the lone supporter of An Taisce which I acknowledge has made mistakes. It warned us about the difficulties and dangers of one-off developments in the countryside in terms of sewerage, road access and other services and in terms of the cost to the environment and the Exchequer. It was perfectly right on this issue, although it might have made some tendentious objections in certain circumstances. I refer to certain offices around the country.
Let us consider the notion of people living in the countryside.
None of the one-off houses is empty.
Many are empty. Therefore, why are they being built?
They are not empty.
The idea that because one is born on a particular patch of land, all of one's extened family have the automatic right to live there is absolute nonsense. Reference has been made to the flight from the land and the desperate efforts made to bring people back. If a family has ten children, should all ten have the right to build on its land? Can they sell that right? This is complete nonsense and arguing to the contrary is a vote getting exercise. Senators should not tell me they are representing rural Ireland. My family is only one generation in this city. For the previous 2,000 years they lived in the bog. Therefore, I know as much about bogs and rural living as anybody else in this Assembly.
I have reservations, but we should be flexible. If there is a clear and defined relationship between an individual and a family on whose land he or she wants to build, the case should be considered with sensitivity. However, I have never believed in an automatic right. I also deprecate the idea that certain areas can be closed off such that only people from these areas are entitled to build or buy houses there.
If I can detach myself from the Joint Committee on Foreign Affairs, I look forward to returning to the House to discuss section 33. If I cannot, I suggest the Minister of State consider the reservations expressed about it. In particular, it has been suggested the cumulative effect of the provisions could be such as to reduce the capacity of the public to challenge important planning decisions. This relates to charges and whether legal fees should be paid. I hope I will have an opportunity to return. If I do not, I will pass on my briefing document to the Minister of State, as this is an important matter. I know him of old and he is in favour of the widest possible public consultation on these issues. My briefing document suggests that, although the Government is seeking to implement a European directive, the public should be able to seek a judicial review of important planning decisions in a process that is required to be fair, equitable, timely and not prohibitively expensive. With the best will in the world, the Government might not have achieved this result. Therefore,I hope I will have an opportunity to return to make my points, to which the Minister of State may have an answer. If I do not return, I hope I will be excused and not considered rude. I will pass on the points I wish to make to the Minister of State by letter.
I propose to respond to each of the Senators in turn.
Senator Coffey was concerned about the way the Bill had been handled. The discussions between the Attorney General and the European Commission continued until late May. The officials in the Department and the Bills Office worked long hours and pushed themselves hard to ensure the Bill would be ready. In an ideal world I would have had these amendments three months ago, but we needed to engage in protracted negotiations on the transposition of European directives into Irish law. Had it been possible to table them in the Houses earlier, they would have been.
The Bill does not contain too much by way of commands and the control of planning. For the past ten years Ireland has suffered as a result of there being too little planning and a laissez-faire approach. The changes proposed in the Bill will reduce the need for ministerial intervention. The last thing a Minister, irrespective of the political strings on his or her bow, wants to do is to assert the Department’s views over the development plans of individual planning authorities. One could spend one’s life doing this. The proposed changes will ensure co-ordination between what is occurring on the ground within communities and the national spatial strategy. They will also ensure joined-up thinking between all of the elements involved. One does not want national, regional and local policies to differ. The ethos behind the Bill is to ensure joined-up thinking.
Senator Coffey mentioned the national spatial strategy. Although it is eight years old, it is a document which spans a period of 20 years. We are refreshing it to reflect the changed reality of Ireland in 2010. The new document will better inform the decisions that must be made in the next while to ensure we will not duplicate spending on health, education and transport services and social issues to ensure the State will get the best value for money, given the limited amount of cash available.
Regarding rural housing, the rural planning guidelines still stand and are a strong attempt to find a compromise between opinions on whether housing should be located in cities, towns and rural areas. A reasonable compromise is possible. The effect of the Bill on small towns and villages will be beneficial, as no town or village wants to be swamped by unnecessary traffic. We want them to work better and be developed more coherently. We do not want to see an awful, enormous and empty apartment development suddenly appearing two miles outside a town as if by magic. We are trying to ensure there will be no surprises and that there will be some level of commonality, understanding and support for what occurs, instead of the adversarial system evident in recent years, under which developers were pitted against communities and urban dwellers against rural dwellers. The object of the Bill is to ensure co-ordination and a coherent strategy. It will lead to better towns and villages and more vibrant rural areas. People who need to live in the country will be able to do so, but in some areas we have reached the point where one cannot push a buggy down a country road without needing to jump, buggy and all, the moment one hears a car, normally driven by a young blackguard, shooting down the road at 50 mph. We must slow things down and ensure our limited resources will be available to build footpaths where necessary, instead of adopting a scattergun approach, whereby a council acts like a headless chicken in trying to work out where it should spend money to accommodate every demand made on it from north, south, east and west. The rural planning guidelines stand. The Bill is concerned with the better co-ordination of development.
Senator Ellis made a point about land reclamation. We argued the toss on Committee Stage. Through Coastwatch Ireland and the Labour Party, the strong opinion conveyed to me was that we should be careful in wetland and estuarine areas, the areas where endangered species are often found. I am referring to the corncrake and other species that one would like to see co-exist peacefully with humans. We need to get the balance right between people, flora and fauna. I take St. Francis's view of the world more, rather than place humans above everything else. The Bill tries to strike this balance and will not interfere with REPS or the agri-environment programmes. If particular concerns are brought to the attention of the Senator, we will consider them. Given that I have one foot in the door of the Department of Agriculture, Fisheries and Food, I would be happy to pursue any issues raised.
The Bill makes an allowance for forestry roads, but in respect of their connections with public roads, planning permission will be required for health and safety reasons. I take the point about the damage forestry trucks can inflict on minor rural roads. According to an amazing equation, the damage is proportionate to one million times its axle weight. It is for the Department of Transport to address this issue. As I wear a hat in that Department, I might revert to the Minister, Deputy Dempsey, to determine what can be done about it. Overloaded forestry trucks can be a disaster on minor roads.
Senator O'Reilly mentioned the concerns about whether rural dwellings will be permitted. They will be, as the rural planning guidelines still stand. Carefully phrased, they are more than generous for those who need and deserve to live in rural areas in which their families live. I sympathise with Senator Norris in many of his comments in that a child of a rural dweller does not have a God-given right to have a house in the same area. I am one of eight children and grew up in one of the few rural parts of south Dublin. I do not believe that I and my seven brothers and sisters have a right to build a new house beside the family home. The road would not be wide enough to take the amount of traffic. The late Spike Milligan said, I believe, that having five or six children, he had not realised he and his wife had given birth to an entire traffic jam.
When we look back 50 or 100 years to the bailte fearainn that Professor Seamus Caulfield and some great champions of rural life advocate, we moved in very different ways in the countryside then. These days we drive 20 or 30 miles to work very often and we have given rise to an enormous amount of carbon emissions associated with transport. We must be careful in weighing up the strong social and economic ties as to whether we are getting the balance right in that regard.
There are cases where permission is refused, on very strong grounds, and often it is on road safety or flooding grounds or as regards failing percolation tests. I have seen houses with rushes growing up to the back door, and the owners are surprised when the water laps in during heavy rain. Neither I nor any Minister or Minister of State wants to be here in two or three years time in late November watching Jim Fahy telling us how failed planning policies gave rise to building on flood plains. We have brought in flood planning guidelines and I want to see them enforced. I want to ensure that people do not walk blind into buildings somewhere, where it is inappropriate.
Not only have we had significant flooding in many areas, we have also had widespread contamination of water supplies in our towns and cities, whether Ennis or Galway, and very often the roots of these contamination problems lie in inappropriate planning and a lack of thinking as regards agricultural emissions and septic tanks that are not doing the job. This has got to be balanced.
As regards the assertion about 80% of housing being removed, I do not see any evidence for that. I do not see any evidence in the legislation, the regulation or in the circular letter. I invite the Senator to go back and see where that assertion came from because I do not believe it stands up. However, we want to protect people from flooding. We want to ensure they are entitled to clean water and that road safety concerns are addressed. There is tremendous pressure on all of us. I was a councillor for 12 years and I am aware there is enormous pressure to try and sort people out as regards planning and other issues. We have got to get the balance right. I do not apologise for a second for trying to push through the legislation to get the balance right.
I would like to believe we will make it possible for people to live in the right place. I want to make it easier for children to walk to school, for older people to walk to church, the pub or to the shops. That does not mean shoehorning everybody into towns and cities, but it means getting the balance right between people who should be in the countryside being there and those who perhaps are better off in towns, cities or villages having affordable housing available in tandem with decent design and planning. I reiterate that it is the absence rather than a surplus of planning that has got us into the difficulties we are in.
I agree with the concerns raised by Senator Dearey. As he pointed out bad planning or the absence of planning contributed to the enormous legacy we and our children will have to bear, as regards the National Asset Management Agency. I make no bones about it, and believe that if we had thought more carefully about where developments should go and the types that were required as well as whether the community needed them, we would have produced a much better Ireland. In the cold grey light of paying the interest payments on NAMA, we have to think carefully about those issues.
I agree with much of what Senator Norris had to say. I look forward to taking up the debate on section 33 of the Bill perhaps. On the issue of judicial review, we have to get the balance right. I notice some concerns were raised on what is in the draft legislation. I believe we are trying to get a decent compromise between what is necessary to ensure people have access to participate in the planning process while ensuring we do not bog down the courts with vexatious or excessive amounts of judicial review. I hope we have the balance right in that regard.
I invite the Minister of State to deal with the second group, amendments Nos. 5 to 49, inclusive.
This second group of amendments deals with the forward planning aspects of the Bill. Amendment No. 5 amends section 10 of the Bill by inserting subsection(1)(d) to provide for the inclusion of a separate statement in the development plan, which shows that its development objectives are consistent, as far as practicable, with the conservation and protection of the environment.
Amendment No. 6 is required to transpose Article 10 of the habitats directive into Irish planning law. Article 10 of the habitats directive obliges member states to endeavour, where they consider it necessary in their land use and development policies, in particular with a view to improving the ecological coherence of Natura 2000, to encourage the management of features of the landscape that are of major importance for wild flora and fauna.
Among other new mandatory objectives for inclusion in development plans an objective is provided to promote compliance with the water framework directive and its consequent river basin management plans, ensuring that the relevant local authorities set out their objectives in line with the relevant regulations.
Amendments Nos. 7 to 10, inclusive, are technical amendments to the proposed new text of section 10 of the principal Act, and amendment No 11 makes a number of technical procedural amendments to section 11 of the principal Act, which deals with the preparation of a development plan. That is section 6 of the Bill.
I thank the Minister of State for outlining a brief explanation of these amendments.
On Second Stage and Committee Stage we had good engagement on this area, and the whole question of the making of development plans, variation of plans including local area plans etc. I can see the Minister of State's reasoning. He is trying to achieve a consistency across the whole of Ireland, but our concern is that this is a top-down approach, as I said earlier. Everything is emanating from the national spatial strategy, which we see as not being totally legitimate because it has not had any proper environmental assessment or test as to its justification.
If the Minister was changed in the morning his or her successor has the power to change the national spatial strategy. In turn, he or she has the power to change every single regional plan, every development plan and local plan. That is the point we are trying to address here. There is a democratic deficit as regards the national spatial strategy, while I appreciate there is much good in it. However, it is not democratically accountable. It is for the Minister of the day to formulate the national spatial strategy and there are no structures for engagement with stakeholders throughout the country to ensure that it has been properly and democratically arrived at and accounted for. That is the fundamental problem we have with the model the Minister of State is presenting through this Bill.
From the national spatial strategy every regional authority is required to draw up a plan and every constituent local authority development plan is meant to comply with aspirations of the regional plan. I have made the argument on previous Stages as regards the present regional structures not being adapted for this Bill. At the moment delegations from local authorities attend regional authorities. Even the members selected – not elected — for the regional authorities are sent by the constituent local authorities to represent their interests. If the structure was to be properly in keeping with the aspirations of this Bill, therefore, those regional authority members should in fact be directly elected in my view. They should be accountable for the plans they make to the full and entire region they represent. That is a fundamental point I wanted to make on regional plans.
As regards the county and local area plans, every county, town and city is unique in its own right. That is why we have places in Ireland that are culturally very different. Waterford city, for example, has a strong manufacturing tradition and heritage which is reflected in the docklands and Waterford Crystal site. This would be very different from, say, Galway city which has a more cultural and academic background. Accordingly, one size does not fit all.
We need to exploit the uniqueness and cultural potential of cities, towns and villages. However, this planning model will make every town and village the same.
No, it will not.
Yes, it will just create a bland structure.
The Minister of State should consider how the legislation's provisions will trickle down through the planning system. The regional plan for an area or county will limit the potential for any village in it to exploit its full agricultural, manufacturing or cultural history. While I agree with the Minister of State that we need to strike the right balance, this Bill may go too far. As Senator O'Reilly said earlier, a social engineering model is being implemented which may cause the uniqueness of each county's identity to be lost. Waterford will become the same as Cavan, Galway and Limerick.
I took on the Minister of State's points about poor and excessive development. However, this really only occurred in the large estates in the commuter belt around Dublin. There are many areas in Waterford that have not seen any evidence of development. However, this Bill will limit the potential of such areas to develop in a good and proper way. We cannot put the lid on the aspirations of individuals, communities and villages.
Portlaw, County Waterford, the town in which I live, was a social experiment of a model industrial village built in the 19th century by the Quaker family, the Malcolmsons. The family started first with industry and then built the social structures around it. Up to 5,000 people lived in good quality houses never seen previously in Ireland. The streets were wide and laid out in the shape of hand leading to the town centre and then on to the cotton mill. It was an example of what I consider to be good planning.
The problem with current developments is that they do not have social infrastructure attached to them. The Malcolmsons proved that if one builds houses, they must be followed up with social infrastructure. Unfortunately, these successful models are not being examined. This Bill could be a retrograde step by removing planning autonomy that will prevent villages and towns to grow in their unique way.
Another concern about the democratic deficit in this Bill centres on the numbers required to alter a county development plan. Under this legislation, it will take a two-thirds majority of a local authority to adopt the plan when previously it was just a simple majority. This could be a dangerous exercise in that it gives more power to smaller groups on local authorities while taking from the majority. The simple majority in any institution of democracy always rules. This legislation interferes with that fundamental element of democracy by increasing the requirement to a two-thirds majority. This will only increase the power of the minority on a local authority, allowing it to hold the majority to ransom by insisting on the inclusion of its own suggestions in a county or city development plan.
The Minister of State's intentions are good and I can see why he is trying to get it right. However, this legislation will have far deeper consequences for our society than we realise. While I understand it from a political point of view, I am surprised Fianna Fáil, the largest party in the Government, is accepting this Bill without properly analysing its implications on its local authority members and rural Ireland.
I am not for a scatter-gun approach to rural housing development. Constitutionally, however, people are entitled to live where they choose so long as their development is compliant with planning and environmental rules. There are, however, very few one-off houses empty, with nearly all of them inhabited by happy families. There are many estates in cities and major towns, on the other hand, which are empty.
On Second Stage I pointed out that much of the core strategy with regard to this model of planning and development is based on statistics. It is important they are scrutinised and verified before development plans are designed around them. We know the effect when statistics have not been verified. Before the last general election, a survey was done of the electoral register in Waterford city. Anyone who did not get back to the council about it was struck off, leaving thousands without a vote. The statistics used for planning models need to be 100% correct because they will shape the futures of those towns and villages in which people live.
Portlaw, County Waterford, had its own local area plan until now. When I cautioned that it would lose this under this planning model, the Minister claimed a local area plan was not a statutory requirement but the local authority could have one. Waterford local authority is now resisting the calls for a local area plan for this town, blaming a lack of resources and this legislation. For the first time in generations, Portlaw, a planned industrial town, will not have its own local area plan. It will be subsumed into the county development plan. In the eyes of the local authority and the Department, Portlaw will be no different from the other towns in the county. While the Minister of State gives one side of the arguments about this planning legislation and I give the other, finding a balance between the two must be achieved.
That was a great speech.
I want to take up several issues the Minister of State referred to earlier on the guidelines for county development plans. I agree it is important we protect flood plains as we saw the damage earlier this year, especially in Galway, when they were not.
I am keen to talk about the happiness of our population. The Government and some Members are foolish in thinking that people's mental health cannot be affected by the area in which they live. For some, living in a rural area is best for them. For others, it may be a city. I reject Senator Ó Brolcháin's recent claim that Fine Gael was irresponsible when it came to planning. It was a low and cheap shot. Fianna Fáil has always been concerned in facilitating people in building houses where they wanted.
It is not always appropriate for people to live in a cluster or a city. Most of the problems in respect of which I have been contacted at my office in Galway are mental health related based on anti-social behaviour as a result of people being inappropriately clustered together. I grew up in the country and later moved to live in the city. I now live in the country again. I lived in a place called Foster Court in Galway city, which while I loved it for a while I knew was not the place for me to live.
Where in this Bill are people's housing needs on mental and emotional health grounds facilitated?
The Senator is being given great latitude. We are dealing with regional and local plans.
Yes and I am speaking about local and county development plans. The Minister of State said we are putting people, flora and fauna together but all people are not the same. It is not always appropriate for people to live together. One size does not always fit all. I am concerned about the Government following a European model and imposing it on people in Ireland. Is the Government, in particular Fianna Fáil, happy to be driving Irish rural people into clusters in towns and villages?
We are not doing that.
I am keen to hear where in the plan it is provided that a person can get planning in rural Ireland if he or she does not have a connection to the area on work grounds.
I listened with interest to Senator Coffey's contribution. While clearly he is coming from a background of significant knowledge he is, in turn, speaking against himself. Portlaw is a fantastic town as a result of forward planning.
There was no planning in those days.
The Senator said it was a planned town.
The Quakers planned it.
Senator Dearey without interruption, please. I ask Members to speak through the Chair. We must move on with business.
This group of amendments, if removed from the overall set of amendments, would result in a gutting of the legislation. Forward planning is at the core of what we are talking about. We are talking about the development of evidenced based — the Senator is correct that the evidence must be accurate — core strategies that are consequent on the superior planning document and based on the national spatial strategy which, incidentally, was introduced at a time when environmental assessments were not required, from which cascade the regional plans which, if the regional representatives from the various country councils are doing their job properly, will reflect the character of the region and will allow for differing variations, colour and definition in the subsequent development and local area plans.
The assumption that this model is a type of social engineering that will lead to a type of blandness in terms of how Ireland will look in future is based on the premise that all regional plans are the same, which is not the case. I was heavily involved in the development of the Border regional plan. It is a difficult region to plan for as it stretches from Tory Island to the River Boyne on the east coast. The only thing the regions have in common is that they are on the Border. We tried our best to reflect the character of our region. I have no doubt our regional plan is different to that of the south-eastern region. As a result the consequent planning documents will similarly continue to diverge from each other and will reflect the character of the local area.
I understand the reason Senator Coffey is distressed about the fact that a local area plan is not now necessary for a town with a population of under 5,000 people. However, such plan can still be ordered. The Bill does not deliver that as a fait accompli. It is important to make the point that it remains possible for local area plans to be developed in small population centres. I commend this grouping of amendments. I see forward planning as being the absolute driver of this legislation and of the amended Act, which as the Minister of State said was characterised by not keeping a lid on or trying to control the expectations of land owners and developers. I agree in part with Senator Coffey that we cannot completely suppress the entrepreneurial spirit among people with aspirations to develop their properties and so on. However, we do need to control expectations. Owning land does not confer on a person the right to develop it in whatever way he or she would like, which is what the 2000 Act allowed people to do. We have paid the price for that; it was a heavy price. Controlling those aspirations does not amount to social engineering; rather it is responsible planning and the delivery of proper future planning for the entire population so we do not end up having future generations pay for our recklessness.
While I will allow Senator O'Reilly the same latitude as other speakers, I ask that when we move on Senators try to address their comments to the specific amendments before us.
I agree and appreciate that the Acting Chairman will be even-handed in this instance.
Fine Gael accepts that all was not well in the State of Denmark. We know there were unsatisfactory developments. We are painfully aware of it as we drive pass many of them on a daily basis. However, we are concerned that we may be, in providing a solution to the problem, throwing the baby out with the bath water or using a sledge-hammer to hit a nut. As I listened to Senators' contributions on this group of amendments a popular song, all the words of which I cannot recall, came to mind. It is a simple ditty which includes the words, "little boxes, little boxes" which caused me to think we are going to create bland villages.
With the greatest of respect to many of my colleagues who are members of regional authorities, regional authorities are not directly elected. While they have a function and are made up of fine people they are not a directly elected fora nor should they be. I believe in the local authority-county council model and that the county structure is satisfactory. I believe in the county structure for the delivery of all services and I believe in the principle of subsidiarity. I am not convinced of the imposition of regional plans. While we must have guidelines and broad rules I am confident of the genius and capacity of people at local level to plan their futures. People are sobered by their past experiences.
Senator Coffey eloquently articulated that people on regional authorities are not democratically elected and that the regional structures are not responsive to people at a local level as are county councils. Another serious issue arises, one about which we are concerned in terms of its implications in practise. I remind Senators who like me are elected by county councillors that our county councils are energised by and engaged with this issue. Councillors are concerned that it will take a two third majority to alter a development plan. If one removes the majority vote, which is a democratically functioning model used for generations, a small grouping of, say, one third plus one, with an agenda of its own could hold up progress and change the wishes of the people. We are concerned about this, as are councillors. We cannot be too patronising, elitist or doctrinaire in our approach to councillors who are elected representatives with enormous commitment to community and the good of the environment. There is no one more conversant with or patriotic about their areas. They love their communities, which is the reason they do what they do. They are of the community and as such, are very annoyed about this provision. I do not joke about it. The Minister of State can use whatever empirical method he wants to assess this or send a questionnaire to councillors, but I can tell him that they are enraged about the issue. We are concerned about the democratic deficit in planning that will now be apparent. We are concerned about imposition, blandness and the little boxes to be ticked principle.
I believe in the one-off rural house concept. That might not be the trendy view to have and it might not be the view in Dublin 4, but there is a world beyond it.
I believe people have a right to live as they wish. I also believe a local authority should have the capacity to plan, that councillors have a right to make majority decisions and not to have provisions imposed on them. Otherwise, we abandon the concept of local democracy and allow an intellectual elite to lead the country by issuing diktats. If the people wish to be stupid in the eyes of those in Dublin 4, they have that right.
No. With respect, I have great regard for the Senator. He is a great colleague and friend, with connections in my community, but who defines what is meant by laissez-faire planning?
The Senator has given an excellent definition.
Who defines it? We do not have that right.
I suggest that is a matter for another day.
I do not believe people, either in urban or rural areas, have a right to pump cryptosporidium into the water source. I do not believe they have a right to pollute other people's drinking water. I do not believe they have a right to expect services at a cost up to €1 million to be put in place for a house they decide they want to build in a place where a house has never been built previously. I do not believe they have a right to build a house in a way that will detrimentally affect others in the community. I certainly do not believe they have a right to build a house with a septic tank which is not up to scratch right beside a water source. There are many aspects to planning, but in terms of these particular——
Who believes in that?
The Senator is making an accusation by implication which he should address.
I am providing a counterpoint to some of the points made about people having a right to do what they like.
Subject to technical and environmental requirements.
Laissez-faire planning is not something in which I believe. That is the point I am articulating.
A Senator made an interesting remark to me today about these amendments. In recent years in County Monaghan supposedly democratic groups of councillors zoned sufficient land to have a city the size of Dublin built in parts of the county. I find that outrageous. The Minister also considered it outrageous and put a stop to it. He believed he had to do so using the powers available to him. In planning there must be proper checks and balances. We cannot have a situation where enough land is zoned to build a city the size of Galway without recourse to proper planning procedures. That is not feasible or realistic and it is not what happens or will happen. The Bill will ensure there will be a proper policy from the top to the bottom. While grassroots democracy is vital, the Oireachtas is important also in planning. It must set guidelines. It is not a case of deciding that we will not set guidelines, that we will leave it instead to councillors.
I want to make a specific point about something of which I have experience. It relates to the idea that a majority of councillors can put in place a development plan for the future. A majority of councillors can put in place a plan——
Subject to regional planning guidelines.
——and a few weeks later, by simple majority, change it. Implementation is the key in planning. If it is an à la carte plan, it will not work.
They will not do so lightly.
It is lovely to be interrupted, as it proves one has something of value to say, but——
The Senator ignore the interventions from his left.
Planning is one of the most difficult issues one has to deal with as a politician. I was a local councillor for a number of years and mayor of a city. There is huge responsibility attached to these positions, but the level of training——
The Senator did not make a great job of it in dealing with the water problem when he was mayor.
I dispute what Senator Healy Eames said..
The Senator did a terrible job.
In four months we solved the problem. We now have the highest rate of success in the world in tackling the problem of cryptosporidium in Galway. If that is not a good job, I do not know what is, but——
It took a few years to do it.
It only took four months; it normally takes ten years. That is a good job, but obviously the Senator disagrees.
I ask the Senator to speak to the Bill.
There are barbs from the opposite side of the House. If the Chair protected me from this nonsense, I might be able to get a little further with my contribution.
I am trying to make the point that it can be difficult for new councillors because they are not properly trained when it comes to planning. In the Oireachtas a Minister is somebody who has gained a great deal of experience, but insufficient training is provided for councillors. I know of cases in which individual councillors are making serious decisions without understanding the implications. They are going along with the crowd, so to speak. We had a situation in Galway city where eight new councillors dealt with a development plan from day one. That presents a problem. There must be adequate guidelines in place and sufficient training provided. We must take planning seriously.
The issue of one-off rural houses is a red herring. Having proper local area and city development plans, proper regional plans and a proper national spatial strategy working in tandem with each other is the way to go and there is no reason this cannot happen. There is no reason development cannot proceed within that context.
That is Stalinism.
If one reads the national spatial strategy, one will see that it is an excellent document which is not proscriptive when it comes to local area plans. There is a great deal of latitude at local level in that regard. One should be properly trained to ensure good planning. Decision making is a huge responsibility. This Bill is the way to go.
The Senator is sounding Stalinist now.
I do not like the references to Stalinism because Stalin was a very bad planner. I do not want to see Stalinist type planning in cities and towns in this country, rather I want to see good planning which is what will be achieved with this Bill.
I call Senator Ellis who is aware that he may only intervene once.
I am. We are all aware also that some development plans were crazy. I say this in the context of what was allowed to happen in residential areas where no provision was made for back-up facilities. That was the most serious crime committed during the years. We see articles in the newspapers every day about 1,000 houses being built with no provision being made for a community centre, schools and recreational facilities. Local authorities and planners were responsible for this because they decided they wanted to bang together as many people as possible per square mile.
And the Department of the Environment, Heritage and Local Government.
And the Government.
When it comes to development plans, common sense should prevail. I know that for the bulk of county councillors it does. I put in almost 30 years on a local authority and in the early days there were very few planning problems because there was nobody there to live in a place or look for planning. The number of planning applications was minimal. Then we saw the big drive. We also saw some county development plans being influenced by officials who did not take the needs of the people of an area into consideration.
Every one of us is aware of this.
Senator Ó Brolcháin spoke about new councillors. In many cases new councillors are intimidated by some of the officials and led to take decisions that are not in the best interests of the community. If we are to have proper regional development, everybody living in a rural area should have the right to continue to live there if they wish; they should not be forced out of it. That is accepted by everybody, even those who might say people should be moved to towns and villages. Many local authorities did not put in place the necessary infrastructure in some of these villages to allow them to be developed.
It would be much better to see somebody with a septic tank on an acre of ground that has been properly installed, maintained and controlled, or a treatment unit which is what is installed in all new one-off houses. We all know that such units can provide a standard of outflow that is drinkable and can be proved. It is done through the provision of secondary treatment; even some primary treatment units can meet all of the count standards.
Yesterday a number of us from County Leitrim met the Minister, Deputy Gormley, to discuss the problem of one-off houses and the T-test which in some parts of the country cannot be met, despite the fact that there are other means of dealing with the problem. We do not want to see a situation where the T-test becomes the rule of law. To be fair to the Minister, he saw the sense of what we were saying and stated he would have his officials deal with the issue to try to find a compromise solution.
We need to ensure we plan for the future based on ten rather than five year programmes. There should be an initial five year plan to be reviewed after three or four years and then continued for the following five years. We all know it was suggested in the national spatial strategy that the population of some towns would double or treble during its lifetime. However, the population of some will not increase by 10%. When we discuss the revision of development plans, we must be in a position to update them on a regular basis.
I am a little concerned about the two thirds majority required for changes. In some cases lobby groups can exert such pressure on local authority members that they can act not to the good but the detriment of a community, as Senator Ó Brolcháin mentioned. Sometimes revision is required which can be for an ulterior motive. Something can be turned on its head, despite the fact that it has the support of 95% of the local community and 95% of officialdom in a local authority. Perhaps a procedure should have been included in the legislation, whereby, where there is failure to achieve the two thirds majority, the Minister of the day would have the right to intervene if he considered it would be in the interests of the common good.
A lot of ground was covered in those contributions. To respond to Senator Coffey, if there is social engineering in the Bill, it is based on the theory that developers will no longer be able to call the shots; if that is social engineering, I support it. We are restoring the balance with the community having more of an input and greater control over the development plan.
I was really pleased with the way Senator Coffey used Portlaw as an example because it is a planned town. The Quakers did a fantastic job 150 or 200 years ago. They have made a great contribution to Irish society in the past two centuries, but in this instance they thought ahead. They were philanthropic and ensured that not only would the housing needs of their workers be met but that also that they would think beyond this, to consider schools, health care and other issues. We need to return to that fundamental philosophy, not just tick the boxes and let a developer build whatever he or she wants and wherever he or she wants. We want to let the community gain. To me, that is a crucial part of outlining the core strategy in the plan. It will allow the planners and officials to ensure the developer will give back something to the community, as opposed to lashing out houses like snuff at a wake, with scant regard to the needs of the community.
We could cite good examples during the years. We had the Bord na Mona planned towns during the middle part of the last century. Fantastic new communities, with open green areas, were built, with careful consideration being given to how the new houses would be connected with the town. The late Arthur Gibney's father planned them and did a really good job; they have stood the test of time, 50, 60 or 70 years on. It is about thinking about the way towns are planned. If there are limits in the Bill, they are to prevent urban sprawl and every last piece of land being rezoned. I understand that in Waterford the issue is being re-examining. It is being stated one has to think again about the misplaced optimism because if every last acre one, two or three miles out the road is rezoned, it will take away from the town centre where there will be dereliction, with development on the outskirts rather than close to where schools, pubs and churches are located. Irrational exuberance and optimism are very dangerous qualities in elected representatives. What the Bill does is restore a sense of realism to how we plan.
I will not name the small town in question, but I had a delegation to see me to speak about how the council had rezoned every last acre around the town. The owners of the big shopping centre wanted to build on the rezoned land beside the motorway and bypass. That is where the battle is taking place. The town centre traders came to me to state the viability of the town was under threat from the major supermarket multiple. Rezoning the land had laid the seeds of decay in the town centre. Traders who had traded for generations — retailers who had bought turkeys and carrots from the local farmer — would be killed off because of the absence of planning based on hope value. That is why we need to ensure we have a core strategy.
To clarify matters for Senators Ellis and Coffey, we revisited the two thirds majority provision and they will be glad to know that we are removing the proposal that there be a higher approval threshold. They made very good points on a blocking minority.
That is welcome.
We had a good discussion in the Department. We listened carefully and have made a change in response to their concerns.
We are happy Senator Coffey was listened to.
Not at all.
To respond to Senator Healy Eames on mental and emotional health issues, this is a planning and development Bill, not a health Bill. However, since 1 October 1964 the community's concerns have been enshrined. We have discussed that balance between the wider benefits to the community and the well-being of the individual. I think we are striking a balance and as the years go by, the balance gets better. When one looks at the policy documents from organisations as diverse as the Irish Heart Foundation or transport bodies, they all pretty much state we need to have more planning rather than less.
While the core strategy is strong, there also are the rural planning guidelines. They still stand.
What we will be touching on is the urban-generated rural commuting, the long-distance commuting that is tearing the heart out of the countryside because the roads are merely racetracks and tearing the hearts out of our towns, cities and villages because these just have large surface carparks. That is where a balance is being struck. Senator Healy Eames must be careful. She made reference to officials from my Department. In fairness, they cannot respond to her at this debate. She specifically mentioned the problems from DOE officials, and that is unfair.
To what is the Minister of State referring?
She apportioned blame to officials and it is not fair to have put that on the record.
Please remind me.
Maybe I misheard what she stated.
I do not know to what Deputy Cuffe refers.
If I did, I apologise to Senator Healy Eames.
The Irish equivalent of laissez-faire is “whatever you are having yourself”. We have had too much of that and we need to think much more sharply about the problem. Senator Ó Brolcháin spoke of the connection between water contamination and planning. That is very real. In fairness, the then mayor of Galway took strong action.
The people did not feel that.
Is that a biased view?
The Minister of State without interruption.
One may disagree with that, but I certainly believe that the mayor led the initiative to improve the quality of water in Galway at a challenging time.
Senator O'Reilly spoke of little boxes on the hillside made of ticky-tacky. There is a green one and a pink one, and a blue one and a yellow one, and they all are made of ticky-tacky and they all look just the same. That resonates with myself. We agree on that issue.
The problem for far too long in Ireland is that the choices in housing have been limited. They have been limited to a shoe-box apartment in the city, a semi-detached house or a single house in the countryside. We need to provide a greater menu of choices for people in where they live, improve the choice, and give people more possibilities of where and how they live. Good design is crucial to all of that.
We have issued guidelines on design. We have much more in the pipeline on local area plans. That will deal with the issue of everyone living in ticky-tacky houses, playing on the golf course and drinking their martinis dry, which reflected the one-size-fits-all problem which has been a significant legacy of the past 30 years of suburbia. Looking ahead, we want to give people more choice and that might lead to fewer people reaching for the martini glasses.
On the issue of the T-test, we need to apply the most modern technology to how we assess applications. There is a concern out there that this will stop people building where they should build, but it is important to look at the science. There are new technologies and we should use them. Nonetheless, we must take into account flooding issues——
One does not want that.
——road safety and all those other issues that would come back to haunt Ministers in years to come.
We have had a strong debate. We took on board a point about the two thirds majority that Senator Coffey stressed time and again. We have dealt with that. There are some fears about the Bill that I think will translate into pleasant surprise.
That brings the discussion on group 2 to a conclusion. We will move to group 3, where the Minister of State might address the House on amendments Nos. 50, 72, 80, 98 and 99.
This group of amendments provides a number of substantial amendments to the planning Bill, some of which were required to bring the national planning laws into compliance with EU law. The drafting of these complex amendments was not finalised in time for debate in this House but the legal proposals were outlined at that time to this House.
Amendment No. 50 makes a number of amendments to section 34 of the principal Act. Section 34(8)(f) currently provides that where a planning authority fails to make a decision on a planning application within the prescribed period, normally eight weeks from the date of lodgment, a decision to grant permission shall be regarded as having been given on the last day of the period, that is, a default permission. That provision is now considered undesirable. It has been criticised by the High Court and the Supreme Court. It means that if through administrative error a decision is not made in time, a wholly unsuitable type of development could be permitted or even, where the proposed development is accepted in principle, no planning conditions, including conditions requiring a development contribution, may be attached. The amendment to section 34(8)(f) of the principal Act provides that a default decision to grant permission will only be deemed to be given 12 weeks after the expiration of the time for deciding the application. It has been provided that the default decision to grant permission will not apply to applications for development which require environmental impact assessment or appropriate assessment under the habitats directive. In such cases, a series of fines will be paid by the planning authority if it continues not to decide an application. In the highly unlikely event of a year having passed without the planning authority making a decision on the planning application, the application will require to be advertised again at the expense of the planning authority and submissions invited from the public and prescribed bodies. In no uncertain terms, this tells the planning authority to make a decision or else. It deals with the very few cases where a decision has not been made by the planning authority, which is a good thing.
Is any Senator offering? Each may contribute once.
On this issue of substitute consent, I echo a number of concerns that have come to me from already legal, compliant small quarries in Galway, and I am sure this applies nationwide. I emphasise at the outset that the quarries to which I refer are already legal, compliant and with planning. They are not the ones that are illegal, which I completely accept are out of order and which the Department should be pursuing.
To which amendment is Senator Healy Eames speaking?
I am speaking to this set of amendments on quarries.
But which particular amendment?
I assume it is amendment No. 98.
Which particular amendment?
I refer to the substitute consent issue.
Is it amendment No. 98?
It is where the Minister is requiring quarries to apply for substitute consent to An Bord Pleanála when their extracted area is over 3.5 hectares. Some of these small quarries' extracted areas are already over 3.5 hectares if one takes into account their roads and through-ways. On this ruling, can the Minister of State clarify if the Department will be adding the roads and the through-ways as part of the extracted area?
Second, by enforcing this measure in this legislation, the Minister will be imposing considerable professional fees on very small businesses. Many of these quarries employ five to six persons. It has been assessed by two of the quarries that have come to me that this will cost them a minimum of €40,000 in professional fees for services such as those of a hydrologist, a planner, an engineer and whoever is needed to prepare the documents. I am strongly making the case that this is far too harsh. This is not about irresponsible planning. This is about being reasonable. It is far too harsh in that it will affect livelihoods in a detrimental way and affect job retention.
Senator Healy Eames should speak to the amendments rather than make a Second Stage speech.
This is not a Second Stage speech. This is a point. Is it possible to increase the extracted area to five hectares or ensure a quarry may apply to An Bord Pleanála for substitute consent without incurring fees? This would mean jobs would not be lost as a result of the measure. I have no difficulty with the proposal as long as we are not damaging people's livelihoods.
Since no other Senator is offering, I call on the Minister of State to wind up on this group of amendments.
If a quarry is perfectly legal, the issue of substitute consent does not arise.
Group 4 comprises amendments Nos. 51 and 73 to 75, inclusive. I call the Minister of State for opening comments.
Amendment No. 51 amends section 37A of the principal Act to afford an applicant the choice to make an application for a proposed strategic infrastructure development within a strategic development zone, SDZ, in accordance with section 37A or under section 34 of the principal Act. Amendments Nos. 73 to 75, inclusive, provide for technical amendments to sections 168 to 170, inclusive, of the principal Act.
I refer to amendment No. 75 which requires environmental impact assessments for developments in respect of the impact they might have on human beings, flora and fauna, soil, water, air, climate, the landscape, material assets and cultural heritage, and the interaction between the factors mentioned in section 171A of the principal Act. I am aware of several circumstances where air quality in planning legislation is not properly regulated after planning has been granted. Let us suppose an activity is carried out as a result of which an odour or smell emanates. As part of the original planning application, odour assessments are required. Once the planning is granted, there is nothing in law to protect the environment or the human beings in that environment from that activity. I presume the Minister of State cannot address it in this Bill but I call on him to take into account. We must examine the law to ensure no enterprise or development impinges in a negative way on a given environment.
I refer to some examples. Local authority landfill operations are among the greatest offenders. Issues also arise whereby waste management operators work under licence. There is nothing in the licence or the planning laws to require waste management operators to keep the odours emanating from an enterprise to a certain level. My advice from local authority officials is that a change in legislation is required. The Minister of State may be unable to answer me today which I fully understand, but he should take this on board as a point of concern. The legislation must be strengthened in the area of odour control for the protection of the environment. There is strong regulation with regard to noise and physical waste. There is a weakness in the system. I can provide more detail to the Minister of State at a later stage in respect of odour control.
The Minister of State has engaged very positively with us today, which is welcome. While we may not always agree, it is important to hold robust debate, tease out the issues and come up with solutions. I appreciate the fact that the Minister of State and his officials have taken on board the issue of the two thirds majority requirement, removed it from the legislation and replaced it with a simply majority requirement. There are other areas where progress can be made over time if we engage in proper, focused and robust debate. I call on the Minister of State to consider these areas of concern related to odour control. It is not nice to live in an area where an enterprise has been granted planning permission and is producing an odour resulting in a significant negative effect on the people in the area. This remains a concern.
Two aspects occur to me in this regard. If there is an integrated pollution control licence, the conditions applying to that licence must be enforced. If there are planning conditions, it is up to the planning authority to enforce them. The issues of enforcement are of considerable concern to me and the Minister, Deputy Gormley. As the Senator will be aware, we are examining these issues in several planning authorities. If there are specific cases, I call on the Senator to bring them to my attention or that of my officials and we will do our best to address them.
At the heart of a planning system is the presumption that there will be enforcement. If there is not, then the entire planning system could be heavily criticised. Section 172 provides that permission for development in a strategic development zone will be granted if the development complies with the SDZ planning scheme. This amendment ensures the environmental impact assessment and other appropriate assessments must be considered within an SDZ also. That does not touch exactly on the odour issue but I am satisfied it is an issue for planning enforcement. In larger local authorities there is usually an environmental section. In smaller local authorities it falls to enforcement and, sometimes, to the country engineer. There must be robust enforcement of the planning law and especially of planning conditions.
Next is group 5, which comprises amendments Nos. 52 and 53 which refer to permission extensions.
Amendments Nos. 52 and 53 deal with extensions to planning permissions.
These amendments have wide implications. The Minister of State may correct me if I am wrong but the thrust of this change in the law is due partly to the legacy of incomplete developments. It will afford some leeway to developers or NAMA to ensure over time that developments which have been commenced but not finished are given appropriate time for completion. A balanced view would suggest it is better to give that time rather than allow the planning permission to run out and have unfinished estates and all the associated problems that come with them. This is my understanding. However, there is another side to this matter. It relates to unfinished estates or estates finished to a relatively good level but not to a level required by the local authority such that it could take over. I realise we will return to the taking charge of estates at a later stage. However, these amendments deal with permission extensions and they are relevant for the reasons I will outline.
Where permission is extended on a particular development, the local authority does not have the power to enforce or take over that development until the full planning time has elapsed. This will have implications in cases where residents are lobbying to have estates taken over and properly managed by local authorities. If the permission has been extended, the local authority cannot take over such an estate until the full term of the permission has elapsed. It will have implications for those residents and groups which seek for their estates to be taken over sooner rather than later. Will the Minister of State take this into account? The taking charge of estates is a significant issue.
I refer to the issue of bonds. While the intention of a bond system is to ensure a developer finishes an estate, anecdotal evidence suggests these bonds relate only to the superficial finishing of estates such as footpaths, public lighting and the final surface. The bonds do not cover the infrastructural deficits in unfinished estates at present such as sewerage and water schemes.
During the cold snap in January and February this year it was discovered that water mains and the main, fundamental infrastructural elements of housing estates were not installed to proper standards. Local authorities are limited in the extent to which they can enforce the law in this area. They can go after the bonds but this represents only a small percentage of the cost of correcting and rectifying the problems which have arisen.
Much of this comes down to enforcement, proper management and ensuring proper installation of infrastructure when estates are being developed. We can learn from other jurisdictions in this regard. A local authority inspector is allocated to any large estate in Northern Ireland but in this country we rely on engineer's reports. Unfortunately, many of these engineer's reports have been found sadly lacking, to the great detriment of the residents, local authorities and the State. I fully acknowledge this. Councillors did not create this problem. Professional bodies certified infrastructure that was not up to standard and this is a major problem. I agree with the Minister of State that we have inherited many problems and legacy issues but councillors are not the only ones at fault. Professional planners, engineers and officials were involved. I do not point the finger at a specific person but we need to learn from the mistakes and ensure they are not repeated. Let us not point in only one direction. A range of mistakes were made and I have cited one example regarding unfinished estates and permission extensions that has implications. Professional bodies that certified substandard infrastructure have a great deal to answer for.
Some estates have barely started, while others are unfinished. Under section 53, the local authority can impose additional conditions and penalties in granting the five-year extension. What happens if the extension is not sufficient? What future amendments may be in store for us regarding, for instance, rezoned agricultural land on which drainage and initial service works for access have been carried out? It is highly likely an extension would not cover these developments.
I agree with Senator Coffey that when it comes to professional bodies, paper never refused ink in many engineer's reports. One can be led a merry dance by them and they are highly unsatisfactory in some instances.
Group 8 addresses the issue of unfinished estates in more detail. This group deals with the extension of a permission, which can impose further conditions on the issue of the bond. A new provision has been added to the effect that a person who, on the day the section commences, is on an extension of permission can apply for a further extension and the planning authority may grant that where it considers the development has not been completed owing to circumstances beyond the control of the developer. The possibility of securing a second extension was available to all applicants under the 2000 Act but it was decided as a matter of policy to remove it. However, it has been decided to provide that persons currently on an extension who may have had an expectation that they could avail of a second extension may apply for such an extension. Each application will be considered on its merits. While I recognise the fairness of allowing an extension in some cases, people are also living on unfinished estates who want closure and they do not the developer to be given another five years to do very little. The county manager is probably the best person to decide on getting the balance right. One could err on either side on this issue.
We conducted a survey of unfinished estates in the midlands and we hope to extend it throughout the country. We will take the knowledge we get from that and apply it to regulations or a circular.
Group 6 relates to development contributions, the subject matter of amendments Nos. 54 and 55.
These amendments build on the amendments to sections 48 and 49 of the principal Act. They are technical amendments.
Group 7 relates to judicial review, the subject matter of amendments Nos. 56 and 57.
This group deals with judicial review procedures for planning and environmental matters. Amendment No. 56 applies the relevant recommendations of the 2004 Law Reform Commission report on judicial review procedures for planning and environmental consents, and amendment No. 57 gives effect to a particular point of the public participation directive and will comply with the judgment of the European Court of Justice in respect of access to justice in environmental matters. The amendment introduces a provision which will mean that in relevant judicial review cases, parties will only be responsible for their legal costs. The provision will also give the courts the discretion to award costs in favour of a particular party if it is considered to be in the public interest to do so.
The Minister of State referred to county development plans currently being revised. Where dezoning of lands for which planning permission has been granted occurs, will local authority members be exposed to challenges in the court? He may be unable to reply to that question. However, this is a concern for local authorities. If county and city development plans are subject to revision, we need to establish whether elected members will be exposed to court challenge owing to their actions to dezone or to follow instruction under this legislation. This important matter needs to be addressed, if not today, at some point in the future, to put the minds of elected members at ease.
My understanding of the Planning and Development Act 2000 is that where land is dezoned, the elected members are not liable to compensation. However, several options are available if a planning authority is considering changes to its development plan. It can dezone the land or zone the land for a different use. Quite often officials can say the land is more appropriate for industrial use than residential use. The planning authority can consider a prioritisation of development. In other words, the lands closer to the town centre could be developed sequentially before going to the outskirts. For example, Clare County Council is examining this option.
Group 8 relates to taking in charge and housing supply provisions, the subject matter of amendments Nos. 61, 82 to 85, inclusive and 100.
These amendments deal with Part V of the planning Acts relating to taking in charge and housing supply provisions. Amendment No. 61 provides for an important change to section 96 of the principal Act. It will ensure the delivery options available under Part V, which deals with housing supply, will fully reflect the wider restructuring of the social housing investment programme. The shift in emphasis away from an over-reliance on bricks and mortar solutions towards more targeted, flexible supports such as the rental accommodation scheme, RAS, and, more recently, long-term leasing is part of the planned restructuring clearly signposted in the Government's housing policy statement, Delivering Homes, Sustaining Communities. What is now contained in the Bill in addition to the various options under Part V, including the transfer of land or houses on a permanent basis or, in some case, the payment to a planning authority of a financial contribution, provides that local authorities will be able to take houses in charge on a temporary basis under either RAS or a long-term leasing initiative.
I thank the Minister of State for that information. I referred to the taking in charge of estates earlier but the bonds local authorities have for developments cannot be drawn down until a permission expires. That has a serious impact on the taking in charge of estates. For example, if 80% of an estate is completed and residents are trying to put pressure on the local authority to enforce the conditions of the permission where the deadline for the permission is almost up, the local authority can put pressure on the developer to finish the estate.
If we extend that permission another three or five years, that will lengthen the process for the estate to be taken in charge. The Minister of State has said we do not want to extend permission just to allow developers do nothing for another three or five years, but that will be the consequence of any extensions. As a result, we will have hold ups in the taking in charge of estates. This needs to be addressed.
The bond issue also needs to be addressed. I understand from anecdotal evidence that local authorities do not secure sufficient bonds to ensure that if the estate is seriously deficient in infrastructure, it can be completed. The bonds must be strong enough to be able to ensure proper and full completion of the estate. This is another lesson of the property bubble from which we need to learn and I urge the Minister of State to take it into account.
Part V provisions were mentioned in connection with housing provisions. Throughout the country local authorities have been left with housing stock on their hands. They have been left holding the baby in that regard or have been left in contract to take these houses for which there is no demand in large expansive housing estates. This issue needs to be addressed, but I am not aware whether this Bill does so. Local authority housing taken under Part V provisions was originally taken as part of an integration process for social and affordable housing. Does the Bill allow those Part V houses to be sold and is legislation required to facilitate that or is it just a matter of the local authority requesting the permission of the Department or Minister to sell them or find an alternative use for them? Will the Minister of State clarify that for me today or some other day?
Surplus Part V stock is now being directed towards social housing. With regard to whether local authorities can simply sell off that stock, I do not have that information to hand and will come back to the Deputy on it.
We move on to group 9 which relates to An Bord Pleanála membership, oral hearings and fees. Amendments Nos. 62 to 64, inclusive, 66, and 67 are the pertinent amendments.
This grouping of five amendments relates to issues concerning An Bord Pleanála. They empower the Minister to appoint additional members urgently on a short-term basis to deal with areas of significant activity in the economy and empowers him to reduce membership where appropriate. We are also amending the principal Act, through section 106, to empower the Minister to appoint a person with satisfactory experience, competence or qualifications relevant to environmental sustainability issues to be an ordinary member of the board. That involves a consequential, technical amendment. We are also expanding the list of matters under the principal Act under which the board can determine and charge a fee.
I acknowledge the efforts being made to make An Bord Pleanála more efficient. In the past there have been backlogs and delays, but that may have been due to the amount of development taking place. I have no problem with legislation that will improve efficiency and the decision making process within the board. However, we in the Fine Gael Party think it a retrograde step to reduce the number of board members required to make decisions, even in the case of small appeals. This legislation allows for two members of An Bord Pleanála to make a decision rather than the heretofore requirement of three members. We believe it creates a democratic deficit to allow just two members make the decision. Basically, on any committee there is always an odd number making decisions, or at least someone with a casting vote. Reducing the requirement for making a decision to two members is a retrograde step. I understand the logic behind it was to allow greater efficiency by requiring fewer members, but it creates an issue with regard to decision making. There should be at least three members so as to be able to have a natural majority, whether for or against a decision.
I would also, without mentioning a specific case, like to highlight the fact that proper records of meetings where decisions were made by An Bord Pleanála were not kept, yet some of these decisions exposed the taxpayer to high costs due to cases being taken to the High Court. Proper records and minutes of meetings held by An Bord Pleanála members when they made decisions were not always kept. They may have made the right decisions or may not. Proper records were not kept and proper procedures were not followed in a case in Kildare, for example. Any efficient measures or procedures introduced through legislation to ensure a proper and transparent process are welcome.
I was waiting for group 7 amendments and watching the monitor at a meeting and saw the debate move suddenly from group 6 to group 8. The system must be reliable in order for us to be able to participate properly in debate. I wished to speak about amendment No. 57, in particular, which is in group 7.
We have moved to group 9 and must deal with that group.
I have just been told the debate has moved on, but I have also been told that my colleague Senator Norris raised, as a point of order, the difficulty that anybody watching the monitor would not know that the group 7 amendments were dealt with. In the circumstances, I would like to ask for the permission of the House to make one point on the group 7 amendments.
We cannot move back to group 7. I was not in the Chair at the time.
I understand that.
Perhaps it is an issue that could be taken up with the broadcasting unit. We have moved on to group 9 and must deal with that group.
I am sure the intellectual flexibility of Senator Bacik will allow her weave it in and the Minister of State will be agreeable to this.
Senator Bacik to continue without interruption.
I apologise to the Minister of State who is not responsible for what has happened. However, it is impossible to participate in debate when one cannot rely on the monitors we all use when we are not present in the House. I understand group 9 amendments have to do with An Bord Pleanála membership, oral hearings and fees. Generally we see much of this Bill as being progressive in import, but there has been a difficulty — in terms of the lack of scrutiny that has been enabled — for both Houses. Given that 90 amendments were never reached in the Dáil and given the number of amendments made by the Dáil with which we are presented now, it is essentially a new Bill that has come before the Seanad today. Given it is a Bill that started in the Seanad and on which we had an opportunity to debate amendments previously, it is unfortunate we are confronted with such a volume of new amendments at this stage.
Some of the amendments deserve more scrutiny, particularly amendments which could have the effect of limiting access to the courts for individual litigants, particularly environmentalists. These are a serious concern. With respect, I refer, in particular, to amendment No. 57 to section 33 of the Bill because the new section 50B it inserts will have a seriously chilling effect on litigation in the environmental field.
It will also be relevant to group 11.
I take the point being made by Senator Norris that this is also relevant to group 11 and will wait to speak further on it when we reach that group. Having made the point, it is unfortunate we are faced with pressure to complete this. I know we are short of time and that this is the last sitting day. I do not want to lay the issue at the Minister of State's door, but it is most unfortunate that a Bill of this import, with the sort of impact it will have on local democracy, is being rushed through in this way and that we are faced with amendments which were never scrutinised in the Dáil and with which we are confronted for the first time.
On a point of clarification, nothing is being rushed through. We have been here for the past number of hours and have had an excellent debate on all of the groupings. If somebody missed a grouping, perhaps that person should take closer cognisance of what is going on in the House.
I would like the Minister of State to clarify something relating to the planning process. Councils are obliged to make a decision on a planning application within a two-month period. However, there is no statutory obligation on An Bord Pleanála to make a decision within a certain time and as a result it can take up to a year or longer for it to make a decision. In these economically dismal times, it is important that An Bord Pleanála is statutorily obliged to work within a specific timeframe and provide quicker decisions. Will the Minister of State address this point?
I am always cognisant that An Bord Pleanála is a quasi-judicial body and that it must carefully evaluate the case before it. For many, the board is the final adjudicator on their application or on an application in which they take an interest. The Bill introduces more flexibility to ramp up the staffing of the board at a time when it has a lot of cases or, conversely, when the demand is not as great. This introduction of greater flexibility to the board will result in more timely decision making, but I would be cautious on the issue of laying down a guillotine by which decisions would be made. The board has an objective target of 18 weeks and this was achieved in 60% of cases.
Group 10 relates to enforcement, penalties, prosecution and injunctions. Amendments Nos. 68 to 71, inclusive, are relevant.
Amendment No. 68 amends section 153 of the principal Act to increase the enforcement requirements on the planning authority. Amendment No. 69 makes a technical amendment to section 29——
The monitor is still showing group 9.
The House has no control over what is being broadcast. An tAire Stáit to continue without interruption.
It has changed now.
I think someone heard Senator Norris. Amendment No. 69 makes a technical amendment to section 29(c) of the Planning and Development (Amendment) Act 2009, as passed by the Seanad, which increases the minimum fine on summary conviction under section 156(3)(b) of the principal Act from €635 to €5,000. Amendments Nos. 70 and 71 amend sections 157 and 160 of the principal Act, respectively, to remove the seven-year limit for enforcement in respect of quarries and peat extraction, because of the damaging nature of these activities.
Group 11 relates to sections 181A, 181B, 181C, 182A, 182B, 182C and 182D of the 2001 Act and concern cost recovery, consultation and directive requirements. Amendments Nos. 86 to 92, inclusive, and amendment No. 105 are relevant.
This is like bingo night. Amendments Nos. 86 to 92, inclusive and amendment No. 105 technically amend sections 181A, 181B, 181C, 182A and 182C, of the principal Act to comply with the new appropriate assessment provisions being introduced in this Bill. Also under group 11, amendment No. 91 amends section 182C to provide that the board must determine that a proposed development satisfies the criteria set out in section 37A(2) prior to acceptance of the application for approval for a strategic gas infrastructure development. Amendments Nos. 90, 92 and 105 provide further technical amendments to sections 182B and 182D of the principal Act and to section 47DD of the Transport (Railway Infrastructure) Act 2001 to comply with the new appropriate assessment provisions being introduced in this Bill.
I am interested particularly in the alterations to section 33 and the introduction of a new section 50B. This relates to cost recovery and, as I mentioned at the beginning of this debate, the whole matter of the way in which we implement European regulations and directives that require planning decisions to be fair, equitable, timely and not prohibitively expensive. The problem is the section operates on the assumption that adequate compliance is granted with Article 10A, in the sense that applicants can be protected from legal costs ordered against them and that Article 10A does not require that applicants are assisted with their own legal costs. There is a real question about this and whether the section in fact amounts to compliance by Ireland at all. People can be accruing costs for their own side and this only——
Will the Senator clarify to which section he is referring?
Amendments Nos. 91 and 92, I presume.
I understood this was dealing with cost recovery, according to the helpful note. If it is dealing with cost recovery then it certainly should deal with this matter. My brief states that the cumulative effect of the provisions may well be to reduce the capacity of the public to challenge important planning decisions because of the question of costs recovery. If this is incorrect, I am happy to stand corrected but it states very clearly, cost recovery, consultation and directive requirements.
To which particular amendment is the Senator speaking?
I am dealing with group 11 amendments. My briefing notes state that this is the subject matter of these amendments. If I am wrong, then I apologise but this is what the advice states. In any case, the principle certainly stands. For example, if a litigant, an applicant for review, is successful, it is only in the most exceptional circumstances that he or she can recover the costs incurred in making a legal challenge. Otherwise the applicant's full costs spent on lawyers and other necessary environmental experts can never be recovered. This replaces the ordinary rule whereby a successful applicant is only entitled to recover the cost of proceedings. The position of the ordinary citizen is actually disadvantaged as a result of this amendment. I am sorry if I have got it wrong but if I have, it is under official advice. I am talking specifically about the new section 50B introduced in section 33, if the Minister of State is interested in seeing it. What about people who may well conduct their proceedings successfully, briefly and efficiently but in most cases at a heavy cost to themselves, unless they choose to do so without a lawyer? That is the effect of this new amendment. I am very concerned about that because there may be something unintentional here and the interests of ordinary citizens may be militated against unintentionally by the operation of the new section.
In light of this, there should be a specific transitional provision. The Act could apply to proceedings instituted after the commencement or to proceedings issued in respect of acts or omissions which occurred after commencement. The latter would seem to be preferable as using the former would create an incentive to institute proceedings in a rush to have them started pre-commencement. In other words, it could be used as an incentive and this would have a very bad impact, although an unintentional one, on the legislation. I bow to the authority of the Chair and I am sorry if this is in the wrong place. I do not believe it is. Either one set of information I have given is correct and the other is incorrect but I was given it and, as a parliamentarian, I accept the advice I am given by people who know better.
As Micheál Ó Muircheartaigh might say, sílim go bhfuil tú ar fóraoil, which means, Micheál Ó Muircheartaigh might think the Senator was a little wide of the goalpost, but the Senator has made a good point which the Minister of State might like to take up.
Tá an Ghaeilge go flúirseach agat agus blas álainn dílis agat ar fad.
I echo what Senator Norris has said on the issue of cost recovery and on section 33. I agree it gives cause for concern. It is about how the Bill is implementing the provisions of the directive. There is a concern and it has been raised with me by environmentalists and others that the Bill may be in breach of the provisions of the Aarhus Convention guaranteeing access to justice because of the change it makes. Although it protects applicants from legal costs orders against them, as required by the directive, the section really does not do this. The effect of the section will be to exacerbate and worsen the power imbalance that exists between individual environmentalists who litigate and the developers against whom they are generally litigating. Following the bringing into force of this section, which was not, I understand, debated in the Dáil, the environmentalists will be left with no option but to represent themselves in court. There will be significant costs, especially to a solicitor, in taking on a case like this, such as overheads and so on. Many solicitors, as we know, may do that currently on a no foal, no fee basis. There is a concern about access to justice and about its effect upon that. Senator Norris has put it very well. The provisions in some of the amendments in this group 11 refer to reasonable costs. We all agree that costs have to be reasonable and there has been recent reporting about the scandalously high level of legal costs in particular cases. I query as to who determines this. I see it as a theme running through the Bill. The board will determine the matter, according to amendments Nos. 90 and 91. That is why we need to scrutinise provisions to ensure they will not have a chilling effect on environmental litigation or worsen the power and money imbalance between the majority of individual litigants in such cases and the people against whom and the organisations and companies against which they litigate. We must be careful to ensure we are adequately complying with the directive and not worsening the power imbalance and obstructing litigants in taking action in planning cases.
The Acting Chairman has shown significant, if not exceptional, latitude in allowing speakers to raise significant issues in commenting on a new subsection, inserted in all three sections, which requires An Bord Pleanála to state the reasons for its decisions and it is attaching related conditions. The subsection also empowers it to recover its costs. In the interests of permitting discourse and debate on the significant issues to which the Senators referred, I will refer to section 50B.
The question was asked why the new cost rule was required. Its genesis is in Article 10A of the EIA directive which was inserted by the so-called public participation directive, 2003/35/EC. Member states are required to provide for a review procedure that is not prohibitively expensive. Specifically, the new rule is required to ensure Ireland complies with the judgment of the European Court of Justice. Ireland was the subject of EU infringement proceedings relating to the public participation directive which culminated in the judgment of the European Court of Justice last summer, which upheld the system of judicial review as a suitable review mechanism for the purposes of the directive. The court ruled that the judicial review procedure did not meet the requirement that it not be prohibitively expensive. The amendment seeks to remove the cost barrier by ensuring applicants will only be responsible at most for their own legal costs when they initiate judicial review proceedings. The court retains discretion to make a different cost order in specified circumstances. The amendment aims to avoid providing an undue incentive to initiate judicial review proceedings but also removes the very real risk that if the current cost rules were to be litigated before the European Court of Justice, they would be found to be in breach of the terms of the public participation directive.
How will this impact on individuals and NGOs in seeking to challenge decisions? In practice, anyone seeking a judicial review of a decision covered by the new rule will have clarity in advance on the legal costs to be incurred. Regardless of whether they are successful, such individuals will only be responsible for their own costs. Some have asked if this will have a negative impact on pro bono representation. The legal profession has a proud history of providing its services without charge, pro bono publico. A majority of judicial review applications challenging planning decisions fail and in most cases the lawyers involved will not receive payment. Notwithstanding this, there is no evidence that applicants will not be able to secure legal representation because practitioners are willing to give of their time and provide their services pro bono publico. In practice, the deterrent to engaging in judicial review proceedings is not a supposed difficulty in securing legal representation but rather the risk of exposure to liability for the costs of the other side.
I thank the Minister of State for taking the time to respond on the arguments made by Senator Norris and me. The provision may have a chilling effect, even though this is not the intention of the Minister of State. Subsection (4) which changes the entitlement of the court to award costs in favour of a party significantly raises the bar in terms of when costs can be awarded. I do not practise in this area, but many who do, particularly barristers, do pro bono work. It is asking a lot of a solicitor who may have significant overheads in running a case such as this to bear these costs or to insist that litigants bear their own costs because there will be no prospect of winning unless one gets over this very high bar. Subsection (4) may have the unforeseen chilling effect of preventing or obstructing litigation other than by those who have sufficient money to bear their costs. I accept the points made by the Minister of State that in most cases it will prevent costs being awarded against people. That is an advance, but subsection (4) sets the bar too high.
The Minister of State is not required to reply.
It is a challenge to respond to the judgment of the European Court of Justice, but a balance must be struck. We do not want to see the courts being clogged by judicial review proceedings. How can we strike the right balance? This brings us back to the definition of pro bono publico, which means one is acting for the public interest. We must wait and see how this works in practice. I hope it will represent a suitable transposition of the directive which the Green Party wants to be implemented in a consistent, robust and democratic fashion.
I bent the rules a little bit in allowing Senator Bacik to speak twice on Report Stage, as there is a voluminous number of amendments, which is unusual. I will allow Senator Dearey latitude also, as this is an important matter.
This presents a challenge to our party. We all have a background in activism and have been the beneficiaries of pro bono work, in my case in the action against the Sellafield plant which was of exceptional public interest, as was the case concerning Mullaghmore and several others. I do not know how high the hurdle is, but it will be interesting to see how the provision will be interpreted. The public participation directive is a difficult one for people from my political tradition to grapple with and embrace by allowing the public interest to be served by allowing legal challenges to be taken on a pro bono basis. I recognise that in many instances this will remove any prospect of receiving payment to cover administration costs——
For litigants, more importantly.
This presents a major challenge for the legal profession It will be interesting to see how the point about cases of exceptional public importance develop during the years. The Minister of State has done what can be done to allow the tradition to continue.
The 12th group of amendments, amendments Nos. 101 to 104, inclusive, concerns the first and seventh Schedules to the principal Act and amendments to other Acts.
This final group of amendments are to a number of Schedules to the principal Act and a number of other Acts.
- Boyle, Dan.
- Brady, Martin.
- Butler, Larry.
- Carroll, James.
- Carty, John.
- Cassidy, Donie.
- Corrigan, Maria.
- Daly, Mark.
- Dearey, Mark.
- Ellis, John.
- Feeney, Geraldine.
- Glynn, Camillus.
- Hanafin, John.
- Leyden, Terry.
- McDonald, Lisa.
- Mooney, Paschal.
- Norris, David.
- Ó Brolcháin, Niall.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Donovan, Denis.
- O’Malley, Fiona.
- O’Sullivan, Ned.
- Ormonde, Ann.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
- Bacik, Ivana.
- Bradford, Paul.
- Buttimer, Jerry.
- Cannon, Ciaran.
- Coffey, Paudie.
- Coghlan, Paul.
- Cummins, Maurice.
- Doherty, Pearse.
- Donohoe, Paschal.
- Fitzgerald, Frances.
- Healy Eames, Fidelma.
- McCarthy, Michael.
- McFadden, Nicky.
- Mullen, Rónán.
- O’Reilly, Joe.
- O’Toole, Joe.
- Regan, Eugene.
- Ross, Shane.
- Ryan, Brendan.
- Twomey, Liam.
- Boyle, Dan.
- Brady, Martin.
- Butler, Larry.
- Carroll, James.
- Carty, John.
- Cassidy, Donie.
- Corrigan, Maria.
- Daly, Mark.
- Dearey, Mark.
- Ellis, John.
- Feeney, Geraldine.
- Glynn, Camillus.
- Hanafin, John.
- Leyden, Terry.
- McDonald, Lisa.
- Mooney, Paschal.
- Norris, David.
- Ó Brolcháin, Niall.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Donovan, Denis.
- O’Malley, Fiona.
- O’Sullivan, Ned.
- Ormonde, Ann.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
- Bacik, Ivana.
- Bradford, Paul.
- Buttimer, Jerry.
- Cannon, Ciaran.
- Coffey, Paudie.
- Coghlan, Paul.
- Cummins, Maurice.
- Doherty, Pearse.
- Donohoe, Paschal.
- Fitzgerald, Frances.
- Healy Eames, Fidelma.
- McCarthy, Michael.
- McFadden, Nicky.
- Mullen, Rónán.
- O’Reilly, Joe.
- O’Toole, Joe.
- Regan, Eugene.
- Ross, Shane.
- Ryan, Brendan.
- Twomey, Liam.