Planning and Development (Amendment) (Large-scale Residential Development) Bill 2021: Second Stage

Question proposed: "That the Bill be now read a Second Time."

Minister for Housing, Local Government and Heritage (Deputy Darragh O'Brien)

I am pleased to have the opportunity to introduce Second Stage of the Planning and Development (Amendment) (Large-scale Residential Development) Bill 2021 to the Seanad. I thank the Cathaoirleach and the Members for facilitating early debate on this very important Bill.

As the House will be aware, the Programme for Government - Our Shared Future committed to not extending the strategic housing development, SHD, planning arrangements, which were introduced under the previous Government's Rebuilding Ireland action plan, beyond their legislative expiry date of 25 February 2022. Furthermore, action 12.3 of the Government's more recent Housing for All action plan, on which we had statements in the Seanad, commits to the introduction of a new planning process for large-scale residential developments, LRDs, to replace the SHD arrangements. I am happy that this Bill delivers on both of these commitments in the programme for Government and Housing for All.

In essence, the provisions contained in the Bill will restore the two-stage planning process for large-scale housing developments, with decision making for such development proposals rightly returning to the local planning authority in the first instance, and with the possibility of subsequent appeal to An Bord Pleanála. In addition to the benefits of returning the primary decision-making function for LRDs to the local level, the reintroduction of an appeal mechanism to the board should assist in reducing the number of judicial review challenges against LRD planning application decisions, contrary to the SHD arrangements, where the only appeal mechanism in that process was a judicial review in the High Court.

Moving to the contents and structure of the Bill, it contains 17 sections, to which I will now turn in more detail. The primary provisions are contained in a limited number of sections, namely, sections 3, 7, and 16, with the supporting provisions for these arrangements contained in the other sections. Rather than go through each section individually, if it is okay with the House, I will instead outline the key elements of the provisions in the Bill.

The proposed new arrangements will retain some of the positive elements of the SHD arrangements, for example, mandatory pre-application consultation of proposed developments between the developer and the planning authority, which can help to tease out issues prior to the submission of the planning application itself, as well as mandatory decision timelines, thereby providing greater certainty for developers in terms of planning timelines. I believe this is very important as we ramp up our housing delivery and planning for the 33,000 homes we need per annum over the course of Housing for All.

The new arrangements will comprise three stages: a pre-application consultation stage, a planning application stage and, if required, an appeal stage. Turning first to the pre-application consultation stage, which is primarily detailed in section 3 of the Bill, this will involve two steps. The first is an initial, more informal pre-application consultation on the proposals between the developer and the planning authority, as already mandated under section 247 of the Planning Act for projects of this scale. This will then be followed by a formal request for a large residential development meeting by the developer, requiring the submission of fairly detailed initial documentation in regard to the proposed development.

Planning authorities will be required to hold such LRD meetings within four weeks of receipt of the meeting request and then issue an LRD opinion within four weeks of that LRD meeting. These are strict timeframes that are provided for in the Bill and will take effect in law once the Bill passes. In effect, the formal pre-application consultation stage will take a maximum of eight weeks in total. The LRD opinion issued by the planning authority will set out whether the documentation submitted by the developer constitutes a reasonable basis for moving to the next stage of the process and submitting a planning application That will identify any issues that need to be addressed when subsequently submitting a planning application.

Drawing from the SHD arrangements, the new pre-application consultation requirement is intended to improve the quality of planning applications received and subsequently submitted in respect of large-scale housing developments and reduce the need for further information requests in respect of subsequently submitted planning applications.

Moving to the second stage of the LRD process, the planning application stage, the new LRD arrangements will rely on the existing section 34 planning application process and will require planning authorities to determine LRD planning applications within eight weeks of receipt of the application, with, as indicated, limited scope for "further information" requests, the details of which will be set out in supplementary regulations once the Bill is passed. We are all aware that further information requests have in the past resulted in considerable delays in determining planning applications. However, the new arrangements are intended to front-load the consideration of a range of issues at the pre-application consultation stage, thereby reducing the need for further information at planning application stage and streamlining the decision-making process.

With regard to the third stage, the appeal stage, which is provided for in section 7, the board will be required to determine LRD appeals within a mandatory 16 weeks of receipt of the appeal, again with very limited scope for further information requests.

The mandatory timelines for the three stages of the LRD planning process, which have the potential to be almost as time-efficient as the SHD arrangements they are replacing, will most importantly bring back decision-making to local authorities, whom I believe will have a better understanding of the applications, thereby providing greater clarity and certainty regarding timelines.

To help ensure adherence to the mandatory timelines, a penalty, payable to the developer, will apply to both the planning authority - 3.5 times the application fee paid or €10,000, whichever is the lesser - and the board, also to a value of €10,000 - for late decisions on LRD planning applications or LRD appeals.

I should also mention one important difference from the outgoing SHD arrangements, which is that the new LRD arrangements will allow up to 30% of the gross floor space of the proposed development to be for commercial or other use instead of the 15% cap that currently exists. The change acknowledges that such developments, particularly in inner-city brownfield sites, which I have had experience of myself, tend to require a greater mix of residential, commercial and other use to take account of the differing needs of inner-city areas, as well as to make LRDs in such inner urban areas more economically viable for developers and to provide for a better design and mix.

In line with the principle of compact growth, more residential development is required in inner urban areas, and this change in the scope of the arrangements is intended to facilitate greater development of brownfield sites in inner urban areas than might otherwise be the case. The Government will also support that with the Croí Cónaithe (cities) fund, the viability fund to develop brownfield sites in cities.

The Bill also proposes a number of transitional arrangements relating to the expiry of the SHD arrangements and their replacement by the new LRD arrangements. There are two scenarios addressed under the transitional arrangements. First, developers with projects already in the SHD system and who, on the commencement of the Act, have received an opinion on their proposals from the board, will have 16 weeks from that commencement date to submit an SHD application to the board. Second, developers who have commenced the SHD process by requesting pre-application consultations with the board and are awaiting an opinion on their proposals on the commencement of the Act will have 16 weeks to submit an application to the board from the date of receipt of the pre-application consultation opinion from the board. In both of these scenarios the board may then take a further 16 weeks to make a determination on the application.

These are fairly standard transitional arrangements which generally apply when changing from one system or process to another. This is a significant change. However, it is important to note that for large-scale housing development proposals which have not commenced the SHD process on the date of commencement of the Act, which it is intended will be 17 December, any such future development proposals for large-scale housing developments will be required to go through the new process. Consequently, it is intended that the 17 December date will effectively mark the transition date from the SHD arrangements to the new large-scale residential development arrangements.

I think Members will agree this Bill contains a number of fundamental and important legislative changes. It restores the two-stage planning process for large-scale residential developments with primary decision-making being returned to local planning authorities in the first instance - rightly so - thereby enhancing local democracy and providing enhanced public participation in the local decision-making process, with members of the public having two opportunities to input to the process - at the planning stage and at the appeal stage. We are retaining some of the positive elements of the SHD arrangements, such as mandatory pre-application consultation and strict decision-making timelines, all of which are aimed at facilitating speedier decision-making in the planning system for much-needed housing supply.

The final point I want to mention is that these proposed new LRD arrangements will have some resourcing implications for local authorities, especially but not exclusively those in the larger urban areas. Both my Department and I are willing to engage further with the local government sector in this regard with a view to ensuring the objectives of the new arrangements can be effectively achieved. I genuinely look forward to listening to the contributions from Senators this evening. Accordingly, I commend the Bill to the House.

Senator John Cummins

I welcome the Minister and thank him for commencing the Bill in the Seanad. I know it is something he committed to doing and he is to be commended on following through on his word in that regard. The primary purpose of the SHD arrangements, which this legislation will supersede, was to speed up the planning decision-making process for well-designed, large-scale housing developments on land already zoned for residential development, especially in larger urban areas where housing demand is most acute, and thereby provide greater planning certainty in terms of timelines within which proposals could be determined. If we think back, delays within the planning process were being used as a key reason a development was blocked, prevented or delayed. Sometimes, we have to do certain things to prove that blockages exist beyond the planning process, and that has been borne out in the lower than expected commencement of SHD permissions, albeit we have started to see a change in that recently. The SHD arrangements were never intended to be a permanent development. That is clear from the limited timeframe identified in Rebuilding Ireland and provided for in the 2016 Act.

The Bill before the House aims to underpin legislatively the making of large-scale residential development applications for more than 100 housing units and 200-bed student accommodation units to local authorities, while also incorporating some of the most beneficial aspects of the SHD arrangements into the two-stage planning process. As the Minister stated, the ultimate goal is to provide a system whereby the best parts of the SHD process can continue, but that we restore the two-stage process and the ability of local councils to make decisions within their local authority areas. What we must do in that process is ensure we do not see an elongation of the timelines, which sometimes has an impact on the viability of developments being pursued by developers.

The way the Bill is structured will have a positive impact and reduce the number of appeals. I hope the fact we are introducing more consultation as part of the process will result in a reduction not only in appeals to the board but also a reduction in judicial reviews, which have bedevilled the SHD process in recent years.

I welcome the retention of the pre-application stage, where the applicant will be required to engage in consultation, as currently mandated under section 247 of the Planning and Development Act, and that an LRD meeting and LRD opinion as to whether the proposals constitute a reasonable basis for submitting a planning application has to be given within eight weeks.

It is vital that this element of the process is done right. It will have resourcing implications for councils. That has to be borne out. The quality of the ultimate applications that come forward and whether they can be successful in the planning application stage, will be based on how good the pre-application stage is. It is, therefore, vital that we get that right. It is vital that all of the timelines attaching to this are adhered to, whether it is the eight-week timeframe for the LRD meeting and LRD opinion, or the eight-week application stage, or the 16-week period for the An Bord Pleanála appeal element.

That brings me to the topic of delays. I welcome that the Minister is introducing a €10,000 payment, where An Bord Pleanála is aware that a decision is not being made within the mandated timelines. I do not think that goes far enough. Large-scale residential applications are now going back to the councils, and this will free up a considerable amount of resources within An Bord Pleanála. Therefore, there should be no reason it cannot meet its statutory timelines. I gave an example on the Order of Business yesterday of a decision on an application by Waterford Airport. The application was lodged in July 2020, to lengthen and widen the runway. There was meant to have been a decision by 26 February of this year. There is still no decision now. The same situation occurred in the case of a 91-unit housing development. A developer is champing at the bit and ready to go. A decision was supposed to have been made in May of this year. The developer is still waiting on a decision. An Bord Pleanála has to be held accountable for those mandated timelines.

It would be remiss of me not to talk about the resource implication. The Minister touched upon this at the end of his contribution. The resource implication was raised by the County and City Management Association, CCMA, at pre-legislative scrutiny. To ensure that there is a smooth operation and a transition from the existing system to the new system, we have to acknowledge that it will require additional planners within local authorities. Anecdotally, at the moment, requests for further information are being made on applications within the local authority sector, even though the further information requests are for documents that may actually be in the application. That is happening because they are under so much pressure as it currently stands. This is happening before the reintroduction of large-scale applications back into the local authority sector. We, therefore, need to both sanction and finance additional resources for local authority areas, particularly the urban local authority areas, where there will be larger-scale developments. Without that, I fear that we are going to see delays. That is not what the Minister wants, it is not what I want, and it is not what the Government wants. I would therefore ask that this is taken on board as part of the roll-out of this legislation.

Senator Rebecca Moynihan

I thank Senator Warfield for allowing me to go ahead. I apologise to the Minister that I have a compulsory purchase order, CPO, meeting at 5 p.m., so I will have to go by then, but I will look back at this debate

I am cautiously in favour of this Bill. I hope that it will not be beset by the same problems that plagued the strategic housing development, SHD, process. These were the granting of entirely inappropriate planning permissions, a huge number of build-to-rent planning permissions and, most of all, developers sitting on permissions granted under the SHD process for years without actually building any homes. Most of all, I welcome the return of local authorities to the planning process when it comes to large-scale residential developments. Local authorities and the constituents that they represent are a vital part of our democracy and our planning system. Excluding them from the SHD process was unjustifiable and did far more harm than good. I am glad to see the Minister following through on the programme for Government commitment that he was going to replace the system.

The SHD review identified issues relating to the activisation of planning permissions in 2019. It noted that the rate was less than might be reasonably expected, taking into account the benefits of saving time, increased certainty for developers, and the resources invested by the State in upgrading the SHD process. The whole purpose of the SHD process, and now the large-scale residential development process, is to fast track the building of homes. If like with the SHD process, it does not achieve that, then it will be a failure. We must ensure that these planning permissions are not treated simply as a way to increase the value of land, but a way to actually provide homes to people across the country. Even if these developments are built, we must ensure that developers are not leaving them lying empty to keep rents artificially high, as we have seen in a number of build-to-rent units within Dublin city. These units have the plastic still on them. People can see them and identify them.

It is also vital that we back up the movements in the planning process with strong use-it-or-lose-it provisions, a vacant sites levy and a vacant homes tax. All of these measures are needed to work together to make something like a large-scale residential development process work as it should do, to provide homes and buildings, and not just enhance the value of land that continues to lie empty.

The site value tax, which has been introduced in the Finance Bill, has so many get-out clauses in how it has been implemented. I worry that it will not cover the majority of people who are using these sites to lay empty. It would be somewhat like the land value tax in its operation. Many of the applications that went through the SHD process were build-to-rent, or were being bought up by investors in their entirety. Good planning requires a balance of accommodation throughout the country. We need density and good apartments provided in urban centres also. However, people do not only want to rent those apartments. They want to own them too.

The Government’s core build-to-rent policy is depriving young and old people, such as in the Minister’s own constituency in Malahide, from accessing decent apartments to make their homes in. People are experiencing huge rents, as seen by the daft.ie report today, which are entirely unaffordable. Build-to-rent, particularly in Dublin city, is dominating our planning permission system. We continue to see large tracks through Dublin city being taken up by recent developments, such as on Clonliffe Road and at Player Wills. People want to buy apartments too.

Studio and one-bed apartments are not exclusively what people call "transient" accommodation. Single people are entitled to stable, secure homes that they own. I am quite concerned that this approach will continue through the LRD system. I am calling on the Minister to ensure that a portion of large developments, even in build-to-rent, are available to owner-occupiers, and also that build-to-rent standards are harmonised with our apartment standards. Some people may be long-term renters. However, if they are living in a highly-dense apartment network they also deserve a balcony and open space. They deserve to be able to open a window and to be able to sit out on the balcony. It is important that we take a look at build-to-rent standards again. The ways in which they are built act against long-term apartment living and long-term homes for renters. We need a holistic approach to planning in order to ensure that the LRD system achieves its goal of providing people with homes and that communities are both mixed tenure and mixed income.

A significant number of SHD permissions were also student accommodation. They had a greater activation rate than apartments. The student accommodation units have also been consistently made up of a large part of commencement notices that are lodged. I hope that the return of local authorities to the planning process for large-scale developments will help end the dominance of inappropriate housing through these fast-track processes. I hope also that we properly engage local communities in the housing that they need, because they are rightfully worried about the long-term impact that this type of housing will have on communities.

Senator Malcolm Byrne

Go raibh maith agat, a iar-Chathaoirligh. I am grateful to the Minister for coming into the House yet again with another piece of legislation to address the housing crisis.

The Minister has said right from the start that his priority, and that of the Government, is to provide homes for people. That means using all the resources of the State in whatever way we can to ensure those homes are built, and if legislative change is required, then that will happen. The Minister is in the Chamber almost every week - he is the Minister who is probably here more than anyone else - introducing legislative changes, with more to come. In fact, it is great to see Senator Moynihan cautiously welcoming some of the legislation. It is important we see that engagement by the Opposition. I am quite certain that, in due course, even Sinn Féin, rather than trotting out the standard "missed opportunity" line - I will wait to see if Senator Warfield uses that line - it may even come up with some constructive lines.

I have huge respect for my colleague, Senator Cummins, and his passion for housing, but this is where there is a very key political difference between Fianna Fáil and Fine Gael. The Minister will know that our party strongly opposed SHDs for quite a number of reasons. He gave a very clear commitment during our discussions before going into government that, as part of the programme for Government, we would get rid of SHDs and empower local government. It is something he has done. It is important that in circumstances where we are empowering local government, and as the Minister said, this legislation gives control back to local councillors, that we give power to councillors, especially to those who want to see housing built in their communities and who do not spend the whole time objecting to it.

The introduction of strategic housing developments in 2016 was a very poor decision. I happened to come across a very prescient letter published in The Irish Times in July 2016, which outlined a number of the problems. It stated that "There is no evidence that local authorities are delaying the granting of planning permission for large estates when those estates are in line with local area plans." It goes on:

In the supply of public housing, the major delays are with the Department of Planning and Housing, which continues to delay releasing funds to local authorities to build, renovate or compulsorily purchase housing.

[...]

Local area plans and county development plans are agreed after extensive processes of consultation with local communities and with government agencies and allow for democratic input into what should be built in our communities, combined with good planning advice.

The letter goes on to ask:

...what additional resources are proposed for An Bord Pleanála if ... [this went ahead]. What guarantees are there that this will not result in significant delays to planning appeals, which will surely defeat ... [this] exercise?

Finally, this is yet another example of removing local authority powers.

That 2016 letter was written by a Councillor Malcolm Byrne, as I was at the time. It reflected a very strong view held by Fianna Fáil councillors and, I know, by the Minister. The evidence is that it is very much the case, unfortunately, that much of what I predicted at the time came true.

I recall when the former Minister of State at the Department of Housing, Planning and Local Government, Deputy Damien English, came to Wexford County Council to talk about this, there was no evidence basis for the decision to introduce SHDs. What we saw was a backlog at An Bord Pleanála and a dramatic increase in the number of judicial reviews. In 2020, An Bord Pleanála had to defend 83 legal cases at a cost of €8.2 million, 20% of which related to SHDs. In many ways, the only ones who benefited from SHDs were planning lawyers.

I am very happy the Minister committed to address this issue and to give powers back to local government. Senators Moynihan and Cummins were correct in stating that it is now key that this frees up resources in An Bord Pleanála. I particularly welcome the provisions in this legislation around mandatory decision timelines. This is a big concern to the construction sector but it is also an issue raised by IDA Ireland. This is not about trying to influence the decision process one way or another but rather giving people reasonable timelines. It is a crazy situation that no real timeline is clearly set out for somebody who applies for a major housing development or a critical piece of infrastructure. That is important. An Bord Pleanála needs to realise that this is coming down the tracks and it has to get with it. I echo the point about the need for extra planners at local government level. I know the Minister is putting housing delivery programme teams in place in every local authority but, on the other side, we need to ensure there are a sufficient number of additional planners.

The Minister knows that this legislation has been strongly welcomed in Fianna Fáil but I encourage him to go even further. We are re-empowering local authorities. This is also being done by making sure the budgets are available for them. I ask that as much of the data as possible are published and made publicly available in addition to giving councillors, through the housing strategic policy committees, SPCs, far greater oversight of the plans to ensure housing is delivered in our community, which will equally ensure councillors will be able to hold planners in the housing delivery teams to account.

What we all want to achieve is the building of more homes in our community. This Bill is one further step as part of the raft of legislation. It is difficult to keep up with the amount of legislation the Minister has been introducing, but this is a very important step forward. Perhaps, in his response, he will indicate how long a developer, who is looking to develop an estate of, for instance, 100 houses, will expect to wait in normal circumstances, and all things being equal, as a result of the legislative changes to ensure we get houses built in our communities.

Senator Fintan Warfield

I welcome the Minister to the House. I also thank his departmental officials for yesterday's briefing, which was very informative. I had to be in the Chamber's ante room so I could not put my video on but I appreciate the briefing, as did my colleagues and Senators across the House.

Sinn Féin supports the legislation. We have some significant concerns about it, which I will come to a little later. When it comes to planning the type of city I want to live in, I want to live in the best place possible. I want good planning, democratic involvement of communities, world-class cycling and walking infrastructure and public transport, affordable housing, well-designed places, a good public realm and arts spaces, cultural venues and nightclubs that are protected from whatever the market forces are, be those office space or hotels. What are the tourists who come here supposed to do if we have no cultural spaces? The Minister's officials have been working with the night-time economy task force and I look forward to continuing those conversations with him.

Sinn Féin opposed the SHD legislation from the start. We welcome the return of the two-stage process involving the council and the board. We also welcome the statutory timelines that Senator Malcolm Byrne mentioned. As many representatives who have been both councillors and Senators will know, the SHD process has been a disaster. This is despite the fact that when the SHD process was going through the Oireachtas in 2016 and 2017, it was left to Sinn Féin and others to oppose it, which we did tooth and nail. We said it would lead to bad planning, planning delays and judicial reviews. We argued very strongly that the two-stage process should be kept, but with clear statutory timelines for pre-planning applications and additional information and board appeals. Fine Gael certainly did not listen to us and, disappointingly, Fianna Fáil Members sat on their hands and abstained.

As a result we have had five years of bad planning decisions. There have been 50 judicial reviews of SHD applications when there were barely any judicial reviews into residential applications before that. It has not resulted in an increased housing supply because the vast majority of SHDs have not even commenced. After five years I welcome the fact that Government is doing what the Opposition, including Sinn Féin, has argued for; namely, that we should go back to the two-stage process with clear statutory timelines for pre-planning, statutory timelines for additional information requests and statutory timelines for the board. Many of us from Dublin and elsewhere know how bad the SHDs have been but I want to put the past behind us.

We in Sinn Féin know planning legislation is complex so we want to get the details right and we are going to be constructive in the Committee Stage and the Report Stage and so on in this House. We have significant concerns and I hope the Minister will take them on board. The first one relates to section 4 of the Bill. We think it is a mistake to restrict the right of local authorities to request further information before making a decision. We are being asked to sign up to something without knowing what the Minister is actually going to do. He spoke about publishing regulations. I ask him to publish these regulations before the Bill passes through the Houses.

The second concern is about section 6 of the Bill. We do not know why section 6 is there. It has nothing to do with residential large-scale developments or SHDs. It changes the procedures for appealing a judicial review decision of the High Court. Why is it in the Bill? Who asked for it? I understand that it was not in the general scheme during the Oireachtas committee pre-legislative scrutiny process. Of the 50 SHD judicial reviews, only two went to the Court of Appeal. It does not seem to be about housing. It does not seem to have anything to do with large-scale residential developments. Can the Minister advise where this section came from and who drafted it?

My most important point is that the legislation which was originally brought in by Eoghan Murphy to extend the SHDs was due to expire in December. Now the Minister is delaying the abolition of SHDs and thereby providing developers with an ample opportunity to submit planning applications using this deeply flawed legislation until June 2022. Unfortunately this legislation is going to be with us through most of 2022 with the process open for planning applications until June 2022. As my colleague Deputy Ó Broin pointed out, some applications will continue until October with the possibility of legal action late into 2022. It is another long goodbye for bad policy. While I commend the ultimate banning of co-living, it took a very long time. We were dealing with co-living decisions still being made until the first quarter of this year. We are giving developers great leeway here in terms of the old process, making it sound as though we are ending something yet giving everyone an opportunity to get their applications in by 16 December. When judicial reviews are taken into account, it is clear that the SHD process will be with us for all of 2022. It took a full month to sign the regulation that gave legal effect to banning co-living and that provided developers with ample opportunity to get their applications in.

It is our intention on Committee Stage to amend sections 4, 6 and, crucially, 16. We do not accept that SHD applications should be allowed to continue into the middle of next year. That is an invitation to get applications in. While I fully support ending these SHDs and replacing them with large-scale residential developments, as we argued for in 2016, I absolutely oppose the transition arrangements.

Senator Michael McDowell

A couple of things occur to me. First, we face a housing emergency and need to have dynamic and early response reactions to the housing crisis that is happening at the moment. Therefore, I commend the Minister on his hands-on approach. He is confounding some of his critics by the dynamism of his approach and his willingness to address the issues quickly. I must commiserate with the Minister that he is in charge of what is possibly one of the worst Departments. I am sorry if any of his officials here take offence at that. The fundamental problem with local government and planning in Ireland has been the attitude of the Custom House to local government. It has been an attitude of distrust, control and clampdown at every stage.

One of our biggest problems has been that we have a negative view of the concept of planning. There is a view that somehow it is the function of local government to set out rules that must be obeyed and to say "if you comply with them you can go ahead but if you do not comply with them you cannot go ahead, and within those two parameters we do not care what you do." One might say it is a liberal point of view to let people do what they want. On occasion, I pretend to be a liberal. Liberalism does not mean an approach, particularly in urban planning, which is based on letting things happen. If large developers assemble sites and develop plans for a 20-storey block here and a ten-storey block there, we should not just let them at it. We should not choose not to intervene other than working out whether the proposal conforms with some preordained set of values.

I strongly believe cities have to be planned. I have had representations made to me as a Senator, which is possibly a futile thing for many people to do, in respect of the area where I live. Representations have been made to me in respect of The O'Rahilly's house on Herbert Park, the site at the corner opposite the Smurfit building on the bottom of Eglinton Road in Dublin 4 and other places. My simple view is that the SHD process has given rise to a theory that virtually anything - a 12-storey apartment block, for example - can be built if a sufficiently large site is assembled. One of the curious things is that I was brought up in a rent-controlled house on Upper Leeson Street where a relatively low-level development, a three-storey development called Leeson Village, now exists. One remnant of that development is the corner site between Appian Way and Upper Leeson Street, which Members may have seen. It is now owned by the Ronan Group, which is proposing a ten-storey apartment block in the middle of nowhere in this precinct which is at most three or four storeys. That is not the only such development.

In Donnybrook village, there was an application for a skyscraper development on the site beside Donnybrook Garda station by Denis O'Brien's company. We are living in a confused state of affairs. Dublin City Council has been emasculated as regards its positive duty to have a vision for what Dublin should look like. Post the Civil War, O'Connell Street was rebuilt according to a city plan. There is no plan anymore. People build skyscrapers, apartment blocks and this, that and the other and it does not matter how these interact with other buildings on the street. With regard to some of the sites I mentioned earlier, to build a 16-storey block of apartments because it comes within a definition of a strategic housing development is a ridiculous way to plan for Donnybrook, Leeson Street or wherever. It does not make any sense at all because it depends on the capacity of a developer to secure 1.5 or 2 acres and then ram up whatever he or she thinks is an appropriate development. We need a different approach.

Building high is not the only way to build intensively. I have friends in the auctioneering business who have said to me that if you look at some areas of Dublin where there is intensive development, namely, the artisan buildings erected in the 1890s-1910s, there is a higher density there than you will ever get in some elevated structures.

I said earlier that the Minister for Housing, Deputy Darragh O'Brien, is in charge of one of the worst Departments in the governmental structure. There has been a complete failure to accredit local government with any real positive planning role. Local authorities cannot CPO without the approval of or the financial go-ahead from the Department of Housing, Local Government and Heritage. They should be taking up derelict, semi-derelict, half developed and, sometimes, undeveloped, precincts of the city and putting in a place a plan for them. They have adequate powers under the Planning Acts and the Housing Acts to make acquisitions, to redevelop and to hand-out leases to third parties to redevelop these premises but they have faced an entirely negative and downward pressure from the Department of Housing, Local Government and Heritage with regard to what they should and should not do. They are being told to stay clear of a particular site - I will not mention any name - until such time as the developer assembles the site and, perhaps, for 20 years, until such time as the row about the ransom site in the middle of it is sorted out, not to apply CPOs and to not use their powers to achieve what they want to achieve.

I welcome where the Minister is going now in terms of re-establishing the two-tier approach. The one-tier approach is very hard to justify. The Minister also needs, in the longer term, to look at his Department. Is the Department trying to control the local authorities or is it willing to trust them, especially the urban authorities, with the capacity to redesign cities and make sense of them?

Senator Frances Black

I welcome the Minister. I am glad to see him here this evening as we debate this important legislation, which, I hope, will be an important piece of the puzzle in terms of addressing the housing crisis.

I broadly welcome the Bill which, in my view, addresses many of the issues that existed in the SHD legislation it will replace. I took serious issue with many of the elements of the SHD process, including that it allowed property developers to circumnavigate the traditional two-step planning process. This limited the power of local authorities to promote the type of residential and commercial development stipulated in their local area plans and limited the influence of local communities in the planning process. I was alarmed to hear recently that of the 210 permissions granted under the SHD legislation, only 72 have been acted on by the applicants. In the case of the other 138 permissions, many applicants have chosen to simply sit on the vacant sites, watching as the land value increases month after month with the SHD permission attached.

The SHD legislation clearly did not have the impact the Government thought it would in terms of the number of SHD units delivered. Sadly, it has not been worth the sacrifices made by local authorities and local communities. My local area has seen a great deal of development and large-scale planning applications in recent years, some of which were facilitated by the SHD legislation. While the development of residential accommodation was to be broadly welcomed, the local community had huge concerns about the extent to which some of the applications contravened local area plans and planning law. In instances where these SHD applications were permitted by An Bord Pleanála, judicial reviews were lodged by local residents. While many have expressed frustration with the construction delays caused by judicial reviews, we must ensure that the ability of an individual or group to request a judicial review is upheld. It is critical that we have the opportunity to challenge perceived contraventions of planning law in court. I trust that this will continue to be facilitated in the context of this legislation.

I welcome the restoration of the two-step planning process, which will ensure that the local authorities resume control of decisions regarding development in their local areas. Doing so restores not only the oversight of local authorities, it allows for local communities to engage with planning applications in the traditional way. While engagement also occurs in the pre-application consultation stages, it is hugely important that the public has the opportunity to engage formally with the planning process throughout the process. A developer can choose to take on board the input of an individual or a community in the pre-application consultation phase or choose to ignore it. Restoring the two-step process ensures that members of the public can make submissions directly to the local authorities. I welcome this provision in the legislation.

I have a number of concerns that I wish to speak to and in respect of which I would welcome responses from the Minister. I am concerned about the resource implications of the Bill for local authorities, especially in urban areas where we see greater volumes of planning applications. I know that the Department has advised that it is open to consulting with local government on this but I would like to hear more regarding the its specific strategy to ensure that local authorities have the resources they require to make well-informed decisions on LRDs in a timely manner. I am also concerned that the Bill seeks to limit the ability of a local authority to request further information on an application, although I accept that this may not be the intention of the Bill. It is really important that the ability of a local authority to seek further information is explicitly protected.

I have spoken already about the number of SHD permissions that have not been acted on. I am concerned that the Bill does not address this in any way and, as a result, we risk the continued facilitation of speculative land hoarding by property developers, which will further distort the property market and maintain the unprecedented pressure on the rental and for-purchase sectors. I would welcome the inclusion of a use-it-or-lose-it clause to remedy this. However, I understand that this is something the Department is not considering at this time. With this in mind, I would like to hear more about the specific strategies of the Department to address this concern as it relates to SHDs and LRDs specifically.

I would like clarification from the Department as to whether the outstanding 7% vacant site levies owed to many local authorities will be collected by Revenue as part of the implementation of the new zoned land tax and then ultimately paid back to the relevant local authority. I welcome the provision of a 30% commercial element in LRD applications. I am concerned about the commercial elements remaining vacant post construction. In my local area, there are a significant number of vacant commercial units at the street level of residential developments and there does not appear to be any incentive for developers to let these spaces. As a result, there is often little application at street level, which does not serve the residents of the development or the local community in any way. Does the Department have any specific strategies to address this issue, perhaps such as a provision for using that to serve the local community while the developer searches for a suitable tenant?

In a similar vein, I am curious about whether the Department can or has considered mandating that a certain number of units within LRDs must be offered for sale to individual buyers. Many strategic housing developments have been planned as exclusively build-to-rent schemes. Local communities consistently cite this when opposing residential planning applications. We have legislated for the provision of 10% social housing within larger developments, which is welcome. Can we do something similar to ensure true mixed tenancy in future large residential developments?

I share the concern expressed by some of my colleagues about the transitional phase and the extent to which this will facilitate strategic housing development applications being submitted until the middle of 2022. I know it is the Department's hope to enact this legislation by 17 December. We need to ensure the SHD legislation is wound down and replaced as a matter of urgency. While developers obviously need to be able to plan for the short and medium term, this transitional phase risks applications being rushed under the SHD legislation. This risk ensures developers continue to reap the benefits of the SHD scheme, which I think we can all agree has been unsuccessful in addressing the housing crisis in any meaningful way.

I reiterate my broad support for this Bill. I look forward to working with the Department and my colleagues in both Houses in the coming weeks to ensure this legislation will achieve the things we want and need to do.

Senator Pat Casey

I welcome the Minister and thank him for the informative briefing yesterday afternoon. I sat on the former Committee on Housing, Planning and Local Government for four years, for three of them with my colleague, the Minister, Deputy O'Brien, and with Deputy Cowen for the year before that. We have always raised concerns about the SHD process and had serious reservations about it. I welcome the legislation that is being brought forward to eliminate that process. At the core of it was the lack of democracy around the SHD process. By reinstating it to the local authorities, we are restoring part of that democratic process. The other bit of it is the detachment the board has with the public, community organisations and people who interacted with the development plan process and were active in that field or with the political process. The board operated in a narrow, confined area where it only met and dealt with developers. This changes that aspect. I welcome it going back to the local authority process.

In response to Senator Warfield, a date has to be put on this at some stage. The date of 16 December is only five weeks away. If I was a developer, would I want to apply to a process that has completely failed with regard to getting an application process through the system to deliver houses or would I wait for a process I have known about for a number of months and which is more streamlined in the long term? I would probably wait for this legislation to come in to bring my application through it rather than use a system that has failed.

I have some reservations about one area, which Senator Warfield mentioned too. It is the area of further information. I believe we should look at further information as a positive to delivering planning permission and not as a negative which slows the process down. I say that for a number of reasons. The strategic housing development process was a professional system. When developers met with the board, they normally sat with 12 or 14 professionals around them. It somewhat excluded the smaller firms of planners or architects who could deliver the smaller scale houses in Wicklow or Arklow as opposed to the bigger developments in the city. Not all information could be provided for them at once. Further information can allow that application to proceed and deliver housing at the end of the day. What I believe is more important is for the local authority to engage now through the consultation and the submission process the public has done. Maybe something that was completely missed through the pre-planning process can be raised through a submission. With further information, that issue raised by a member of the public could possibly be dealt with and the application can be got across the line rather than being refused.

The Minister said this can be done in limited circumstances. I ask him to look at this again and to use further information as a positive and not a negative. If I could ask him to change anything in that process, it would be the timeframe the developer or the applicant has to reply about further information. We cannot bring the local authority into it because it only has 28 days to make its decision, but the applicant has six months to reply to a further information request. Even if the Minister brought that down to a month or six weeks, it would help that process.

I have some issues regarding national policy and county development plan policy. While it is hoped the local authority will have a greater understanding of specific sites because they are in its area, if there is an appeal to the board, I sometimes feel national policy will overrule local development plans. I have some reservation about that.

We can sometimes be too prescriptive in the legislation. While I welcome the 30%, a site anywhere could maybe justify 40% or 35%. Why can it not be site-specific as opposed to legislation prescribing detailed outputs when, at the end of the day, all we are trying to do is build houses?

A number of my colleagues mentioned support for local authorities. While the board had a designated team to deal with the SHD process, that skill level does not exist in each of our local authorities and some assistance will be needed to guide them through that pre-planning process.

Senator Martin Conway

The Minister is always welcome to the House. It is good to see him back here. We spent many days in this House between 2011 and 2016. It was productive and we all learned a lot. The SHD process is much maligned and, to a large extent, rightly so, but it was brought in with good intentions. At the time, the advice given to the Minister was that the structure with local authorities and An Bord Pleanála was not working, which is why the SHD process was introduced. Let us go back to that time and that reason. Of course we would all have wanted to see it be more successful and to have got more housing developments over the line. I reject any implied suggestion that the motivation for the creation of the SHDs was not in any way genuine because that is not true.

This legislation is timely and welcome. Some local authorities have the capability to deliver large-scale projects while others do not. My experience of local authorities as a councillor and as a Senator observing them is that some are great at delivering targets while others are appalling. There is no uniformity, meaning that communities suffer and targets are not delivered. Why are councils regularly not meeting their targets across all sections, be it Traveller accommodation or housing aid for older people? In some cases, almost 100% of the allocation from the Department, given in good faith and negotiated through a budget process, is not spent and is left with the Department. That is unacceptable, yet no questions are answered and no one is held accountable for what is happening in local authorities that fail gloriously to deliver targets. This issue needs to be addressed. I do not know how the Minister can go about doing that, but there are ways and means. Unfortunately, not too many heads roll in the public service. In the private sector, if there is consistent bad management and failure to deliver targets, heads roll because they have to.

Regarding other issues in local authority areas, many casual vacancies are left open for years. By and large, I would give Clare County Council a B grade. It is not bad in some areas. It is very good in some, for example, tourism, but only average in others, for example, the delivery of housing. During the 2020 general election, a person died in a one-bedroom house in a local authority estate near where I live, but that house was only reallocated 14 or 15 months later. That is unacceptable. The slow turnaround in casual vacancies is causing a great deal of trouble.

Councillors have responsibilities as well. The number of objections made to housing developments, particularly social housing developments and Traveller accommodation, never ceases to amaze me. As public representatives, we all have a responsibility to have houses built so that those who need them get them. I appeal to public representatives to think twice before lodging objections to a development. By and large, the professionals employed by the local authority are competent enough to take community observations on board. If that does not work, then a development can be appealed to An Bord Pleanála, which is at least supposed to have the expertise to adjudicate on matters and deal with concerns that were not identified by the local authority.

By having the local authority and An Bord Pleanála involved, we will see a reduction in the number of cases that are judicially reviewed and delayed. The objective is to build more houses. I hope that this legislation assists the Minister in his extremely ambitious plans, which the country and its people need, including families in dire need of accommodation.

Minister for Housing, Local Government and Heritage (Deputy Darragh O'Brien)

I thank the Senators who contributed in a positive way - Senators Cummins, Moynihan, Malcolm Byrne, Warfield, McDowell, Black and Conway and my good friend and colleague, Senator Casey. I have taken note of the points they raised.

I have always been convinced that the best place for planning is with the local authorities. We must resource them to do that work. Every Senator, including Senator McDowell, referenced local authorities as the best place for planning.

I agree with Senator Conway that SHDs were introduced with the best of intentions. They did not work as intended, though, and when something is not working, one does not continue with it. Instead, one changes it and then brings it back. We will need a transitional phase because we cannot just end the process. If people were in the process and we took them out of it, we would be open to challenge. However, I am bringing an end to new SHD applications for people who have not engaged with the process by 17 December, which is well ahead of what was originally envisaged. This was a commitment in the programme for Government but is also something that I firmly believe should be done.

To answer all Seanadóirí who raised the issue of resources, we must ensure that our local authorities are tooled up to do the job. We also need to ensure that, when the legislation is passed, the strict timelines are adhered to. They must be. That is why they are being set in the legislation.

I take the points raised by Senator Casey and others around further information. While there is additional information, its provision and then its clarification can prolong a planning process, and I do not want to see that happening anymore. I will publish the regulations in this regard approximately one week after the Bill passes, so it will be this year. I will be open to people's suggestions and comments.

I have initiated so much legislation in the Seanad because it offers considered debate and scrutiny. I have accepted amendments in the Seanad and brought them to the Dáil. Along with my team and other officials, I will consider any reasonable amendment that is proposed to this Bill on Committee Stage. We need to work quickly, though. Planning needs to be fit for purpose and this is just one of a number of actions we are taking in that regard. A full planning review, headed by my team and the Attorney General, is being done and Senator Burke will shortly introduce a judicial review reform Bill. A great deal needs to be done with the planning system, but Senator Black is correct that people also need to have their say. With SHDs, a large part of the reason for the increased number of judicial reviews was that the only recourse for people to make a case where they felt their say had not been taken on board was to the courts. The courts are not the right place for planning decisions to be made. We will continue to address this matter.

I agree with Senator Warfield that we need our cities, towns and villages planned well, but there needs to be a streamlined process that takes a plan-led approach. One of the deficiencies of SHDs that I have witnessed is that, in some instances, county development plans, local area plans and master plans have been set aside and gone unconsidered. In a plan-led approach, residents and other citizens also need to be aware of it.

There is an issue with objections from people who have no strategic or selfish interest in certain developments. There is a mini industry - a lay industry - of people who, in my view, take judicial reviews that could be regarded as spurious and that block important homes for people and important strategic developments. This is not something that I am willing to allow continue. As Minister, it will require making tough decisions. If we are serious - the Government is, and I am sure the Seanadóirí are as well - about delivering 300,000 homes between now and 2030, including 90,000 social homes and 54,000 affordable homes at least, with the rest being private homes, we will need a planning system that allows it to happen. If we are to deliver the infrastructure that we require to underpin that housing development - for example, wastewater, fresh water, transport and education infrastructure - then we will need a planning system that is robust. This Bill is one part of that work.

The low percentage of planning permissions that are converted into SHDs has been mentioned, with people possibly sitting on land and enhancing values through planning permissions without increasing densities in various areas. The Government is introducing a zoned land tax. This will be a significant move. It will be an annual tax to be administered by Revenue. It will require some work, as it will be a significant change, but it will make a difference.

There is vacant home tax as well, and the land value sharing, which is a Kenny report-style power that has been called for for years and which we will do. All of these things connect to make the planning system better, coupled with what we are doing on housing. They do not happen overnight and housing is not fixed overnight. Some will say there are short, simple solutions to the rental crisis and the increases we see in rents are happening in Ireland alone but they are not. I ask people to cast an eye across continental Europe and our nearest neighbour and look at what is happening post Covid across the world.

There needs to be an element of getting real and local authorities need to deliver on their housing plans. Senator Malcolm Byrne and others, including Senator Conway, mentioned that. With the additional resources and responsibility that local authorities should have and the additional powers we will make sure they have come additional responsibilities to deliver. They are resourced to deliver housing at a scale never done before in the State but they must deliver. That is why the plans being worked through with my Department and local authorities, overseen by me, on the housing delivery targets we will set in place for every local authority across the country, for social, affordable, private homes and homes for sale or rent, will be a clear and transparent process. The funding capital is in place to the end of 2026 on housing. We have put some of the building blocks in place. We are doing it on planning. We have passed the Affordable Housing Act, the Land Development Agency Act and others. They are in place now.

I agree there needs to be transparency around delivery and no local authority has anything to fear on that. Our local councillors will be aware of what the housing plans are and how the local authorities they are elected to are performing versus their peers in the 31 local authorities across the country. We are working well with local government to do that. They will be in place and I expect it to be open, transparent and public as to what we expect to be delivered in Wexford, Wicklow, Clare or one of the four Dublin local authorities. It is incumbent on us to do it.

Many important contributions have been made here, all of which I have noted. I look forward to getting to Committee Stage. I welcome the support across the House for this legislation. It is not the first time we have had unanimity. I have been much criticised, though not in here, for the legislation I bring forward but a sizable percentage of that legislation has been agreed and passed unanimously. We must be doing something right. That is good and it is good to start off Second Stage of this Bill in such a way. I am interested to hear the views of colleagues and look at areas of the Bill we may improve but we need to get it passed expeditiously.

Section 6 is around streamlining judicial review and being able to make sure that a person challenging High Court decisions could leapfrog the Court of Appeal and go directly to the Supreme Court. We have had issues with people taking cases at every stage along the line. That can delay the process.

I have taken the points on board that Senators have mentioned. I thank them for their time and contributions. I look forward to Committee Stage of the Bill.

Sitting suspended at 5.54 p.m. and resumed at 7.18 p.m.

Seanad Éireann díospóireacht -
Wednesday, 10 Nov 2021